EXHIBIT 10.18
OFFICE SUBLEASE - GROSS
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1 Parties: This Lease, dated, for reference purposes only,
November 1, 1998, is made by and between INSWEB CORPORATION, a Delaware
corporation (herein called "Lessor") and EQUINIX, INC., a Delaware corporation
(herein called "Lessee").
1.2 Premises: The entire second floors, consisting of
approximately 15,180 rentable feet, more or less, as defined in paragraph 2 and
as shown on Exhibit "A" hereto (the "Premises").
1.3 Building: Commonly described as being located at 901
Marshall Street in the City of Redwood City, County of San Mateo, State of
California, as more particularly described in Exhibit A hereto, and as defined
in paragraph 2.
1.4 Use: General office purposes, including the provision of
Internet service on a 24-hour a day basis, subject to paragraph 6.
1.5 Term: Nineteen (19) months commencing November 15, 1998
("Commencement Date") and ending June 14, 2000 ("Expiration Date"), as defined
in paragraph 3.
1.6 Base Rent: Base Rent shall be $3.15 per sq. ft. per month,
payable on the 1st day of each month, per paragraph 4.1 subject to the
following: No rent shall be payable for the period of November 15, 1998 through
December 14, 1998 ("Free Rent Period").
1.7 Base Rent Increase: On December 15, 1999 the monthly Base
Rent payable under paragraph 1.6 above shall be adjusted to $3.25 per square
foot per month.
1.8 Rent Paid Upon Execution: $47,817 representing Rent for the
first month after December 15, 1998 ("Rent Commencement Date").
1.9 Security Deposit: $47,817 shall be paid upon execution of
the Sublease.
1.10 Lessee's Share of Operating Expense Increase: 0% as defined
in paragraph 4.2. Base Rent is to be on gross full service basis, except as
otherwise stated herein.
2. Premises, Parking and Common Areas.
2.1 Premises: The Premises are a portion of a building, herein
sometimes referred to as the "Building" identified in paragraph 1.3 of the Basic
Lease
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Provisions. "Building" shall include adjacent parking structures used in
connection therewith. The Premises, the Building, the Common Areas, the land
upon which the same are located, along with all other buildings and improvements
thereon or thereunder, are herein collectively referred to as the "Office
Building Project." Lessor hereby leases to Lessee and Lessee leases from Lessor
for the term, at the rental, and upon all of the conditions set forth herein,
the real property referred to in the Basic Lease Provisions, paragraph 1.2, as
the "Premises," including rights to the Common Areas as hereinafter specified.
2.2 Vehicle Parking: So long as Lessee is not in default, and
subject to the rules and regulations attached hereto, and as established by
Lessor from time to time, Lessee shall be entitled to 53 parking spaces in the
Office Building Project on a non-exclusive basis at no cost to Lessee.
2.2.1 If Lessee commits, permits or allows any of the prohibited
activities described in the Lease or the rules then in effect, then Lessor shall
have the right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and charge the cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.2.2 The monthly parking rate per parking space will be $0.00
pr month at the commencement of the term of this Lease.
2.3 Common Areas--Definition. The term "Common Areas" is
defined as all areas and facilities outside the Premises and within the exterior
boundary line of the Office Building Project that are provided and designated by
the Lessor from time to time for the general non-exclusive use of Lessor, Lessee
and of other lessees of the Office Building Project and their respective
employees, suppliers, shippers, customers and invitees, including but not
limited to common entrances, lobbies, corridors, stairways and stairwells,
public restrooms, elevators, escalators, parking areas to the extent not
otherwise prohibited by this Lease, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, ramps, driveways, landscaped areas and
decorative walls.
2.4 Common Areas--Rules and Regulations. Lessee agrees to abide
by and conform to the rules and regulations attached hereto as Exhibit B with
respect to the Office Building Project and Common Areas, and to cause its
employees, suppliers, shippers, customers, and invitees to so abide and conform.
Lessor or such other person(s) as Lessor may appoint shall have the exclusive
control and management of the Common Areas and shall have the right, from time
to time, to modify, amend and enforce said rules and regulations. Lessor shall
not be responsible to Lessee for the non-compliance with said rules and
regulations by other lessees, their agents, employees and invitees of the Office
Building Project.
3. Term. SEE ADDENDUM
3.1 Term. The term and Commencement Date of this Lease shall be
as specified in paragraph 1.5 of the Basic Lease Provisions.
3.2 Delay in Possession. Notwithstanding said Commencement Date,
if for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date and
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subject to paragraph 3.2.2, Lessor shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease or the
obligations of Lessee hereunder or extend the term hereof; but, in such case,
Lessee shall not be obligated to pay rent or perform any other obligations of
Lessee under the terms of this Lease, except as may be otherwise provided in
this Lease, until possession of the Premises is tendered to Lessee, as
hereinafter defined; provided, however, that if Lessor shall not have delivered
possession of the Premises within thirty (30) days following said Commencement
Date, as the same may be extended under the terms of a Work Letter executed by
Lessor and Lessee, Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided, however,
that, as to Lessee's obligations, Lessee first reimburses Lessor for all costs
incurred for Non-Standard Improvements and, as to Lessor's obligations, Lessor
shall return any money previously deposited by Lessee (less any offsets due
Lessor for Non-Standard Improvements); and provided further, that if such
written notice by Lessee is not received by Lessor within said ten (10) day
period, Lessee's right to cancel this Lease hereunder shall terminate and be of
no further force or effect.
3.2.1 Possession Tendered-Defined. Possession of the Premises
shall be deemed tendered to Lessee ("Tender of Possession") when (1) the
improvements to be provided by Lessor under this Lease are substantially
completed, (2) the Building utilities are ready for use in the Premises, (3)
Lessee has reasonable access to the Premises, and (4) ten (10) days shall have
expired following advance written notice to Lessee of the occurrence of the
matters described in (1), (2) and (3), above of this paragraph 3.2.1
3.2.2 Delays Caused by Lessee. There shall be no abatement of
rent, and the sixty (60) day period following the Commencement Date before which
Lessee's right to cancel this Lease accrues under paragraph 3.2, shall be deemed
extended to the extent of any delays caused by acts or omissions of Lessee,
Lessee's agents, employees and contractors. SEE ADDENDUM.
3.3 Early Possession. If Lessee occupies the Premises prior to
said Commencement Date, such occupancy shall be subject to all provisions of
this Lease, such occupancy shall not change the termination date, and Lessee
shall pay rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of the
Lease term is defined as the completion of the improvements, Lessee and Lessor
shall execute an amendment to this Lease establishing the date of Tender of
Possession (as defined in paragraph 3.2.1) or the actual taking of possession by
Lessee, whichever first occurs, as the Commencement Date.
4. Rent.
4.1 Base Rent. Subject to adjustment as hereinafter provided in
paragraph 4.3, and except as may be otherwise expressly provided in this Lease,
Lessee shall pay to Lessor the Base Rent for the Premises set forth in paragraph
1.6 of the Basic Lease Provisions, without offset or deduction. Lessee shall pay
Lessor upon execution hereof the advance Base Rent described in paragraph 1.8 of
the Basic Lease Provisions. Rent for any period during the term hereof which is
for less than one month shall be prorated based upon the actual number of
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days of the calendar month involved. Rent shall be payable in lawful money of
the United States to Lessor at the address stated herein or to such other
persons or at such other places as Lessor may designate in writing.
5. Security Deposit. Lessee shall deposit with Lessor upon execution
hereof the security deposit set forth in paragraph 1.9 of the Basic Lease
Provisions as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default for the payment of any other sum to which Lessor may
become obligated by reason of Lessee's default, or to compensate Lessor for any
loss or damage which Lessor may suffer thereby. If Lessor so uses or applies all
or any portion of said deposit, Lessee shall within ten (10) days after written
demand therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount then required of Lessee. Lessor shall not be required
to keep said security deposit separate from its general accounts. If Lessee
performs all of Lessee's obligations hereunder, said deposit, or so much thereof
as has not heretofore been applied by Lessor, shall be returned, without payment
of interest or other increment for its use, to Lessee (or, at Lessor's option,
to the last assignee, if any, of Lessee's interest hereunder) at the expiration
of the term hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee with respect to said
Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for the
purpose set forth in paragraph 1.4 of the Basic Lease Provisions or any other
use which is reasonably comparable to that use and for no other purpose.
6.2 Compliance with Law. SEE ADDENDUM.
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Master Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee will
occupy the Premises, does not violate any covenants or restrictions or record,
or any applicable building code, regulation or ordinance in effect on such
Master Lease term Commencement Date. In the event it is determined that this
warranty has been violated, then it shall be the obligation of the Lessor, after
written notice from Lessee, to promptly, at Lessor's sole cost and expense,
rectify any such violation.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes, ordinances,
rules, regulations orders, covenants and restrictions of record, and
requirements of any fire insurance underwriters or rating bureaus, now in effect
or which may hereafter come into effect, whether or not they reflect a change in
policy from that now existing, during the term or any part of the term hereof,
relating in any manner to the Premises and the occupation and use by Lessee of
the Premises. Lessee shall conduct its business in a lawful manner and shall not
use or permit the use of the Premises or the Common Areas in any manner that
will lend to create waste or a nuisance or shall tend to disturb other occupants
of the Office Building Project.
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6.3 Condition at Premises. SEE ADDENDUM.
(a) Lessor shall deliver the Premises to Lessee in a clean
condition on the Lease Commencement Dale (unless Lessee is already in
possession) and Lessor warrants to Lessee that the plumbing, lighting, air
conditioning, and heating system in the Premises shall be in good operating
condition. In the event that it is determined that this warranty has been
violated, then it shall be the obligation of Lessor, after receipt of written
notice from Lessee setting forth with specificity the nature of the violation,
to promptly, at Lessor s sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises and the Office Building Project in their condition existing
as of the Lease Commencement Date or the date that Lessee takes possession of
the Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any easements, covenants or restrictions of record, and
accepts this Lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Lessee acknowledges that it has satisfied itself
by its own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor s agent or agents has made any
representation or warranty as to the present or future suitability of the
Premises, Common Areas, or Office Building Project for the conduct of Lessee's
business.
7. Maintenance, Repairs, Alterations and Common Area Services. SEE
ADDENDUM.
7.1 Lessors Obligations. Lessor shall keep the Office Building
Project, including the Premises, interior and exterior walls, roof, and common
areas, and the equipment whether used exclusively for the Premises or in common
with other premises, in good condition and repair; provided, however, Lessor
shall not be obligated to paint, repair or replace wall coverings, or to repair
or replace any improvements that are not ordinarily a part of the Building or
are above then Building standards. Except as provided in paragraph 9.5, there
shall be no abatement of rent or liability of Lessee on account of any injury or
interference with Lessee's business with respect to any improvements,
alterations or repairs made by Lessor to the Office Building Project or any part
thereof. Lessee expressly waives the benefits of any stature now or hereafter
in effect which would otherwise afford Lessee the right to make repairs at
Lessor's expense or to terminate this Lease because of Lessor s failure to keep
the Premises in good order, condition and repair.
7.2 Lessee's Obligations.
(a) Notwithstanding Lessor's obligation to keep the Premises
in good condition and repair, Lessee shall be responsible for payment of the
cost thereof Lessor as additional rent for that portion or the cost of any
maintenance and repair of the Premises, or any equipment (wherever located) that
serves only Lessee or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear. Lessee shall be responsible or the cost of
painting, repairing or replacing wall coverings, and to repair or replace any
Premises improvements that are not ordinarily a part of the Building or that are
above then Building
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standards. Lessor may, at its option, upon reasonable notice, elect to have
Lessee perform any particular such maintenance or repairs the cost of which is
otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as received, ordinary wear and tear excepted, clean and free of debris. Any
damage or deterioration of the Premises shall not be deemed ordinary wear and
tear it the same could have been prevented by good maintenance practices by
Lessee. Lessee shall repair any damage to the Premises occasioned by the
Installation or removal of Lessee's trade fixtures, alterations, furnishings and
equipment. Except as otherwise staled in this Lease, Lessee shall leave the air
lines, power panels, electrical distribution systems, lighting fixtures, air
conditioning, window coverings. wall coverings, carpets, wall paneling, ceilings
and plumbing on the Premises and in good operating condition.
7.3 Alterations and Additions. SEE ADDENDUM.
(a) Lessee shall not, without Lessor's prior written consent
make any alterations, improvements, additions, Utility Installations or repairs
in, on or about the Premises or the Office Building Project. As used in this
paragraph 7.3 the term Utility Installation shall mean carpeting, window and
wall coverings, power panels, electrical distribution systems lighting fixtures,
air conditioning, plumbing and telephone and telecommunication wiring and
equipment. At the expiration of the term, Lessor may require the removal of any
or all of said alterations, improvements, additions or Utility Installations,
and the restoration of the Premises and the Office Building Project to their
prior condition, at Lessee's expense if Lessor reserved the right to require
removal upon installation. Should Lessor permit Lessee to make its own
alterations, improvements, additions or Utility Installations, Lessee shall use
only such contractor as has been expressly approved by Lessor, and Lessor may
require Lessee to provide Lessor, at Lessee's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half times the estimated cost
or such improvements, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of the work. Should Lessee make any
alterations, improvements, additions or Utility Installations without the prior
approval of Lessor, or use a contractor not expressly approved by Lessor, Lessor
may, at any time during the term or this Lease, require that Lessee remove any
part or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project that
Lessee shall desire to make shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent to Lessee's making
such alteration, improvement, addition or Utility Installation, the consent
shall be deemed conditioned upon Lessee acquiring a permit to do so from the
applicable governmental agencies, furnishing a copy thereof to Lessor prior to
the commencement of the work, and compliance by Lessee with all conditions of
said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which
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claims are or may be secured by any mechanic's or materialmen's lien against the
Premises, the Building or the Office Building Project, or any interest therein.
(d) Lessee shall give Lessor not less than ten (10) days'
notice prior to the commencement of any work in the Premises by Lessee, and
Lessor shall have the right to post notices of non-responsibility in or on the
Premises or the Building as provided by law. If Lessee shall, in good faith,
contest the validity of any such lien, claim or demand, then Lessee shall, at
its sole expense defend itself and Lessor against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises, the Building or the
Office Building Project, upon the condition that if Lessor shall require, Lessee
shall furnish to Lessor a surety bond satisfactory to Lessor in an amount equal
to such contested lien claim or demand indemnifying Lessor against liability for
the same and holding the Premises, the Building and the Office Building Project
free from the effect of such lien or claim. In addition, Lessor may require
Leesee to pay Lessor's reasonable attorneys' fees and costs in participating in
such action if Lessor shall decide it is to Lessor's best interest so to do.
(e) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee, including but
not limited to, floor coverings, panelings, doors, drapes, built-ins, moldings,
sound attenuation, and lighting and telephone or communication systems, conduit,
wiring and outlets, shall be made and done in a good and workmanlike manner and
of good and sufficient quality and materials and shall be the property of Lessor
and remain upon and be surrendered with the Premises at the expiration of the
Lease term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Provided Lessee is not in default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee's personal property and equipment, other than that
which is affixed to the Premises so that it cannot be removed without material
damage to the Premises or the Building, and other than Utility Installations,
shall remain the property of Lessee and may be removed by Lessee subject to the
provisions of paragraph 7.2.
(f) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 Utility Additions. Lessor reserves the right to install new
or additional facilities throughout the Office Building Project for the benefit
of Lessor or Lessee, or any other lessee of the Office Building Project,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, communication systems, and fire protection and detection systems, so
long as such installations do not unreasonably interfere with Lessee's use of
the Premises.
8. Insurance; Indemnity. SEE ADDENDUM.
8.1 Liability Insurance--Lessee. Lessee shall, at Lessee's
expense, obtain and keep in force during the term of this Lease a policy of
Comprehensive General Liability Insurance utilizing an Insurance Services Office
standard form with Broad Form General Liability Endorsement (GL0404), or
equivalent, in an amount of not less than
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$1,000,000 per occurrence of bodily injury and property damage combined or in a
greater amount as reasonably determined by Lessor and shall insure Lessee with
Lessor as an additional insured against liability arising out of the use,
occupancy or maintenance of the Premises. Compliance with the above requirement
shall not, however, limit the liability of Lessee hereunder.
8.2 Liability Insurance--Lessor. Lessor shall obtain and keep in
force during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Broad Form Property Damage Insurance, plus coverage against such
other risks Lessor deems advisable from time to time, insuring Lessor, but not
Lessee against liability arising out of the ownership, use, occupancy or
maintenance of the Office Building Project in an amount not less than $3,000,000
per occurrence.
8.3 Property Insurance--Lessee. Lessee shall, at Lessee's
expense, obtain and keep in force during the term of this Lease for the benefit
of Lessee, replacement cost fire and extended coverage insurance, with vandalism
and malicious mischief, sprinkler leakage and earthquake sprinkler leakage
endorsements, in an amount sufficient to cover not less than 100% of the full
replacement cost, as the same may exist from time to time, of all of Lessee's
personal property, fixtures, equipment and tenant improvements.
8.4 Property Insurance--Lessor. Lessor shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the Office Building Project Improvements, but not Lessee's
personal property, fixtures, equipment or tenant improvements in the amount of
the full replacement cost thereof, as the same may exist from time to time,
utilizing Insurance Services Office standard form, or equivalent, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, plate glass, and such other
perils as Lessor deems advisable or may be required by a lender having a lien on
the Office Building Project. In addition, Lessor shall obtain and keep in force,
during the term of this Lease, a policy of rental value insurance covering a
period of one year, with loss payable to Lessor, which insurance shall also
cover all Operating Expenses for said period. Lessee will not be named in any
such policies carried by Lessor and shall have no right to any proceeds
therefrom. The policies required by these paragraphs 8.2 and 8.4 shall contain
such deductibles as Lessor or the aforesaid lender may determine. In the event
that the Premises shall suffer an insured loss as defined in paragraph 9.1(f)
hereof, the deductible amounts under the applicable insurance policies shall be
deemed an Operating Expense. Lessee shall not do or permit to be done anything
which shall invalidate the insurance policies carried by Lessor. Lessee shall
pay the entirety of any increase in the property insurance premium for the
Office Building Project over what it was immediately prior to the commencement
of the term of this Lease if the increase is specified by Lessor's insurance
carrier as being caused by the nature of Lessee's occupancy or any act or
omission of Lessee.
8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance within seven (7) days
after the Commencement Date of this Lease. No such policy shall be cancelable or
subject to reduction of coverage or other
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modification except after thirty (30) days prior written notice to Lessor.
Lessee shall at least thirty (30) days prior to the expiration of such policies
furnish Lessor with renewals thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release
and relieve the other and waive their entire right of recovery against the
other, for direct or consequential loss or damage arising out of or incident to
the perils covered by property insurance carried by such party, whether due to
the negligence of Lessor or Lessee or their agents, employees, contractors
and/or invitees. If necessary all property insurance policies required under
this Lease shall be endorsed to so provide. SEE ADDENDUM.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor
and its agents Lessor's master or ground lessor, partners and lenders, from and
against any and all claims for damage to the person or property of anyone or any
entity arising from Lessee's use of the Office Building Project, or from the
conduct of Lessee's business or from any activity work or things done permitted
or suffered by Lessee in or about the Premises or elsewhere and shall further
indemnify and hold harmless Lessor from and against any and all claims costs and
expenses arising from any breach or default in the performance of any obligation
on Lessee's part to be performed under the terms of this Lease or arising from
any act or omission of Lessee or any of Lessee's agent, contractor, employees,
or invitees, and from and against all costs, attorney's fees, expenses and
liabilities incurred by Lessor as the result of any such use, conduct, activity,
work, things done, permitted or suffered, breach, default or negligence, and in
dealing reasonably therewith, including but not limited to the defense or
pursuit of any claim or any action or proceeding involved therein; and in case
any action or proceeding be brought against Lessor by reason of any such matter,
Lessee upon notice from Lessor shall defend the same at Lessee's expense by
counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee
in such defense. Lessor need not have first paid any such claim in order to be
so indemnified. Lessee, as a material part of the consideration to Lessor,
hereby assumes all risk of damage to property of Lessee or injury to persons,
in, upon or about the Office Building Project arising from any cause and Lessee
hereby waives all claims in respect thereof against Lessor.
8.8 Exemption of Lessor from Liability. SEE ADDENDUM. Lessee
hereby agrees that Lessor shall not be liable for injury to Lessee's business or
any loss of income therefrom or for loss of or damage to the goods, wares,
merchandise or other property of Lessee. Lessee's employees, invitees,
customers, or any other person in or about the Premises or the Office Building
Project, nor shall Lessor be liable for injury to the person of Lessee, Lessee's
employees, agent or contractors, whether such damage or injury is caused by or
results from theft, fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliance, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether said damage or injury result from conditions arising upon the
Premises or upon other portions of the Office Building Project, or from other
sources or places, or from new construction or the repair, alteration or
improvement of any part of the Office Building Project, or of the equipment,
fixtures or appurtenances applicable thereto, and regardless of whether the
cause of such damage or injury or the means of repairing the same is
inaccessible, Lessor shall not be liable for any damages arising from any act or
neglect of any other lessee, occupant or user of the Office Building Project,
not from the failure of Lessor to enforce the provisions of any other lease of
any other lessee of the Office Building Project.
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8.9 No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance specified in
this paragraph 8 are adequate to cover Lessee's property or obligations under
this Lease.
9. Damage or Destruction.
9.1 Definitions. SEE ADDENDUM.
(a) "Premises Damage" shall mean if the Premises are damaged
or destroyed to any extent.
(b) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is less than fifty percent (50%) of the then Replacement
Cost of the building.
(c) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is less than fifty percent (50%) or more of the then
Replacement Cost of the Building.
(d) "Office Building Project Buildings" shall mean all of
the buildings on the Office Building Project site.
(e) "Office Building Project Buildings Total Destruction"
shall mean if the Office Building Project Buildings are damaged or destroyed to
the extent that the cost of repair is fifty percent (50%) or more of the then
Replacement Cost of the Office Building Project Buildings.
(f) "Insured Loss" shall mean damage or destruction which
was caused by an event required to be covered by the insurance described in
paragraph 8. The fact that an insured Loss has a deductible amount shall not
make the loss an uninsured loss.
(g) "Replacement Cost" shall mean the amount of money
necessary to be spent in order to repair or rebuild the damaged area to the
condition that existed immediately prior to the damage occurring, excluding all
improvements made by lessees, other than those installed by Lessor at Lessee's
expense.
9.2 Premises Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraph 9.4
and 9.5, if at any time during the term of this Lease there is damage which is
an Insured Loss and which falls into the classification of either Premises
Damage or Premises Building Partial Damage, then Lessor shall, as soon as
reasonably possible and to the extent the required materials and labor are
readily available through usual commercial channels, at Lessor's expense, repair
such damage (but not Lessee's fixtures, equipment or tenant improvements
originally paid for by Lessee) to its condition existing at the time of the
damage, and this Lease shall continue in full force and effect.
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(b) Uninsured Loss: Subject to the provisions of paragraphs
9.4 and 9.5, if at any time during the term of this Lease there is damage which
is not an Insured Loss and which falls within the classification of Premises
Damage or Premises Building Partial Damage, unless caused by a negligent or
willful act of Lessee (in which event Lessee shall make the repairs at Lessee's
expense), which damage prevents Lessee from making any substantial use of the
Premises, Lessor may at Lessor's option either (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage, in which event this Lease shall terminate as of the date of the
occurrence of such damage.
9.3 Premises Building Total Destruction; Office Building Project
Total Destruction. Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage, whether or not it is an
Insured Loss, which falls into the classifications of either (i) Premises
Building Total Destruction, or (ii) Office Building Project Total Destruction,
then Lessor may at Lessor's option either (i) repair such damage or destruction
as soon as reasonably possible at Lessor's expense (to the extent the required
materials are readily available through usual commercial channels) to its
condition existing at the time of the damage, but not Lessee's fixtures,
equipment or tenant improvements, and this Lease shall continue in full force
and effect, or (ii) give written notice to Lessee within thirty (30) days after
the date of occurrence of such damage of Lessor's intention to cancel and
terminate this Lease, in which case this Lease shall terminate as of the date of
the occurrence of such damage.
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the
last twelve (12) months of the term of this Lease there is substantial damage to
the Premises, Lessor may at Lessor's option cancel and terminate this Lease as
of the date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within 30 days after the date of occurrence of such
damage.
9.5 Abatement of Rent; Lessee's Remedies.
(a) In the event Lessor repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part of the
Premises are not usable (including loss of use due to loss of access or
essential services), the rent payable hereunder (including Lessee's Share of
Operating Expense Increase) for the period during which such damage, repair or
restoration continues shall be abated, provided (1) the damage was not the
result of the negligence of Lessee, and (2) such abatement shall only be to the
extent the operation and profitability of Lessee's business as operated from the
Premises is adversely affected. Except for said abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) Upon the occurrence of damage to 25% or more of the
Premises, if Lessor or Master Landlord shall be obligated to repair or restore
the Premises or the Building under the provisions of this Paragraph 9 and shall
not commence such repair or
11
restoration within thirty (30) days after such occurrence, of if Lessor or
Master Landlord shall not complete the restoration and repair within ninety (90)
days after such occurrence, Lessee may at Lessee's option cancel and terminate
this Lease by giving Lessor written notice of Lessee's election to do so at any
time prior to the commencement or completion, respectively, of such repair or
restoration. In such event this Lease shall terminate as of the date of such
notice.
(c) Lessee agrees to cooperate with Lessor in connection
with any such restoration and repair, including but not limited to the approval
and/or execution of plans and specifications required.
9.6 Termination--Advance Payments. Upon termination of this
Lease pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security deposit
as has not theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statue
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere.
(b) If any of Lessee's said personal property shall be
assessed with Lessor's real property, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written statement
setting forth the faxes applicable to Lessee's property.
11. Utilities. SEE ADDENDUM.
11.1 Services Provided by Lessor. Lessor shall provide heating,
ventilation, air conditioning, and janitorial service as reasonably required,
reasonable amount of electricity for normal lighting and office machines, water
for reasonable and normal drinking and lavatory use, and replacement light bulbs
and/or fluorescent tubes and ballasts for standard overhead fixtures.
11.2 Hours of Service. Said services and utilities shall be
provided during generally accepted business days and hours or such other days or
hours as may hereafter be set forth. Utilities and services required at other
times shall be subject to advance request and reimbursement by Lessee to Lessor
of the cost thereof.
11.3 Excess Usage by Lessee. Lessee shall not make connection to
the utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that
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causes extra burden upon the utilities or services, including but not limited to
security services, over standard office usage for the Office Building Project.
Lessor shall require Lessee to reimburse Lessor for any excess expenses or costs
that may arise out of a breach of this subparagraph by Lessee. Lessor may, in
its sole discretion, install at Lessee's expense supplemental equipment and/or
separate metering applicable to Lessee's excess usage or loading.
11.4 Interruptions. There shall be no abatement of rent and
Lessor shall not be liable in any respect whatsoever for the inadequacy,
stoppage, interruption or discontinuance of any utility or service due to riot,
strike, labor dispute, breakdown, accident, repair or other cause beyond
Lessor's reasonable control or in cooperation with governmental request or
directions. SEE ADDENDUM.
12. Assignment and Subletting. SEE ADDENDUM.
12.1 Lessor's Consent Required. Lessee shall not voluntarily or
by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interested in the Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Lessor shall respond to Lessee's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a material
default and breach of this Lease, without the need for notice to Lessee under
paragraph 13.1. "Transfer" within the meaning of this paragraph 12 shall include
the transfer or transfers aggregating: (a) is Lessee is a corporation, more than
fifty percent (50%) of the voting stock of such corporation, or (b) if Lessee is
a partnership, more than fifty percent (50%) of the profit and loss
participation in such partnership.
12.2 Lessee Affiliate. Notwithstanding the provisions of
paragraph 12.1 hereof, Lessee may assign or sublet the Premises, or any portion
thereof, without Lessor's consent, to any corporation which controls, are
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger of consolidation with Lessee, or to any person or
entity which acquires all the assets of Lessee as a going concern of the
business that is being conducted on the Premises, all of which are referred to
as "Lessee Affiliate"; provided that before such assignment shall be effective,
(a) said assignee shall assume, in full, the obligations of Lessee under this
Lease and (b) Lessor shall be given written notice of such assignment and
assumption. Any such assignment shall not, in any way, affect or limit the
liability of Lessee under the terms of this Lease even if after such assignment
of subletting the terms of this Lease are materially changed or altered without
the consent of Lessee, the consent of whom shall not be necessary.
12.3 Terms and Conditions Applicable to Assignment and
Subletting. SEE ADDENDUM.
(a) Regardless of Lessor's consent, no assignment or
subletting shall release Lessee of Lessee's obligations hereunder or alter the
primary liability of Lessee to pay the rent and other sums due Lessor hereunder
including Lessee's Share of Operating Expense Increase, and to perform all other
obligations to be performed by Lessee hereunder.
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(b) Lessor may accept rent from any person other than
Lessee pending approval or disapproval of such assignment.
(c) Neither a delay in the approval or disapproval of such
assignment or subletting, nor the acceptance of rent, shall constitute a waiver
or estoppel of Lessor's right to exercise its remedies for the breach of any of
the terms or conditions of this paragraph 12 of this Lease.
(d) If Lessee's obligations under this Lease have been
guaranteed by third parties, then an assignment or sublease, and Lessor's
consent thereto shall not be effective unless said guarantors give their written
consent to such sublease and the terms thereof.
(e) The consent by Lessor to any assignment or subletting
shall not constitute a consent to any subsequent assignment or subletting by
Lessee or to any subsequent or successive assignment or subletting by the
sublessee. However, Lessor may consent to subsequent sublettings and assignments
of the sublease or any amendments or modifications thereto without notifying
Lessee or anyone else liable on the Lease or sublease and without obtaining
their consent and such action shall not relieve such persons from liability
under this Lease or said sublease; however, such persons shall not be
responsible to the extent any such amendment or modification enlarges or
increases the obligations of the Lessee or sublessee under this Lease or such
sublease.
(f) In the event of any default under this Lease, Lessor
may proceed directly against Lessee, any guarantors or any one else responsible
for the performance of this Lease, including the sublessee, without first
exhausting Lessor's remedies against any other person or entity responsible
therefor to Lessor, or any security held by Lessor or Lessee.
(g) Lessor's written consent to any assignment or
subletting of the Premises by Lessee shall not constitute an acknowledgement
that no default then exists under this Lease of the obligations to be performed
by Lessee nor shall such consent be deemed a waiver of any then existing
default, except as may be otherwise stated by Lessor at the time.
(h) The discovery of the fact that any financial statement
relied upon by Lessor in giving its consent to an assignment or subletting was
materially false shall, at Lessor's election, render Lessor's said consent null
and void.
12.4 Additional Terms and Conditions Applicable to Subletting.
Regardless of Lessor's consent, the following terms and conditions shall apply
to any subletting by Lessee of all or any part of the Premises and shall be
deemed included in all subleases under this Lease whether or not expressly
incorporated herein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all rentals and income arising from any sublease heretofore
or hereafter made by Lessee, and Lessor may collect such rent and income and
apply same toward Lessee's obligations under this Lease; provided, however, that
until a default shall occur in the performance of Lessee's obligations under
this Lease, Lessee may receive, collect and enjoy the rents accruing under such
sublease. Lessor shall not, by reason of this or any other assignment
14
of such sublease to Lessor nor by reason of the collection of the rents from a
sublessee, be deemed liable to the sublessee for any failure of Lessee to
perform and comply with any of Lessee's obligations to such sublessee under such
sublease. Lessee hereby irrevocably authorizes and directs any such sublessee,
upon receipt of a written notice from Lessor stating that a default exists in
the performance of Lessee's obligations under this Lease, to pay to Lessor the
rents due and to become due under the sublease. Lessee agrees that such
sublessee shall have the right to rely upon any such statement and request from
Lessor, and that such sublessee shall pay such rents to Lessor without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against said sublessee or Lessor for any such rents
so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective
unless and until it has been approved in writing by Lessor. In entering into any
sublease, Lessee shall use only such form of sublessee as is satisfactory to
Lessor, and once approved by Lessor, such sublease shall not be changed or
modified without Lessor's prior written consent. Any sublease shall, by reason
of entering into a sublease under this Lease, be deemed, for the benefit of
Lessor, to have assumed and agreed to conform and comply with each and every
obligation herein to be performed by Lessee other than such obligations as are
contrary to or inconsistent with provisions contained in a sublease to which
Lessor has expressly consented in writing.
(c) In the event Lessee shall default in the performance of
its obligations under this Lease, Lessor at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor, in which
event Lessor shall undertake the obligations of Lessee under such sublease from
the time of the exercise of said option to the termination of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to Lessee or for any other prior defaults of
Lessee under such sublease.
(d) No sublessee shall further assign or sublet all or any
part of the Premises without Lessor's prior written consent.
(e) With respect to any subletting to which Lessor has
consented, Lessor agrees to deliver a copy of any notice of default by Lessee to
the sublessee. Such sublessee shall have the right to cure a default of Lessee
within three (3) days after service of said notice of default upon such
sublessee, and the sublessee shall have a right of reimbursement and offset from
and against Lessee for any such defaults cured by the sublessee.
12.5 Lessor's Expenses. In the event Lessee shall assign or
sublet the Premises or request the consent of Lessor to any assignment or
subletting or if Lessee shall request the consent of Lessor for any act Lessee
proposes to do then Lessee shall pay Lessor's reasonable costs and expenses
incurred in connection therewith, including attorneys', architects', engineers'
or other consultants' fees.
12.6 Conditions to Consent. Lessor reserves the right to
condition any approval to assign or sublet upon Lessor's determination that (a)
the proposed assignee or sublessee shall conduct a business on the Premises of a
quality substantially equal to that of
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Lessee and consistent with the general character of the other occupants of the
Office Building Project and not in violation of any exclusives or rights then
held by other tenants, and (b) the proposed assignee or sublessee be at least as
financially responsible as Lessee was expected to be at the time of the
execution of this Lease or of such assignment or subletting, whichever is
greater.
13. Defaults; Remedies.
13.1 Default. The occurrence of any one or more of the
following events shall constitute a material default of this Lease by Lessee:
(a) The vacation or abandonment of the Premises by Lessee.
Vacation of the Premises shall include the failure to occupy the Premises for a
continuous period of 30 days or more. SEE ADDENDUM.
(b) The breach by Lessee of any of the covenants, conditions
or provisions of paragraphs 7.3(a), (b) or (d) (alterations), 12.1 (assignment
or subletting), 13.1(a) (vacation or abandonment), 13.1(e) (insolvency), 13.1(f)
(false statement), 16(a) (estoppel certificate), 30(b) (subordination), 33
(auctions), or 41.1 (easements), all of which are hereby deemed to be material,
non-curable defaults without the necessity of any notice by Lessor to Lessee
thereof.
(c) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due, where
such failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes
such Notice to Pay Rent or Quit shall also constitute the notice required by
this subparagraph.
(d) The failure by Lessee to observe or perform any of the
covenants or provisions of this Lease to be observed or performed by Lessee
other than those referenced in subparagraphs (b) and (c), above, where such
failure shall continue for a period of thirty (30) days after written notice
thereof from Lessor to Lessee; provided, however, that if the nature of Lessee's
noncompliance is such that more than thirty (30) days are reasonably required
for its cure, then Lessee shall not be deemed to be in default if Lessee
commenced such cure within said thirty (30) day period and thereafter diligently
pursues such cure to completion. To the extent permitted by law, such thirty
(30) day notice shall constitute the sole and exclusive notice required to be
given to Lessee under applicable Unlawful Detainer statutes.
(e) (i) The making by Lessee of any general arrangement or
general assignment for the benefit of creditors; (ii) Lessee becoming a "debtor"
as defined in 11 U.S.C.(S)101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed within sixty (60)
days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged
16
within thirty (30) days. In the event that any provision of this paragraph
13.1(e) is contrary to any applicable law, such provision shall be of no force
or effect.
(f) The discovery by Lessor that any financial statement
given to Lessor by Lessee, or its successor in interest or by any guarantor of
Lessee's obligation hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of
this Lease by Lessee, Lessor may at any time thereafter, with or without notice
of demand and without limiting Lessor in the exercise of any right or remedy
which Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender possession of the Premises to
Lessor. In such event Lessor shall be entitled to recover from Lessee all
damages incurred by Lessor by reason of Lessee's default including, but not
limited to, the cost of recovering possession of the Premises; expenses of
reletting, including necessary renovation and alteration of the Premises,
reasonable attorneys' fees, and any real estate commission actually paid, the
worth at the time of award by the court having jurisdiction thereof of the
amount by which the unpaid rent for the balance of the term after the time of
such award exceeds the amount of such rental loss for the same period that
Lessee proves could be reasonably avoided; that portion of the leasing
commission paid by Lessor pursuant to paragraph 15 applicable to the unexpired
term of this Lease.
(b) Maintain Lessee's right to possession in which case this
Lease shall continue in effect whether or to Lessee shall have vacated or
abandoned the Premises. In such event Lessor shall be entitled to enforce all of
Lessor's rights and remedies under this Lease, including the right to recover
the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary obligations
of Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless
Lessor fails to perform obligations required of Lessor within a reasonable time,
but in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Lessee
in writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and thereafter
diligently pursues the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment
by Lessee to Lessor of Base Rent or other sums due hereunder will cause Lessor
to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain.
17
Such costs include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Lessor by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly, if any installment
of Base Rent, or any other sum due from Leasee shall not be received by Lessor
or Lessor's designee within ten (10) days after such amount shall be due, then,
without any requirement for notice to Lessee, Lessee shall pay to Lessor a late
charge equal to 5% of such overdue amount. The parties hereby agree that such
late charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of late payment by Lessee. Acceptance of such late charge 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 the other rights
and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof or the
Office Building Project are taken under the power of eminent domain, or sold
under the threat of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes title or possession, whichever first occurs;
provided that if so much of the Premises or the Office Building Project are
taken by such condemnation as would substantially and adversely affect the
operation and profitability of Lessee's business conducted from the Premises,
Lessee shall have the option, to be exercised only in writing within thirty (30)
days after Lessor shall have given Lessee written notice of such taking (or in
the absence of such notice written thirty (30) days after the condemning
authority shall have taken possession), to terminate this Lease as of the date
the condemning authority takes such possession. If Lessee does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent and Lessee's Share of Operating Expense increase shall be reduced in the
proportion that the floor area of the Premises taken bears to the total floor
area of the Premises. Common Areas taken shall be excluded from the Common Areas
usable by Lessee and no reduction of rent shall occur with respect thereto or by
reason thereof, Lessor shall have the option in its sole discretion to terminate
this Lease as of the taking of possession by the condemning authority, by giving
written notice to Lessee of such election within thirty (30) days after receipt
of notice of a taking by condemnation of any part of the Premises or the Office
Building Project. Any award for the taking of all or any part of the Premises or
the Office Building Project under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the property of Lessor,
whether such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any separate award for loss of or
damage to Lessee's trade fixtures, removable personal property and unamortized
tenant improvements that have been paid for by Lessee. For that purpose the cost
of such improvements shall be amortized over the original term of this Lease
excluding any options. In the event that this Lease is not terminated by reason
of such condemnation, Lessor shall to the extent of severance damages received
by Lessor in connection with such condemnation, repair any damage to the
Premises caused by such condemnation except to the extent that Lessee has been
reimbursed therefor by the condemning authority. Lessee shall pay any amount in
excess of such severance damages required to complete such repair.
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15. Broker's Fee.
(a) The brokers involved in this transaction are BT
Commercial Real Estate representing Lessor as "listing broker" and Cornish &
Carey Commercial representing Lessee as "cooperating broker," licensed real
estate broker(s). A "cooperating broker" is defined as any broker other than the
listing broker entitled to a share of any commission arising under this Lease.
Upon execution of this Lease by both parties, Lessor shall pay to said brokers
jointly, or in such separate shares as they may mutually designate in writing, a
fee as set forth in a separate agreement between Lessor and said broker(s) for
brokerage services rendered by said broker(s) to Lessor in this transaction.
(b) Lessee and Lessor each represent and warrant to the
other that neither has had any dealings with any person, firm, broker or finder
(other than the person(s), if any, whose names are set forth in paragraph 15(a),
above) in connection with the negotiation of this Lease and/or the consummation
of the transaction contemplated hereby, and no other broker or other person,
firm or entity is entitled to any commission or finder's fee in connection with
said transaction and Lessee and Lessor do each hereby indemnify and hold the
other harmless from and against any costs, expenses, attorneys' fees or
liability for compensation or charges which may be claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the indemnifying party.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time
upon not less than ten (10) days' prior written notice from the other party
("requesting party") execute, acknowledge and deliver to the requesting party 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) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the responding party's knowledge, any
uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective purchaser or encumbrancer of the Office Building Project or
of the business of Lessee.
(b) At the requesting party's option, the failure to deliver
such statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (i) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are no uncured defaults in the requesting party's performance, and (iii)
if Lessor is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Lessor or Master Lease (as defined in the Addendum)
desires to finance, refinance, or sell the Office Building Project, or any part
thereof, Lessee hereby agrees to deliver to any lender or purchaser designated
by Lessor such financial statements of Lessee as may be reasonably required by
such lender or purchaser. Such statements shall include the past three (3)
years' financial statements of Lessee. All such
19
financial statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall
mean only the owner or owners, at the time in question, of the fee title or a
lessee's interest in a ground lease of the Office Building Project, and except
as expressly provided in paragraph 15, in the event of any transfer of such
title or interest, Lessor herein named (and in case of any subsequent transfers
then the grantor) shall be relieved from and after the date of such transfer of
all liability as respects Lessor's obligations thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the time
of such transfer, in which Lessee has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Lessor
shall, subject as foresaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership.
18. Severability. The invalidity of any provision of this Lease
as determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
19. Interest on Past-due Obligations. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at the
maximum rate then allowable by law or judgements from the date due. Payment of
such interest shall not excuse or cure any default by Lessee under this Lease;
provided, however, that interest shall not be payable on late charges incurred
by Lessee nor on any amounts upon which late charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the
obligations to be performed under this Lease.
21. Additional Rent. All monetary obligations of Lessee to Lessor
under the terms of this Lease, including but not limited to Lessee's Share of
Operating Expense increase and any other expenses payable by Lessee hereunder
shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendment. This Lease
contains all agreements of the parties with respect to any matter mentioned
herein. No prior or contemporaneous agreement or understanding pertaining to
any such matter shall be effective. This Lease may be modified in writing only,
signed by the parties in interest at the time of the modification. Except as
otherwise stated in this Lease, Lessee hereby acknowledges that neither the real
estate broker listed in paragraph 15 hereof nor any cooperating broker on this
transaction nor the Lessor or any employee or agents of any of said persons has
made any oral or written warranties or representations to Lessee relative to the
condition or use by Lessee of the Premises or the Office Building Project and
Lessee acknowledges that Lessee assumes all responsibility regarding the
Occupational Safety Health Act, the legal use and adaptability of the Premises
and the compliance thereof with all applicable laws and regulations in effect
during the term of this Lease.
23. Notices. Any notice required or permitted to be given
hereunder shall be in writing and may be given by personal delivery or by
certified or registered mail, and shall be
20
deemed sufficiently given if delivered or addressed to Lessee or to Lessor at
the address noted below or adjacent to the signature of the respective parties,
as the case may be. Mailed notices shall be deemed given upon actual receipt at
the address required, or forty-eight hours following deposit in the mail,
postage prepaid, whichever first occurs. Either party may by notice to the other
specify a different address for notice purposes except that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's address for
notice purposes. A copy of all notices required or permitted to be given to
Lessor hereunder shall be concurrently transmitted to such party or parties at
such addresses as Lessor may from time to time hereafter designate by notice to
Lessee.
24. Waivers. No waiver by Lessor of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to, or approval of,
any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such rent.
25. Holding Over. If Lessee, with Lessor's consent, remains in
possession of the Premises or any part thereof after the expiration of the term
hereof, such occupancy shall be a tenancy from month to month upon all the
provisions of this Lease pertaining to the obligations of Lessee, except that
the rent payable shall be one hundred fifty percent (150%) of the rent payable
immediately preceding the termination date of this Lease, and all Options, if
any, granted under the terms of this Lease shall be deemed terminated and be of
no further effect during said month to month tenancy.
26. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
27. Covenants and Conditions. Each provision of this Lease
performable by Lessee shall be deemed both a covenant and a condition.
28. Binding Effect; Choice of Law. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions of
paragraph 17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
29. Subordination.
(a) This Lease, and any Option or right of first
refusal granted hereby, at Lessor's option, shall be subordinate to the Master
Lease (as defined in the Addendum), any ground lease, mortgage, deed of trust,
or any other hypothecation or security now or hereafter placed upon the Office
Building Project and to any and all advances made on
21
the security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Lessee's right to quiet possession of the Premises shall not be disturbed if
Lessee is not in default and so long as Lessee shall pay the rent and observe
and perform all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms or the Master Lease is terminated by its terms.
If any mortgagee, trustee or ground lessor shall elect to have this Lease and
any Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Options shall be deemed prior to such mortgaging deed of trust or ground
lease, whether this Lease or such Options are dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of recording
thereof.
(b) Lessee agrees to execute any documents required to
effectuate an attornment, a subordination, or to make this Lease or any Option
granted herein prior to the lien of any mortgage, deed of trust or ground lease,
as the case may be. Lessee's failure to execute such documents within ten (10)
days after written demand shall constitute a material default by Lessee
hereunder without further notice to Lessee or, at Lessor's option, Lessor shall
execute such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee
does hereby make, constitute and irrevocably appoint Lessor as Lessee's
attorney-in-fact and in Lessee's name, place and stead, to execute such
documents in accordance with this paragraph 30(b).
30. Attorneys' Fees.
30.1 If either party or the broker(s) named herein bring an
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, trial or appeal thereon, shall be entitled to his
reasonable attorneys' fees to be paid by the losing party as fixed by the court
in the same or a separate suit, and whether or not such action is pursued to
decision or judgment. The provisions of t his paragraph shall inure to the
benefit of the broker named herein who seeks to enforce a right hereunder.
30.2 The attorneys' fee award shall not be computed in accordance
with any court fee schedule, but shall be such as to fully reimburse all
attorneys' fees reasonably incurred in good faith.
30.3 Lessor shall be entitled to reasonable attorneys' fees and
all other costs and expenses incurred in the preparation and service of notice
of default and consultations in connection therewith, whether or not a legal
transaction is subsequently commenced in connection with such default.
31. Lessor's Access.
31.1 Lessor and Lessor's agents and Master Landlord and its
agents shall have the right to enter the Premises at reasonable times after 24
hours notice except in an emergency for the purpose of inspecting the same,
performing any services required of Lessor, showing the same to prospective
purchasers, lenders, or lessees, taking such safety measures, erecting such
scaffolding or other necessary structures, making such alterations, repairs,
improvements or additions to the Premises or to the Office Building Project as
Lessor may
22
reasonably deem necessary or desirable and the erecting, using and maintaining
of utilities, services, pipes and conduits through the Premises and/or other
premises as long as there is no material adverse effect to Lessee's use of the
Premises. Lessor may at any time place on or about the Premises or the Building
any ordinary "For Sale" signs and Lessor may at any time during the last 120
days of the term hereof place on or about the Premises any ordinary "For Lease"
signs.
31.2 All activities of Lessor pursuant to this paragraph shall be
without abatement of rent, nor shall Lessor have any liability to Lessee for the
same.
31.3 Lessor shall have the right to retain keys to the Premises
and to unlock all doors in or upon the Premises other than to files, vaults and
safes, and in the case of emergency to enter the Premises by any reasonably
appropriate means, and any such entry shall not be deemed a forcible or unlawful
entry or detainer of the Premises or an eviction. Lessee waives any charges for
damages or injuries or interference with Lessee's property or business in
connection therewith.
32. Auctions. Lessee shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises or the Common
Areas without first having obtained Lessor's prior written consent.
Notwithstanding anything to the contrary in this Lease, Lessor shall not be
obligated to exercise any standard or reasonableness in determining whether to
grant such consent. The holding of any auction on the Premises or Common Areas
in violation of this paragraph shall constitute a material default of this
Lease.
33. Signs. Lessee shall not place any sign upon the Premises or the
Office Building Project without Lessor's prior written consent. Under no
circumstances shall Lessee place a sign on any roof of the Office Building
Project. SEE ADDENDUM.
34. Merger. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, or a termination by Lessor, shall not
work a merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
35. Consents. Except for paragraphs 33 (auctions) and 34 (signs)
hereof, wherever in this Lease the consent of one party is required to an act of
the other party such consent shall not be unreasonably withheld or delayed.
36. Guarantor. In the event that there is a guarantor of this Lease,
said guarantor shall have the same obligations as Lessee under this Lease.
37. Quiet Possession. Upon Lessee paying the rent for the Premises
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 hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this Lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Office Building Project.
23
38. Options.
38.1 Definition. As used in this paragraph the work "Option" has
the following meaning: (1) the right or option to extend the term of this Lease
or to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (2) the option of right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other space within the Office Building Project or other
property of Lessor or the right of first offer to lease other space within the
Office Building Project or other property of Lessor; (3) the right or option to
purchase the Premises or the Office Building Project, or the right of first
refusal to purchase the Premises or the Office Building Project or the right of
first offer to purchase the Premises or the Office Building Project, or the
right or option to purchase other property of Lessor, or the right of first
refusal to purchase other property of Lessor or the right of first offer to
purchase other property of Lessor.
38.2 Options. The Options, if any, herein granted to Lessee are
not assignable separate and apart from this Lease, nor may any Option be
separated from this Lease in any manner, either by reservation or otherwise.
38.3 Multiple Options. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised unless
the prior option to extend or renew this Lease has been so exercised.
38.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary, (i) during
the time commencing from the date Lessor gives to Lessee a notice of default
pursuant to paragraph 13.1(c) or 13.1(d) and continuing until the noncompliance
alleged in said notice of default is cured, or (ii) during the period of time
commencing on the day after a monetary obligation to Lessor is due from Lessee
and unpaid (without any necessity for notice thereof to Lessee) and continuing
until the obligation is paid, or (iii) in the event that Lessor has given to
Lessee three or more notices of default under paragraph 13.1(c), or paragraph
13.1(d), whether or not the defaults are cured, during the 12 months period of
time immediately prior to the time that Lessee attempts to exercise the subject
Option, (iv) if Lessee has committed any non-curable breach, including without
limitation those described in paragraph 13.1(b), or is otherwise in default of
any of the terms, covenants or conditions of this Lease.
(b) The period of time within which an Option may be
exercised shall not be extended or enlarged by reason of Lessee's inability to
exercise an Option because of the provisions of paragraph 38.4(a).
(c) All rights of Lessee under the provisions so an Option
shall terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of
Lessee for a period of thirty (30) days after such obligation becomes due
(without any necessity of Lessor to give notice thereof to Lessee), or (ii)
Lessee fails to commence to cure a default specified in paragraph 13.1(d) within
thirty (30) days after
24
the date that Lessor gives notice to Lessee of such default and/or Lessee fails
thereafter to diligently prosecute said cure to completion, or (iii) Lessor
gives to Lessee three or more notices of default under paragraph 13.1(c), or
paragraph 13.1(d), whether or not the defaults are cured, or (iv) if Lessee has
committed any non-curable breach, including without limitation those described
in paragraph 13.1(b), or is otherwise in default of any of the terms, covenants
and conditions of this Lease.
39. Security Measures--Lessor's Reservations.
39.1 Lessee hereby acknowledges that Lessor shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Office Building Project. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole option,
from providing security protection for the Office Building Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Operating Expenses, as set forth in paragraph 4.2(b).
39.2 Lessor shall have the following rights:
(a) To change the name, address or title of the Office
Building Project or building in which the Premises are located upon not less
than 90 days prior written notice;
(b) To, at Lessee's expense, provide and install Building
standard graphics on the door of the Premises and such portions of the Common
Areas as Lessor shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any
business as long as such exclusive right does not conflict with any rights
expressly given herein;
(d) To place such signs, notices or displays as Lessor
reasonably deems necessary or advisable upon the roof, exterior of the buildings
or the Office Building Project or on pole signs in the Common Areas;
39.3 Lessee shall not:
(a) Suffer or permit anyone, except in emergency, to go upon
the roof of the Building.
40. Easements.
40.1 Lessor reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions, so long
as such easements, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign
any of the aforementioned documents upon request of Lessor and failure to do so
shall constitute a material default of this Lease by Lessee without the need for
further notice to Lessee.
25
40.2 The obstruction of Lessee's view, air, or light by any
structure erected in the vicinity of the Building, whether by Lessor or third
parties, shall in no way affect this Lease or impose any liability upon Lessor.
41. Performance Under Protest. If at any time a dispute shall arise
as to any amount or sum of money to be paid by one party to the other under the
provisions hereof, the party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment, and there shall survive the right
on the part of said party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said party
to pay such sum or any part thereof, said party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease.
42. Authority. If Lessee is a corporation, trust, or general or
limited partnership, Lessee, and each individual executing this Lease on behalf
of such entity represent and warrant that such individual is duly authorized to
execute and deliver this Lease on behalf of said entity. If Lessee is a
corporation, trust or partnership, Lessee shall, within thirty (30) days after
execution of this Lease, deliver to Lessor evidence of such authority
satisfactory to Lessor.
43. Conflict. Any conflict between the printed provisions, Exhibits
or Addenda of this Lease and the typewritten or handwritten provisions, if any,
shall be controlled by the typewritten or handwritten provisions.
44. No Offer. Preparation of this Lease by Lessor or Lessor's agent
and submission of same to Lessee shall not be deemed an offer to Lessee to
lease. This Lease shall become binding upon Lessor and Lessee only when fully
executed by both parties.
45. Lender Modification. Lessee agrees to make such reasonable
modifications to this Lease as may be reasonably required by an institutional
lender in connection with the obtaining of normal financing or refinancing of
the Office Building Project.
46. Multiple Parties. If more than one person or entity is named as
either Lessor or Lessee herein, except as otherwise expressly provided herein,
the obligations of the Lessor or Lessee herein shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee,
respectively.
47. Work Letter. This Lease is supplemented by that certain Work
Letter of even date executed by Lessor and Lessee, attached hereto as Exhibit C,
and incorporated herein by this reference.
48. Attachments. Attached hereto are the following documents which
constitute a part of this Lease:
ADDENDUM TO OFFICE SUBLEASE OF EVEN DATE HEREWITH
COPY OF MASTER LEASE
26
IN WITNESS WHEREOF, this Office Sublease has been executed by the
parties as of the date first written above.
LESSOR:
INSWEB CORPORATION,
a Delaware corporation
By: /s/ Sheryl S. Dodsworth
--------------------------
Name: Sheryl S. Dodsworth
Title: SVP Finance & Administration
LESSEE:
EQUINIX, INC.
a Delaware corporation
By: /s/ Albert M. Avery, IV
-----------------------
Name: Albert M. Avery, IV
Title: Chief Executive Officer
27
EXHIBIT A
[GRAPHIC OF FLOOR PLAN OF LEASED SPACE]
28
EXHIBIT B
RULES AND REGULATIONS
Dated: November 1, 1998
By and Between: InsWeb Corporation and Equinix, Inc.
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common
Areas, including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor
in good faith judges to be a threat to the safety, reputation, or property of
the Office Building Projects and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the Office
Building Project.
4. Lessee shall not keep animals or birds within the Office Building
Project, and shall not bring bicycles, motorcycles or other vehicles into areas
not designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in
appropriate receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional
locks or bolts.
7. Lessee shall be responsible for the inappropriate use of any
toilet rooms, plumbing or other utilities. No foreign substances of any kind
are to be inserted therein.
8. Lessee shall deface the walls, partitions or other surfaces of
the premises or Office Building Project.
9. Lessee shall suffer or permit any thing in or around the Premises
or Building that causes excessive vibration or floor loading in any part of the
Office Building Project.
10. Furniture, significant freight and equipment shall be moved into
or out of the building only with the Lessor's knowledge and consent, and subject
to such reasonable limitations, techniques and timing, as may designated by
Lessor. Lessee shall be responsible for any damage to the Office Building
Project arising from any such activity.
11. Lessee shall not employ any service or contractor for services or
work to be performed in the Building, except as approved by Lessor.
29
12. Lessor reserves the right to close and lock the Building on
Saturdays, Sundays and legal holidays, and on other days between the hours of
____ P.M. and ___ A.M. of the following day. If Lessee uses the Premises during
such periods, Lessee shall be responsible for securely locking any doors it may
have opened for entry.
13. Lessee shall return all keys at the termination of its tenancy
and shall be responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used
by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the
Building.
16. Lessee shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Lessor or by applicable
governmental agencies as non-smoking areas.
17. Lessee shall not use any method of heating or air conditioning
other than as provider by Lessor.
18. Lessee shall not install, maintain or operate any vending
machines upon the Premises without Lessor's written consent.
19. The Premises shall not be used for lodging or manufacturing,
cooking or food preparation.
20. Lessee shall comply with all safety, fire protection and
evacuation regulations established by Lessor or any applicable governmental
agency.
21. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver shall not
constitute a waiver of any other rule or regulation or any subsequent
application thereof to such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to
keep its Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and its occupants. Lessee
agrees to abide by these and such rules and regulations.
30
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no
longer than full size, passenger automobiles herein called "Permitted Size
Vehicles," Vehicles other than Permitted Size Vehicles are herein referred to as
"Oversized Vehicles."
2. Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
or invitees to be loaded, unloaded, or parked in areas other than those
designated by Lessor for such activities.
3. Parking stickers or identification devices shall be the property
of Lessor and be returned to Lessor by the holder thereof upon termination of
the holder's parking privileges. Lessee will pay such replacement charge as is
reasonably established by Lessor for the loss of such devices.
4. Lessor reserves the right to refuse the sale of monthly
identification devices to any person or entity that willfully refuses to comply
with the applicable rules, regulations, laws and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking
spaces from floor to floor, within one floor, and/or to reasonably adjacent
offsite location(s), and to reasonably allocate them between compact and
standard size spaces, as long as the same compiles with applicable law,
ordinances and regulations.
6. Users of the parking area will obey all posted signs and park
only in the areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area
is required to park and lock his own vehicle. Lessor will not be responsible
for any damage to vehicles, injury to persons or loss of property, all of which
risks are assumed by the party using the parking area.
8. Validation, if established, will be permissible only by such
method or methods as Lessor and/or its licensee may establish at rates generally
applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the
parking structure or Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules, regulations, laws
and agreements.
11. Lessor reserves the right to modify these rules and/or adopt such
other reasonable and non-discriminatory rules and regulations as it may deem
necessary for the proper operation of the parking area.
12. Such parking use as is herein provided is intended merely as a
license only and no bailment is intended or shall be created hereby.
31
EXHIBIT C
MASTER LEASE
To be attached.
32
EXHIBIT D
[GRAPHIC OF FLOOR PLAN OF LEASED SPACE]
33
ADDENDUM TO SUBLEASE
THIS ADDENDUM TO SUBLEASE shall constitute a part of that certain
OFFICE SUBLEASE dated as of November 1, 1998 (the "Sublease") between INSWEB
CORPORATION, a Delaware corporation as Lessor and EQUINIX, INC., a Delaware
corporation as Lessee, and the terms hereof shall for all purposes be deemed
incorporated in the Sublease.
1. Master Lease. Lessee acknowledges that Lessor leases the
------------
Building in which the subleased Premises ("Subleased Premises") are located
pursuant to a Triple Net Lease dated January 12, 1998 (the "Master Lease")
between Lessor as Tenant and Marshall Squares LLC, a California limited
liability company as Landlord ("Master Landlord"), a copy of which is attached
hereto as Exhibit C, and which is incorporated herein by this reference for the
purpose of informing Lessee of the terms and conditions applicable to and
binding upon Master Landlord and Lessor with respect to the leasehold of the
Building. Lessee further acknowledges that this Sublease, and the rights of
Lessee with respect to the Subleased Premises, are subordinate to the provisions
of the Master Lease to the extent the same affect or are applicable to the
Subleased Premises, but that Lessee is not bound to perform Lessor's obligations
thereunder for the benefit of Master Landlord. Notwithstanding the foregoing
acknowledgement of subordination, except as otherwise expressly provided in this
Addendum with respect to particular provisions so stating, in the event of a
conflict or inconsistency between the Master Lease and this Sublease, the
provisions of this Sublease shall control as between Sublessor and Sublessee
with respect to the leasing of the Premises.
2. Approval and Consent. In all provisions of the Sublease where
--------------------
the Lessor's consent or approval is required, unless Lessor otherwise elects in
a particular instance, the consent or approval of both Lessor and Master
Landlord shall be required. Lessor shall have no obligation with respect to
such consent or approval of Master Landlord, except the obligation to use
reasonable efforts to obtain such consent or approval from Master Landlord. In
no event shall Lessor be obligated to spend more than a nominal sum in
connection with seeking or obtaining any such consent or approval of Master
Landlord. In connection with any such solicitation of Master Landlord's consent
or approval on Lessee's behalf, Lessee at its sole cost and expense shall
provide Lessor with all information, materials and reimbursement of costs and
expenses (including reasonable attorneys' fees, if applicable) reasonably
required by Master Landlord under the Master Lease or by Lessor in order to
determine whether such approval or consent shall be given.
3. Term; Early Occupancy. Notwithstanding the provisions of
---------------------
Paragraph 3.3 of the Sublease to the contrary, Lessor, upon two (2) days prior
written notice from Lessee, shall provide Lessee access to the Premises prior to
the Commencement Date only for the purpose of installing cabling, partitions and
other furnishings required by Lessee. Lessee shall have no obligation for the
payment of Rent during such early access period. Lessee shall in no event
commence operation of its business at the Premises prior to November 15, 1998.
4. Extension Option. Lessor hereby grants Lessee a conditional
----------------
option to extend the Term of this Sublease for a period of six (6) months beyond
the Expiration Date set
34
forth in Paragraph 1.5 of the Sublease. Lessee's right to exercise this option
shall be expressly conditioned upon the following: (i) Lessor shall have
notified Lessee in writing on or before November 15, 1999 that Lessor does not
intend to occupy the Premises for its own use; and (ii) Lessee shall have
notified Lessor in writing on or before January 15, 2000 that Lessee elects to
exercise the option to extend the Term from June 15, 2000 through December 14,
2000 ("Extension Term"). The Base Rent payable during the Extension Term shall
be $3.25 per rentable square foot. All other terms, conditions and provisions of
this Sublease in effect immediately prior to the original Expiration Date shall
be applicable during the Term, except that Lessee shall have no additional
option rights.
5. After Hours HVAC. The normal business hours for operation of the
----------------
HVAC system for the Premises shall be 7 AM to 6 PM Monday through Friday. In
the event Lessee gives Lessor reasonable prior written notice that Lessee needs
additional HVAC service beyond such normal business hours, Lessor will make
reasonable efforts to accommodate such a request, and Lessee shall be obligated
to pay for such additional service at a rate to be reasonably determined by
Lessor from time to time as approximately equivalent to Lessor's cost for such
service, which rate initially shall be thirty-five dollars ($35) per hour, and
in no event shall exceed fifty dollars ($50) per hour.
6. Janitorial Service. Lessor, at no additional cost to Lessee,
------------------
shall provide janitorial service to the Premises Monday through Friday in
accordance with basic building standards for janitorial cleaning services.
7. Signaqe. Lessor at no cost to Lessee shall provide Lessee
-------
building standard signage on the directory in the lobby on the ground floor of
the Building. Lessee at Lessee's sole cost and expense shall have the right to
install signage at the entrance to Premises on the second floor, and shall
remove the same at its cost and expense upon the termination or earlier
expiration of the Term of the Sublease.
8. Security Card Keys. Lessor, at no additional cost to Lessee,
------------------
shall make available to Lessee up to sixty (60) non-photo security card keys
providing access to the Building and the Premises for the use of Lessee's staff.
Lessee shall immediately notify Lessor in the event any of such security card
keys are lost, stolen or destroyed. Upon reasonable prior notice and request by
Lessee, Lessor shall provide Lessee replacement and additional card keys, or
photographic card keys, at a cost to be reasonably determined by Lessor.
9. Compliance; Punchlist Procedure. On or before the third (3rd)
-------------------------------
day after the Commencement Date and prior to Lessee's commencement of any
cabling, furnishing or other work or installation at the Premises, Lessor and
Lessee shall jointly inspect the condition of the Premises and prepare a list of
items, if any, requiring correction for compliance with the provisions of this
Sublease. Within ten (10) business days after the Rent Commencement Date,
Lessee shall provide Lessor with a punchlist of any additional items requiring
correction at the Premises. Within five (5) days thereafter, Lessor and Lessee
shall jointly inspect the Premises to determine what actions, if any, are needed
to correct any such punch list items for which Lessor is responsible, and any
additional items requiring correction or repair by Lessee as a result of damage
occurring during the course of tenant improvement work undertaken by Lessee.
35
Lessor's obligations under Paragraph 6.2(a) of the Sublease to rectify
any failure of the Subleased Premises to comply with applicable building codes,
regulations and ordinances as of the Commencement Date of the Master Lease shall
be deemed fully satisfied if Lessor uses reasonable efforts to require Master
Landlord to so rectify such noncompliance in accordance with the provisions of
the Master Lease. In no event shall Lessor be obligated to spend more than a
nominal sum in connection with seeking to enforce such compliance obligations on
the part of Master Landlord.
10. Systems. Lessor's obligations under Paragraph 6.3(a) of the
-------
Sublease to rectify any failure of the plumbing, lighting, heating and air
conditioning systems in the Subleased Premises to be in good operating condition
as of the Commencement Date, including any items included on the punchlist
prepared by Lessee in accordance with Paragraph 9 hereinabove, shall be deemed
fully satisfied if Lessor uses reasonable efforts to require Master Landlord to
so rectify such failure in accordance with the provisions of the Master Lease.
In no event shall Lessor be obligated to spend more than a nominal sum in
connection with seeking to enforce such obligations on the part of Master
Landlord.
11. Maintenance, Repairs, Common Area Services. Lessor's obligations
------------------------------------------
under Paragraph 7.1 of the Sublease to keep the Building exterior walls,
equipment, roof and structural components, and the landscaping, parking
structure and other components of the Common Areas of the Project in their
condition existing as of the Commencement Date shall be deemed fully satisfied
if Lessor uses reasonable efforts to require Master Landlord to fulfill its
maintenance and repair obligations with respect to such elements in accordance
with the provisions of the Master Lease. In no event shall Lessor be obligated
to spend more than a nominal sum in connection with seeking to enforce such
obligations on the part of Master Landlord.
12. Insurance and Indemnity. The liability insurance required to be
-----------------------
maintained by Lessee shall named both Lessor and Master Landlord as additional
insureds. No such policy shall be cancellable except upon thirty (30) days
prior written notice to Lessor and Master Landlord. Lessee's indemnity
obligations under Paragraph 8.7 of the Sublease shall be deemed to benefit and
apply to both Lessor and Master Landlord. The waiver of subrogation set forth
in Paragraph 8.6 shall be deemed applicable as between Lessee and both Lessor
and Master Landlord.
13. Failure of Electrical Service. Notwithstanding the provisions of
-----------------------------
Section 8.8 of the Sublease, Lessor agrees to use reasonable efforts and
diligence (i) to provide Lessee reasonable prior notice of Lessor's intent to
undertake (or to cause Master Landlord or the agents of either to undertake)
repairs or adjustments to the power panels for the building or the Premises,
which repairs or adjustments are reasonably likely to interrupt or interfere
with the normal operation of the electrical system for the Premises, and (ii) to
minimize the effects of any such interruption or interference upon Lessee's use
of the Premises and operation of its business therein, by acceding to Lessee's
reasonable repair scheduling requests or otherwise (except in the event of an
emergency). In the event any such interruption of electrical service to the
Premises is caused by Lessor's negligence or willful misconduct, and such
interruption materially and substantially interferes with Lessee's operation of
its business and substantially deprives Lessee of use of the Premises, then
Lessee shall be entitled to an abatement of Rent for each day of
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utility service disruption, up to a maximum abatement amount equal to five (5)
days Rent. In no event or circumstance shall Lessor have any other obligation or
liability whatsoever to Lessee, for damages or loss of any sort, resulting from
or arising out of any interruption of utility services to the Premises,
regardless of the cause thereof.
14. Damage and Destruction. Notwithstanding the provisions of
----------------------
Article 9 of the Sublease to the contrary, Lessor's obligations and Lessee's
rights with respect to repair and restoration of the Subleased Premises or the
Building shall be conditioned upon and subject to Lessor's rights, if any, to
enforce Master Landlord's obligations with respect to repair and restoration
under Section 11 of the Master Lease.
15. Assignment and Subletting. In connection with any proposal by
-------------------------
Lessee with respect to an assignment of the Sublease or the subletting of all or
part of the Subleased Premises, Lessee shall be required to comply with and
satisfy for the benefit of Lessor all obligations and conditions applicable to
"Tenant" for the benefit of Master Landlord as stated in Article 13 of the
Master Lease, in addition to all applicable provisions of this Sublease. In
addition, upon Lessor's receipt of a proposal for any such assignment or
subletting, Lessor shall have the right to elect to terminate the Sublease with
respect to the Subleased Premises (or such lesser portion thereof as may be
applicable to the proposal) upon thirty (30) days prior written notice to
Lessee.
16. Vacating or Abandonment. Notwithstanding the provisions of
-----------------------
Paragraph 13.1(a) of the Sublease, the vacating or abandonment of the Premises
by Lessee shall not be deemed a material default under the Sublease if Lessee
continues to pay all Rent and other sums payable to Lessor under the sublease
when due during such vacancy and (i) notifies Lessor in writing of Lessee's
intent to vacate not less than thirty (30) days in advance, (ii) Lessee obtains
and provides Lessor prior to vacating the Premises all necessary endorsements
required to ensure that the insurance with respect to the Premises shall in
remain in full force and effect notwithstanding such vacating; (iii) Lessee
takes all commercially reasonable steps necessary to secure the Premises against
unauthorized entry during the period of such vacancy, and (iv) Lessee
indemnifies Lessor against any claim, cost, damage, expense, fee, liability or
suit arising from or in connection with, such vacancy.
17. Estoppel Certificate. Lessee's obligation under Paragraph 16 of
--------------------
the Sublease to deliver estoppel certificates and other information to Lessor
upon certain specified circumstances shall be deemed to require Lessee to
provide such certificates and information to both Lessor and Master Landlord, if
Lessor so requests in writing.
18. Environmental Compliance. Lessee shall comply with, perform and
------------------------
be bound by all covenants, terms and conditions undertaken by or applicable to
"Tenant" under Article 9 of the Master Lease, as the same may be applicable to
the Subleased Premises or to the Lessee's use thereof or of the Parking
Structure or other Common Areas, except that Lessee's obligations thereunder
shall be deemed to benefit and be enforceable by both Lessor and Master
Landlord. All references therein to the "Construction Parcel" shall be deemed
to refer to the parcel of land upon which the Building is located.
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19. Address for Notices. The addresses of Lessor and Lessee for
-------------------
notice purposes shall be as follows, or as otherwise stated in a written change
of address notice delivered to the other party in the manner provided in
Paragraph 23 of the Sublease.
LESSOR: InsWeb Corporation
901 Marshall Street,
Redwood City, CA 94063
Attn: Sherie Dodsworth,
SVP Finance and Administration
with a copy to:
Law Offices of D. A. Berndt
55 Oak Ridge Road
Berkeley, CA 94705
LESSEE: Equinix, Inc.
Second Floor
901 Marshall Street
Redwood City, CA 94063
with a copy to:
Garth Pickett, Esq.
Hopkins & Carley, a Law Corporation
2 West Santa Clara Street
6th Floor
San Jose, California 95113
20. No Solicitation of Employees. Lessor and Lessee covenant and
----------------------------
agree that neither shall solicit the employment or services of persons employed
by (or serving as independent contractor for) the other party. Each party shall
inform its human resources managers and staff of the foregoing covenant and
shall make all reasonable efforts to enforce their observance of it.
21. Incorporation of Exhibits. All Exhibits referred to herein and
-------------------------
attached hereto are made a part hereof by this reference as fully as though set
forth herein in their entirety.
22. Condition Precedent. Section 13 of the Master Lease requires the
-------------------
consent of Master Landlord to the subletting of any portion of the Building.
Lessor shall solicit Master Landlord's consent to this Sublease promptly
following execution of this Sublease by both parties. In the event Master
Landlord's written consent to this Sublease has not been obtained within thirty
(30) days after the execution hereof by Lessor and Lessee, then this Sublease
may be terminated by either party hereto upon written notice to the other, and
upon such termination neither party hereto shall have any further rights against
or obligations to the other party hereunder.
23. Initial Tenant Improvements. Lessee, at Lessee's sole cost and
---------------------------
expense, shall have the right to construct the tenant improvement work (the
"Work") as shown in the floor plan attached hereto as Exhibit D subject to the
following conditions. Prior to submission for
38
permits Lessee shall submit the working drawings, plans and specifications for
the Work (collectively, "the Plans") to Lessor and Master Landlord for their
review and approval which in Lessor's case shall not be unreasonably withheld or
delayed. If Lessor or Master Landlord informs Lessee of objection to the Plans,
Lessee shall modify the Plans to satisfy such objection prior to commencement of
the Work. The Work shall be completed in accordance with the Plans as approved
by Lessor and Master Landlord and with all applicable building and other
permits, and shall comply with all applicable local, state and federal laws and
regulations.
At least six (6) months prior to expiration of the Term of the
Sublease Lessor shall notify Lessee whether Lessee shall be required to remove
all or any part of the Tenant Improvement Work upon expiration of the Term. If
so required, Lessee shall remove the Tenant Improvements or the applicable
portion thereof at Lessee's sole cost and expense and shall restore the Premises
to its condition as of the effective date of the Sublease.
IN WITNESS WHEREOF, this Office Sublease has been executed by the
parties as of the date first written above.
LESSOR: INSWEB CORPORATION,
a Delaware corporation
By: /s/ Sheryl S. Dodsworth
-------------------------------------
Name: Sheryl S. Dodsworth
Title: SVP Finance & Administration
LESSEE: EQUINIX, INC.,
a Delaware corporation
By: /s/ Albert M. Avery, IV
-------------------------------------
Name: Albert M. Avery, IV
Title: Chief Executive Officer
39