EXHIBIT 10.9
THE ATRIUM
OFFICE LEASE
For and in consideration of rentals, covenants, and conditions hereinafter set
forth, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
herein described Premises for the term, at the rental rate specified herein and
subject to and upon all of the terms, covenants and agreements set forth in this
lease ("Lease"):
1. SUMMARY OF LEASE PROVISIONS.
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a. Lessee: INKTOMI CORPORATION, A CALIFORNIA CORPORATION
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________________________________________("Lessee").
x. Xxxxxx: NORFOLK ATRIUM, a California limited partnership ("Lessor").
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x. Xxxx of Lease (for reference purposes only): JULY 31, 1997 .
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d. Premises: That certain office space commonly known as 0000 Xxxxx
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Xxxxxxx Xxxxxx, XXXXX 000, Xxx Xxxxx, Xxxxxxxxxx, and shown cross-
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hatched on the reduced floor plan attached hereto as Exhibit "A,"
consisting of approximately fifteen thousand six hundred fifty-four__
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___________________ ( 15,654 ) square feet of Rentable Area, subject
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to expansion pursuant to the terms of this Lease if an option to
expand the leased Premises is expressly granted elsewhere in this
Lease AND XXXXXXXX 0 XXXXXXXX XXXXXX ("xxx Premises"). (ARTICLE 2)
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e. Term: APPROXIMATELY FIVE ( -5- ) years, subject to extension pursuant
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to the terms of this Lease if an option to extend the Term is
expressly granted elsewhere in this Lease. (ARTICLE 3)
f. Commencement Date: SEE ADDENDUM 2 ATTACHED HERETO ("Commencement
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Date"). (ARTICLE 3)
g. Lease Termination: SEE ADDENDUM 2 ATTACHED HERETO ("Expiration
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Date"), unless sooner terminated pursuant to the terms of this Lease.
(ARTICLE 3)
h. Base Rent: MONTHLY BASE RENT SHALL BE AS SET FORTH IN ADDENDUM 3
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("Base Rent"). (ARTICLE 5)
i. Security Deposit: SEE ADDENDUM 4 ATTACHED HERETO______________________
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(ARTICLE 6)
j. Base Expenses: SEVEN AND 10/100THS DOLLARS ($7.10) per square foot per
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year of Rentable Area within the Building. ("Base Expenses"). (ARTICLE
7)
k. Lessee's Percentage Share of Excess Expenses: NINE AND SIXTY-SEVEN
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ONE-HUNDREDTHS PERCENT (9.67%), SUBJECT TO INCREASE AS SET FORTH IN
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ADDENDUM 5 ATTACHED HERETO. (ARTICLE 7)
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l. Parking. Right to use FIFTY-FOUR (54) parking spaces within the
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Common Area, SUBJECT TO INCREASE AS SET FORTH IN ADDENDUM 6 ATTACHED
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HERETO. (ARTICLE 26)
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m. Addresses for Notices:
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Lessor: c/o Maxim Property Management
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
with a concurrent copy to the
Project Management Office at:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Lessee: Inktomi Corporation
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0000 Xxxxx Xxxxxxx Xxxxxx
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Suite 110
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Xxx Xxxxx, Xxxxxxxxxx 00000
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n. Broker: Xxxxxxx & Xxxxxxxxx and BT Commercial . (ARTICLE 53)
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o _____________________________________________________ (ARTICLE 64)
p. Geographic Area. San Mateo, California. (ARTICLE 16)
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q. Summary Provisions in General. Parenthetical references in this
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Article 1 to other articles in this Lease are for convenience of reference, and
designate some of the other Lease articles where applicable provisions are set
forth. All of the terms and conditions of each such referenced article shall be
construed to be incorporated within and made a part of each of the above
referred to Summary of Lease Provisions. If any conflict exists between any
Summary of Lease Provisions as set forth above and the balance of the Lease, the
latter shall control.
2. a. PREMISES DEMISED. Lessor does hereby lease to Lessee and Lessee hereby
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leases from Lessor the Premises described in Article 1.d., subject,
nevertheless, to all of the terms and conditions of this Lease. Calculation of
the actual Rentable Area of the Premises and Building shall be performed by
Lessor's architect, which calculation shall be conclusive and binding upon
Lessor and Lessee. The Premises is shown cross-hatched on the floor plan
attached hereto as Exhibit "A". As used herein, the term "Building" shall mean
the structure in which the Premises are located and the term "Parcel" shall mean
the parcel(s) of land shown on Exhibit "B" attached hereto. The Building and all
other improvements now or hereafter located on the Parcel, if any, are herein
sometimes referred to collectively as the "Project". "Common Area" is defined in
Article 55.
This Lease is subject to all of the terms, covenants and conditions set
forth in this Lease. Lessee covenants as a material part of the consideration
for this Lease to keep and perform each and all of said terms, covenants and
conditions to be kept by Lessee under the Lease.
3. TERM. The term of this Lease shall be for the period designated in Article
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1.e., commencing on the Commencement Date and ending on the Expiration Date set
forth in Article 1.g., unless sooner terminated pursuant to this Lease ("Term").
The expiration or sooner termination of the Lease is hereinafter referred to as
"Lease Termination."
4. POSSESSION.
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a. Construction of Improvements/Delay in Possession. Lessor and Lessee
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agree to the provisions set forth in the work letter annexed hereto as Exhibit
"C" ("Work Letter"). If Lessor, for any reason whatsoever, cannot deliver
possession of the Premises to Lessee at the Commencement Date, this Lease shall
not be void or voidable, except as provided in Addendum 9 attached hereto, nor
shall Lessor be liable to Lessee for any loss or damage resulting therefrom, nor
shall the Expiration Date be extended. Notwithstanding Article 42, if delivery
of possession of the Premises is delayed beyond the Commencement Date, all
Rentals (as described in Article 40.b.) shall be abated during the period
between the Commencement Date and the time when Lessor delivers possession,
unless delay in possession of the Premises was caused or contributed to, by
Lessee or Lessee's agents, officers, employees, contractors, servants, invitees,
or guests (collectively "Lessee's Agents"). Lessor shall be deemed to have
delivered possession to Lessee upon the date that Lessor gives notice to Lessee
that the Premises are available for possession by Lessee.
b. Early Possession. If Lessor permits Lessee to occupy the Premises
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prior to the Commencement Date, such occupancy shall be subject to all the
provisions of this Lease. Said early possession shall not advance the
Expiration Date.
c. Certificates and Licenses. Prior to occupancy, Lessee shall provide
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to Lessor the certificate(s) of insurance required by Article 16 and a copy of
all licenses and authorizations that may be required for the lawful operation of
Lessee's business upon the Premises, including any City business licenses as may
be required.
5. RENT. Lessee agrees to pay to Lessor as rental for the Premises, without
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offset, deduction, prior notice or demand, the monthly Base Rent designated in
Article 1.h., as the same may be adjusted from time to time pursuant to Article
7.a. below.
Base Rent shall be payable in advance on or before the first day of the
first full calendar month of the Term hereof and a like sum, adjusted as
aforesaid, on or before the first day of each and every successive calendar
month thereafter during the Term, except that the first full month's Base Rent
shall be paid upon the execution hereof and the prorated Base Rent payable for
the period, if any, prior to the first full calendar month of the Term shall be
paid on the first day of said first full calendar month. Base Rent for any
period during the Term which is for less than one (1) month shall be prorated
based upon a thirty (30) day month. Said Base Rent shall be paid to Lessor in
lawful money of the United States of America which shall be legal tender at the
time of payment, at the office of the Project, or to such other person or at
such other place as Lessor may from time to time designate in writing.
b. Rent During Extended Term. See addendum 10 attached hereto.
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(See Addendum 4 attached hereto)
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6. SECURITY DEPOSIT.
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7. COST OF LIVING, PROJECT TAXES AND OPERATING EXPENSE ADJUSTMENTS.
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b. Project Taxes and Operating Expenses. Lessee shall pay to Lessor, as
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additional rent and without deduction or offset, Lessee's percentage share set
forth in Article 1.k. ("Lessee's Percentage Share") of the amount by which
annual Project Taxes and Operating Expenses (defined below) allocable to the
Building exceeds the Base Expenses set forth in Article 1.j. The amount by
which such annual Project Taxes and Operating Expenses exceeds Base Expenses
shall hereafter be referred to as "Excess Expenses". Lessee acknowledges that
the amount designated as Base Expenses is not an estimate of what Lessor expects
the annual Project Taxes and Operating Expenses allocable to the Building to be,
and no warranty or representation whatsoever is being made that the actual
Project Taxes and Operating Expenses allocable to the Building will be the
amount designed as Base Expenses. There shall be no reimbursement or allowance
to Lessee if annual Project Taxes and Operating Expenses allocable to the
Building are less than the amount designated as Base Expenses. Lessee's
Percentage Share shall be determined by dividing the Rentable Area of the
Premises by the total Rentable Area in the Building. Lessee's Percentage Share
shall be subject to an equitable adjustment upon a condemnation, sale by Lessor
of part of the Project, reconstruction after damage or destruction or expansion
or reduction of the areas within the Project. Lessee's Percentage Share of
Excess Expenses shall be payable during the Term in equal monthly installments
on the first day of each month in advance, without deduction, offset or prior
demand.
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At any time during the Term, Lessor may give Lessee notice of Lessor's
estimate of the Excess Expenses for the current calendar year. An amount equal
to one twelfth (1/12) of Lessee's Percentage Share of the estimated Excess
Expenses shall be payable monthly by Lessee as aforesaid, commencing on the
first day of the calendar month following thirty (30) days written notice and
continuing until receipt of any notice of adjustment from Lessor given pursuant
to this paragraph. Until notice of the estimated Operating Expenses and Project
Taxes for a subsequent calendar year is delivered to Lessee, Lessee shall
continue to pay its Percentage Share of Excess Expenses on the basis of the
prior year's estimate. Lessor may at any time during the Term adjust estimates
of the Operating Expenses and Project Taxes to reflect current expenditures and
following Lessor's written notice to Lessee of such revised estimate, subsequent
payments by Lessee shall be based upon such revised estimate.
If the Commencement Date is on a date other than the first day of a
calendar year, the amount of the Excess Expenses payable by Lessee in such
calendar year shall be prorated on the basis which the number of days from the
Commencement Date to the end of the calendar year in which the Commencement Date
falls bears to three hundred sixty (360).
Within ninety (90) days after the end of each calendar year during the Term
or as soon thereafter as practicable, Lessor will furnish to Lessee a statement
("Lessor's Statement") setting forth in reasonable detail the actual Project
Taxes and Operating Expenses paid or incurred by Lessor during the preceding
year, and thereupon within ten (10) days an adjustment will be made by Lessee's
payment to Lessor or credit to Lessee by Lessor against the Excess Expenses next
becoming due from Lessee, as the case may require, to the end that Lessor shall
receive the entire amount of Lessee's Percentage Share of Excess Expenses for
such calendar year and no more. If, based on Lessor's Statement a payment from
Lessee is required, Lessee shall not have the right to withhold or defer such
payment pending a review of Lessor's books and records pursuant to the following
paragraph or the resolution of any dispute relating to Project Taxes and
Operating Expenses. If the Expiration Date is on a day other than the last day
of a calendar year, the amount of Excess Expenses payable by Lessee for the
calendar year in which Lease Expiration falls shall be prorated on the basis
which the number of days from the commencement of such calendar year to and
including such Expiration Date bears to three hundred sixty (360). The
Termination of this Lease shall not affect the obligations of Lessor and Lessee
pursuant to this Article 7.
Within sixty (60) days after Lessee receives a statement of actual Project
Taxes and Operating Expenses paid or incurred for a calendar year, Lessee shall
have the right, upon written demand and reasonable notice, to inspect Lessor's
books and records relating to such Project Taxes and Operating Expenses for the
calendar year covered by Lessor's Statement for the purpose of verifying the
amount set forth in such statement. Such inspection shall be made during
Lessor's normal business hours, at the place where such books and records are
customarily maintained by Lessor. Unless Lessee asserts in writing a specific
error within ninety (90) days following Lessee's receipt of Lessor's Statement,
the amounts set forth in Lessor's Statement shall be conclusively deemed correct
and binding on Lessee.
Notwithstanding anything contained in this Article 7 to the contrary,
express or implied, Rentals payable by Lessee shall in no event be less than the
Base Rent specified in Article 5, as adjusted from time to time pursuant to this
Lease.
(i) Operating Expenses. "Operating Expenses" means all of the
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Building Service Expenses and an allocable portion of the Exterior Common Area
Expenses as follows:
(A) Building Service Expenses. Operating Expenses shall include
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all costs of operation, maintenance, repair and management of the Building,
including the Premises, and Building Common Area (defined in Article 55),
hereinafter collectively referred to as "Building Service Expenses," as
determined by standard accounting practices. Building Service Expenses as used
herein shall include, but not be limited to, all sums expended in connection
with all general maintenance and repairs, painting, cleaning, sweeping and
janitorial services; maintenance and repair of signs, indoor plants, and
atriums; trash removal; sewage; electricity, gas, water and any other utilities
(including any temporary or permanent utility surcharge or other exaction
whether now or hereafter imposed); maintenance and repair of any fire protection
systems, elevator systems, lighting systems, storm drainage systems, HVAC, air
conditioning and heating and other utility systems; any governmental imposition
or surcharge imposed upon Lessor or assessed against the Building or the
Project; all costs and expenses pertaining to a security alarm system for the
tenants in the Building, if Lessor deems necessary in Lessor's reasonable
discretion; materials; supplies; tools; depreciation on maintenance and
operating machinery and equipment (if owned) and rental paid for such machinery
and equipment (if rented); service agreements on equipment; maintenance, and
repair of the roof (including repair of leaks and resurfacing) and the exterior
surfaces of all improvements (including painting); maintenance and repair of
structural parts (including repair of leaks and resurfacing) and the exterior
surfaces of all improvements (including painting); maintenance and repair of
structural parts (including foundation, floor slabs and load bearing walls);
window cleaning; elevator or escalator services; material handling; fees for
licenses and permits relating to the Building; the cost of complying with rules,
regulations and orders of governmental authorities; Building office rent or
rental value; accounting and legal fees; the cost of contesting the validity or
applicability of any governmental enactment which may affect Building Service
Expenses or Project Taxes attributable to the Project, including the Premises
and the Building; personnel to implement such services, including, if Lessor
deems necessary, the cost of security guards and valet attendants; public
liability, environmental impairment, property damage and fire and extended
coverage insurance on the Project and the Building thereon (in such amounts and
providing such coverage as determined in Lessor's sole discretion and which may
include, without limitation, liability, all risk property, lessor's risk
liability, war risk, vandalism, malicious mischief, boiler and machinery, rental
income, earthquake, flood and worker's compensation insurance); compensation and
fringe benefits payable to all persons employed by Lessor in connection with the
operation, maintenance, repair and management of the Project, including
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the Premises and the Building; and a management fee equal to five percent (5%)
of gross receipts from the Building, including all rentals and parking receipts
therefrom. Lessor may cause any or all of said services to be provided by an
independent contractor or contractors, or they may be rendered by Lessor. In the
event Lessor makes capital improvements which have the effect of reducing
Building Services Expense, Lessor may amortize its investment in said
improvements as a Building Service Expense in accordance with standard
accounting practices provided that such amortization is not at a rate greater
than the anticipated savings in the Building Service Expenses. It is the intent
of the parties hereto that Building Service Expenses shall include every cost
paid or incurred by Lessor in connection with the operation, maintenance, repair
and management of the Project, including the Premises and the Building, and the
specific examples of Building Service Expenses stated in this Article 7 are in
no way intended to, and shall not limit the costs comprising Building Service
Expenses, nor shall such examples be deemed to obligate Lessor to incur such
costs or to provide such services or to take such actions except as Lessor may
be expressly required in other portions of this Lease, or except as Lessor, in
its sole discretion, may elect. The maintenance of the Project, including the
Premises and the Building, shall be at the sole discretion of Lessor and all
costs incurred by Lessor in good faith shall be deemed conclusively binding on
Lessee. In the event that less than one hundred percent (100%) of the Building
is occupied during any calendar year, all Building Service Expenses on the
statements provided by Lessor shall be adjusted for each calendar year to equal
Lessor's reasonable estimate of Building Service Expenses had one hundred
percent (100%) of the total rentable area of the Building been occupied.
Statements of the Building Service Expenses provided by Lessor shall be final
and binding upon both Lessor and Lessee; plus
(B) Exterior Common Area Expenses. Operating Expenses shall
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include that portion of all direct costs of operation, maintenance, repair and
management of the Exterior Common Area (determined by standard accounting
practices) allocable to the Building containing the Premises (collectively,
"Exterior Common Area Expense"). Such costs shall be allocated by Lessor between
the Building containing the Premises and the other buildings located within the
Project from time to time and having the right to use the Exterior Common Area,
in such manner as Lessor reasonably determines in good faith. Exterior Common
Area Expenses as used herein shall include, but not be limited to, all sums
expended in connection with all general maintenance and repairs, resurfacing,
painting, restriping, cleaning, sweeping, and janitorial services; maintenance
and repair of sidewalks, curbs, signs and other Exterior Common Areas;
maintenance and repair of sprinkler systems, planting, and landscaping; trash
removal; sewage; electricity, gas, water and any other utilities (including any
temporary or permanent utility surcharge or other exaction whether now or
hereafter imposed); maintenance and repair of directional signs and other
markers and bumpers; maintenance and repair of any fire protection systems,
elevator systems, lighting systems, storm drainage systems and other utility
systems; any governmental imposition or surcharge imposed upon Lessor or
assessed against the Exterior Common Area; materials; supplies, tools;
depreciation on maintenance and operating machinery and equipment (if owned) and
rental paid for such machinery and equipment (if rented); service agreements on
equipment; maintenance and repair of parking areas and parking structures, if
any; maintenance and repair of structural parts (including foundation and floor
slabs); elevator services, if applicable; material handling; fees for licenses
and permits relating to the Exterior Common Area; the cost of complying with
rules, regulation and orders of governmental authorities; accounting and legal
fees; the cost of contesting the validity or applicability of any governmental
enactment which may affect Project Taxes attributable to the Exterior Common
Area; personnel to implement such services, including if Lessor deems necessary,
the cost of security guards and valet attendants; public liability,
environmental impairments, property damage and fire and extended coverage
insurance on Exterior Common Area (in such amounts and providing such coverage
as determined in Lessor's sole discretion and which may include, without
limitation, liability, all risk property, lessor's risk liability, war risk,
vandalism, malicious mischief, sprinkler leakage, boiler and machinery, parking
income, earthquake, flood and worker's compensation insurance); and compensation
and fringe benefits payable to all persons employed by Lessor in connection with
the operation, maintenance, repair and management of the Exterior Common Area.
Lessor may cause any or all of said services to be provided by an independent
contractor or contractors, or they may be rendered by Lessor. In the event
Lessor makes capital improvements which have the effect of reducing Exterior
Common Area Expenses, Lessor may amortize its investment in said improvements as
an Exterior Common Area Expense in accordance with standard accounting practices
provided that such amortization is not at a rate greater than the anticipated
savings in the Exterior Common Area Expenses. It is the intent of the parties
hereto that Exterior Common Area Expenses shall include every cost paid or
incurred by Lessor in connection with the operation, maintenance, repair and
management of the Exterior Common Area, and the specific examples of Exterior
Common Area Expenses stated in this Article 7 are in no way intended to, and
shall not limit the costs comprising Exterior Common Area Expenses, nor shall
such examples be deemed to obligate Lessor to incur such costs or to provide
such services or to take such actions except as Lessor may be expressly required
in other portions of this Lease, or except as Lessor, in its sole discretion,
may elect. The maintenance of the Exterior Common Area shall be at the sole
discretion of Lessor and all costs incurred by Lessor in good faith shall be
deemed conclusively binding on Lessee. In the event that less than one hundred
percent (100%) of the Building is occupied during any calendar year, all
Exterior Common Area Expenses on the statements provided by Lessor shall be
adjusted for each calendar year to equal Lessor's reasonable estimate of
Exterior Common Area Expenses had one hundred percent (100%) of the total
rentable area of the Building been occupied. Statements of Exterior Common Area
Expenses provided by Lessor shall be final and binding upon both Lessor and
Lessee.
(ii) Project Taxes. The term "Project Taxes" as used in this Lease
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shall collectively mean (to the extent any of the following are not paid by
Lessee pursuant to Article 7.c. below) all: real estate taxes and general or
assessments (including, but not limited to, assessments for public improvements
or benefits); personal property taxes; taxes based on vehicles utilizing parking
areas on the Parcel; taxes computed or based on rental income (including without
limitation any municipal business tax but excluding federal, state and municipal
net income taxes); Environmental Surcharges; excise taxes; gross receipts taxes;
sales and/or use taxes; employee taxes; water and sewer taxes, levies,
assessments and other charges in the nature of taxes or assessments (including,
but not limited to, assessments for public improvements or benefit); and all
other governmental, quasi-governmental or
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special district impositions of any kind and nature whatsoever, regardless of
whether now customary or within the contemplation of the parties hereto and
regardless of whether resulting from increased rate and/or valuation, or whether
extraordinary or ordinary, general or special, unforeseen or foreseen, or
similar or dissimilar to any of the foregoing which during the Lease term are
laid, levied, assessed or imposed upon Lessor and/or become a lien upon or
chargeable against the Project or the Premises, Building, Common Area and/or
Parcel under or by virtue of any present or future laws, statutes, ordinances,
regulations, or other requirements of any governmental authority or quasi-
governmental authority or special district having the direct or indirect power
to tax or levy assessments whatsoever. The term "Environmental Surcharges" shall
include any and all expenses, taxes, charges or penalties imposed by the Federal
Department of Energy, Federal Environmental Protection Agency, the Federal Clean
Air Act, or any regulations promulgated thereunder, or imposed by any other
local, state or federal governmental agency or entity now or hereafter vested
with the power to impose taxes, assessments or other types of surcharges as a
means of controlling or abating environmental pollution or the use of energy in
regard to the use, operation or occupancy of the Project including the Premises,
Building, Common Area and/or Parcel. The term "Project Taxes" shall include (to
the extent the same are not paid by Lessee pursuant to Article 7.c. below),
without limitation: the cost to Lessor of contesting the amount or validity or
applicability of any Project Taxes described above; and all taxes, assessments,
levies, fees, impositions or charges levied, imposed, assessed, measured, or
based in any manner whatsoever upon or with respect to the use, possession,
occupancy, leasing, operation or management of the Project including the
Premises, Building, Common Area and/or Parcel or in lieu of or equivalent to any
Project Taxes set forth in this Article 7.b.(ii). The portion of Project Taxes
allocable to the Building shall be such Project Taxes as are attributable to the
Project, including the Premises and the Building in which the Premises are
located, together with a portion of the Project Taxes attributable to the
Exterior Common Area, all as reasonably and in good faith determined by Lessor
from time to time. Lessor shall reasonably and in good faith allocate the
Project Taxes as between the Building and the Exterior Common Area; provided,
however, that if the Parcel is assessed by the taxing authorities such that the
Building and the Exterior Common Area are assessed separately, then Lessor shall
allocate the Project Taxes in accordance with such separate assessments. The
Project Taxes attributable to the Exterior Common Area shall be allocated in
such manner as is reasonably and in good faith determined by Lessor from time to
time.
If at any time during the Term, Project Taxes are under-assessed by the
taxing authorities so that they are not computed on a fully-completed and
occupied basis in accordance with the then applicable taxing authority of the
governmental entities having jurisdiction, Lessor shall have the right, but not
the obligation, to adjust Project Taxes to reflect the amount that Project Taxes
would be if the Project were assessed on a fully-completed and occupied basis,
as determined in Lessor's reasonable discretion, and such adjusted amount shall
be allocated to the Project in accordance with the terms of this Lease.
c. Other Taxes. Lessee shall pay the following:
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(i) Lessee shall pay (or reimburse Lessor as additional rent if
Lessor is assessed), before delinquency, any and all taxes levied or assessed,
and which become payable for or in connection with any period during the Term,
upon all of the following (collectively, "Leasehold Improvements and Personal
Property"): Lessee's Leasehold Improvements, the Tenant Improvements, equipment,
furniture, furnishings, fixtures, merchandise, inventory, machinery, appliances
and other personal property located in the Premises; except only that which has
been paid for by Lessor and is the standard of the Building. Lessee hereby
acknowledges receipt of a copy of a schedule setting forth the improvements
comprising the standard of the Building. If any or all of the Leasehold
Improvements and Personal Property are assessed and taxed with the Project,
Lessee shall pay to Lessor such taxes within ten (10) days after delivery to
Lessee by Lessor of a statement in writing setting forth the amount applicable
to the Leasehold Improvements and Personal Property. If the Leasehold
Improvements and Personal Property are not separately assessed on the tax
statement or xxxx, Lessor's good faith determination of the amount of such taxes
applicable to the Leasehold Improvements and Personal Property shall be a
conclusive determination of Lessee's obligation to pay such amount as so
determined by Lessor.
(ii) Lessee shall pay (or reimburse Lessor if Lessor is assessed, as
additional rent), prior to delinquency or within ten days after receipt of a
statement thereof, any and all other taxes, levies, assessments, or surcharges
payable by Lessor or Lessee and relating to this Lease, the Premises or Lessee's
activities in the Premises (other than Lessor's net income, succession,
transfer, gift, franchise, estate, or inheritance taxes), whether or not now
customary or within the contemplation of the parties hereto, now in force or
which may hereafter become effective, including but not limited to taxes: (i)
upon, allocable to, or measured by the area of the Premises or on the Rentals
payable hereunder, including without limitation any gross income, gross
receipts, excise, or other tax levied by the state, any political subdivision
thereof, city or federal government with respect to the receipt of such Rentals;
(ii) upon or with respect to the use, possession, occupancy, leasing, operation
and management of the Premises or any portion thereof; (iii) upon this
transaction or any document to which Lessee is a party creating or transferring
an interest or an estate in the Premises; or (iv) imposed as a means of
controlling or abating environmental pollution or the use of energy, including,
without limitation, any parking taxes, levies or charges or vehicular
regulations imposed by any governmental agency. Lessee shall also pay, prior to
delinquency, all privilege, sales, excise, use, business, occupation, or other
taxes, assessments, license fees, or charges levied, assessed, or imposed upon
Lessee's business operations conducted at the Premises. If any such taxes are
payable by Lessor and it shall not be lawful for Lessee to reimburse Lessor for
such taxes, then the Rentals payable hereunder shall be increased to net Lessor
the net Rental after imposition of any such tax upon Lessor as would have been
payable to Lessor prior to the imposition of any such tax.
d. Exclusions to Project Operating Expenses and Taxes.
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See Addendum 11 attached hereto.
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8. CONDUCT OF BUSINESS (USE).
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a. In no event shall Lessee use or permit the use of the Premises for any
purpose other than general office use. Lessor and Lessee hereby acknowledge and
agree that the foregoing use restriction is an absolute prohibition against a
change in use of the Premises as contemplated under California Civil Code
section 1997.230. Lessee shall not do or permit to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of or affect any fire or other insurance upon the Building or the
Project or any of its contents, or cause cancellation of any insurance policy
covering the Building or the Project or any part thereof or any of its contents.
Lessee shall not, without prior consent of Lessor, bring into the Building or
the Premises or use or incorporate in the Premises any apparatus, equipment or
supplies that may cause substantial noise, odor, or vibration or overload the
Premises or the Building or any of its utility or elevator systems or jeopardize
the structural integrity of the Building or any part thereof. Lessee and
Lessee's Agents shall not use, store, or dispose of any Hazardous Materials
(defined below) on any portion of the Project. Lessee shall indemnify, defend
with counsel acceptable to Lessor, and hold Lessor and Lessor's employees,
agents, partners, officers, directors and shareholders harmless from and against
any and all claims, actions, suits, proceedings, orders, judgment, losses,
costs, damages, liabilities, penalties, or expenses (including, without
limitation, attorneys' fees) arising in connection with the breach of the
obligations described in the previous sentence. As used in this paragraph,
Hazardous Materials means any chemical, substance or material which has been
determined or is hereafter determined by any federal, state, or local
governmental authority to be capable of posing risk of injury to health or
safety, including, without limitation, petroleum, asbestos, polychlorinated
biphenyls, radioactive materials and radon gas. Lessee shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building or the
Project or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Lessee cause,
maintain or permit any nuisance in, on or about the Premises. Lessee shall not
commit or suffer to be committed any waste in or upon the Premises.
b. Effect of Use Restriction. Lessor and Lessee hereby acknowledge and
-------------------------
agree that the use restriction set forth in subsection 8.a. above shall be
deemed reasonable in all respects and under all circumstances. Lessor and Lessee
further acknowledge and agree that, notwithstanding any provision of this Lease
to the contrary, (i) in the event Lessee requests Lessor's consent to a proposed
assignment of this Lease or subletting of the Premises, Lessor shall be deemed
reasonable in withholding its consent to such assignment or subletting if the
proposed assignee or subtenant desires to use the Premises for any purpose other
than as expressly provided in subsection 8.a. above, and (ii) in the event of a
default by Lessee under the Lease, the enforcement of the use restriction set
forth in subsection 8.a. above shall be deemed reasonable for purposes of
computing the rental loss that could be or could have been reasonably avoided by
Lessor pursuant to California Civil Code section 1951.2 and in connection with
the exercise of Lessor's remedies under California Civil Code section 1951.4.
Notwithstanding the preceding to the contrary, if Lessor withholds its
consent to an assignment of the Lease or subletting of the premises based upon
the desire of the proposed assignee or subtenant to use the Premises for any
purpose other than as expressly provided in subsection 8.a. above, or if Lessee
is in default under this Lease, then, prior to commencing or pursuing any claim
or defense against Lessor based upon the unreasonableness of the use restriction
set forth in subsection 8.a. above, Lessee shall provide Lessor with written
notice (by certified mail, postage prepaid and return receipt requested) setting
forth Lessee's objections to the enforcement of the use restriction in such
instance, the basis upon which Lessee intends to demonstrate that the
enforcement of such use restriction would be unreasonable in such instance, and
the use(s) which Lessee believes Lessor should allow Lessee or its proposed
assignee or subtenant, as the case may be, to make of the Premises. Within
thirty (30) days of Lessor's receipt of Lessee's written notice of objection,
Lessor shall provide Lessee with written notice of Lessor's election to either
(A) enforce the use restriction set forth in subsection 8.a. above, or (B)
permit a change in the use of the Premises, provided that such proposed use
shall in no event (1) require the use, storage or disposal of Hazardous
Materials on or about the Premises or the Project, (2) increase or affect any
fire or other insurance covering the Building or the Project, (3) interfere with
the rights of other tenants of the Building or Project, including, without
limitation, any exclusive use rights of such tenants, (4) be in violation of
applicable federal, state or local laws, rules, regulations, codes or
ordinances, or (5) require Lessor to construct or install, or to provide any
allowance for the construction or installation of, any tenant improvements in
the Premises. Notwithstanding the preceding to the contrary, in no event shall
Lessor have any obligation to allow a change in the use of the premises, it
being expressly understood by the parties that the use restriction set forth in
subsection 8.a. above is an absolute prohibition against a change in use of the
Premises. In the event Lessor fails to provide Lessee with written notice of its
election to either enforce the use restriction or allow a change in use of the
Premises within said thirty (30) day period, Lessor shall be deemed to have
elected to enforce the use restriction. In the event Lessor elects or is deemed
to have elected to enforce the use restriction as provided hereinabove, Lessee
shall have the right to pursue such valid claims or defenses against Lessor as
may be permitted under California Civil Code section 1997.040 and which Lessee
is able to prove.
9. COMPLIANCE WITH LAWS. Lessee shall not use the Premises or permit anything
--------------------
to be done in or about the Premises which will in any way conflict with or
violate any law, statute, ordinance, order or governmental rule or regulation or
requirement of duly constituted public authorities or quasi-public authorities
now in force or which may hereafter be enacted or promulgated. Lessee shall, at
its sole cost and expense, promptly comply with all laws, statutes, ordinances,
orders and governmental or quasi-governmental rules, regulations or requirements
now in force or which may hereafter be in force and with all recorded documents
which relate to or affect the condition, use or occupancy of the Premises, and
with the requirements of any board of fire insurance underwriters or other
similar bodies now or hereafter constituted, relating to, or affecting the
condition, use or occupancy of the Premises, excluding structural changes not
related to or affected by Lessee's improvements, acts or use or occupancy of the
-7-
Premises. The judgment of any court of competent jurisdiction or the admission
of Lessee in any action against Lessee, whether Lessor be a party thereto or
not, that Lessee has violated any law, statute, ordinance, or governmental or
quasi-governmental rule, regulation or requirement, shall be conclusive of that
fact as between the Lessor and Lessee. Lessee shall obtain, prior to taking
possession of the Premises, all permits, licenses, or other authorizations for
the lawful operation of its business at the Premises. Lessee shall indemnify,
defend with counsel acceptable to Lessor and hold Lessor and Lessor's employees,
agents, partners, officers, directors and shareholders harmless from and against
any claim, action, suit, proceeding, order, judgment, liability, penalty or
expense (including, without limitation, attorneys' fees) arising out of the
failure of Lessee to comply with any applicable law, statute, ordinance, order,
rule, regulation, requirement or recorded document. Lessee acknowledges that
Lessee has independently investigated and is satisfied that the Premises are
suitable for Lessee's intended use and that the Premises meet all
governmental and quasi-governmental requirements for such intended use.
Lessor and Lessee acknowledge that, in accordance with the provisions of
the Americans with Disabilities Act (the "ADA"), responsibility for compliance
with the terms and conditions of Title III of the ADA may be allocated as
between Lessor and Lessee. In this regard and notwithstanding anything to the
contrary contained in the Lease, Lessor and Lessee agree that the responsibility
for compliance with the ADA (including, without limitation, the removal of
architectural and communications barriers and the provision of auxiliary aids
and services to the extent required) shall be allocated as follows: (i) Lessee
shall be responsible for compliance with the provisions of Title I of the ADA,
and of Title II and Title III of the ADA as Titles II and III relate to any
construction, renovations, alterations and repairs made within the Premises if
such construction, renovations, alterations and repairs are made by Lessee, at
its expense without the assistance of Lessor; (ii) Lessor shall be responsible
for compliance with the provisions of Title II and III of the ADA for all
construction, renovations, alterations and repairs which Lessor is required,
under this Lease, to make within the Premises, whether (pursuant to the relevant
provisions of the Lease) at Lessor's or Lessee's expense; and (iii) Lessor shall
be responsible for compliance with the provisions of Title III of the ADA for
all exterior and interior areas of the Building not included within the
Premises. Lessor agrees to indemnify and hold Lessee harmless from and against
any claims, damages, costs and liabilities arising out of Lessor's failure, or
alleged failure, as the case may be, to comply with the ADA, to the extent such
compliance has been allocated to Lessor herein, which indemnification obligation
shall survive the expiration or termination of this Lease if the Lease has not
been terminated by reason of a default by Lessee. Lessee agrees to indemnify and
hold Lessor harmless from and against any claims, damages, costs and liabilities
arising out of Lessee's failure, or alleged failure, as the case may be, to
comply with the ADA to the extent such compliance has been allocated to Lessee
herein, which indemnification obligation shall survive the expiration or
termination of this Lease. Lessor and Lessee each agree that the allocation of
responsibility for ADA compliance shall not require Lessor or Lessee to
supervise, monitor or otherwise review the compliance activities of the other
with respect to its assumed responsibilities for ADA compliance as set forth in
this Article 9. Lessor shall, in complying with the ADA (to the extent such
compliance has been allocated to Lessor herein), be entitled to rely upon
representations made to, or information given to Lessor by Lessee in regard to
Lessee's use of the Premises, Lessee's employees, and other matters pertinent to
compliance with the ADA. The indemnity of Lessee set forth above shall apply as
to any liability arising against Lessor by reason of any misrepresentations or
misinformation given by Lessee to Lessor. The allocation of responsibility for
ADA compliance between Lessor and Lessee, and the obligations of Lessor and
Lessee established by such allocations, shall supersede any other provisions of
the Lease that may contradict or otherwise differ from the requirements of this
Article 9.
10. ALTERATIONS AND ADDITIONS.
-------------------------
a. Lessee's Alterations. Lessee shall not make or suffer to be made any
--------------------
alterations, additions, changes or improvements (collectively, "Alterations") to
or of the Premises, or any part thereof without Lessor's prior written consent,
which consent shall not, except as otherwise expressly provided in the Lease, be
unreasonably withheld subject, however, to Addendum 12 attched hereto. Lessor
may impose, as a condition to the aforesaid consent, such requirements as Lessor
may deem necessary in its sole and reasonable discretion, including without
limitation: the manner in which the work is done; a right of approval of the
contractor by whom the work is to be performed; the times during which such work
is to be accomplished; the requirement that Lessee post a completion bond in an
amount and form satisfactory to Lessor; the requirement that Lessee reimburse
Lessor, as additional rent, for Lessor's reasonable costs incurred in reviewing
any proposed Alterations, whether or not Lessor's consent is granted; and the
requirement that at Lease Termination, either (i) Lessee, at its expense, will
remove any and all such Alterations installed by Lessee and shall, at its cost,
promptly repair all damages to the Project caused by such removal, or (ii) the
Alterations made by Lessee shall remain with the Premises, be a part of the
realty, and belong to Lessor, subject, however, to Addendum 13 attached hereto.
If Lessor consents to any Alterations to the Premises by Lessee, the same shall
be made by Lessee at Lessee's sole cost and expense in accordance with plans and
specifications approved by Lessor. Any such Alterations made by Lessee shall be
performed in accordance with all applicable laws, ordinances and codes and in a
first class workmanlike manner, and shall not weaken or impair the structural
strength or lessen the value of the Building, shall not invalidate, diminish, or
adversely affect any warranty applicable to the Building or any other
improvements located within the Project, including any equipment therein, and
shall be performed in a manner causing Lessor and Lessor's agents and other
tenants of the Building the least interference and inconvenience practicable
under the circumstances. In making any such Alterations, Lessee shall, at
Lessee's sole cost and expense:
(i) File for and secure any necessary permits or approvals from all
governmental departments or authorities having jurisdiction, and any utility
company having an interest therein, and
(ii) Notify Lessor in writing at least fifteen (15) days prior to
the commencement of work on any Alteration, so that Lessor can post and record
appropriate notices of non-responsibility.
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(iii) Provide copies of all drawings and specifications prior to
commencement of construction of any Alterations.
In no event shall Lessee make or suffer to be made any Alteration to the
mechanical or utility systems of the Building, to the Common Area or the
structural portions of the Building or any part thereof without Lessor's prior
written consent, which consent may be withheld in Lessor's sole discretion.
b. Removal. Upon Lease Termination, (subject, however, to Addendum
-------
13 attached hereto) Lessee shall, upon written demand by Lessor at Lessee's sole
cost and expense, forthwith and with all due diligence remove any Alterations
made by Lessee, which is then designated by Lessor to be removed and Lessee
shall, forthwith and with all due diligence at its sole cost and expense, repair
any damage to the Project caused by such removal. Lessee may also, upon Lease
Termination and provided that Lessee is not then in default hereunder, remove
Lessee's movable equipment, furnishings, trade fixtures and other personal
property (excluding any Alterations made by Lessee not specifically designated
by Lessor to be removed), provided that Lessee shall, forthwith and with all due
diligence at its sole cost and expense, repair any damages to the Project caused
by such removal. Unless Lessor elects to have Lessee remove any such
Alterations, all such Alterations except for movable furniture and trade
fixtures of Lessee not affixed to the Premises, shall become the property of
Lessor upon Lease Termination (without any payment therefor) and remain upon and
be surrendered with the Premises.
c. Alterations Required by Law. Lessee shall pay to Lessor as additional
---------------------------
rent, the cost of any structural or non-structural alteration, addition or
change to the Building and/or at Lessor's election, shall promptly make, at
Lessee's sole expense and in accordance with the provisions of subsection 10.a.
above, any structural or non-structural alteration, addition or change to the
Premises required to comply with laws, regulations, ordinances or orders of any
public agencies, whether now existing or hereinafter promulgated, where such
alterations, additions or changes are required by reason of: Lessee's or
Lessee's Agents' acts; Lessee's particular use or change of use to the Premises;
alterations or improvements to the Premises made by or for Lessee; or Lessee's
application for any permit or governmental approval.
x. Xxxxxx'x Improvements. All fixtures, improvements or equipment which
---------------------
are installed, constructed on or attached to the Premises, or any part of the
Project by Lessor at its expense shall be a part of the realty and belong to
Lessor.
11. REPAIRS.
-------
a. By Lessee. By taking possession of the Premises, Lessee shall be
---------
deemed to have accepted the Premises as being in good and sanitary order,
condition and repair and to have accepted the Premises in their condition
existing as of the date of such possession, subject to all applicable laws,
covenants, conditions, restrictions, easements, and other matters of public
record and the Rules and Regulations from time to time promulgated by Lessor
governing the use of any portion of the Project. Lessee shall further be deemed
to have accepted Lessee Improvements constructed by Lessor, if any, as being
completed in accordance with the plans and specifications for such improvements,
excluding only the punch list items referred to in Article 4.a. above. Lessee
shall at Lessee's sole cost and expense, keep every part of the Premises in good
condition and repair, damage thereto from causes beyond the control of Lessee
(and not caused by any act or omission of Lessee or Lessee's Agents) and
ordinary wear and tear excepted. If Lessee fails to maintain the Premises as
required by this Lease, Lessor may give Lessee notice to do such acts as are
reasonably required to so maintain the Premises and if Lessee fails to commence
such work immediately in an emergency or where immediate action is required to
protect the Premises or any portion of the Project, or within ten (10) days
after such notice is given under other circumstances, and diligently prosecute
it to completion, then Lessor or Lessor's agents, in addition to all of the
rights and remedies available hereunder or by law and without waiving any
alternative remedies, shall have the right to enter the Premises and to do such
acts and expend such funds at the expense of Lessee as are reasonably required
to perform such work. Any amount so expended by Lessor shall be paid by Lessee
to Lessor as additional rent, upon demand. With respect to any work performed by
Lessor pursuant to this Article 11.a., Lessor shall be liable to Lessee only for
physical damage caused to Lessee's personal property located within the Premises
to the extent such damage is caused by Lessor's active negligence or willful
misconduct. In no event shall Lessor have any liability to Lessee for any other
damages, or for any inconvenience or interference with the use of the Premises
by Lessee, or for any consequential damages, including lost profits, as a result
of performing any such work. Except as specifically provided in an addendum, if
any, to this Lease, Lessor shall have no obligation whatsoever to alter,
remodel, improve, repair, decorate or paint the Premises or any part thereof and
the parties hereto affirm that Lessor has made no representations or warranty to
Lessee respecting the condition of the Premises or any part of the Project
except as specifically set forth in this Lease.
b. By Lessor. The costs of repairs and maintenance which are the
---------
obligation of Lessor hereunder or which Lessor elects to perform hereunder
except such repairs and maintenance which are the responsibility of Lessee
hereunder, shall be an Operating Expense and Lessee shall pay, as additional
rent, Lessee's Percentage Share of such costs to Lessor as provided in Article
7. Lessor shall repair and maintain the structural portions of the Building,
including the basic plumbing, air conditioning, heating and electrical systems
installed or furnished by Lessor, unless such maintenance or repairs are caused
in part or in whole by the act, neglect, fault or omission of any duty by Lessee
or Lessee's Agents, in which case Lessee shall pay to Lessor the reasonable cost
of such maintenance or repairs as additional rent. Lessor shall not be liable
for any failure to make any such repairs or to perform any maintenance for which
Lessor is responsible as provided above unless Lessor fails to commence such
work for a period of more than thirty (30) days after written notice of the need
of such repairs or maintenance is given to Lessor by Lessee and the failure is
due solely to causes within Lessor's reasonable control. Except as provided in
Article 21 of this Lease, there shall be no abatement of Rentals, and in any
event there shall be no liability of Lessor by reason
-9-
of any injury to or interference with Lessee's business arising from the making
of any repairs, alterations or improvements in or to any portion of the Project
or in or to fixtures, appurtenances and equipment therein. Lessee waives the
benefits of any statute now or hereafter in effect (including, without
limitation, the provisions of subsection 1 of Section 1932, Section 1941 and
Section 1942 of the California Civil Code and any similar or dissimilar law,
statute or ordinance now or hereafter in effect) which would otherwise afford
Lessee the right to make repairs at Lessor's expense (or to deduct the cost of
such repairs from Rentals due hereunder) or to terminate this Lease because of
Lessor's failure to keep the Premises in good and sanitary order.
12. LIENS. Lessee shall keep the Premises and every portion of the Project
-----
free from any and all mechanics', materialmen's and other liens, and claims
thereof, arising out of any work performed, materials furnished or obligations
incurred by or for Lessee. Lessor may require, at Lessor's sole option, that
Lessee provide to Lessor at Lessee's sole cost and expense a lien and completion
bond, or its equivalent, in an amount equal to one and one half (1-1/2) times
any and all estimated costs of any Alterations to the Premises, to insure Lessor
against any liability for mechanics' and materialmen's liens and to insure
completion of the work. Lessee shall indemnify and defend with counsel
acceptable to Lessor and hold Lessor harmless from and against any liens,
demands, claims, actions, suits, proceedings, orders, losses, costs, damages,
liabilities, penalties, expenses, judgments or encumbrances (including without
limitation, attorneys' fees) arising out of any work or services performed or
materials furnished by or at the direction of Lessee or Lessee's Agents or any
contractor employed by Lessee with respect to the Premises. Lessor shall have
the right, at all times, to post and keep posted on the Premises, any notices
permitted or required by law, or which Lessor shall deem proper, for the
protection of Lessor, the Project, and any other party having an interest
therein, from mechanics' and materialmen's liens, including without limitation a
notice of non-responsibility. Lessee shall give written notice to Lessor
fifteen (15) days prior to employing any laborer or contractor to perform
services related to, or receiving materials for use upon the Premises, and
prior to the commencement of any work of improvement on the Premises. Should
any claims of lien relating to work performed, materials furnished or
obligations incurred by Lessee be filed against, or any action be commenced
affecting the Premises, any part of the Project, and/or Lessee's interest
therein, Lessee shall give Lessor notice of such lien or action within three (3)
days after Lessee receives notice of the filing of the lien or the commencement
of the action. If Lessee does not, within twenty (20) days following the
imposition of any such lien, cause such lien to be released of record by payment
or posting of a proper bond, Lessor shall have, in addition to all other
remedies provided herein and by law, the right, but not the obligation, to cause
the same to be released by such means as it shall deem proper, including by
payment of the claim giving rise to such lien or by posting a proper bond, or by
requiring Lessee to post for Lessor's benefit a bond, surety, or cash amount
equal to one and one-half (l-1/2) times the amount of lien and sufficient to
release the Premises and Project from the lien. All sums paid by Lessor
pursuant to this Article 12 and all expenses incurred by it in connection
therewith including attorneys' fees and costs shall be payable to Lessor by
Lessee as additional rent on demand.
13. ASSIGNMENT AND SUBLETTING.
-------------------------
a. Prohibitions in General. Lessee shall not (whether voluntarily,
-----------------------
involuntarily, or by operation of law) assign this Lease or allow all or any
part of the Premises to be sublet, without Lessor's prior written consent in
each instance, which consent shall not be unreasonably withheld, subject,
nevertheless, to the provisions of this Article 13. Except for an allowed
assignment or subletting pursuant to the previous sentence, and Xxxxxxxx 00
xxxxxxxx xxxxxx, Xxxxxx shall not (whether voluntarily, involuntarily, or by
operation of law) (i) allow all or any part of the Premises to be occupied or
used by any person or entity other than Lessee, (ii) transfer any right
appurtenant to this Lease or the Premises, (iii) mortgage, hypothecate or
encumber the Lease or Lessee's interest in the Lease or Premises (or otherwise
use the Lease as a security device) in any manner, or (iv) permit any person to
assume or succeed to any interest whatsoever in this Lease, without Lessor's
prior written consent in each instance, which consent may be withheld in
Lessor's sole and absolute discretion.
Any assignment, sublease, hypothecation, encumbrance, or transfer
(collectively "Transfer") without Lessor's consent shall constitute a default by
Lessee and shall be voidable. Lessor's consent to any one Transfer shall not
constitute a waiver of the provisions of this Article 13 as to any subsequent
Transfer nor a consent to any subsequent Transfer. The provisions of this
subsection 13.a. expressly apply to all heirs, successors, sublessees, assigns
and transferees of Lessee. If Lessor consents to a proposed Transfer, such
Transfer shall be valid and the transferee shall have the right to take
possession of the Premises only if the Assumption Agreement described in
subsection 13.c. below is executed and delivered to Lessor, Lessee has paid the
costs and fees described in subsection 13.h. below, and an executed counterpart
of the assignment, sublease or other document evidencing the Transfer is
delivered to Lessor and such transfer document contains the same terms and
conditions as stated in Lessee's notice given to Lessor pursuant to subsection
13.d. below, except for any such modifications Lessor has consented to in
writing. The acceptance of Rentals by Lessor from any person or entity other
than Lessee shall not be deemed to be a waiver by Lessor of any provision of
this Lease or to be a consent to any Transfer.
b. Collection of Rent. Lessee irrevocably assigns to Lessor, as security
------------------
for Lessee's obligations under this Lease, all rent not otherwise payable to
Lessor by reason of any Transfer of all or any part of the Premises or this
Lease. Lessor, as assignee of Lessee, or a receiver for Lessee appointed on
Lessor's application, may collect such rent and apply it toward Lessee's
obligations under this Lease; provided, however, that until the occurrence of
any default by Lessee or except as provided by the provisions of subsection
13.f. below, Lessee shall have the right to collect such rent.
c. Assumption Agreement. As a condition to Lessor's consent to any
--------------------
Transfer of Lessee's interest in this Lease or the Premises, Lessee and Lessee's
assignee, sublessee, encumbrancer, hypothecate, or transferee (collectively
"Transferee"), shall execute a written Assumption Agreement, in a form approved
by Lessor, which
-10-
Agreement shall include a provision that Lessee's Transferee shall expressly
assume all obligations of Lessee under this Lease, and shall be and remain
jointly and severally liable with Lessee for the performance of all conditions,
covenants, and obligations under this Lease from the effective date of the
Transfer of Lessee's interest in this Lease. In no event shall Lessor have any
obligation to materially amend or modify this Lease in connection with any
proposed Transfer, including, without limitation, amending or modifying the use
restriction set forth in subsection 8.a. above.
d. Request for Transfer. Lessee shall give Lessor at least forty-five
--------------------
(45) days prior written notice of any desired Transfer and of the proposed terms
of such Transfer, including but not limited to: the name and legal composition
of the proposed Transferee; an audited financial statement of the proposed
Transferee prepared in accordance with generally accepted accounting principles
within one year prior to the proposed effective date of the Transfer; the nature
of the proposed Transferee's business to be carried on in the Premises; the
payment to be made or other consideration to be given on account of the
Transfer; and other such pertinent information as may be requested by Lessor,
all in sufficient detail to enable Lessor to evaluate the proposed Transfer and
the prospective Transferee. Lessee's notice shall not be deemed to have been
served or given until such time as Lessee has provided Lessor with all
information specified above and all additional information requested by Lessor
pursuant to this subsection 13.d. Lessee shall immediately notify Lessor of any
modification to the proposed terms of such Transfer.
e. No Bonus Value. It is the intent of the parties hereto that this Lease
--------------
shall confer upon Lessee only the right to use and occupy the Premises, and to
exercise such other rights as are conferred upon Lessee by this Lease. The
parties agree that this Lease is not intended to have a bonus value, nor to
serve as a vehicle whereby Lessee may profit by a future Transfer of this Lease
or the right to use or occupy the Premises as a result of any favorable terms
contained herein or any future changes in the market for leased space. It is
the intent of the parties that any such bonus value that may attach to this
Lease shall be and remain the exclusive property of Lessor, subject, however, to
Addendum 15 attached hereto.
f. Conditional Consent. Without otherwise limiting the criteria upon
-------------------
which Lessor may withhold its consent to any proposed Transfer, if Lessor
withholds its consent where the proposed Transferee's net worth (according to
generally accepted accounting principles) is less than the greater of: (A) the
net worth of Lessee immediately prior to the Transfer; or (B) the net worth of
Lessee at the time this Lease is executed, such withholding of consent shall be
presumptively reasonable. It shall also be presumptively reasonable for Lessor
to require, as a condition to its consent that:
(i) Any and all rent to be paid by a Transferee, including, but not
limited to, any rent in excess of the Rentals to be paid under this Lease
(prorated in the event that a sublease is of less than the entire Premises),
shall be paid by Lessee directly to Lessor at the time and place specified in
this Lease. For the purposes of this Article 13, the term "rent" shall include
any consideration of any kind received, or to be received, by Lessee from a
Transferee, if such sums are related to Lessee's interest in this Lease or in
the Premises, including, but not limited to, key money, bonus money, and
payments (in excess of the fair market value thereof) for Lessee's assets,
fixtures, trade fixtures, inventory, accounts, goodwill, equipment, furniture,
general intangibles, and any capital stock or other equity ownership interest of
Lessee; and/or
(ii) Either Lessee or the proposed Transferee cure, on or before the
proposed effective date of such Transfer, any and all uncured defaults
hereunder; provided, however, in no event shall Lessor's failure to condition
its consent upon such cure be deemed to be a waiver of any such default or
Lessor's rights and remedies under this Lease, at law, or in equity in regard
thereto. If Lessor has elected to impose such cure as a condition to its consent
and such condition is not satisfied by the effective date of the Transfer, the
Transfer shall be voidable at Lessor's option.
g. Corporations and Partnerships. If Lessee is a partnership, a
-----------------------------
withdrawal or substitution (whether voluntary, involuntary, or by operation of
law and whether occurring at one time or over a period of time) of any
partner(s) owning twenty-five percent (25%) or more of the partnership, any
assignment(s) of twenty-five percent (25%) or more (cumulatively) of any
interest in the capital or profits of the partnership, or the dissolution of the
partnership shall be deemed a Transfer of this Lease. If Lessee is a
corporation, any dissolution, merger, consolidation or other reorganization of
Lessee, any sale or transfer (or cumulative sales or transfers) of the capital
stock of Lessee in excess of twenty-five percent (25%) or any sale (or
cumulative sales) of more than fifty percent (50%) of the value of the assets of
Lessee shall be deemed a Transfer of this Lease. This subsection 13.g. shall not
apply to corporations the capital stock of which is publicly traded.
h. Attorneys' Fees and Costs. Lessee shall pay, as additional rent,
-------------------------
Lessor's actual costs and attorneys' fees incurred for reviewing, investigating,
processing and/or documenting any requested Transfer, whether or not Lessor's
consent is granted.
i. Miscellaneous. Regardless of Lessor's consent, no Transfer shall
-------------
release Lessee of Lessee's obligations under this Lease or alter the primary
liability of Lessee to pay the Rentals and to perform all other obligations to
be performed by Lessee hereunder. The acceptance of Rentals by Lessor from any
other person shall not be deemed to be a waiver by Lessor of any provision
hereof. Upon default by any assignee of Lessee or any successor of Lessee in the
performance of any of the terms hereof, Lessor may proceed directly against
Lessee without the necessity of exhausting remedies against said assignee or
successor. Lessor may consent to subsequent assignments or subletting of this
Lease or amendments or modifications to this Lease with any assignee of Lessee,
without notifying Lessee, or any successor of Lessee, and without obtaining its
or their consent thereto and such action shall not relieve Lessee of liability
under this Lease.
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j. Reasonable Provisions. Lessee acknowledges that, but for Lessee's
---------------------
identity, financial condition and ability to perform the obligations of Lessee
under the Lease, Lessor would not have entered into this Lease nor demised the
Premises to specifically on Lessee's identity, financial condition,
responsibility and capability of performing the obligations of Lessee under the
Lease. Lessee acknowledges that Lessor's rights under this Article 13, including
the right to withhold consent to certain Transfers in Lessor's sole and absolute
discretion, are reasonable, agreed upon and bargained for rights of Lessor and
that the Rentals set forth in the Lease have taken into consideration such
rights. Lessee expressly agrees that the provisions of this Article 13 are not
unreasonable standards or conditions for purposes of Section 1951.4(b)(2) of the
California Civil Code, as amended from time to time under the Federal Bankruptcy
Code or for any other purpose.
14. HOLD HARMLESS. Lessee shall to the fullest extent permitted by law,
-------------
indemnify, defend with counsel acceptable to Lessor, and hold Lessor and
Lessor's employees, agents, partners, officers, directors and shareholders
harmless from and against any and all claims, damages, losses, liabilities,
penalties, judgments, and costs and expenses (including, without limitation,
attorneys' fees) and any suit, action or proceeding brought pursuant thereto
(collectively, "Claims"), including Claims for property damage, or personal
injury including death, arising out of (i) Lessee's use of the Premises or any
part thereof, or any activity, work or other thing done in or about the
Premises, (ii) any activity, work or other thing done, permitted by Lessee or at
the direction of Lessee or Lessee's employees or agents, in or about the
Project, or any part thereof, (iii) any breach or default in the performance of
any obligation on Lessee's part to be performed under the terms of this Lease,
(including, without limitation, a failure to maintain insurance as provided in
Article 16, or (iv) any act or negligence of the Lessee or Lessee's Agents.
The indemnity herein shall extend to the costs and expenses incurred by
Lessor for administrative expenses, consultant fees, expert costs, investigation
expenses and costs incurred in settling indemnified claims, whether such costs
occurred before or after any litigation is commenced. The indemnity herein shall
survive the termination of this Lease and shall continue in effect until any and
all claims, actions or causes of action with respect to any of the matters
indemnified against are fully and finally barred by the applicable statute of
limitations. In no event shall any of insurance provisions set forth in Article
16 of this Lease be construed as any limitation on the scope of indemnification
set forth herein.
Lessee as a material part of the consideration to Lessor hereby assumes all
risk of damage or loss to property or injury or death to person in, upon or
about all portions of the Project from any cause except as hereinafter stated.
Lessor or its agents shall not be liable for any damage or loss to property
entrusted to employees of any part of the Project nor for loss or damage to any
property by theft or otherwise, nor for any injury or death or damage or loss to
persons or property resulting from any accident, casualty or condition occurring
in or about any portion of the Project, or to any equipment, appliances or
fixtures therein, or from any other cause whatsoever. This indemnity obligation
is unqualified with the single exception that it shall not apply to the portion
of any claim, damage or loss that arises out of Lessor's active negligence or
willful misconduct but it shall apply without limitation to all other claims,
damages or losses including those that arise out of Lessor or Lessor's agents'
contributory negligence, whether active or passive. Lessor or its agents shall
not be liable for interference with the light or other incorporeal
hereditaments, nor shall Lessor be liable for any latent defect in the Premises
or in the Building. Notwithstanding any other provision of this Lease, in no
event shall Lessor have any liability for loss of business (including, without
limitation, lost profits) by Lessee. Lessee shall give prompt written notice to
Lessor in case of fire or accidents in the Premises or in the Building or of
defects therein or in the fixtures or equipment.
If, by reason of any act or omission of Lessee or Lessee's Agents, Lessor
is made a party defendant to any litigation concerning this Lease or any part of
the Project, Lessee shall indemnify, defend with counsel acceptable to Lessor,
and hold Lessor harmless from any liability and damages incurred by (or
threatened against) Lessor as a party defendant, including without limitation
all damages, costs and expenses, including attorneys' fees.
15. SUBROGATION. Notwithstanding anything contained to the contrary in this
Lease. Lessor releases Lessee and Lessee's officers, directors, agents,
employees, partners and shareholders from any and all claims or demands for
damages, loss, expense or injury arising out of any perils to the extent covered
by insurance carried by Lessor, or that are due to the negligence of Lessee or
Lessee's officers, directors, agents, employees, partners and shareholders and
regardless of cost or origin, to the extent such waiver is permitted by Lessor's
insurers and does not prejudice the insurance required to be carried by Lessor
under this Lease. Lessee releases Lessor and Lessor's officers, directors,
agents, employees, partners and shareholders from any and all claims or demands
for damages, loss, expense or injury arising out of any perils which are insured
against under any insurance carried by Lessee, whether due to the negligence of
Lessor or its officers, directors, agents, employees, partners and shareholders
and regardless of cost or origin, to the extent such waiver is permitted by
Lessee's insurers and does not prejudice the insurance required to be carried by
Lessee under this Lease. Each party shall obtain any special endorsements, if
required by its insurer, to evidence compliance with the aforementioned waiver.
16. LESSEE'S INSURANCE.
------------------
a. Lessee shall, at Lessee's expense, obtain and keep in force during the
Term a policy of comprehensive general liability insurance, including the broad
form endorsement, insuring Lessor and Lessee against any liability arising out
of the use, occupancy, maintenance, repair or improvement of the Premises and
the project. Such insurance shall provide single limit liability coverage of not
less than five million two million dollars ($2,000,000.00) per occurrence for
bodily injury or death and property damage. Such insurance shall include Lessor
as an additional insured, shall provide that Lessor, although an additional
insured, may recover for any loss suffered by Lessor or Lessor's agents by
reason of Lessee's or Lessee's Agent's negligence. All such insurance shall
specifically insure Lessee's performance of the indemnity and hold harmless
agreements contained in Article 14 above although Lessee's obligations pursuant
to Article 14 shall not be limited to the amount of any insurance
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required of or carried by Lessee under this Article 16 and Lessee is
responsible for ensuring that the amount of liability insurance carried by
Lessee is sufficient for Lessee's purposes. Lessee may carry said insurance
under a blanket policy, providing however, said insurance by Lessee shall name
Lessor as an additional insured.
b. Lessee acknowledges and agrees that insurance coverage carried by
Lessor will not cover Lessee's property within the Premises or within the
Building. Lessee shall, at Lessee's expense, obtain and keep in force during the
Term a policy of "All Risk" property insurance, including without limitation,
coverage for earthquake and flood; boiler and machinery (if applicable);
sprinkler damage; vandalism; malicious mischief; and demolition, increased cost
of construction and contingent liability from changes in building laws on all
leasehold improvements installed in the Premises by Lessee at its expense (if
any), and on all equipment, trade fixtures, inventory, fixtures and personal
property located on or in the Premises, including improvements or fixtures
hereinafter constructed or installed on the Premises. Such insurance shall be in
an amount equal to the full replacement cost of the aggregate of the foregoing
and shall provide coverage comparable to the coverage in the Standard ISO All
Risk form, when such form is supplemented with the coverage required above.
c. If Lessee fails to procure and maintain any insurance required to be
procured and maintained by Lessee pursuant to this Lease, Lessor may, but shall
not be required to, procure and maintain all or any portion of the same, at the
expense of Lessee. Lessor's election pursuant to this subsection 16.c. procure
and maintain all or any portion of the insurance which Lessee fails to procure
and maintain is acknowledged by Lessee to be for Lessor's sole benefit. Lessee
acknowledges that any insurance procured and maintained by Lessor pursuant to
this subsection 16.c. may not be sufficient to adequately protect Lessee. Any
personal property insurance procured and maintained by Lessor for Lessee's
equipment, trade fixtures, inventory, fixtures and personal property located on
or in the Premises, including improvements or fixtures hereinafter constructed
or installed on the Premises, may not sufficiently cover the replacement cost
thereof. Any insurance procured and maintained by Lessor pursuant to this
subsection 16.c. may provide for less coverage than is required to be maintained
by Lessee pursuant to this Lease. Lessee acknowledges and agrees that Lessee is
and shall remain solely responsible for procuring insurance sufficient for
Lessee's purposes, not withstanding the fact that Lessor has procured or
maintained any insurance pursuant to this subsection 16.c. Any insurance
required to be maintained by Lessee hereunder shall be in companies rated A X or
better in "Best's Insurance Guide". Prior to occupancy of the Premises, Lessee
shall deliver to Lessor copies of the policies of insurance required to be kept
by Lessee hereunder, or certificates evidencing the existence and amount of such
insurance, with evidence satisfactory to Lessor of payment of premiums. No
policy shall be cancelable or subject to reduction of coverage except after
thirty (30) days prior written notice to Lessor.
d. Not more frequently than once every year, Lessee shall increase the
amounts of insurance as follows: (i) as recommended by Lessor's insurance
broker provided that the amount of insurance recommended by such broker shall
not exceed the amount customarily required of tenants in comparable projects
located within San Mateo, California, or (ii) as required by Lessor's lender.
Any limits set forth in this Lease on the amount or type of coverage required by
Lessee's insurance shall not limit the liability of Lessee under this Lease.
x. Xxxxxx'x Insurance. See Addendum 16 attached hereto.
17. SERVICES AND UTILITIES. Provided that Lessee is not in default
----------------------
hereunder, Lessor agrees to furnish to the Premises during reasonable hours of
generally recognized business days, to be determined by Lessor in its reasonable
discretion, and subject to the rules and regulations of the Building of which
the Premises are a part, electricity for normal lighting, water, heat, air-
conditioning and elevator service which are required in Lessor's good faith
judgment for the comfortable use and occupation of the Premises. See Addendum 17
attached hereto. During recognized business days for the Building, and subject
to the reasonable rules and regulations of the Building and Project, Lessor
shall furnish to the Premises and the Common Areas, janitorial service, window
washing, fluorescent tube replacement and toilet supplies; provided, however,
Lessor shall not be required to provide janitorial services for any portion of
the Premises to the extent required as a result of the preparation or
consumption of food or beverages (provided that nothing in this paragraph shall
be construed as a consent by Lessor to the preparation or consumption of such
food or beverages unless otherwise expressly provided elsewhere in this Lease).
Lessor shall also maintain and keep lighted during such hours the common stairs,
common entries and toilet rooms in the Building. Lessor shall not be liable for,
and Lessee shall not be entitled to, any reduction of Rentals by reason of
Lessor's failure to furnish any of the foregoing when such failure is caused by
casualty, Act of God, accident, breakage, repairs, strikes, lockouts or other
labor disturbances or labor disputes of any character, or by any other cause,
similar or dissimilar, beyond the reasonable control of Lessor. Lessor shall not
be liable under any circumstances for injury to or death of or loss or damage to
persons or property or damage to Lessee's business, however occurring, through
or in connection with or incidental to failure to furnish any of the foregoing.
Wherever heat generating machines or equipment are used in the Premises which
affect the temperature otherwise maintained by the air conditioning system,
Lessor reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost of installation and the cost
of operation and maintenance thereof, shall be paid by Lessee to Lessor upon
demand by Lessor as additional rent.
Lessee will not, without the prior written consent of Lessor, use or permit
the use of any apparatus or device in or upon the Premises, including, but
without limitation thereto, machines using in excess of 120 volts, which will in
any way increase the amount of gas, electricity or water usually furnished or
supplied for the use of the Premises as general office space; nor will Lessee
connect or permit connection with electric current, gas or water supply lines,
except (in the case of electric current) through existing gas lines or
electrical outlets in the Premises, any apparatus or device for the purpose of
using gas, electric current or water. If Lessee requires water or electric
current in excess of that usually furnished or supplied for the use of the
Premises as general office space, Lessee shall first procure the written
consent of Lessor, which Lessor may refuse, to the use thereof and Lessor may
cause a water or gas meter or electric current meter to be installed in the
Premises so as to measure the amount of water, gas and electric current consumed
for any such use. The cost of any such meters and of installation, maintenance
and repair thereof shall be
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paid for by the Lessee and Lessee agrees to pay to Lessor, as additional rent,
promptly upon demand therefor by Lessor for all such water, gas and electric
current consumed as shown by said meters, at the rates charged for such services
by the local public utility furnishing the same, plus any additional expense
incurred in keeping account of the water, gas and electric current so consumed.
If a separate meter is not installed, such excess cost for such water, gas and
electric current will be conclusively established by an estimate made by a
utility company or electrical engineer selected by Lessor.
18. RULES AND REGULATIONS. Lessee shall faithfully observe and comply with the
---------------------
rules and regulations that Lessor shall from time to time promulgate for the
Building and the Project. Lessor reserves the right from time to time to make
all reasonable modifications to said rules and regulations. The additions and
modifications to these rules and regulations shall be binding upon Lessee upon
delivery of a copy of them to Lessee. Lessor shall not be responsible to Lessee
for the non-performance of any said rules by any other tenants or occupants.
The current "Rules & Regulations" are attached hereto as Exhibit "D".
19. HOLDING OVER. If Lessee remains in possession of the Premises or any part
------------
thereof after the expiration of the Term, with the express written consent of
Lessor, such occupancy shall be a tenancy from month to month at a Base Rent in
the amount of one hundred fifty percent (150%) of the Base Rent in effect
immediately preceding such expiration, plus all other rental charges payable
hereunder, and upon all the terms hereof applicable to a month to month tenancy.
In such case, either party may thereafter terminate this Lease at any time upon
giving not less than thirty (30) days written notice to the other party. For
any possession of the Premises after the Lease Expiration without Lessor's
consent, Lessee shall be liable for all detriment proximately caused by Lessee's
possession, including without limitation, attorneys' fees, costs and expenses,
claims of any succeeding tenant founded on Lessee's failure to vacate and for
payment to Lessor of the fair market rental value for the Base Rent for the
Premises, together with such other Rentals provided in this Lease to the date
Lessee actually vacates the Premises, and such other remedies as are provided by
law, in equity or under this Lease, including without limitation punitive
damages recoverable under California Code of Civil Procedure Section 1174.
20. ENTRY BY LESSOR. Lessor reserves and shall at any and all reasonable times
---------------
have the right to enter the Premises, inspect the same, supply janitorial
service and any other service to be provided by Lessor to Lessee hereunder, to
submit said Premises to prospective purchasers, mortgagees, lenders or tenants,
to post notices of non-responsibility, and to alter, improve or repair the
Premises and any portion of the Building that Lessor may deem necessary or
desirable, without any abatement of Rentals, and may for such purposes erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, providing that the entrance to the
Premises shall not be unreasonably blocked thereby, and further providing that
the business of the Lessee shall not be interfered with unreasonably. Lessee
hereby waives any claim for damages or for any injury or inconvenience to or
interference with Lessee's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other damage or loss occasioned thereby. For each of the
aforesaid purposes, Lessor shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the Premises, excluding Lessee's
vaults, safes and files, and Lessor shall have the right to use any and all
means which Lessor may deem proper to open said doors in an emergency in order
to obtain entry to the Premises, without liability to Lessee except for any
failure to exercise due care for Lessee's property under the circumstances of
each entry. Any entry to the Premises obtained by Lessor by any of said means
or otherwise shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction
of Lessee from the Premises or any portion thereof. If Lessee has removed
substantially all of Lessee's property from the Premises, Lessor may, without
abatement of Rentals, enter the Premises for alteration, renovation or
decoration during the last thirty (30) days of the Term. With respect to any
entry by Lessor into the Premises, Lessor shall be liable to Lessee solely for
physical damage caused to Lessee's personal property located within the Premises
to the extent such damage is caused by Lessor's active negligence or willful
misconduct, and only with respect to an entry in an non-emergency situation. In
no event shall Lessor have any liability to Lessee for any injury or
inconvenience to or interference with Lessee's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other damage or loss occasioned
hereby.
21. RECONSTRUCTION. If the Premises are damaged and rendered substantially
--------------
untenantable, or if the Building is damaged (regardless of damage to the
Premises) or destroyed, Lessor may, within ninety (90) days after the casualty,
notify Lessee of Lessor's election not to repair, in which event this Lease
shall terminate at the expiration of the ninetieth (90th) day. If Lessor elects
to repair the damage or destruction, this Lease shall remain in effect and the
then current Base Rent and Lessee's Percentage Share of Excess Expenses shall be
proportionately reduced during the period of repair. The reduction shall be
based upon the extent to which the making of repairs interferes with Lessee's
business conducted in the Premises, as reasonably determined by Lessor. All
other Rentals due hereunder shall continue unaffected, and Lessee shall have no
claim against Lessor for compensation for inconvenience or loss of business
during any period of repair or reconstruction. Lessee shall continue the
operation of its business on the Premises during any period of reconstruction or
repair to the extent reasonably practicable from the standpoint of prudent
business management. Upon Lessor's election to repair, Lessor shall diligently
repair the damage to the extent of insurance proceeds available to Lessor.
Lessor shall not be required to repair or replace, whether injured or damaged by
fire or other cause, any items required to be insured by Lessee under this Lease
including Lessee's fixtures, equipment, merchandise, personal property,
inventory, panels, decoration, furniture, railings, floor covering, partitions
or any other improvements, alterations, additions, or property made or
installed by Lessee to the Premises, and Lessee shall be obligated to promptly
rebuild or restore the same to the same condition as they were in immediately
before the casualty. Lessee hereby waives all claims for loss or damage to the
foregoing. Lessee waives any rights to terminate this Lease if the Premises
are damaged or destroyed, including without limitation any rights pursuant to
the provisions of Subdivision 2 of Section 1932 and Subdivision 4 of Section
1933 of the Civil Code of California, as amended from time to time, and the
provisions of any similar law hereinafter enacted. If the Lease is terminated
by Lessor pursuant to this Article 2l, the unused balance of the Security
Deposit
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and any Rentals unearned as of the effective date of termination shall be
refunded to Lessee. Lessee shall pay to Lessor any Rentals or other charges due
Lessor under the Lease, prorated as of the effective date of termination.
Notwithstanding anything to the contrary in the foregoing, if the damage is due
to the fault or neglect of Lessee, or Lessee's Agents, there shall be no
abatement of Base Rent or any other Rentals.
Notwithstanding the foregoing, if less than thirty-three percent (33%) of
the Rentable Area of the Building is damaged from an insured casualty and the
insurance proceeds actually available to Lessor for reconstruction (net of costs
to recover such proceeds and after all claimants thereto including lienholders
have been satisfied or waive their respective claims) ("Net Insurance Proceeds")
are sufficient to completely restore the Building, Lessor agrees to make such
reparations and continue this Lease in effect. If, upon damage of less than
thirty-three percent (33%) of the Rentable Area of the Building there are not
sufficient insurance proceeds actually available to allow Lessor to completely
restore the Building, Lessor shall not be obligated to repair the Building and
the provisions of the first paragraph of this Article shall control.
Lessee shall not be entitled to any compensation or damages from Lessor for
loss of the use of the whole or any part of the Premises, or for any damage to
Lessee's business, or any inconvenience or annoyance occasioned by such damage,
or by any repair, reconstruction or restoration by Lessor, or by any failure of
Lessor to make any repairs, reconstruction or restoration under this Article or
any other provision of this Lease.
Termination of Lease. See addendum 18 attached hereto.
22. DEFAULT. The occurrence of any one or more of the following events shall
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constitute a material default and breach of this Lease by Lessee:
a. Lessee's failure to pay when due Base Rent or any other Rentals or
other sums payable hereunder; subject, however, to Addendum 19 attached hereto;
b. Lessee's abandonment of the Premises.
c. Commencement, and continuation for at least thirty (30) days, of any
case, action, or proceeding by, against, or concerning Lessee, or any guarantor
of Lessee's obligations under this Lease ("Guarantor"), under any federal or
state bankruptcy, insolvency, or other debtor's relief law, including without
limitation, (i) a case under Title ll of the United States Code concerning
Lessee, or a Guarantor, whether under Chapter 7, 11, or 13 of such Title or
under any other Chapter, or (ii) a case, action, or proceeding seeking Lessee's
or a Guarantor's financial reorganization or an arrangement with any of Lessee's
or a Guarantor's creditors;
d. Voluntary or involuntary appointment of a receiver, trustee, keeper,
or other person who takes possession for more than thirty (30) days of
substantially all of Lessee's or a Guarantor's assets, or of any asset used in
Lessee's business on the Premises, regardless of whether such appointment is as
a result of insolvency or any other cause;
e. Execution of an assignment for the benefit of creditors of
substantially all assets of Lessee or a Guarantor available by law for the
satisfaction of judgment creditors;
f. Commencement of proceedings for winding up or dissolving (whether
voluntary or involuntary) the entity of Lessee or a Guarantor, if Lessee or such
Guarantor is a corporation or a partnership;
x. Xxxx of a writ of attachment or execution on Lessee's interest under
this Lease, if such writ continues for a period of ten (10) days;
h. Any Transfer or attempted Transfer of this Lease by Lessee contrary to
the provisions of Article 13 above; or
i. With respect to any report that Lessee is required to submit
hereunder, the intentional submission by Lessee of any false report;
j. The use or occupancy of the Premises for any use or purpose not
specifically allowed by the terms of this Lease; or
k. Breach by Lessee of any term, covenant, condition, warranty, or
provision contained in this Lease or of any other obligation owing or due to
Lessor other than as described in subsections 22.a., b., c., d., e., f., g., or
h. of this Article 22, where such failure shall continue for the period
specified in this Lease or if no such period is specified, for a period of
thirty (30) days after written notice thereof by Lessor to Lessee; provided,
however, that if the nature of Lessee's default is such that more than thirty
(30) days are reasonably required for its cure, Lessee shall not be deemed to be
in default if Lessee commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion, and if Lessee provides
Lessor with such security as Lessor may require to fully compensate Lessor for
any loss or liability to which Lessor might be exposed.
23. REMEDIES UPON DEFAULT. Upon any default or breach by Lessee, at any time
---------------------
thereafter, with or without notice or demand, and without limiting Lessor in the
exercise of any right or remedy which Lessor may have hereunder or otherwise at
law or in equity by reason of such default or breach Lessor may do the
following:
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a. Termination of Lease. Lessor may terminate this Lease or Lessee's
--------------------
right to possession of the Premises by notice to Lessee or any other lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee:
(i) The worth at the time of award of the unpaid Rentals which had
been earned at the time of termination;
(ii) The worth at the time of award of the amount by which the
unpaid Rentals which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided;
(iii) The worth at the time of award (computed by discounting at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent) of the amount by which the unpaid Rentals for the balance of
the Term after the time of award exceeds the amount of such rental loss that
Lessee proves could be reasonably avoided; and
(iv) Any other amounts necessary to compensate Lessor for detriment
proximately caused by the default by Lessee or which in the ordinary course of
events would likely result, including without limitation the reasonable costs
and expenses incurred by Lessor for:
(A) Retaking possession of the Premises;
(B) Cleaning and making repairs and alterations (including
installation of leasehold improvements, whether or not the same shall be funded
by a reduction of rent, direct payment or otherwise) necessary to return the
Premises to good condition and preparing the Premises for reletting;
(C) Removing, transporting, and storing any of Lessee's
property left at the Premises (although Lessor shall have no obligation to
remove, transport, or store any of the property);
(D) Reletting the Premises, including without limitation,
brokerage commissions, advertising costs, and attorneys' fees;
(E) Attorneys' fees, expert witness fees and court costs;
(F) Any unamortized real estate brokerage commissions paid in
connection with this Lease; and
(G) Costs of carrying the Premises, such as repairs,
maintenance, taxes and insurance premiums, utilities and security precautions,
if any.
The "worth at the time of award" of the amounts referred to in Articles
23.a.(i) and 23.a.(ii) is computed by allowing interest at an annual rate equal
to the greater of: ten percent (10%); or five percent (5%) plus the rate
established by the Federal Reserve Bank of San Francisco, as of the 25th day of
the month immediately preceding the default by Lessee, on advances to member
banks under Section 13 and 13(a) of the Federal Reserve Act, as not in effect or
hereafter from time to time amended (the "Stipulated Rate"). The computation of
the amount of rental loss that could be or could have been reasonably avoided by
Lessor pursuant to California Civil Code section 1951.2 shall take into account
the use restrictions set forth in Article 8.a. above except to the extent that
Lessee proves that under all circumstances the enforcement of the use
restriction would be unreasonable.
b. Continuation of Lease. Lessor may continue this Lease in full force
---------------------
and effect, and the Lease shall continue in effect as long as Lessor does not
terminate Lessee's right to possession, and Lessor shall have the right to
enforce all rights and remedies under this Lease including the right to collect
all Rentals when due. During the period Lessee is in default, Lessor can enter
the Premises and relet them, or any part of them, to third parties for Lessee's
account. Lessee shall be liable immediately to Lessor for all costs Lessor
incurs in reletting the Premises, including without limitation, those items
outlined in subsections a.(i) through a.(iv) of this Article 23, and other like
costs. Reletting can be for a period shorter or longer than the remaining Term.
Lessee shall pay to Lessor all Rentals due under this Lease on the date the
Rentals are due, less the rent Lessor receives from any reletting. No act by
Lessor allowed by this paragraph shall terminate this Lease unless Lessor
notifies Lessee that Lessor elects to terminate this Lease. The use restriction
provided in Article 8.a. above shall apply to Lessor's remedies under California
Civil Code section 1951.4 except to the extent that Lessee proves that under all
circumstances enforcement of the use restriction would be unreasonable.
c. Other Remedies. Lessor may pursue any other remedy now or hereafter
--------------
available to Lessor under the laws or judicial decisions of the State in which
the Premises are located.
d. General. The following shall apply to Lessor's remedies:
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(i) No entry upon or taking of possession of the Premises or any part
thereof by Lessor, nor any letting or subletting thereof by Lessor for Lessee,
nor any appointment of a receiver, nor any other act of Lessor, whether
acceptance of keys to the Premises or otherwise, shall constitute or be
construed as an election by Lessor to terminate this Lease or Lessee's right to
possession of the Premises unless a written notice of such election be given to
Lessee by Lessor.
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(ii) If Lessor elects to terminate this Lease or Lessee's right to
possession hereunder, Lessee shall surrender and vacate the Premises in broom-
clean condition, and Lessor may re-enter and take possession of the Premises and
may eject all parties in possession or eject some and not others or eject none.
Any personal property of or under the control of Lessee remaining on the
Premises at the time of such re-entry may be considered and treated by Lessor as
abandoned.
(iii) Termination of this Lease or Lessee's right to possession by
Lessor shall not relieve Lessee from any liability to Lessor under any provision
of this Lease providing for any indemnification of Lessor by Lessee. Lessee
shall indemnify Lessor for all personal injuries and property damage arising out
of Lessee's use or occupancy of the Premises or any acts or omissions of Lessee
or Lessee's Agents.
24. EMINENT DOMAIN. If more than twenty-five percent (25%) of the area of the
--------------
Premises is taken or appropriated for any public or quasi-public use under the
power of eminent domain, or conveyed in lieu thereof, either party hereto shall
have the right, at its option, to terminate this Lease by written notice to the
other party given within ten (10) days of the date of such taking, appropriation
or conveyance, and Lessor shall be entitled to any and all income, rent, award,
or any interest therein whatsoever which may be paid or made (the "Award") in
connection with such public or quasi-public use or purpose, and Lessee shall
have no claim against Lessor for the value of any unexpired term of this Lease.
If any part of the Building or the Project other than the Premises may be so
taken, appropriated or conveyed, Lessor shall have the right at its option to
terminate this Lease, and in any such event Lessor shall be entitled to the
entire Award whether or not this Lease is terminated. If this Lease is
terminated as provided above: (i) the termination shall be effective as of the
date upon which title to the Premises, the Building, the Project, or a portion
thereof, passes to and vests in the condemnor or the effective date of any order
for possession if issued prior to the date title vests in the condemnor; (ii)
Lessor shall refund to Lessee any prepaid but unearned Rentals and the unused
balance of the Security Deposit; and (iii) Lessee shall pay to Lessor any
Rentals or other charges due Lessor under the Lease, prorated as of the date of
taking.
If less than twenty-five percent (25%) of the Premises is so taken,
appropriated or conveyed, or more than twenty-five percent (25%) thereof is so
taken, appropriated or conveyed and neither party elects to terminate as herein
provided, (i) Lessee shall receive from the Award that portion of the Award
attributable to trade fixtures of Lessee to the extent the Award is not payable
to the beneficiary or mortgagee of a deed of trust or mortgage affecting the
Building containing the Premises and Lessor shall receive the balance of the
Award; and (ii) the Rental thereafter to be paid hereunder for the Premises
shall be reduced in the same ratio that the percentage of the area of the
Premises so taken, appropriated or conveyed bears to the total area of the
Premises immediately prior to the taking, appropriation or conveyance. In
addition, if any rentable area in the Building containing the Premises is so
taken, appropriated or conveyed and this Lease is not terminated by Lessor,
Lessee's Percentage Share of Excess Expenses shall be adjusted pursuant to
Article 7.
Notwithstanding this Article 24 above, upon a temporary taking of all or
any portion of the Premises, the Lease shall remain in effect and Lessee shall
continue to pay and be liable for all Rentals under this Lease. Upon such
temporary taking, Lessee shall be entitled to any Award for the temporary use of
the portion of the Premises taken which is attributable to the period prior to
the date of Lease Termination, and Lessor shall be entitled to any portion of
the Award for such use attributable to the period after Lease Termination. As
used in this paragraph, a temporary taking shall mean a taking for a period of
one year or less and does not include a taking which is to last for an
indefinite period and/or which will terminate only upon the happening of a
specified event unless it can be determined at the time of the taking when such
event will occur.
25. OFFSET STATEMENT. Lessee shall at any time and from time to time within
----------------
ten (10) days following request from Lessor execute, acknowledge and deliver to
Lessor a statement in writing, (i) certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease as so modified is in full force and
effect), (ii) acknowledging that there are not, to Lessee's knowledge, any
uncured defaults on the part of the Lessor hereunder, or specifying such
defaults if any are claimed, (iii) certifying the date Lessee entered into
occupancy of the Premises and that Lessee is open and conducting business at the
Premises, (iv) certifying the date to which Rentals and other charges are paid
in advance, if any, (v) evidencing the status of this Lease as may be required
either by a lender making a loan affecting or a purchaser of the Premises, or
part of the Project from Lessor, (vi) warranting that if any beneficiary of any
security instrument encumbering the Premises forecloses on the security
instrument, such beneficiary shall not be liable for the Security Deposit, (vii)
certifying that all improvements to be constructed on the Premises by Lessor are
substantially completed, except for any punch list items which do not prevent
Lessee from using the Premises for its intended use, and (viii) certifying such
other matters relating to this Lease and/or the Premises as may be requested by
a lender making a loan to Lessor or a purchaser of the Premises, or any part of
the Project from Lessor. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Project, or
any interest therein. Lessee shall, within ten (10) days following request of
Lessor, deliver such other documents including Lessee's financial statements as
are reasonably requested in connection with the sale of, or loan to be secured
by, any portion of the Project, or any interest therein.
26. PARKING. Lessee shall have the right to use the number of non-exclusive
-------
parking spaces located within the Project as designated in Article 1.l., subject
to Lessor's right to relocate such parking area from time to time. Use of all
parking spaces shall be subject to rules and regulations established by Lessor
which may be altered at any time and from time to time during the Term. The
location of all parking spaces may be designated from time to time by Lessor.
Neither Lessee nor Lessee's Agents shall at any time use more parking spaces
than the number so allocated
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to Lessee or park or permit the parking of their vehicles in any portion of the
Parcel not designated by Lessor as a non-exclusive parking area. Lessee and
Lessee's Agents shall not have the exclusive right to use any specific parking
space, except as expressly stated in this Article 26.
Notwithstanding the number of parking spaces designated for Lessee's non-
exclusive use, in the event by reason of any rule, regulation, order, law,
statute or ordinance of any governmental or quasi-governmental authority
relating to or affecting parking on the Parcel, or any cause beyond Lessor's
reasonable control, Lessor is required to reduce the number of parking spaces on
the Parcel, Lessor shall have the right to proportionately reduce the number of
Lessee's parking spaces and the non-exclusive parking spaces of other tenants of
the Building. Lessor reserves the right in its absolute discretion: to determine
whether parking facilities are becoming overcrowded and in such event to re-
allocate parking spaces among Lessee and other tenants of the Project; to have
any vehicles owned by Lessee or Lessee's Agents which are parked in violation of
the provisions of this Article 26 or Lessor's rules and regulations relating to
parking, towed away at Lessee's cost, after having given Lessee reasonable
notice. In the event Lessor elects or is required by any law to limit or control
parking on the Parcel, by validation of parking tickets or any other method,
Lessee agrees to participate in such validation or other program under such
reasonable rules and regulations as are from time to time established by Lessor.
Lessor shall have the right to close all or any portion of the parking areas at
reasonable times for any purpose, including, without limitation, the prevention
of a dedication thereof, or the accrual of rights in any person or the public
therein. Employees of Lessee shall be required to park in areas designated for
employee parking, if any. The parking areas shall not be used by Lessee or
Lessee's Agents for any purpose other than the parking of motor vehicles and the
ingress and egress of pedestrians and motor vehicles.
27. AUTHORITY. If Lessee is a corporation (or partnership), each individual
---------
executing this Lease on behalf of said corporation (or partnership) represents
and warrants that he is duly authorized to execute and deliver this Lease on
behalf of said corporation in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the by-laws of said
corporation (or on behalf of said partnership in accordance with the partnership
agreement of such partnership) and that this Lease is binding upon said
corporation (or partnership) in accordance with its terms. If Lessee is a
corporation, Lessee shall, upon execution of this Lease, deliver to Lessor a
certified copy of a resolution of the Board of Directors of said corporation
authorizing or ratifying the execution of this Lease. If Lessee fails to deliver
such resolution to Lessor upon execution of this Lease, Lessor shall not be
deemed to have waived its right to require delivery of such resolution, and at
any time during the Term Lessor may request Lessee to deliver the same, and
Lessee agrees it shall thereafter promptly deliver such resolution to Lessor. If
Lessee is a corporation, Lessee hereby represents, warrants, and covenants that
(i) Lessee is a valid and existing corporation; (ii) Lessee is qualified to do
business in California; (iii) all fees and all franchise and corporate taxes of
Lessee are paid to date, and will be paid when due; (iv) all required forms and
reports will be filed when due; and (v) the signers of this Lease are properly
authorized to execute this Lease on behalf of Lessee and to bind Lessee hereto.
28. SURRENDER OF PREMISES.
---------------------
a. Condition of Premises. Lessee shall, upon Lease Termination, surrender
---------------------
the Premises broom clean, trash free, and in good condition, reasonable wear and
tear, and insured casualties to the extent of Net Insurance Proceeds recovered
by Lessor, alone excepted. By written notice to Lessee, Lessor may elect to
cause Lessee to remove from the Premises or cause to be removed, at Lessee's
expense, any logos, signs, notices, advertisements or displays placed on the
Premises by Lessee. If the Premises are not so surrendered as required by this
Article 28, Lessee shall indemnify Lessor from any loss or liability resulting
from Lessee's failure to comply with the provisions of this Article 28,
including, without limitation, any claims made by any succeeding tenant or
losses to Lessor due to lost opportunities to lease to succeeding tenants.
b. Removal of Personal Property. Lessee shall remove all its personal
----------------------------
property from the Premises upon Lease Expiration or sooner termination, and
shall immediately repair all damage to the Premises, Building and Common Area
caused by such removal. Any personal property remaining on the Premises after
Lease expiration or sooner termination may be packed, transported, and stored at
a public warehouse at Lessee's expense. If after Lease Expiration or sooner
termination and, within ten (10) days after written demand by Lessor, Lessee
fails to remove Lessee's personal property or, if removed by Lessor, fails to
pay the removal expenses, the personal property may be deemed abandoned property
by Lessor and may be disposed of as Lessor deems appropriate. Lessee shall
repair any damage to the Premises caused by or in connection with the removal of
any personal property, including without limitation, the floor and patch and
paint the walls, when required by Lessor, to Lessor's reasonable satisfaction,
all at Lessee's sole cost and expense. The provisions of this Article 28 shall
survive Lease Termination.
29. LESSOR DEFAULT AND MORTGAGEE PROTECTION. Lessor shall not be in default
---------------------------------------
under this Lease unless Lessee shall have given Lessor written notice of the
breach, and, within thirty (30) days after notice, Lessor has not cured the
breach or, if the breach is such that it cannot reasonably be cured under the
circumstances within thirty (30) days, has not commenced diligently to prosecute
the cure to completion. Any money judgment obtained by Lessee based upon
Lessor's breach of this Lease shall be satisfied only out of the proceeds of the
sale or disposition of Lessor's interest in the Building in which the premises
are located (whether by Lessor or by execution of judgment). Upon any default
by Lessor under this Lease, Lessee shall give notice by registered mail to any
beneficiary or mortgagee of a deed of trust or mortgage encumbering the
Premises, and/or any portion of the Project, whose address shall have been
furnished to it, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises, and/or Project, or any portion thereof, by power of sale or judicial
foreclosure, if such should prove necessary to effect a cure.
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30. RIGHTS RESERVED BY LESSOR. Subject to the provisions of Addendum 20
-------------------------
attached hereto, Lessor shall have the exclusive right in its sole discretion,
without abatement of Rentals and without limiting Lessor's other rights under
this Lease, to (i) designate the name, address, or other designation of the
Building and/or Project, without notice or liability to Lessee; (ii) close
entrances, doors, corridors, elevators, escalators or other Building facilities
or temporarily xxxxx their operation; (iii) change or revise the business hours
of the Building; (iv) expand, suspend, close, eliminate, adjust, or replace any
portion of any Project, or any services within any portion of the Project; (v)
grant the use of the Exterior Common Area to other improvements located on the
Parcel; and/or (vi) place limitations on the parking rights of Lessee pursuant
to Article 26.
31. PLATS AND RIDERS. Clauses, plats and riders, if any, signed by the Lessor
----------------
and the Lessee and endorsed on or affixed to this Lease are a part hereof.
32. WAIVER. No covenant, term or condition in this Lease or the breach thereof
------
shall be deemed waived, except by written consent of the party against whom the
waiver is claimed. Any waiver of the breach of any covenant, term or condition
herein shall not be deemed to be a waiver of any preceding or succeeding breach
of the same or any other covenant, term or condition. Acceptance by Lessor of
any performance by Lessee after the time the same shall have become due shall
not constitute a waiver by Lessor of the breach or default of any covenant, term
or condition unless otherwise expressly agreed to by Lessor in writing. The
acceptance by Lessor of any sum less than that which is required to be paid by
Lessee shall be deemed to have been received only on account of the obligation
for which it is paid (or for which it is allocated by Lessor, in Lessor's
absolute discretion, if Lessee does not designate the obligation as to which the
payment should be credited), and shall not be deemed an accord and satisfaction
notwithstanding any provisions to the contrary written on any check or contained
in a letter of transmittal. Lessor's efforts to mitigate damages caused by any
default by Lessee shall not constitute a waiver of Lessor's right to recover
damages for any default by Lessee. No custom or practice which may arise
between the parties hereto in the administration of the terms hereof shall be
construed as a waiver or diminution of Lessor's right to demand performance by
Lessee in strict accordance with the terms of this Lease.
33. NOTICES. All notices, consents and demands which may or are to be
-------
required or permitted to be given by either party to the other hereunder shall
be in writing. All notices, consents and demands by Lessor to Lessee shall be
personally delivered or sent by United States Mail, postage prepaid, and a copy
thereof sent by facsimile, addressed to Lessee as designated in Article 1.m., or
to such other place as Lessee may from time to time designate in a notice to
Lessor pursuant to this Article 33. All notices and demands by Lessee to Lessor
shall be personally delivered or sent by United States Mail, postage prepaid,
and a copy thereof sent by facsimile, addressed to Lessor as designated in
Article 1.m., or to such other person or place as Lessor may from time to time
designate in a notice to Lessee pursuant to this Article 33. Mailed notices
shall be deemed delivered twenty-four (24) hours after deposit in the United
States mail as required by this Article 33. Notwithstanding the foregoing, any
legal notices required to be sent by one party to the other (including, without
limitation, a notice pursuant to California Code of Civil Procedure Section
1161) shall be delivered in the manner required by law. All notices sent by
either party through U.S. mail shall be sent by certified mail, return receipt
---------------------------------
requested.
---------
34. JOINT OBLIGATIONS. If Lessee consists of more than one person or entity,
-----------------
the obligations of each Lessee under this Lease shall be joint and several.
35. MARGINAL HEADINGS. The captions of paragraphs and articles of this Lease
-----------------
are not a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
36. TIME. Time is of the essence of this Lease and each and all of its
----
provisions in which performance is a factor except as to the delivery of
possession of the Premises to Lessee.
37. SUCCESSORS AND ASSIGNS. The covenants and conditions herein contained,
----------------------
subject to the provisions of Article 13, apply to and bind the heirs,
successors, executors, administrators, legal representatives and assigns of the
parties hereto.
38. RECORDATION. Upon request by Lessor, Lessee shall execute and acknowledge
-----------
a short form of this Lease in form for recording which may be recorded at
Lessor's election. Lessee shall not record this Lease or a short form or
memorandum hereof without the prior written consent of Lessor.
39. QUIET POSSESSION. Upon Lessee paying the Rentals reserved hereunder and
----------------
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire Term, subject to all the provisions of
this Lease and subject to any ground or underlying leases, mortgages or deeds of
trust now or hereafter affecting the Premises or the Building and the rights
reserved by Lessor hereunder.
40. LATE CHARGES; ADDITIONAL RENT AND INTEREST.
------------------------------------------
a. Late Charges. Lessee acknowledges that late payment by Lessee to
------------
Lessor of Rentals or other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which are impracticable or
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any mortgage or trust deed covering the Premises or any
part of the Project. Accordingly, if any installment of Rentals or any other sum
due from Lessee is not received by Lessor or Lessor's designee within three (3)
business days after the due date, then Lessee shall pay to Lessor, in each case,
a late charge equal to ten percent (10%) of such overdue amount. The
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parties agree that such late charge represents a fair and reasonable estimate of
the cost that Lessor will incur by reason of late payment by Lessee. Acceptance
of any late charges by Lessor shall in no event constitute a waiver of Lessee's
default with respect to such overdue amount, nor prevent Lessor from exercising
any of its other rights and remedies under this Lease.
b. Rentals, Additional Rent and Interest. All taxes, charges, costs,
-------------------------------------
expenses, and other amounts which Lessee is required to pay hereunder, including
without limitation Lessee's Percentage Share of Excess Expenses, and all
interest and charges (including late charges) that may accrue thereon upon
Lessee's failure to pay the same and all damages, costs and expenses which
Lessor may incur by reason of any default by Lessee shall be deemed to be
additional rent hereunder. Upon nonpayment by Lessee of any additional rent,
Lessor shall have all the rights and remedies with respect thereto as Lessor has
for the nonpayment of Base Rent. The term "Rentals" as used in this Lease is
Base Rent and all additional rent. Any payment due from Lessee to Lessor,
including but not limited to Base Rent and all additional rent shall bear
interest from the thirtieth (30th) day after the same is due until paid, at an
annual rate equal to the maximum rate that Lessor is allowed to contract for by
law. Payment of such interest shall not excuse or cure any default by Lessee.
In addition, Lessee shall pay all costs and attorneys' fees incurred by Lessor
in collection of such amounts. All Rentals and other moneys due under this
Lease shall survive the Lease Termination. Interest on Rentals past due as
provided herein shall be in addition to the late charges levied pursuant to
40.a. above. All Rentals shall be paid to Lessor, in lawful money of the United
States of America which shall be legal tender at the time of payment, at the
address of Lessor a provided herein, or to such other person or at such other
place as Lessor may from time to time designate in writing. If at any time
during the Term Lessee pays any Rentals for insufficient funds, Lessor shall
have the right, in addition to any other rights or remedies Lessor may have
hereunder, to require that Rentals thereafter be paid in cash or by cashier's or
certified check.
41. PRIOR AGREEMENTS. This Lease contains all of the agreements of the parties
----------------
hereto with respect to the Premises, this Lease or any matter covered or
mentioned in this Lease, and no prior agreements or understanding pertaining to
any such matters shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest. This Lease shall not
be effective or binding on Lessor until fully executed by Lessor.
42. INABILITY TO PERFORM. This Lease and the obligations of the Lessee
--------------------
hereunder shall not be affected or impaired because the Lessor is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, Acts of God,
or any other cause, similar or dissimilar, beyond the reasonable control of the
Lessor.
43. ATTORNEYS' FEES. If either party to this agreement shall bring an action
---------------
to interpret or enforce this agreement or for any relief against the other,
including, but not limited to, declaratory relief or a proceeding in
arbitration, the losing party shall pay to the prevailing party a reasonable sum
for attorney's fees, expert witness fees and other costs incurred in such action
or proceeding. Additionally, the prevailing party shall be entitled to all
additional attorney's fees and costs incurred in enforcing and collecting any
such judgment or award. Any judgment or order entered in such action shall
contain a specific provision providing for the recovery of attorney's fees and
costs incurred in enforcing such award or judgment.
44. SALE OF PREMISES BY LESSOR/ LIMITATION OF LIABILITY. Upon a sale or
---------------------------------------------------
conveyance by the Lessor herein named (and in case of any subsequent transfers
or conveyances, the then grantor) of Lessor's interest in the Building other
than a transfer for security purposes only, the Lessor herein named (and in
case of any subsequent transfers or conveyances, the then grantor) shall be
relieved, from and after the date of such transfer, of all obligations and
liabilities accruing thereafter on the part of Lessor, provided that any funds
in the hands of Lessor or the then grantor at the time of transfer and in which
Lessee has an interest, less any deductions permitted by law or this Lease,
shall be delivered to Lessor's successor. Following such sale or conveyance by
Lessor or the then grantor, Lessee agrees to look solely to the responsibility
of the successor-in-interest of Lessor in and to this Lease. This Lease shall
not be affected by any such sale or conveyance and Lessee agrees to attorn to
the purchaser or assignee. If the Lessor herein is a limited partnership, it is
understood and agreed that any claim by Lessee on Lessor shall be limited to the
assets of the limited partnership, and furthermore, Lessee expressly waives any
and all rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner.
45. SUBORDINATION/ATTORNMENT. This Lease, at Lessor's option, shall be
------------------------
subject and subordinate to all ground or underlying leases which now exist or
may hereafter be executed affecting any portion of the Project and to the lien
of any mortgages or deeds of trust (including all advances thereunder,
renewals, replacements, modifications, supplements, consolidations, and
extensions thereof) in any amount or amounts whatsoever now or hereafter placed
on or against any portion of the Project, or on or against Lessor's interest or
estate therein, or on or against any ground or underlying lease, without the
necessity of the execution and delivery of any further instruments on the part
of Lessee to effectuate such subordination. Lessee covenants and agrees to
execute and deliver upon demand and without charge therefor, such further
instruments evidencing the subordination of this Lease to such ground or
underlying leases and/or to the lien of any such mortgages or deeds of trusts
as may be required by Lessor or a lender making a loan affecting the Project;
provided that such mortgagee or beneficiary under such mortgage or deed of trust
or lessor under such ground or underlying lease agrees in writing that so long
as Lessee is not in default under this Lease, this Lease shall not be terminated
in the event of any foreclosure or Lease Termination. Failure of Lessee to
execute such instruments evidencing subordination of this Lease shall constitute
a default by Lessee under this Lease. If any mortgagee, beneficiary or lessor
elects to have this Lease prior to the lien of its mortgage, deed of trust or
lease, and shall give written notice thereof to Lessee, this Lease shall be
deemed prior to such mortgage, deed of trust or lease, whether this Lease is
dated prior or subsequent to the date of said mortgage, deed of trust, or lease
or the date of the recording thereof.
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If any proceedings are brought to terminate any ground or underlying leases
or for foreclosure, or upon the exercise of the power of sale, under any
mortgage or deed of trust covering any portion of the Project, Lessee shall
attorn to the lessor or purchaser upon any such termination, foreclosure or sale
and recognize such lessor or purchaser as the Lessor under this Lease. So long
as Lessee is not in default hereunder and attorns as required above, this Lease
shall remain in full force and effect for the full term hereof after any such
termination, foreclosure or sale.
46. NAME. Lessee shall not use any name, picture or representation of the
----
Building or Project for any purpose other than as an address of the business to
be conducted by the Lessee in the Premises.
47. SEVERABILITY. Any provision of this Lease which proves to be invalid,
------------
void or illegal shall in no way affect, impair or invalidate any other provision
of this Lease and all such other provisions shall remain in full force and
effect; however, if Lessee's obligation to pay the Rentals is determined to be
invalid or unenforceable, this Lease shall terminate at the option of Lessor.
48. CUMULATIVE REMEDIES. Except has otherwise expressly provided in this
-------------------
Lease, no remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
49. CHOICE OF LAW. This Lease shall be governed by the laws of the State of
-------------
California.
50. SIGNS. Lessee shall not inscribe, paint, affix or place any sign, awning,
-----
canopy, advertising matter, decoration or lettering upon any portion of the
Premises, including, without limitation, any exterior door, window or wall,
without Lessor's prior written consent.
51. GENDER AND NUMBER. Wherever the context so requires, each gender shall
-----------------
include any other gender, and the singular number shall include the plural and
vice-versa.
52. CONSENTS. Whenever the consent of Lessor is required herein, the giving or
--------
withholding of such consent in any one or any number of instances shall not
limit or waive the need for such consent in any other or future instances. Any
consent given by Lessor shall not be binding upon Lessor unless in writing and
signed by Lessor or Lessor's agents. Notwithstanding any other provision of
this Lease, where Lessee is required to obtain the consent of Lessor to do any
act, or to refrain from the performance of any act, Lessee agrees that if
Lessee is in default with respect to any term, condition, covenant or provision
of this Lease, then Lessor shall be deemed to have acted reasonably in
withholding its consent if said consent is, in fact, withheld.
53. BROKERS. Lessee warrants that it has had no dealing with any real estate
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broker or agents in connection with the negotiation of this lease excepting only
the broker or agent designated in Article 1.n., and that it knows of no other
real estate broker or agent who is entitled to or can claim a commission in
connection with this Lease. Lessee agrees to indemnify and hold Lessor
harmless from and against any and all claims, demands, losses, liabilities,
lawsuits, judgments, and costs and expenses (including without limitation
reasonable attorneys' fees) with respect to any alleged leasing commission or
equivalent compensation alleged to be owing on account of Lessee's dealings with
any real estate broker or agent other than the broker(s) identified in Article
1.x. Xxxxxx shall be reponsible for the payment of a leasing commission to such
broker(s) in accordance with a separate agreement between Lessor and Lessor's
agent, Xxxxxxx & Wakefield of California.
54. SUBSURFACE AND AIRSPACE. This Lease confers on Lessee no rights either
-----------------------
with respect to the subsurface of the Parcel or with regard to airspace above
the top of the Building or above any paved or landscaped areas on the Parcel or
Common Area and Lessor expressly reserves the right to use such subsurface and
airspace areas, including without limitation the right to perform construction
work thereon and in regard thereto. Any diminution or shutting off of light,
air or view by any structure which may be erected by Lessor on those portions of
the Parcel, Common Area and/or Building reserved by Lessor shall in no way
affect this Lease or impose any liability on Lessor. Lessor shall have the
exclusive right to use all or any portion of the roof, side and rear walls of
the Premises and Building for any purpose. Lessee shall have no right
whatsoever to the exterior of the exterior walls or the roof of the Premises or
any portion of the Project outside the Premises except as provided in Article 55
of this Lease.
55. COMMON AREA. For purposes of the Lease, "Common Area" shall collectively
-----------
mean the following:
a. Exterior Common Area. That portion of the Parcel other than the land
--------------------
comprising the property, and all facilities and improvements on such portion for
the non-exclusive use of Lessee in common with other authorized users,
including, but not limited to, vehicle parking areas, driveways, sidewalks,
landscaped areas, and the facilities and improvements necessary for the
operation thereof (the "Exterior Common Area"); and
b. Building Common Area. That portion of the Building in which the
--------------------
Premises are located, and all of the facilities therein, set aside by Lessor for
the non-exclusive use of Lessee in common with other authorized users,
including, but not limited to, entrances, lobbies, halls, atriums, corridors,
toilets and lavatories, passenger elevators and service areas (the "Building
Common Area").
Subject to the limitations and restrictions contained in this Lease, and
the Rules and Regulations, Lessor grants to Lessee and Lessee's Agents the
nonexclusive right to use the Common Area in common with Lessor, Lessor's agent,
tenants of the Building, other authorized users and their agents, subject to the
provisions of this Lease. The right to use the Common Area shall terminate upon
Lease Termination.
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56. LABOR DISPUTES. If Lessee becomes involved in or is the object of a labor
--------------
dispute which subjects the Premises or any part of the Project to any picketing,
work stoppage, or other concerted activity which in the reasonable opinion of
Lessor is in any manner detrimental to the operation of any part of the Project,
or its tenants, Lessor shall have the right to require Lessee, at Lessee's own
expense and within a reasonable period of time specified by Lessor, to use
Lessee's best efforts to either resolve such labor dispute or terminate or
control any such picketing, work stoppage or other concerted activity to the
extent necessary to eliminate any interference with the operation of the
Projector its tenants. To the extent such labor dispute interferes with the
performance of Lessor's duties hereunder, Lessor shall be excused from the
performance of such duties and Lessee hereby waives any and all claims against
Lessor for damages or losses in regard to such duties. If Lessee fails to use
its best efforts to so resolve such dispute or terminate or control such
picketing, work stoppage or other concerted activity within the period of time
specified by Lessor, Lessor shall have the right to terminate this Lease.
Nothing contained in this Article 56 shall be construed as placing Lessor in an
employer-employee relationship with any of Lessee's employees or with any other
employees who may be involved in such labor dispute. Lessee shall hold Lessor
harmless and indemnify Lessor from any liability (including attorneys' fees)
arising from any labor dispute in which Lessee is involved and which affects any
part of the Project.
57. CONDITIONS. Subject to Articles 22 and 23 of this Lease, all agreements by
----------
Lessee contained in this Lease, whether expressed as covenants or conditions,
shall be construed to be both covenants and conditions, conferring upon Lessor,
upon breach thereof, the right to terminate this Lease.
58. LESSEE'S FINANCIAL STATEMENTS. Lessee hereby warrants that all financial
-----------------------------
statements delivered by Lessee to Lessor prior to the execution of this Lease by
Lessee, or that shall be delivered in accordance with the terms hereof, are or
shall be at the time delivered true, correct, and complete, and prepared in
accordance with generally accepted accounting principles. Lessee acknowledges
and agrees that Lessor is relying on such financial statements in accepting this
Lease, and that a breach of Lessee's warranty as to such financial statements
shall constitute a default by Lessee.
59. LESSOR NOT A TRUSTEE. Lessor shall not be deemed to be a trustee of any
--------------------
funds paid to Lessor by Lessee (or held by Lessor for Lessee) pursuant to this
Lease. Lessor shall not be required to keep any such funds separate from
Lessor's general funds or segregated from any funds paid to Lessor by (or held
by Lessor for) other tenants of the Building. Any funds held by Lessor pursuant
to this Lease shall not bear interest.
60. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
------
mutual cancellation thereof, shall not work a merger, and shall, at the option
of the Lessor, terminate all or any existing subleases or subtenancies, or may,
at the option of Lessor, operate as an assignment to it of any or all such
subleases or subtenancies.
61. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Lease shall be construed
-------------------------------
as creating a partnership or joint venture between Lessor, Lessee, or any other
party, or cause Lessor to be responsible for the debts or obligations of Lessee
or any other party.
62. LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS. Except as otherwise
--------------------------------------------
expressly provided herein, if Lessee fails at any time to make any payment or
perform any other act on its part to be made or performed under this Lease,
Lessor may upon ten (10) days written notice to Lessee, but shall not be
obligated to, and without waiving or releasing Lessee from any obligation under
this Lease, make such payment or perform such other act to the extent that
Lessor may deem desirable, and in connection therewith, pay expenses and employ
counsel. All sums so paid by Lessor and all penalties, interest and costs in
connection therewith shall be due and payable by Lessee to Lessor as additional
rent upon demand.
63. PLANS. Lessee acknowledges that any plan of the Project which may have
-----
been displayed or furnished to Lessee or which may be a part of Exhibit "A" or
Exhibit "B" is tentative; Lessor may from time to time change the shape, size,
location, number, and extent of the improvements shown on any such plan and
eliminate or add any improvements to the Project, in Lessor's sole discretion.
-22-
65. WAIVER OF JURY. LESSOR AND LESSEE HEREBY WAIVE THEIR RESPECTIVE RIGHT TO
--------------
TRIAL BY JURY ON ANY CAUSE OF ACTION, CLAIM, COUNTER-CLAIM OR CROSS-COMPLAINT IN
ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER LESSOR AGAINST LESSEE OR
LESSEE AGAINST LESSOR ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
66. JOINT PARTICIPATION. Lessor and Lessee hereby acknowledge that both
-------------------
parties have been represented by counsel in connection with this Lease and that
both parties have participated in the negotiation and
-23-
drafting of all of the terms and provisions hereof. By reason of this joint
participation, no term or provision of this Lease will be construed against
either party as the "drafter" thereof, which terms and provisions shall include,
without limitation, Article 14 hereof.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE
LESSOR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTIONS
RELATING THERETO.
"LESSOR": NORFOLK ATRIUM, a California limited partnership
By: NAPA RIVER DEVCO, INC.,
a California corporation, its General Partner
By: PROM MANAGEMENT GROUP, INC.,
a California corporation dba Maxim Property Management
as Agent for Owner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------------------------
Title: Executive Vice President and Chief Financial Officer
---------------------------------------------------------
Dated: 8/12/97
---------------------------------------------------------
Address:
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
"LESSEE": INKTOMI CORPORATION
A CALIFORNIA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------------------------------
Title: Vice President of Finance and Chief Financial Officer
---------------------------------------------------------
Dated: 8/8/97
---------------------------------------------------------
Address:
Inktomi Corporation
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
-24-
ADDENDA TO LEASE
----------------
These Addenda to Lease are made by and between NORFOLK ATRIUM, a California
limited partnership ("Lessor"), and INKTOMI CORPORATION, a California
corporation ("Lessee"), who agree as set forth herein.
ADDENDUM 1:
----------
The Initial Premises. Upon the Commencement Date the Premises shall
--------------------
consist of fifteen thousand six hundred fifty-four (15,654) rentable square feet
of third floor office space (the "Initial Premises").
The Additional Space. Effective March 1, 2000, the Premises shall be
--------------------
increased by adding approximately sixteen thousand four hundred two (16,402)
rentable square feet of ground floor space more commonly known as Suite 115 (the
"Additional Space"). Lessor shall deliver said Additional Space to Lessee in its
"as is" condition, without warranty express or implied. Notwithstanding the
preceding sentence, acceptance of the Premises by Lessee in its "as is"
condition shall not be deemed to alter or otherwise limit Lessor's obligations
set forth in Section 11.b. of the Lease.
ADDENDUM 2:
----------
a. Lease Commencement Date. The Commencement Date of this Lease shall be
-----------------------
that date which is fourteen (14) days following the date upon which Lessor
delivers possession of the Initial Premises to Lessee. The anticipated
Commencement Date is October 15, 1997 (the "Anticipated Commencement Date").
b. Lease Expiration Date. The Expiration Date of the Lease for the
---------------------
Initial Premises shall be the last day of the sixtieth (60th) full calendar
month following the Commencement Date, unless extended or sooner terminated
pursuant to this Lease. By way of example, provided the Commencement Date of
this Lease is one and the same as the Anticipated Commencement Date, the
Expiration Date for the Initial Premises would be October 31, 2002.
c. Expiration Date/Additional Space. The Expiration Date for the
--------------------------------
Additional Space is October 31, 2001.
d. Commencement Memorandum. Following the occurrence of the actual
-----------------------
Commencement Date, the parties hereto shall execute a Commencement Memorandum
confirming the Commencement Date and the Expiration Dates for the Premises and
the Additional Space.
ADDENDUM 3:
----------
Based on the Anticipated Commencement Date of October 15, 1997, the Monthly Base
Rent for the Initial Premises and the Additional Space shall be payable in the
amounts as set forth below:
Per Rentable Total Rentable Monthly
From and Including* Square Foot Square Feet Base Rent
------------------ ------------ -------------- -----------
10/15/97 through 09/30/98 $ 2.75 15,654 $ 43,048.50
10/01/98 through 09/30/99 $ 2.90 15,654 $ 45,396.60
10/01/99 through 02/29/00 $ 3.05 15,654 $ 47,744.70
03/01/00 through 09/30/00 $ 3.05 32,056 $ 97,770.80
10/01/00 through 10/31/01 $ 3.20 32,056 $102,579.20
11/01/01 through 10/31/02 $3.35** 15,654 $ 52,440.90
* Note: The specific increase dates referenced above shall be established upon
the determination of the actual Commencement Date of this Lease and such dates
shall be confirmed in the commencement memorandum referenced in Addendum 2
above.
** In the event the initial Term is extended pursuant to Addendum 8 below, then
the Base Rent payable for the period of November 1, 2001 through and including
October 31, 2002 shall be (i) at a rate of $3.35 per rentable square foot per
month; (ii) based on the total rentable area of 32,056 rentable square feet; and
(iii) in the aggregate amount of $107,387.60.
ADDENDUM 4:
----------
Security Deposit.
----------------
(a) Concurrent with the execution of this Lease, Lessee has deposited with
Lessor an unconditional, irrevocable letter of credit (the "Letter of Credit")
in favor of Lessor in the amount of Five Hundred Thousand Dollars ($500,000.00)
from Silicon Valley Bank or an issuer of equal or greater current credit and in
form and content acceptable to Lessor, as security for the full and faithful
performance of every provision of this Lease to be performed by Lessee (such
Letter of Credit is referred to herein as the "Security Deposit"). Such Letter
of Credit shall be such that it may be drawn upon in part or in full,
periodically, or at one time, upon presentation of only the Letter of Credit and
a draft from Lessor in the amount to be drawn. All costs of obtaining,
maintaining, replacing, renewing and/or restoring the Letter of Credit in
accordance with this Addendum 4 shall be borne by Lessee.
(b) Such Letter of Credit (or replacement or renewal thereof meeting the
requirements of this Addendum 4) shall be maintained in effect throughout the
Term of this Lease, subject to the following:
(i) Such Letter of Credit shall initially have an expiration date
not sooner than two (2) years following the date hereof and shall thereafter be
renewed for periods of one (1) year each (or, if the remaining Term of this
Lease is less than one (1) year, such lesser period as is then remaining in the
Term of this Lease); provided that, as to each Letter of Credit (as replaced
from time to time pursuant hereto), (1) Lessee shall deliver to Lessor written
notice of the applicable expiration date of the then existing Letter of Credit
at least thirty (30) days prior to such expiration date, and (2) Lessee shall
deliver a replacement Letter of Credit meeting the terms of this Addendum 4 at
least fifteen (15) days prior to the expiration of the then existing Letter of
Credit; and
(ii) If at any time following the initial twenty-four (24) months of
the Term of this Lease, (1) Lessee possesses cash and marketable securities in
an aggregate amount equal to at least Ten Million Dollars ($10,000,000.00) and
(2) Lessee's net worth is at least Ten Million Dollars ($10,000,000.00), all as
evidenced by Lessee's then most recent 10Q quarterly statement filed with the
SEC, then, upon Lessee's request and Lessee's deposit with Lessor of cash in the
amount of Fifty-Two Thousand Four Hundred Forty-One Dollars ($52,441.00) (the
"Cash Security Deposit"), to be thereafter held by Lessor as Lessee's Security
Deposit in lieu of a Letter of Credit pursuant hereto, Lessor shall return to
Lessee the Letter of Credit then held by Lessor; provided that during such time
as Lessor holds the Cash Security Deposit pursuant hereto, Lessee shall deliver
its quarterly 10Q filing with the SEC for each quarter within ten (10) days
after making such quarterly SEC filing, and if Lessee fails to continue to
satisfy each of the requirements specified in clauses (1) and (2) of this
subsection (b) above (as evidenced by such quarterly SEC filing), Lessee shall
immediately deposit with Lessor a new Letter of Credit meeting the requirements
of this Addendum 4 and within thirty (30) days of Lessor's receipt of such
Letter of Credit, Lessor shall refund to Lessee any then remaining balance of
the Cash Security Deposit.
(c) If Lessor shall at any time draw upon such Letter of Credit in
accordance with this Section and apply the funds so drawn to the obligations of
Lessee pursuant hereto, Lessee shall immediately restore such Letter of Credit
to its original amount. Lessee agrees that the Letter of Credit may be
presented by Lessor for payment (1) upon the occurrence of a default by Lessee
under this Lease (not cured within any applicable period for cure provided under
this Lease), (2) in the event Lessee has not, prior to the date which is fifteen
(15) days prior to the expiration of the then term of the Letter of Credit,
delivered to Lessor a renewed or replacement Letter of Credit complying with all
of the requirements of this Addendum, and/or (3) in the event Lessor draws upon
the Letter of Credit in the event of Lessee's default pursuant to clause (1)
above, and Lessee does not immediately restore the Letter of Credit to its
original amount. Lessee shall not in any manner interfere with the payment to
Lessor of the proceeds of the Letter of Credit either prior to or following
presentment by Lessor pursuant hereto, and Lessee shall be liable to Lessor for
any loss suffered by Lessor as a result of such interference, including, without
limitation, any attorneys' fees and costs. Lessee agrees that it may be
enjoined from interfering or attempting to interfere, directly or indirectly,
with Lessor's negotiation of the Letter of Credit. The proceeds of the Letter
of Credit paid to Lessor upon presentment thereof shall be the Security Deposit
for use in the manner set forth in this Addendum 4.
(d) The Security Deposit (whether in the form of the Letter of Credit, cash
proceeds of the Letter of Credit and/or Cash Security Deposit) shall be held by
Lessor as security for the faithful performance by Lessee of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Lessee
during the Term. If Lessee defaults with respect to any provisions of this
Lease, including but not limited to the provisions relating to the payment of
Rent, which default is not cured within any applicable period for cure following
Lessee's receipt of written notice thereof from Lessor pursuant to this Lease,
Lessor may (but shall not be required to) use, apply or retain all or any part
of the Security Deposit for the payment of any Rent or any other sum in default,
or for the payment of any other amount which Lessor may spend or become
obligated to spend by reason of Lessee's default or to
compensate Lessor for any loss or damage which Lessor may suffer by reason of
Lessee's default (at Lessor's option, by application of any cash then held as
the Security Deposit and/or by drawing upon the Letter of Credit in accordance
herewith). If any portion of the Security Deposit is so used or applied, Lessee
shall, within ten (10) days after demand therefor, deposit cash with Lessor
and/or deliver to Lessor a replacement Letter of Credit in accordance herewith,
as applicable, in an amount sufficient to restore the Security Deposit to the
then required amount and Lessee's failure to do so shall be a default under this
lease. Lessor shall not be required to keep the Security Deposit separate from
its general funds, and Lessee shall not be entitled to interest on such Security
Deposit. Provided Lessee is not then in default under this Lease, within thirty
(30) days following the expiration of the Lease Term or sooner termination of
this Lease and Lessee's vacating of the Premises, any balance of the Security
Deposit then remaining with Lessor (in cash and/or in the form of the Letter of
Credit) shall be returned to Lessee.
(e) The Letter of Credit shall inure to the benefit of Lessor and its
successors and assigns. Should Lessor convey or assign its interest in the
Premises during the Term hereof and if Lessor deposits with the assignee the
then unappropriated funds then constituting the Security Deposit (if any of the
Security Deposit is then held in cash) and, to the extent the Letter of Credit
has not previously been presented for payment and is then held by Lessor,
assigns its interest in the Letter of Credit (Lessee hereby agreeing that if
Lessor is unable to transfer the Letter of Credit to a successor assign due to
restrictions on transferability, Lessee shall provide a replacement Letter of
Credit meeting all of the requirements of this Paragraph in favor of such
successor or assign if necessary to permit drawing upon such Letter of Credit by
such successor or assign and Lessor shall return the Letter of Credit to Lessee
that is so replaced), thereupon Lessor shall be discharged from any further
liability with respect to such Security Deposit and, if applicable, Letter of
Credit.
ADDENDUM 5:
----------
Adjustment of Percentage Share. For the purposes of this Lease, Lessee's
------------------------------
Percentage Share is nine and sixty-seven one-hundredths percent (9.67%) when the
Premises consists of only the Initial Premises and nineteen and eighty-one one-
hundredths percent (19.81%) when the Premises consists of both the Initial
Premises and the Additional Space.
ADDENDUM 6:
----------
Parking. Effective March 1, 2000, Lessee shall have the right to the non-
-------
exclusive use of fifty-seven (57) additional parking spaces for a total of one
hundred eleven (111) parking spaces. Upon expiration or sooner termination of
the term for the Initial Premises, such parking allocation shall be reduced to
fifty-four (54) parking spaces.
ADDENDUM 7:
----------
2.b. First Right of Opportunity. Throughout the initial Term only, Lessor
--------------------------
shall notify Lessee of any space becoming available to lease on the third floor
of the Building. Such notice shall be given to Lessee prior to such space being
made available to the existing tenants of the space (subject, to any prior
rights said tenant(s) may have to such space), or to the outside rental market.
Lessee is granted the right of first opportunity to lease such space at the then
current market rent as outlined in Lessor's notice to Lessee. No court
arbitrator or third party shall have the right to challenge the terms and
conditions set forth in Lessor's notice to Lessee. Lessee shall have two (2)
business days following receipt of said written notice from Lessor within which
to indicate in writing its desire to lease the space under the terms and
conditions stated in Lessor's notice. If Lessee rejects or fails to accept
Lessor's offer within the two (2) day period stated above, Lessor shall have the
right to lease the available space (which was the subject of the offer made to
Lessee) to third parties upon any terms, covenants and conditions desired by
Lessor, and Lessee shall have no further right to lease such space.
ADDENDUM 8:
----------
3.b. Option to Extend Term. Lessee is given the option to extend the Term
---------------------
on all provisions contained in this Lease (except for Base Rent and such other
terms and conditions as are specifically or by their operation limited to the
initial Term only), for a period of three (3) years immediately following the
expiration of the Term for the Additional Space (the "Extended Term"), by giving
notice of exercise of the option to Lessor no later than October 1, 2000 (the
"Option Notice"). Such extension option shall apply concurrently to the Initial
Premises and Additional Space. Lessee shall not have the right under this Option
to Extend Term to independently extend the term for the Initial Premises or the
Additional Space. If the Lease is extended pursuant to the terms herein
contained, the expiration date of the Extended Term for the entire Premises
consisting of both the Initial Premises and the Additional Space will be October
31, 2004.
Lessor's ability to plan for the orderly transaction of its rental
business, to accommodate the needs of other existing and potential tenants, and
to enjoy the benefits of increasing rentals at such times as Lessor is able to
do so in its sole and absolute discretion, are fundamental elements of Lessor's
willingness to provide
Lessee with the option to extend contained herein. Accordingly, Lessee
acknowledges that Lessee's strict compliance with the notification provisions
contained herein, and Lessee's strict compliance with the time period for such
notification contained herein, are material elements of the bargained-for
exchange between Lessor and Lessee and are material elements of Lessee's
consideration paid to Lessor in exchange for the grant of option. Therefore,
Lessee's failure to adhere strictly and completely to the provisions and time
frame contained in this option shall render the option automatically null, void,
and of no further force or effect, without notice, acknowledgment, or any action
of any nature of sort, required of Lessor. Lessee acknowledges that no other act
or notice, other than the express written notice set forth hereinabove, shall
act to put Lessor on notice of Lessee's intent to extend, and Lessee hereby
waives any claims to the contrary, notwithstanding any other actions of Lessee
during the terms of this Lease or any statements, written or oral, of Lessee to
Lessor to the contrary during the term of this Lease. Notwithstanding the
foregoing, if Lessee is in default on the date of giving the Option Notice, the
Option Notice shall be totally ineffective, or if Lessee is in default on the
date the Extended Term is to commence, in addition to any and all other remedies
available to Lessor under the Lease, at Lessor's election the exercise of the
option shall be deemed null and void, the Extended Term shall not commence, and
this Lease shall expire at the end of the Term.
This Option to Extend is personal to Lessee and cannot be assigned,
transferred or conveyed to any other person or entity (voluntarily,
involuntarily, by operation of law or otherwise) including any assignee or
subtenant permitted under Article 13. All of Lessee's rights under this
Addendum 8 shall terminate upon the expiration or sooner termination of this
Lease.
ADDENDUM 9:
----------
Delay in Commencement; Right to Terminate: Notwithstanding any contrary
-----------------------------------------
provisions of the Lease, in the event Lessor cannot deliver possession of the
Premises to Lessee by December 31, 1997, then to the extent such delay is not
caused by Lessee, Lessee, within ten (10) days following such date, shall have
the right to give Lessor written notice terminating the Lease. In the event
Lessee exercises its right to terminate the Lease as provided herein, then upon
such termination, all rights and obligations of Lessor and Lessee hereunder
shall no longer be of any force and effect, except that Lessor shall promptly
return to Lessee any monies previously paid by Lessee to Lessor.
ADDENDUM 10:
-----------
5.b. Rent During Extended Term. The parties shall have thirty (30) days
-------------------------
after Lessor receives the Option Notice (as defined in Addendum 8 above) in
which to agree upon the Base Rent to be payable during the Extended Term. The
Base Rent payable during the Extended Term shall be an amount equal to the then
current "Fair Market Rental Value" (defined below) of the Premises at the time
of the commencement of the proposed Extended Term. In no event, however, shall
the Base Rent during the Extended Term be less than the Base Rent payable at the
expiration of the initial Term.
The term "Fair Market Rental Value" of the Premises as used in this Lease
shall mean the then prevailing fair market rent for the Premises at the
expiration of the Term. In determining such rate, Lessor may consider first
class office space comparable in size and quality to the Premises, if any,
located in the geographic area identified in Article 1.p. and located in the
Building and other buildings comparable in size and quality to the Building in
which the Premises are located, and taking into consideration all other factors
normally considered when determining Fair Market Rental Value.
If the parties so agree on the fair market rental value for the Premises
within said thirty (30) day period, they shall immediately execute an amendment
to this Lease stating the Base Rent to be paid during the Extended Term. In the
event Lessee has retained the services of a real estate broker to represent
Lessee during the negotiations of the Extended Term, it is expressly understood
that Lessor shall have no obligation for the payment of all or any part of a
real estate commission or other brokerage fee to Lessee's real estate broker in
connection with the Extended Term. Lessee shall be solely responsible for the
payment of fees for services rendered to Lessee by such broker in connection
with the Extended Term.
If the parties are unable to agree, in their sole and absolute discretion,
on the Fair Market Rental Value within such time, then this option to extend
shall be ineffective and the Term will expire as of the Expiration Date. No
court arbitrator or third party shall have the right to challenge the exercise
of this discretion.
ADDENDUM 11:
-----------
7.d. Exclusions to Project Operating Expenses and Taxes. Notwithstanding
--------------------------------------------------
anything hereinabove contained to the contrary, Operating Expenses and Taxes
will not include the following: (i) any cost for which Lessor has a right of
reimbursement from others, (ii) leasing fees, commissions, or other costs
relating to the marketing of the Project to other tenants; (iii) interest,
charges and fees incurred on debt or
payments on mortgages; (iv) advertising or promotional costs; (v) penalties or
fines incurred for the delinquent payment of taxes; and (vi) taxes and
assessments resulting from the construction of specialized improvements for
other tenants in the Project.
ADDENDUM 12:
-----------
Lessee's Alterations. Lessee shall have the right to make Alterations
--------------------
within the Premises, without the prior written consent of Lessor (but upon ten
(10) days prior written notice to Lessor), if the aggregate cost of any such
Alteration is reasonably anticipated to be less than five thousand dollars
($5,000.00). Notwithstanding the foregoing, Lessee shall not make any
Alteration without Lessor's prior written consent and regardless of the cost
thereof, which (i) results in a change to the exterior of the Building; (ii)
will be visible from the exterior of the Building; (iii) effects any change in
the structural components of the Building; or (iv) affects any of the Building
systems.
ADDENDUM 13:
-----------
Removal of Alterations. Notwithstanding the foregoing, Lessee shall not be
----------------------
required to remove such Alterations, improvements or additions approved by
Lessor pursuant to this Article 10, unless Lessor, at the time of its consent,
advised Lessee in writing that Lessor would require removal of such work upon
the expiration or sooner termination of this Lease. For any Alterations made
during the Term for which no prior written approval was required by Lessor (as
set forth in Addendum 12 above), Lessor shall retain the right to designate upon
Lease termination whether such improvements are to be removed by Lessee.
ADDENDUM 14:
-----------
Exempt Transfer. Lessee shall have the right, without Lessor's prior written
---------------
consent (but upon ten (10) days prior written notice to Lessor) to sublet or
assign this Lease as set forth below (and such Transfer shall be deemed an
"Exempt Transfer"):
a. Lessee may sublet all or a portion of the Premises, or to assign this
Lease to Lessee's parent, subsidiary or affiliated company, so long as such
parent, subsidiary, or affiliated company has a net worth equal to or greater
than that of Lessee. The parties shall thereafter execute a written Assumption
Agreement as set forth in Section 13.c. hereof.
b. Lessee may assign this Lease to: (i) a successor entity into which or
with which Lessee is merged or consolidated, or (ii) an entity to which Lessee
shall sell all or a substantial portion of its assets, so long as such entities
described in (i) or (ii) substantially succeeds to and continues the business of
Lessee by operation of law or by effective provisions contained in the
instruments of merger, consolidation or sale, as the case may be, the
liabilities and assets of the entities participating in such merger or
consolidation, or of the transferor in a sale, are assumed by the entity
surviving such merger or created by such consolidation, or by the transferees in
a sale, and such surviving entity has a net worth equal to or greater than the
net worth of Lessee, as of the execution of this Lease, or as of the time of
such Transfer, whichever is greater. The parties shall thereafter execute a
written Assumption Agreement as set forth in Section 13.c. hereof.
ADDENDUM 15:
-----------
Subletting Costs. Notwithstanding anything herein contained to the
----------------
contrary, including section 13.f.(i), prior to the disbursement to Lessor of any
excess Rentals resulting from an approved sublease, Lessee shall have the right
to recover their reasonable costs directly attributable to such Transfer,
including reasonable real estate brokerage commissions and advertising costs.
ADDENDUM 16:
-----------
x. Xxxxxx'x Insurance. During the term of this Lease, Lessor shall
------------------
maintain comprehensive general liability insurance, and an "all risk" property
insurance policy with respect to the Building in an amount equal to one hundred
percent (100%) of the replacement cost thereof, excluding foundations, footings
and underground installations, if any, and commercially reasonable deductible
amounts. Lessor may carry all of its insurance under a blanket policy.
ADDENDUM 17:
-----------
Services and Utilities. As reasonably requested by Lessee, Lessor shall
----------------------
furnish Lessee with HVAC services at times other than normal Business Hours for
the Building provided Lessee pays to Lessor, as Additional Rent, the standard
charge for such additional services. The current rate for additional HVAC
service is twenty-five dollars ($25.00) per hour, per zone. Such hourly charge
shall be subject to increase in the same proportion as Lessor's actual costs to
provide such additional service increase from time to time. For the purposes of
this Lease, normal Business Hours for the Building are Monday through Friday,
7:00 a.m. to 6:00 p.m., weekends and recognized Building holidays excepted.
ADDENDUM 18:
-----------
Termination of Lease. Notwithstanding anything to the contrary contained
---------------------
in this Article 21, in the event Lessor is unable to repair, reconstruct, or
restore the Premises or fails to complete the same within one hundred eighty
(180) days following such damage, Lessee shall have the right at any time
thereafter, by giving written notice to Lessor, to terminate this Lease, except
that Lessor shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when any damage thereto or to the Building occurs during
the last twelve (12) months of the Term, as the same may be extended by the
Extended Term.
ADDENDUM 19:
-----------
Grace Period. Lessor shall grant Lessee two (2) grace periods during the
------------
Term hereof; each such grace period shall consist of five (5) calendar days
after receipt of written notice from Lessor to Lessee that such payment has not
been received.
ADDENDUM 20:
-----------
Rights Reserved by Lessor. Notwithstanding anything contrary contained in
-------------------------
this Lease, Lessor shall not make any modification to the Project to the extent
the same materially interferes with Lessee's use of, or access to, the Premises,
the Exterior Common Area, or the Building Common Area.
EXHIBIT "A"
THE PREMISES
------------
(The Initial Premises and the Additional Spaces)
[FLOOR PLAN APPEARS HERE]
EXHIBIT "A-1"
Definitions
-----------
1. BUILDING RENTABLE AREA. Defined as the gross building area of the
Building (measured from the glass line of the exterior building wall to the
glass line of the exterior building wall) minus the Building Common Area.
2. BUILDING COMMON AREA. Defined as the area in the building shared in
common with all other tenants in the building. It includes the following first
floor space; atrium space, locker rooms, mail room, exit corridors, loading dock
corridor, elevator machine room, main electrical and telephone rooms, and
security guard station.
3. FLOOR COMMON AREA. The Floor Common Area is defined as the area on a
Multiple-Tenancy floor shared with other tenants on that floor. Floor Common
Area includes lobbies, stairs, shafts and elevator shafts, flues, pipe shafts,
vertical ducts, HVAC rooms, telephone and electrical rooms, fan rooms, janitors
closets, toilet rooms, and storage rooms, available for use by all tenants on
that floor. Floor Common Area shall be measured from the office side of
corridors and/or permanent partitions, to the office of corridors and/or other
permanent partitions.
4. FLOOR USEABLE AREA. That area on a Multiple-Tenancy Floor for the
exclusive use of a particular tenant. Floor Usable Area is computed by measuring
from the glass line of the exterior building wall to the office side of
corridors and/or other permanent partitions and to the center line of
partitions that separate the premises from adjoining rentable area. No
deductions shall be made for stairs, shafts, flues, pipe shafts, or vertical
ducts with the space. No deductions shall be made for HVAC rooms, telephone
storage, electric or fan rooms, or janitors closets when such rooms are not
available to other tenants on the floor. No deductions shall be made for
columns.
5. FLOOR RENTABLE AREA. Single Tenant Floor: Floor Rentable Area shall
be defined as follows: On a floor where a tenant is the sole occupancy of the
floor (Single-Tenancy Floor) the Floor Rentable Area is computed by measuring
from the glass line of the exterior building walls to the glass line of the
exterior building walls. Floor Rentable Area shall include all areas with the
outside walls with no deduction for stsirs, elevator shafts, flues, pipe shafts,
vertical ducts, HVAC rooms, telephone storage electric or fan rooms, janitors
closets, lobbies, or toilet rooms. No deductions shall be made for columns.
6. FLOOR RENTABLE AREA. Multiple Tenancy Floor: On a floor where the
tenant is not the sole occupancy (Multiple-Tenancy Floor) the Floor Rentable
Area is the sum of the Floor Useable Area plus a pro rata portion of the Floor
Common Area. The pro rata portion of the Floor Common Area shall be a fraction
in which the numerator is the Floor Useable Area of that specific tenant on that
particular floor. The denominator shall be the Floor Rentable Area of the total
floor if the floor had been measured as a Single-Tenancy Floor minus Floor
Common Area.
7. TENANT'S RENTABLE AREA ("RENTABLE AREA"). Single Tenancy Floor: The
Rentable Area on a Single Tenant Floor is defined as the Floor Rentable Area
plus a pro rata portion of the Building Common Area. The pro rata share of the
Building Common Area shall be a fraction in which the numerator is the Floor
Rentable Area (Multiple-Tenancy Floor) and the denominator is the Building
Rentable Area.
8. TENANT'S RENTABLE AREA ("RENTABLE AREA"). Multiple Tenancy Floor:
The Rentable Area on a Multiple Tenancy Floor is defined as the sum of the Floor
Rentable Area plus a pro rate share of the Building Common Area. The pro
rata share of the Building Common Area shall be a fraction in which the
numerator is the Floor Rentable Area (Multiple-Tenancy Floor) and the
denominator is the Building Rentable Area.
9. IMPROVABLE AREA. Improvable Area on a Single Tenancy Floor is
defined as the Floor Rentable Area minus all vertical penetrations and areas
finished with the building shell. Improvable Area on a Multiple-Tenancy Floor
equals the useable area minus all vertical penetrations and area finished with
the building shell.
EXHIBIT "B"
THE PARCEL
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[MAP OF THE PARCEL APPEARS HERE]
EXHIBIT "C"
----------
WORK LETTER
-----------
THIS WORK LETTER AGREEMENT ("Agreement") supplements the Lease concurrent
herewith, by and between NORFOLK ATRIUM, a California limited partnership
("Lessor") and INKTOMI CORPORATION, a California corporation ("Lessee") with
respect to those certain premises described in the Lease ("Premises"). The
purpose of this Work Letter is to set forth our mutual obligations with regard
to the alteration and improvement of the Premises. All terms not defined herein
shall have the same meaning as set forth in the Lease.
1. Existing Tenant Improvements. Lessee accepts possession of the
----------------------------
Premises in "as is" condition, without warranty express or implied.
Notwithstanding the preceding sentence, acceptance of the Premises by Lessee in
its "as is" condition shall not be deemed to alter or otherwise limit Lessor's
obligations set forth in section 11.b. of the Lease.
2. Construction of Tenant Improvements.
-----------------------------------
a. Tenant Improvements. Lessee shall engage the General Contractor
-------------------
identified below to construct in the Premises the improvements shown on the
plans and specifications approved by Lessor and Lessee pursuant to Paragraph 3
below (the "Tenant Improvements").
b. Construction Representatives. Lessor hereby appoints the
----------------------------
following person as Lessor's representative ("Lessor's Representative") to act
for Lessor in all matters covered by this Agreement: Xxxx Xxxxxx, Lessee hereby
-----------
appoints the following person as Lessee's representative ("Lessee's
Representative") to act for Lessee in all matter covered by this Agreement:
Xxxxxx Xxxxx. All communications with respect to the matters covered by this
Agreement shall be made to Lessor's Representative or Lessee's Representative,
as the case may be. Either party may change its representative under this
Agreement at any time upon twenty-four (24) hours written notice to the other
party.
3. Construction Plans for Leased Premises.
--------------------------------------
a. Preparation of Space Plans. Lessor hereby approves the use by
--------------------------
Lessee of Xxx X. Xxxx & Assoc. ( the "Architect") to be retained by Lessee in
connection with the construction of the Tenant Improvements. Promptly following
the date hereof, Lessee shall cause the Architect to prepare preliminary space
plans for the Premises and layout of the Tenant Improvements therein )the "Space
Plans"). The Space Plans shall be submitted to Lessor for Lessor's approval,
which approval shall not be unreasonably withheld. Within no more than five (5)
business days of receipt of the Space Plans; (i) Lessor shall notify Lessee in
writing of Lessor's approval of the Space Plans, or (ii) if Lessor disapproves
of any portion of the Space Plans, Lessor shall notify Lessee in writing of such
disapproval and the specific reasons therefore. Promptly following Lessor's
response, Lessee shall submit to Lessor, for Lessor's reasonable approval, a re-
design of the Space Plans, incorporating the revisions required by Lessor.
b. Preparation of Final Plans. Based on the approved Space Plans,
--------------------------
Lessee shall cause the Architect, in consultation with Lessor's engineers, if
necessary, to prepare complete architectural plans, drawings and specification
and complete engineering, mechanical, structural, and electrical working
drawings for the Tenant Improvements, as necessary in light of standard industry
practice ("the Final Plans"). The Final Plans shall be approved in the same
manner as provided in Paragraph 3.a, above for approval of the Final Plans.
c. Approvals. Lessee and Lessee's Architect shall be solely
---------
responsible for obtaining required approval of the Final Plans by all
governmental agencies having jurisdiction, including all necessary permits and
any certificates of occupancy (or other required, equivalent approval form the
local governmental authority permitting occupancy of the Premises). Lessor shall
reasonably cooperate with Lessee in obtaining such approvals.
d. Changes. Lessee shall not make changes to the Space Plans and
-------
Final Plans without the prior written consent of Lessor. In any instance in
which Lessor's approval for a change is requested, Lessor shall not unreasonably
withhold consent to such change and shall respond to a request for approval of
such change as soon as reasonably possible.
4. Construction.
------------
a. General Contractor. The parties hereby approve South Bay Const.
------------------
as the general contractor for construction of the Tenant Improvements (the
"General Contractor"). Lessee shall not appoint a substitute general contractor
without the prior written consent of Lessor.
b. Construction of Tenant Improvements. All Tenant Improvements
-----------------------------------
shall be performed diligently, in a first-class, workmanlike manner and in
accordance with all applicable laws. Prior to commencing such work, Lessee shall
furnish Lessor with sufficient evidence that Lessee and the General Contractor
are carrying worker's compensation insurance in statutorily-required amounts,
comprehensive general liability insurance and all other insurance in compliance
with the Lease. Lessee shall use all reasonable efforts to ensure that the work
performed by the General Contractor and all subcontractors will not compromise
the integrity of any Building systems. Lessor shall have the right to enter the
Premises at all times to inspect the progress of the construction of the Tenant
Improvements and to post notices of non-responsibility. Lessee shall comply with
all Lessor's reasonable safety policies and procedures while performing work at
the Project.
5. Construction Costs.
------------------
a. Tenant Improvements Allowance. Lessor shall provide to Lessee an
-----------------------------
allowance of fifty-four thousand four forty-nine dollars ($54,449.00) such sum
being the equivalent of approximately four dollars ($4.00) per useable square
foot (the "Tenant Improvement Allowance"). The Tenant Improvement Allowance
shall be used to construct the tenant improvements within the Premises in
accordance with the plans and specifications described in Paragraph 3 above.
Said allowance may also be used by Lessee for the cost of applicable
construction permits and the costs of space planning and architectural fees. The
cost of any improvements, permit fees, architectural fees, and related costs
exceeding the Tenant Improvement Allowance shall be paid directly by Lessee.
b. Changes. Lessee shall not authorize changes to the Space Plans
-------
and Final Plans without the prior written consent of Lessor. In any instance in
which Lessor's approval for a change is required, Lessor shall not unreasonably
withhold consent to such change, and shall respond to a request for approval of
such change as soon as reasonably possible.
6. Completion of the Tenant Improvements. Upon completion of the Tenant
-------------------------------------
Improvements, Lessee shall execute and deliver to Lessor a written
acknowledgment that the Tenant Improvements have been accepted and are approved
by Lessee, together with (i) copies of all final conditional lien releases and
conditional waivers of all lien rights from the General Contractor and all
subcontractors, (ii) copies of occupancy permits or similar documentation
evidencing the completion of the improvements within the Premises, and (iii) "as
built" plans depicting the Tenant Improvements. All
-2-
items of Tenant Improvements constructed within the Premises shall be the
property of Lessor and shall remain on the Premises at all times during the Term
of the Lease, except as otherwise provided in the Lease.
IN WITNESS WHEREOF, the parties have executed this Work Letter intending to
be bound as of the date set forth above.
LESSOR: NORFOLK ATRIUM, A CALIFORNIA LIMITED PARTNERSHIP
BY: NAPA RIVER DEVCO, INC.,
A CALIFORNIA CORPORATION, ITS GENERAL PARTNER
BY: PROM MANAGEMENT GROUP, INC.,
A CALIFORNIA CORPORATION, DBA MAXIM PROPERTY MANAGEMENT
AS AGENT FOR OWNER
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Typed Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
Address:
c/o Maxim Property Management
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
LESSEE: INKTOMI CORPORATION,
A CALIFORNIA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Typed Name: Xxxxx X. Xxxxxxxx
Title: Vice President of Finance and Chief Financial Officer
Address:
Inktomi Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
-3-
EXHIBIT "D"
RULES AND REGULATIONS
---------------------
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building without prior written consent of Landlord. Landlord shall
have the right to remove any such sign, placard, picture, advertisement, name or
notice without notice to and at the expense of the tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of the Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near
the glass of any exterior window, door, partition or wall which may unsightly
from outside the Premises. Tenant shall not, without prior written consent of
Landlord cover or otherwise sunscreen any window.
2. The sidewalks, halls, passages, exists, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress or egress from their respective Premises.
3. Tenant shall return all keys issued for the Premises. Tenant shall pay
to Landlord the costs of re-keying the Premises if all keys are not returned.
Tenant shall not alter any lock or install any new or additional locks or any
bolts on any doors or windows of the Premises.
4. The common area toilet rooms, urinals, wash bowls and other apparatus
shall not be used for any purpose other than for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the Tenant who, or whose agents, officers, employees,
contractors, servants, invitees or guests shall have caused it.
5. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into
the Building without prior notice to Landlord and all moving of the same into or
out of the Building shall be done at such time and in such manner as Landlord
shall designate. Unless otherwise agreed to in writing by Landlord, any such
movement of furniture, freight, or equipment shall be made during non-business
hours for the Building. Landlord shall have the right to prescribe the weight,
size and position of all safes and other heavy equipment brought into the
Building and also the time and manner of moving the same in and out of the
Building. Safes and other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to property
distribute the weight. Landlord will not be responsible for loss of or damage to
any such safe or property from any cause and all damage done to the Building by
moving or maintaining any such safe or other property shall be repaired at the
expense of Tenant.
7. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive of objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therin, nor
shall any animals or birds be brought in or kept in or about the Premises or
building.
8. No cooking shall be done or permitted, except with a microwave oven,
or by any tenant on the Premises, nor shall the Premises be used for the storage
of merchandise, or washing clothes, for lodging or for any improper,
objectionable or immoral purpose.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or any
method of heating or air conditioning other than supplied by Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for the wires will be
allowed without the consent of the Landlord. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
-1-
11. Tenant shall not install any wiring above the ceiling tiles that does
not comply with the fire codes. Any such wiring shall be removed immediately at
the expense of Tenant.
12. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 p.m. and 7:00 a.m. the following day, access to the Building,
or to the halls, corridors, elevators or stairways in the Building, or to the
Premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
The Landlord shall in no case be liable for damages for any error with regard to
the admission to or exclusion from the Building of any person. In case of
invasion, mob, riot, public excitement or other commotion, the Landlord reserves
the right to prevent access to the Building during the continuance of the same
by closing the doors or otherwise, for the safety of the tenants and protection
of the Building and of property in the Building.
13. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of the Landlord, is intoxicated or under the
influence of liquor of drugs, or who shall in any manner do any act in violation
of any of the rules and regulations of the Building.
14. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
15. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building of
which the Premises are a part.
16. Tenant shall not disturb, solicit or canvass any occupant of the
Building and shall cooperate to prevent the same.
17. Landlord shall have the right to control and operate the public
portions of the Buildings, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the tenants,
in such manner as it deems best for the benefit of the tenants generally.
18. All entrance doors in the Premises shall be left locked when the
Premises are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress or egress from the Premises.
19. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of Tenant except at Tenant's address.
20. Tenant shall place pads under all desk chairs, or have carpet coasters
to protect chairs.
21. Tenant shall not leave corridor doors open.
22. Landlord shall approve in writing the method of attachment of any
objects affixed to walls, ceilings or doors.
23. Tenant shall have the right to use the loading facilities provided at
the Building, if any, in common with the other tenants.
24. All tenant deliveries of bulk items shall be through the Building
loading facilities, if any. Landlord shall have the right at his sole discretion
to prohibit tenants' delivery through the main lobbies.
25. The current business hours are between 7:00 a.m. to 6:00 p.m.
("Business Hours") on weekdays, Monday through Friday, except generally
recognized Building holidays.
-2-
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
WORK STATION WAYOUTS
--------------------
XXX X. XXXX ASSOCIATION
6.20.97
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
PICTURE OF
24, WORK STATIONS
12 8x10
10 8x8
2 10x10
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
PICTURE OF
25 WORK STATIONS
4 8x10
2 8x12
19 8x8s
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
PICTURE OF
24 WORK STATIONS
15 8x8s
9 8x9's +/-
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
PICTURE OF
18 WORK STATIONS
12 8x10
6 8x8
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
PICTURE OF
23 WORK STATIONS
15 8x10 (1 SLIGHTLY SMALLER)
8 8x8
[FLOOR PLAN OF WORK STATIONS APPEARS HERE]
PICTURE OF
25 WORK STATIONS
10 8x10s
15 8x8s
