Exhibit 10.01
ARIBA PLAZA
-----------
SUBLEASE
Between
ARIBA, INC.
a Delaware corporation
as
SUBLANDLORD
and
INTERWOVEN, INC.
a Delaware corporation
as
SUBTENANT
for
PREMISES
at
803 and 809 Eleventh Avenue
Sunnyvale, California 94089
BASIC SUBLEASE INFORMATION
--------------------------
1. Sublease Date: June 28, 2001.
2. Sublandlord: Ariba, Inc., a Delaware corporation.
3. Subtenant: Interwoven Inc., a Delaware corporation.
4. Master Landlord: Moffett Park Drive LLC, a California limited liability
company.
5. Project: Ariba Plaza, 1111 Lockheed Martin Way, Sunnyvale, California.
6. Rentable Area of Project: Approximately 715,988 square feet.
7. Premises: All four floors of Building One and the 3rd and 4th floors of
Building Four.
8. Rentable Area of the Premises (in square feet): 263,823 square feet
(total), comprised of:
43,020.50 square feet (1st floor of Building One; B1F1)
43,320.50 square feet (2nd floor of Building One; B1F2)
45,020.50 square feet (3rd floor of Building One; B1F3)
43,720.50 square feet (4th floor of Building One; B1F4)
45,020.50 square feet (3rd floor of Building Four; B4F3)
43,720.50 square feet (4th floor of Building Four; B4F4)
9. Commencement Dates: 2nd and 3rd floors of Building One: August 1, 2001
1st floor of Building One: October 1, 2001
4th floor of Building One: October 1, 2001
3rd and 4th floors of Building Four: August 1, 2003
10. Term: 2nd and 3rd floors of Building One: 72 months
1st floor of Building One: 70 months
4th floor of Building One: 70 months
3rd and 4th floors of Building Four: 48 months
11. Base Rent:
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
Period Bldg/Floors Square Feet Monthly Base Monthly Base Rent
(SF) (Total) Rent (Per SF) (Total)
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2001 - September 30, 2001 B1: F2,3 88,341 $1.04 $ 91,874.64
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
October 1, 2001 - July 31, 2002 B1: F1,2,3,4 175,082 $1.28 $224,104.96
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2002 - July 31, 2003 B1: F1,2,3,4 175,082 $3.51 $614,537.82
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2003-July 31, 2004 B1: F1,2,3,4 263,823 $3.79 $999,889.17
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2004-July 31, 2005 B1: F1,2,3,4 263,823 $3.94 $1,039,462.62
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2005-July 31, 2006 B1: F1,2,3,4 263,823 $4.09 $1,079,036.07
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2006-July 31, 2007 B1: F1,2,3,4 263,823 $4.26 $1,123.885.98
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
12. Subtenant's Share: 36.85% (total),
comprised of: 6.00 % (1st floor of Building One)
6.05 % (2nd floor of Building One)
6.29 % (3rd floor of Building One)
6.11 % (4th floor of Building One)
6.29 % (3rd floor of Building Four)
6.11 % (4th floor of Building Four)
------------------------------------ ---------------- --------------------------------
Period Bldg/Floors Subtenant's Share (Total)
------------------------------------ ---------------- --------------------------------
August 1, 2001-September 30, 2001 B1: F2,3 12.34%
------------------------------------ ---------------- --------------------------------
October 1, 2001-July 31, 2003 B1: F1,2,3,4 24.46%
------------------------------------ ---------------- --------------------------------
August 1, 2003-July 31, 2007 B1: F1,2,3,4 36.85%
B4: F3,4
------------------------------------ ---------------- --------------------------------
13. Security Deposit: $12,100,000 (letter of credit or cash), in accordance
with the provisions of Paragraph 4.
14. Lobby Hours: Mondays through Fridays from 8 a.m. through 5 p.m., excluding
Holidays, with 24 hours/day, 7 days/week access to the Premises, in
accordance with Paragraph 7.
15. HVAC Hours: Mondays through Fridays from 7 a.m. through 6 p.m., excluding
Holidays, in accordance with Paragraph 7.
16. Address for Notices:
Master Landlord: c/o Jay Paul Company
350 California Street, Suite 1905
San Francisco, CA 94111
Sublandlord: For Payment of Rent:
807 Eleventh Avenue
Sunnyvale, California 94089
Attn: Real Estate Manager
For Notices:
807 Eleventh Avenue
Sunnyvale, California 94089
Attn: General Counsel
(650) 390-1377 Facsimile
807 Eleventh Avenue
Sunnyvale, California 94089
Attn: Real Estate Manager
(650) 390-1315 Facsimile
Subtenant: 1195 West Fremont Avenue
Sunnyvale, California 94087
Attn: Tom Smith
(408) 220-7558 Facsimile
17. Brokers: Cushman & Wakefield (Sublandlord's Broker) and CB Richard Ellis
(Subtenant's Broker).
18. Exhibits:
Exhibit A: Master Lease (exclusive of Exhibit I which shall be
provided separately to the parties as described below in the note to
Exhibit M)
Exhibit B: Premises
Exhibit C: Sublandlord's Rules and Regulations
Exhibit D: Commencement Date Memorandum
Exhibit E: Ravendale Lease
Exhibit F: Letter of Credit
Exhibit G: Consent to Sublease
Exhibit H: Estoppel Certificate
Exhibit I: Work Letter Agreement (including Attachment 1 (Conceptual
Plan) and Attachment 2 (B1F1 Shell Work: Bldg 1 1st Floor Only
Addendum 5 Revised April 13, 2001 and Supplemental Instruction N)
thereto)
Exhibit J: Cafeteria Access Agreement
Exhibit K: Fitness Center Access Agreement
Exhibit L: Janitorial Services Description
Exhibit M: Additional Environmental Report and Materials (For
convenience, Exhibit M shall be provided along with Exhibit I of the
Master Lease in a separate "environmental" binder)
Exhibit N: Brokers' Letter
Exhibit O: Site Signage Plan
The Basic Sublease Information set forth above is made a part of the Sublease.
In the event of conflict between the Basic Sublease Information and any of the
provisions contained in the remainder of the Sublease, the provisions contained
in the remainder of the Sublease shall control.
TABLE OF CONTENTS
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Paragraph Page
- --------- ----
1. Sublease of Premises.............................. 1
1.1. Sublease....................................... 1
1.2. Common Areas - Definition...................... 1
1.3. Amenity Areas.................................. 2
1.4. Common Areas - Subtenant's Rights.............. 2
1.5. Rules and Regulations.......................... 2
1.6. Common Areas - Changes......................... 2
1.7. Parking........................................ 3
2. Term.............................................. 4
2.1. Term........................................... 4
2.2. Delay In Possession; Fixturing Period.......... 4
2.3. Subtenant Compliance........................... 5
3. Rent.............................................. 5
3.1. Base Rent...................................... 5
3.2. Shared Expenses................................ 6
3.3. Abatement Reimbursement Rent................... 10
3.4. Generally...................................... 11
3.5. Late Payment................................... 11
4. Security Deposit.................................. 11
5. Use............................................... 13
5.1. Use............................................ 13
5.2. Hazardous Materials............................ 13
5.3. Subtenant's Compliance with Applicable
Requirements.................................. 15
5.4. Inspection; Compliance......................... 15
6. Delivery of Possession............................ 15
6.1. Condition...................................... 15
6.2. Compliance..................................... 16
6.3. Acknowledgements............................... 17
7. Utilities and Services............................ 17
7.1. Standard Subtenant Utilities and Services...... 17
7.2. Heating and Air-Conditioning; Lobby Access;
Subtenant Access.............................. 17
7.3. Electricity and Gas............................ 17
7.4. Water; Trash Disposal.......................... 18
7.5. Janitorial Services............................ 18
7.6. Elevator....................................... 18
7.7. Overstandard Subtenant Use..................... 18
7.8. Interruption of Utilities...................... 19
7.9. Utility Providers.............................. 19
7.10. Telecommunications............................. 20
7.11. Utility Additions.............................. 21
7.12. Security....................................... 21
8. Maintenance and Repairs; Utility Installations,
Trade Fixtures and Alterations................... 22
8.1. Sublandlord's Obligations...................... 22
8.2. Subtenant's Obligations........................ 22
8.3. Utility Installations; Trade Fixtures;
Alterations................................... 22
8.4. Ownership; Removal; Surrender; and Restoration. 23
9. Insurance; Waiver; Subrogation.................... 24
9.1. Cost of Sublandlord's Insurance................ 24
9.2. Subtenant's Insurance.......................... 24
9.3. Insurance Policies............................. 25
9.4. Failure of Subtenant to Purchase and Maintain
Insurance..................................... 25
9.5. Additional Insureds and Coverage............... 25
9.6. Waiver of Subrogation.......................... 25
9.7. No Representation of Adequate Coverage......... 26
10. Limitation of Liability and Indemnity............. 26
11. Property Taxes.................................... 26
11.1. Payment of Taxes............................... 26
11.2. Additional Improvements........................ 27
11.3. Personal Property Taxes........................ 27
12. Assignment and Subletting......................... 27
12.1. Generally...................................... 27
12.2. Notice......................................... 27
12.3. Sublandlord's Election; Recapture.............. 28
12.4. Sublandlord's Discretion; Factors.............. 28
12.5. Bonus Rent..................................... 29
12.6. Options Personal............................... 30
12.7. Encumbrances................................... 30
12.8. Merger; Attornment............................. 30
12.9. Sublandlord's Costs............................ 30
12.10. Affiliates..................................... 31
13. Default; Breach; Remedies......................... 32
13.1. Default; Breach................................ 32
13.2. Remedies....................................... 33
13.3. Inducement Recapture........................... 34
13.4. Breach by Sublandlord.......................... 34
14. Damage or Destruction; Condemnation............... 34
15. Brokerage Fees.................................... 35
16. Estoppel Certificates............................. 35
17. Definition of Sublandlord......................... 35
18. Severability...................................... 36
19. Days.............................................. 36
20. Limitation on Liability........................... 36
21. Time of Essence................................... 36
22. No Prior or Other Agreements...................... 36
23. Notices........................................... 36
23.1. Notice Requirements............................ 36
23.2. Date of Notice................................. 36
23.3. Notices from Master Landlord................... 36
24. Waivers........................................... 37
25. No Right To Holdover.............................. 37
26. Cumulative Remedies............................... 37
27. Covenants and Conditions; Construction of
Agreement........................................ 37
28. Binding Effect; Choice of Law..................... 37
29. Subordination; Attornment; Non-Disturbance........ 37
29.1. Subordination.................................. 37
29.2. Attornment..................................... 37
29.3. Self-Executing................................. 38
29.4. Nondisturbance Agreement....................... 38
30. Master Lease Provisions........................... 38
30.1. Sublease Subordinate........................... 38
30.2. Cooperation With Subtenant..................... 40
30.3. Sublandlord Representations.................... 40
30.4. Modification................................... 40
30.5. Consent To This Sublease....................... 40
30.6. Defined Terms.................................. 40
30.7. Multiple New Master Leases..................... 40
30.8. Conflict....................................... 40
31. Attorneys' Fees................................... 40
32. Sublandlord's Access to Premises.................. 40
32.1. Generally...................................... 41
32.2. Subtenant's Waiver............................. 41
32.3. Method of Entry................................ 41
33. Auctions.......................................... 41
34. Signs............................................. 41
35. Termination; Merger............................... 41
36. Consents.......................................... 42
37. Quiet Possession.................................. 42
38. Options........................................... 42
38.1. Definition..................................... 42
38.2. Options Personal To Original Subtenant......... 42
38.3. Multiple Options............................... 42
38.4. Master Lease Options........................... 42
38.5. Effect of Default on Options................... 42
39. Option to Extend Term............................. 43
40. Substitution of Other Premises.................... 44
41. Reservations...................................... 44
42. Performance Under Protest......................... 44
43. Authority......................................... 44
44. Amendments........................................ 45
45. Exhibits.......................................... 45
SUBLEASE
--------
This Sublease is made and entered into as of the 28th day of June, 2001
("Effective Date"), by and between Ariba, Inc., a Delaware corporation ("Ariba"
or "Sublandlord"), and Interwoven, Inc., a Delaware corporation ("Subtenant").
RECITALS
A. Ariba, as tenant, and Moffett Park Drive LLC, a California limited
liability company ("Master Landlord"), as landlord, previously entered into the
Technology Corners Triple Net Multiple Building Lease dated March 15, 2000 (the
"Master Lease"), a copy of which is attached hereto as Exhibit A and
incorporated herein by this reference. Under the Master Lease, Master Landlord
leases to Sublandlord certain premises located at 1111 Lockheed Martin Way in
Sunnyvale, California, including four (4) free standing, four-story office and
research and development buildings and one (1) Amenity Building (collectively,
the "Buildings") and appurtenances described in the Master Lease, the Property
and all other improvements built on the Property, including a parking structure
(the "Project"). The four office and research development buildings are commonly
known as: 803 11th Avenue ("Building One"), 807 11th Avenue ("Building Two"),
805 11th Avenue ("Building Three"), and 809 11th Avenue ("Building Four").
B. Sublandlord now desires to sublease to Subtenant, and Subtenant now
desires to sublease from Sublandlord, the building described in the Master Lease
as Building One and the third and fourth floors of the building described in the
Master Lease as Building Four (the "Premises"), on the terms and conditions set
forth herein. Capitalized terms used herein without definition shall have the
same meaning as in the Master Lease.
C. As of the Effective Date, Sublandlord is one of the tenants of the
Project.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Sublandlord and Subtenant agree as follows:
AGREEMENT
1. Sublease of Premises
1.1. Sublease. Sublandlord hereby subleases and demises to Subtenant, and
Subtenant hereby accepts from Sublandlord, on the terms and conditions
hereinafter set forth, the Premises. The Premises are depicted on Exhibit B,
which is attached hereto and incorporated herein by this reference. Sublandlord
and Subtenant conclusively agree, for purposes of this Sublease, that the six
floors comprising the Premises and the Premises as a whole each contain the
number of square feet in the Rentable Area of the Premises shown in the Basic
Sublease Information above. "Rentable Area of the Premises" as defined herein,
shall be the square foot measurement of the Premises (on a per floor basis) as
set forth in the Basic Sublease Information above.
1.2. Common Areas - Definition. The term "Common Areas" is defined as all
areas and facilities outside the Buildings and within the exterior boundary line
of the Project, including parking areas, passenger and other loading and
unloading areas, trash areas, roadways, walkways, driveways and landscaped areas
that are provided and
1
designated by the Sublandlord from time to time for the general non-exclusive
use of Sublandlord, Subtenant and other tenants of the Project and their
respective employees, suppliers, shippers, customers, contractors and invitees.
For Buildings occupied by multiple tenants, the Common Areas also include the
stairways, elevators, lobbies and other areas which may be so provided and
designated by Sublandlord.
1.3. Amenity Areas. The term "Amenity Areas" is defined as those portions
of the Project consisting of the Amenity Building and the space to be occupied
by a cafeteria. The Amenity Areas may be improved with services and amenities
available for use by Sublandlord, Subtenant, other occupants of the Project,
and/or the public, at additional cost, including a fitness center and cafeteria,
if and as provided in a Cafeteria Access Agreement and Fitness Center Access
Agreement to be negotiated by the parties in good faith as soon as reasonably
practicable after the Effective Date and for a period of up to six (6) months.
Such negotiations will be based on the basic business terms set forth in
Exhibits J and K respectively, attached to this Sublease. The execution of such
Cafeteria Access Agreement and Fitness Center Access Agreement shall be
conditions precedent for improving such Amenity Areas and making them available
for use by Subtenant. Subtenant acknowledges and agrees that (i) the Cafeteria
Access Agreement and the Fitness Center Access Agreement are subject to Master
Landlord's approval (which approval shall not be unreasonably withheld or
delayed) and (ii) Subtenant shall have no right to use the Amenity Areas unless
and until they have been improved and are agreed to be made available for use by
Sublandlord. For the benefit of the Project and its tenants, Sublandlord
reserves the right in its reasonable discretion to convert portions of the
Common Areas or other portions of the Project to Amenity Areas and to relocate
the Amenity Areas within the Project as well as to convert portions of the
Amenity Areas into Common Areas or rentable areas of the Project. Any changes
made pursuant to the preceding sentence to increase the Amenity Areas or to
relocate them shall be at Sublandlord's sole cost, unless otherwise mutually
agreed by the parties, while any change in the size of the Common Areas shall be
reflected equitably in the calculation of Operating Expenses herein.
1.4. Common Areas - Subtenant's Rights. Sublandlord grants to Subtenant,
for the benefit of Subtenant and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Sublease and all
extensions thereto, the right to use, in common with others entitled to such
use, the Common Areas as they exist from time to time, subject to any rights,
powers, and privileges reserved by (i) Master Landlord under the Master Lease
and (ii) Sublandlord under the terms hereof or under the terms of any rules and
regulations or restrictions governing the use of the Project.
1.5. Rules and Regulations. Sublandlord shall have the right, from time to
time, to establish, modify, amend and enforce reasonable rules and regulations
("Sublandlord's Rules and Regulations") for the management, safety, care, and
cleanliness of the Buildings and the remainder of the Project, the parking and
unloading of vehicles and the preservation of good order, as well as for the
convenience of other occupants or tenants of the Buildings and the Project and
their invitees. A copy of the current Sublandlord's Rules and Regulations are
attached to this Sublease as Exhibit C and incorporated herein by this
reference. Subtenant (and Sublandlord while Sublandlord is a tenant of the
Project) agree to abide by and conform to all such Sublandlord's Rules and
Regulations, and the Rules and Regulations adopted from time to time by Master
Landlord under the Master Lease ("Master Landlord's Rules and Regulations"), and
to cause its employees, suppliers, shippers, customers, contractors and invitees
to so abide and conform. Sublandlord shall not be responsible to Subtenant for
the non-compliance with said rules and regulations by tenants (other than
Sublandlord while Sublandlord is a tenant of the Project) of the Project. In the
event of conflict between the provisions of this Sublease and Sublandlord's
Rules and Regulations, the provisions of this Sublease shall prevail. In the
event of conflict between Master Landlord's Rules and Regulations and
Sublandlord's Rules and Regulations, Master Landlord's Rules and Regulations
shall prevail.
1.6. Common Areas - Changes. Sublandlord shall have the right, in
Sublandlord's sole and reasonable discretion, from time to time:
2
(a) To make changes to the Common Areas and Amenity Areas (subject to
Paragraph 1.3 above), including, without limitation, changes in the location,
size, shape and number of driveways, entrances, parking spaces, parking areas,
passenger and other loading and unloading areas, ingress, egress, direction of
traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas and/or Amenity Areas
for maintenance purposes so long as reasonable access to the Premises and
parking remains available;
(c) Pursuant to rights granted under Section 17.25 of the Master Lease
and for the general benefit of the Project and its tenants, to designate other
land outside the boundaries of the Project to be a part of the Common Areas so
long as any changes made to the Project pursuant to this Subparagraph 1.6(c)
shall be at Sublandlord's sole cost, unless otherwise mutually agreed by the
parties, and any change in the size of the Common Areas shall be reflected
equitably in the calculation of Operating Expenses herein;
(d) Pursuant to rights granted under Section 17.26 of the Master Lease
and for the general benefit of the Project and its tenants, to add additional
buildings and improvements to the Common Areas or Amenity Areas so long as any
changes made to the Project pursuant to this Subparagraph 1.6(d) shall be at
Sublandlord's sole cost, unless otherwise mutually agreed by the parties, and
any change in the size of the Common Areas shall be reflected equitably in the
calculation of Operating Expenses herein;
(e) To use the Common Areas and Amenity Areas while engaged in making
additional improvements, repairs or alterations to the Project, or any portion
thereof; and
(f) To do and perform such other acts or work and make such other
changes in, to or with respect to the Common Areas, Amenity Areas and Project as
Sublandlord may, in the exercise of reasonable business judgment, deem to be
appropriate so long as Subtenant's use and enjoyment of the Premises is not
materially adversely affected.
1.7. Parking. Subtenant shall have the right, free of charge for the
Sublease Term, including any extensions thereto, to the non-exclusive use of
three (3) parking spaces for every one thousand (1,000) square feet of the
Rentable Area of the Premises occupied by Subtenant hereunder on those portions
of the Common Areas designated from time to time by Sublandlord for tenant
parking; provided, however, that subject to mutual agreement between Subtenant
and Sublandlord of those spaces allocated to Subtenant: (i) Sublandlord shall
designate eight (8) spaces per floor for a total of twenty-four (24) spaces in
the parking structure for Subtenant's reserved use, and (ii) Sublandlord shall
designate a reasonable number of "visitor" parking spaces in close proximity to
the entrance to Building One. The remaining spaces in the parking structure,
other than twenty-four (24) spaces designated for Sublandlord's (or
Sublandlord's designee's) reserved use (eight (8) spaces per floor for a total
of twenty-four (24) spaces), shall be made available to Sublandlord and
Subtenant on a first-come, first-served basis. All costs associated exclusively
with the parking structure shall be paid fifty percent (50%) by Subtenant.
Sublandlord reserves the right to equitably modify rights granted under this
Paragraph 1.7 if obligated to do so by the Master Lease, or in the event of
construction, natural disaster, or other similar reasonable circumstances.
Subtenant shall not use more parking spaces than permitted herein. Subtenant
shall not park any vehicles larger than full-size passenger automobiles, sport
utility vehicles or pick-up trucks, herein called "Permitted Size Vehicles."
Sublandlord may regulate the loading and unloading of vehicles by adopting and
amending Rules and Regulations for the Project. No vehicles other than Permitted
Size Vehicles may be parked in the Common Area without the prior written
permission of Sublandlord. Notwithstanding, Subtenant may park Subtenant's
company truck (marked with Subtenant's logo) in a parking area on the Project.
(a) Subtenant shall not permit or allow any vehicles that belong to or
are controlled by Subtenant or Subtenant's employees, suppliers, shippers,
customers, contractors or invitees to be loaded, unloaded, or parked in areas
other than those designated by Sublandlord for such activities.
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(b) Subtenant shall not service or store any vehicles in the Common
Areas.
(c) If Subtenant permits or allows any of the prohibited activities
described in this Paragraph 1.7, then Sublandlord 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 Subtenant, which
cost shall be immediately payable upon demand by Sublandlord.
2. Term.
2.1. Term.
The original term of this Sublease ("Original Term") shall commence on
August 1, 2001 (the "Sublease Commencement Date"), and shall end on July 31,
2007 (the "Expiration Date"), unless sooner terminated as provided in this
Sublease; provided, however, that with respect to the 1st and 4th floors of
Building One and the 3rd and 4th floors of Building Four, the term of this
Sublease shall commence in accordance with the commencement date schedule shown
in the Basic Sublease Information above. (The date of commencement of the term
with respect to any portion of the Premises shall be deemed the "Commencement
Date" for that portion.) Notwithstanding the foregoing, if Sublandlord notifies
Subtenant that any portion of the Premises will be ready for occupancy prior to
the scheduled commencement date for that portion of the Premises (or such larger
portion of the Premises as contains said portion), the parties may mutually
agree to commence the Sublease term and all obligations hereunder including the
payment of Rent for that portion of the Premises prior to such scheduled
commencement date ("Early Commencement"). In the event of Early Commencement,
the term shall commence on such agreed-upon date with respect to that portion of
the Premises, which date shall become the "Commencement Date" (or "Sublease
Commencement Date," with respect to the 2nd and 3rd floors of Building One) for
said portion. Any agreement to commence the term prior to any scheduled
commencement date shall not affect the Expiration Date stated above. Subtenant
shall be obligated to occupy each portion of the Premises no later than thirty
(30) days from the date possession of such portion is tendered. Promptly upon
the occurrence of the Commencement Date for each portion of the Premises,
respectively, Subtenant shall execute and deliver to Sublandlord a written
Commencement Date Memorandum in the form attached to this Sublease as Exhibit D
and incorporated herein by this reference. Subtenant shall have no rights in any
portion of the Premises prior to the Commencement Date for such portion, unless
expressly provided otherwise in this Sublease.
2.2. Delay In Possession; Fixturing Period.
(a) Generally. Sublandlord agrees to use all commercially reasonable
efforts to deliver possession of the Premises to Subtenant in accordance with
the Commencement Date schedule contained in the Basic Sublease Information
above. If, despite said efforts, Sublandlord is unable to deliver possession as
agreed, Sublandlord shall not be subject to any liability therefor, nor shall
such failure affect the validity of this Sublease. Subtenant shall not, however,
be obligated to pay Rent or perform its other obligations with respect to the
pertinent portion of the Premises until it receives possession of such portion.
If possession is not delivered within ninety (90) days after the applicable
Commencement Date, Subtenant may, at its option, by notice in writing within ten
(10) days after the end of such 90-day period, cancel this Sublease with respect
to that portion of the Premises. If such written notice is not received by
Sublandlord within said 10-day period, Subtenant's right to cancel shall
terminate. Nothing herein shall be construed as waiving Subtenant's right to
seek specific performance with respect to any portion of the Premises not
tendered by a Commencement Date. In the event of any delay in the commencement
of the term with respect to any portion of the Premises pursuant to this
subparagraph (a) of Paragraph 2.2, (i) the date possession of such portion of
the Premises is tendered to Subtenant shall become the "Commencement Date" (or
"Sublease Commencement Date," with respect to the 2nd and 3rd floors of Building
One) for said portion, provided that the Commencement Date shall be deemed to
have occurred one day earlier for each day for which Subtenant has caused the
delay, and (ii) Subtenant shall be entitled to one (1) day of free Base Rent for
that portion of the Premises that is subject to delay for each such day of delay
beyond the
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ninetieth (90th) day. Any delay in commencement as described in this
subparagraph (a) of Paragraph 2.2 shall not affect the Expiration Date stated
above or the expiration date of any extension of the term hereto.
(b) Fixturing Period.
In addition to Sublandlord's agreement with respect to access set
forth in the Work Letter Agreement (Exhibit I) , Sublandlord shall permit
Subtenant to access the Premises up to thirty (30) days prior to the Sublease
Commencement Date (or Commencement Date, as the case may be) for any portion of
the Premises in order to install Subtenant's furniture (in Building One, Floor
One), communications systems, equipment and trade fixtures ("Fixturing Period"),
provided that such access shall be subject to all of the provisions of this
Sublease, excluding the payment of Rent and Sublease Expenses, but including
without limitation each of Subtenant's indemnity obligations hereunder. Early
entry into the Premises shall not advance the Expiration Date, or the expiration
date of any extension of the term hereof.
2.3. Subtenant Compliance. Sublandlord shall not be required to tender
possession of the Premises to Subtenant until Subtenant complies with its
obligation to provide evidence of insurance hereunder. Pending delivery of such
evidence, Subtenant shall be required to perform all of its obligations under
this Sublease from and after the applicable Commencement Date, including the
payment of Rent, notwithstanding Sublandlord's election to withhold possession
pending receipt of such evidence of insurance. Further, if Subtenant is required
to perform any other conditions prior to or concurrent with a Commencement Date,
the applicable Commencement Date shall occur but Sublandlord may elect to
withhold possession until such conditions are satisfied.
3. Rent.
3.1. Base Rent. Subject to the terms of Paragraph 2.2, Subtenant shall pay
to Sublandlord base rent based on the number of square feet in the Rentable Area
of the Premises for which the term has already commenced, in accordance with the
following schedule ("Base Rent"):
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
Period Bldg/Floors Square Feet Monthly Base Monthly Base Rent
(SF) (Total) Rent (Per SF) (Total)
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2001-September 30, 2001 B1: F2,3 88,341 $1.04 $ 91,874.64
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
October 1, 2001 - July 31, 2002 B1: F1,2,3,4 175,082 $1.28 $ 224,104.96
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2002-July 31, 2003 B1: F1,2,3,4 175,082 $3.51 $ 614,537.82
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2003-July 31, 2004 B1: F1,2,3,4 263,823 $3.79 $ 999,889.17
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2004-July 31, 2005 B1: F1,2,3,4 263,823 $3.94 $1,039,462.62
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2005-July 31, 2006 B1: F1,2,3,4 263,823 $4.09 $1,079,036.07
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
August 1, 2006-July 31, 2007 B1: F1,2,3,4 263,823 $4.26 $1,123.885.98
B4: F3,4
- ------------------------------------------------ ----------------- -------------- ------------------ --------------------
Base Rent for any calendar month during which there is a change in the Rentable
Area of the Premises shall be prorated
5
based on the actual number of square feet of the Rentable Area of the Premises
during each day of the month and the Base Rent in effect on each day of the
month. Base Rent is due and payable in advance on the first day of each calendar
month; provided, however, that Base Rent for both the first full calendar month
of the Original Term for each of the two (2) floors of the Building One portion
of the Premises (i.e., $-91,874.64) tendered as of the Sublease Commencement
Date and the last full calendar month of the Original Term for the entire
Premises (i.e., $1,123,885.98) shall be due and payable at the time of
Subtenant's execution and delivery of this Sublease as "Prepaid Rent" which
total amount shall be applied to amounts as due under this Sublease. Base Rent
is payable without notice or demand. Base Rent for any period during the Term
which is less than one full calendar month shall be prorated based on the actual
number of days in the calendar month involved.
3.2. Shared Expenses. In addition to Base Rent, Subtenant shall pay to
Sublandlord during the term hereof, Subtenant's Share (defined below) of all
Operating Expenses (defined below) and all Master Lease Expenses (defined
below), in accordance with the following provisions:
(a) "Subtenant's Share" is defined, for purposes of this Sublease, as
the percentage determined by dividing the total square feet of Rentable Area of
the Premises or the portion of the Premises with respect to which the
Commencement Date has occurred by the total square footage of the Rentable Area
of Project. The definition in the preceding sentence shall prevail over the
Subtenant's Share figures in the Basic Sublease Information in the event of any
conflict (e.g., since the figure for the entire Premises does not equal the
total of the floor-by-floor figures, due to rounding, the former shall prevail
as the figure for the entire Premises). Sublandlord and Subtenant conclusively
agree, for purposes of this Sublease, that the Project currently contains the
number of square feet in the Rentable Area of Project as shown as an
approximation in the Basic Sublease Information above. Sublandlord shall change
this figure in the event of a change in use or configuration of the Project, and
shall provide Subtenant with notice of such change (including the date of
effectiveness).
(b) "Operating Expenses" is defined, for purposes of this Sublease, to
include all costs incurred by Sublandlord in the exercise of its reasonable
discretion, to the extent not included in Master Lease Expenses below, for:
(i) The operation, repair, replacement and maintenance in neat,
clean, safe, good order and condition, of the Project (except to the extent
Master Landlord is responsible for the Outside Areas under the Master
Lease, the costs for which are passed through to Subtenant as Master Lease
Expenses), including but not limited to, the following:
(aa) The Common Areas including their surfaces, coverings,
decorative items, carpets, drapes and window coverings, and including
parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, stairways, parkways, driveways, landscaped areas,
striping, bumpers, irrigation systems, lighting facilities, building
exteriors and roof, fences and gates;
(bb) All heating, air conditioning, plumbing, electrical
systems, life safety equipment, telecommunication and other equipment used
in common by, or for the benefit of, lessees or occupants of the Project,
including elevators and escalators, tenant directories, fire detection
systems including sprinkler systems including sprinkler system maintenance
and repair.
(ii) Trash disposal, reception (if provided by Sublandlord) in
multi-tenant buildings, janitorial (per Sublandlord's written
specifications for such services in Exhibit I) and general Project security
services,;
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(iii) Any other service or utilities to be provided by
Sublandlord that is elsewhere in this Sublease stated to be an "Operating
Expense";
(iv) The cost of the premiums for liability and property
insurance policies (in excess of those required by Ariba as Lessee under
the Master Lease) to be maintained by Sublandlord under this Sublease and
the Master Lease;
(v) The amount of the real property taxes to be paid by
Sublandlord under the Master Lease;
(vi) The cost of water, sewer, gas, electricity, and other
services to the Project;
(vii) Costs in connection with the Moffett Park Transportation
Demand Management Plan (see Master Lease Section 5.07);
(viii) Labor, salaries, and applicable fringe benefits and costs,
materials, supplies and tools, used in maintaining and/or cleaning the
Project;
(ix) All costs associated with general tenant services made
available to all subtenants of the Project, except as otherwise provided in
this Sublease;
(x) accounting and a management fee of three percent (3%) of
actual Operating Expenses;
(xi) The cost of any Capital Expenditure (defined in Paragraph
6.2) to the Project not payable by Subtenant under the provisions of
Paragraph 6.2 below or by other subtenants of the Project, provided that
such cost shall be amortized over the useful life (as determined by
Sublandlord in its sole discretion) of each such replacement item
(including interest on the unamortized balance at the Agreed Rate as
defined in Section 17.02 of the Master Lease) over the remaining term of
the Sublease, which cost would be payable in equal monthly installments
during that time period;
(xii) Replacements of equipment or improvements that have a
useful life for depreciation purposes according to Federal income tax
guidelines of five (5) years or less;
(xiii) Replacements of equipment or improvements that have a
useful life for depreciation purposes according to Federal income tax
guidelines of more than five (5) years, as amortized over the useful life
of such replacement item (including interest on the unamortized balance at
the Agreed Rate), over the remaining term of the Sublease, which cost would
be payable in equal monthly installments during that time period.
Notwithstanding anything to the contrary contained herein, the
following items shall be excluded from Operating Expenses:
(1) Costs associated with the operation of the business of the
ownership or entity which constitutes "Sublandlord", as distinguished from
the costs of building operations for the benefit of the Project and its
tenants as a whole;
(2) Depreciation;
7
(3) Costs associated with the operation of any cafeteria - and
Sublease Expenses for the Project to be apportioned to the square footage
of the cafeteria (which costs shall be allocable to Subtenant as described
in any Cafeteria Access Agreement attached as Exhibit J hereto) and costs
associated with the operation of any fitness center and Sublease Expenses
for the Project to be apportioned to the square footage of the fitness
center (which costs shall be addressed in any Fitness Center Access
Agreement attached as Exhibit K hereto);
(4) Real estate brokers' leasing commissions, and advertising
expenses incurred in connection with the original subleasing of the Project
or future subleasing of the Project;
(5) Legal fees and space planners' fees incurred in connection
with the original subleasing of the Project or future subleasing of the
Project except those attributable to subleasing by any subtenant (such fees
to be billed directly to such subtenant);
(6) Costs for which Sublandlord is reimbursed by its insurance
carrier or any subtenant's insurance carrier;
(7) Costs for all repairs, replacements, items and/or services
for which Subtenant or any other subtenant in the Project reimburses
Sublandlord;
(8) Costs incurred by Sublandlord for services which Sublandlord
provides selectively to one or more subtenants (other than Subtenant, which
costs shall be billed directly to Subtenant) without reimbursement;
In the calculation of any expenses hereunder, it is understood that no
expense shall be recovered more than once. In addition, to the extent that
Sublandlord can avoid incurring any expense described hereunder by
enforcing available warranties or the likes, Sublandlord agrees to make
commercially reasonable efforts to do so. Sublandlord shall use
commercially reasonable efforts to effect an equitable proration of bills
for services rendered to the Project. Sublandlord agrees to keep books and
records showing the Operating Expenses in accordance with generally
accepted accounting principles consistently maintained on a year-to-year
basis;
(9) Costs incurred by Sublandlord for Tenant Improvements under
the Master Lease;
(10) Costs for any maintenance or repair of other premises with
the Project, or any equipment contained therein, to the extent such cost is
attributable to the causes beyond normal wear and tear;
(11) Sums payable as a result of Sublandlord's default under any
of its obligations under the Master Lease or this Sublease (except to the
extent such default is a result of Subtenant's default under this
Sublease).
(c) "Master Lease Expenses" is defined, for purposes of this Sublease,
to include all amounts paid or payable by Sublandlord to Master Landlord under
the Master Lease (including without limitation all taxes, assessments, fees and
other impositions in accordance with the provisions of Article IX, insurance
premiums in accordance with the provisions of Article VII, operating charges,
maintenance, repair and replacement costs and expenses in accordance with the
provisions of Article VI and a Management Fee), excepting therefrom Base Rent
(as that term is defined in the Master Lease) and the costs incurred by
Sublandlord for the Tenant Improvements (as that term is defined in the Master
Lease).
8
(d) Payment. Subtenant's Share of Operating Expenses and Master Lease
Expenses (Operating Expenses and Master Lease Expenses being collectively
defined as "Sublease Expenses") shall be payable as of the Sublease Commencement
Date (or Commencement Date as the case may be)or Early Commencement (whichever
is earlier) (even if such expenses have been paid by Sublandlord prior to the
Sublease Commencement Date (or Commencement Date as the case may be) or Early
Commencement so long as such Sublease Expenses are reasonably allocable to
Subtenant as of such date) through the Expiration Date or the expiration of any
extension of the Sublease Term. Sublease Expenses shall be due and payable by
Subtenant so as to be received by Sublandlord within ten (10) days after a
reasonably detailed statement (containing duplicates of supporting financial
records, such as underlying bills and statements, of Sublandlord and Master
Landlord) of actual Sublease Expenses and the calculation of Subtenant's Share
of such expenses is presented to Subtenant by Sublandlord, which Sublandlord may
present at intervals no more frequently than monthly ("Monthly Expense
Statement"); provided that, with regard to Master Lease Expenses, Sublandlord
shall not be required to provide more information than has been offered to
Sublandlord. At Sublandlord's and/or Master Landlord's (pursuant to the Master
Lease) option, however, an amount may be estimated by Sublandlord from time to
time of Subtenant's Share of annual Sublease Expenses and the same shall be
payable monthly or quarterly, as Sublandlord shall designate, during each
calendar year of the Sublease term, on the same day as the Base Rent is due
hereunder. In the event that Subtenant pays Sublandlord's and/or Master
Landlord's estimate of Subtenant's Share of Sublease Expenses as aforesaid,
Sublandlord shall deliver to Subtenant within sixty (60) days after the
expiration of each calendar year a reasonably detailed statement (as described
above) showing Subtenant's Share of the actual Sublease Expenses incurred during
the preceding year ("Annual Expense Statement"); provided that, with regard to
Master Lease Expenses, Sublandlord shall not be required to provide more
information than has been offered to Sublandlord. If Subtenant's payments under
this Paragraph 3.2(d) during said preceding calendar year exceed Subtenant's
Share as indicated on said Annual Expense Statement, Subtenant shall be entitled
to credit the amount of such overpayment against Subtenant's Share of Sublease
Expenses next falling due, or if the Sublease term has expired, Sublandlord
shall deliver a cash refund to Subtenant with the Annual Expense Statement. If
Subtenant's payments under this paragraph during said preceding calendar year
were less than Subtenant's Share as indicated on said Annual Expense Statement,
Subtenant shall pay to Sublandlord the amount of the deficiency within ten (10)
days after delivery by Sublandlord to Subtenant of said Annual Expense
Statement. All determinations of Sublease Expenses shall made by Sublandlord in
accordance with sound accounting and management principles and shall be binding
on Subtenant for the purpose of initial payment; provided, however, that
Subtenant shall have the right to object in good faith to Sublandlord's
determinations of Sublease Expenses in accordance with the procedure in
Paragraph 3.2(e) and seek a credit (or refund after the term expires) of
correctly disputed amounts. Nothwithstanding the foregoing, Subtenant shall not
be required to pay Sublease Expenses on Building One, Floor One for the period
prior toJanuary 1, 2002, nor on Building One, Floor Four for the period prior to
July 1, 2002.
(e) Audit. On Subtenant's written request given not more than sixty
(60) days after Subtenant's receipt of a Monthly Expense Statement or an Annual
Expense Statement, and provided that Subtenant is not then in default under this
Sublease beyond the applicable cure period provided in this Sublease and that
Subtenant has paid all amounts required to be paid under the applicable Monthly
Expense Statement or Annual Expense Statement, then Sublandlord shall provide
Subtenant with a reasonable opportunity to review the books and records
supporting such determination of Sublease Expenses in the office of Sublandlord,
or Sublandlord's agent, during business hours. Sublandlord shall provide this
opportunity to inspect within twenty (20) days of Subtenant's written request.
Within fifteen (15) business days following Subtenant's inspection,
Subtenant and Sublandlord shall concurrently be provided with any audit report
prepared in connection with such inspection, and Subtenant shall advise
Sublandlord if Subtenant disputes the Sublease Expenses or Subtenant's Share of
them as set forth in the applicable Monthly Expense Statement or Annual Expense
Statement. Thereafter, if Sublandlord ascertains that an error has been made,
Subtenant's sole remedy shall be for the parties to make such appropriate
payments or reimbursements, as the case may be, including interest on any such
amount at the Agreed Rate, to each other as are determined to be owing, provided
that any reimbursements payable by Sublandlord to Subtenant may, at
Sublandlord's option, instead be credited against
9
the Base Rent next coming due under this Sublease unless the Sublease term has
expired, in which event Sublandlord shall refund the appropriate amount to
Subtenant.
Subtenant shall keep any information gained from its review of
Sublandlord's records confidential and shall not disclose it to any other party,
except as required by law. If requested by Sublandlord, Subtenant shall require
its employees or agents reviewing Sublandlord's records to sign a
confidentiality agreement as a condition of Sublandlord providing Subtenant the
opportunity to inspect under this Paragraph 3.2(e). Notwithstanding anything in
this Paragraph 3.2(e) to the contrary, with regard to Master Lease Expenses,
Sublandlord shall not be required to provide more information to Subtenant than
is offered to Sublandlord.
3.3. Abatement Reimbursement Rent.
(a) Generally. The parties acknowledge and agree as follows: (i)
Subtenant currently leases and occupies certain premises at 385 Ravendale Drive,
Mountain View, California ("Ravendale Premises"), under that certain Lease dated
April 24, 2000, between Subtenant and Spieker Properties, L.P., a copy of which
is attached hereto as Exhibit E and incorporated herein by this reference
("Ravendale Lease"); (ii) Subtenant's space needs that are currently fulfilled
in part by the Ravendale Premises will be satisfied by the Premises under this
Sublease; (iii) in order to alleviate the burden of carrying the obligations of
both the Ravendale Lease and this Sublease, Subtenant has requested, and
Sublandlord has agreed, that Sublandlord reduce, or abate, the Base Rent that
would otherwise be payable under this Sublease by the amount of One Million
Seven Hundred Thousand Dollars ($1,700,000) ("Abatement Amount"); and (iv) in
exchange for this abatement, Subtenant has agreed to use commercially reasonable
efforts to sublease the Ravendale Premises and upon any such sublease shall pay
to Sublandlord certain amounts due from any such subtenant(s), as well as to
perform other obligations, and make certain representations and warranties,
pursuant to this Paragraph 3.3.
(b) Calculation of Abatement Reimbursement Rent. In addition to
Subtenant's obligation to pay Base Rent and Subtenant's Share of all Operating
Expenses and Master Lease Expenses, Subtenant agrees to pay to Sublandlord
"Abatement Reimbursement Rent," which shall be defined as follows: one hundred
percent (100%) of all Rent paid to Subtenant by any and all sublessees of
Subtenant subleasing any portion of the Ravendale Premises during the thirteen
(13) month period immediately following the Sublease Commencement Date
("Reimbursement Period"), less leasing commissions payable by Subtenant under
the Ravendale Lease for such sublet portions of the Ravendale Premises. For the
purposes of this Paragraph 3.3, the term "Rent" shall not include the proceeds
received from the sale or rental at fair market value of capital assets located
at the Ravendale Premises, or any bonus rent payable to Subtenant's landlord
under the terms of the Ravendale Lease.
(c) Payment. All Abatement Reimbursement Rent shall be due and payable
from Subtenant to Sublandlord ten (10) days following the date such sums are due
and paid to Subtenant (or paid to a third party, for any reason). In the event
that any Abatement Reimbursement Rent is paid or payable by Subtenant's
sublessee in a form other than cash, Subtenant shall pay to Sublandlord in cash
the fair value of such consideration. Promptly upon the effectiveness of any
subletting of the Ravendale Premises by Subtenant, Subtenant shall certify to
Sublandlord, in writing, the amount and schedule of Abatement Reimbursement Rent
payments due hereunder. Abatement Reimbursement Rent is payable without notice
or demand. Failure by Subtenant to timely and fully make payments of Abatement
Reimbursement Rent shall be treated like any other failure to timely and fully
pay Rent hereunder and shall entitle Sublandlord to all the rights and remedies
resulting from such failure.
(d) Representations. Subtenant represents and warrants to Sublandlord
as follows: (i) Subtenant has the right to sublet the Ravendale Premises,
subject only to those restrictions contained in Paragraph 21 of the Ravendale
Lease; (ii) Subtenant is entitled to retain one hundred percent (100%) of all
rent from any subleasing of the Ravendale Lease, subject only to those
limitations contained in Paragraph 21 of the Ravendale Lease; (iii) the document
10
attached as Exhibit E to this Sublease is a true and complete copy of the
Ravendale Lease and represents the entire agreement between Subtenant and
Spieker Properties, L.P., with respect to the lease of the Ravendale Premises;
(iv) Subtenant has not assigned, encumbered or otherwise transferred any
interest in the Ravendale Premises; and (v) there is no default, or any
condition which with the passage of time or the giving of notice, or both, would
constitute a default, on the part of either party to the Ravendale Lease.
3.4. Generally. All monetary obligations of Subtenant under this Sublease,
including Sublease Expenses, shall be deemed rent and shall be referred to
herein as "Rent". Rent is payable without any setoff, deduction, abatement, or
offset whatsoever, except as otherwise expressly provided herein. Acceptance of
a payment which is less than the amount then due shall not be a waiver of
Sublandlord's rights to the balance of such Rent, regardless of Sublandlord's
endorsement of any check so stating. Rent is payable in lawful money of the
United States and shall, unless otherwise provided herein, be paid to
Sublandlord at: Ariba, Inc., 807 Eleventh Avenue, Sunnyvale, California, 94089,
Attn: Real Estate Manager; or at such other place as Sublandlord may specify
from time to time by written notice to Subtenant.
3.5. Late Payment. If Subtenant shall fail to pay any Rent so that it is
received within five (5) days (or ten (10 days in the case of Sublease Expenses
and Abatement Reimbursement Rent only) of the date when payment is due, such
unpaid amount shall bear interest from the due date to the date of payment at
the lower of the following rates: (i) the Agreed Rate and (i) the maximum rate
allowed by applicable usury law. Subtenant acknowledges that late payment of
Rent will cause Sublandlord to incur costs not contemplated by this Sublease,
the exact amounts of which are extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges, and
late charges which may be imposed on Sublandlord by the terms of the Master
Lease. Therefore, if any installment or other payment of Rent due from Subtenant
is not received by Sublandlord within five (5) days of the date when payment is
due, Subtenant shall pay to Sublandlord an additional sum of five percent (5%)
of the amount of the installment. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Sublandlord will
incur by reason of late payment by Subtenant. Acceptance of any late charge
shall not constitute a waiver of Subtenant's default with respect to the overdue
amount, or prevent Sublandlord from exercising any of the other rights and
remedies available to Sublandlord. Subtenant shall further pay to Sublandlord
the sum of One Hundred Dollars ($100) for any check from Subtenant to
Sublandlord which is returned or not honored by the bank on which it is drawn,
which sum the parties agree is a fair and reasonable estimate of the cost to
Sublandlord of handling such returned or dishonored check.
4. Security Deposit.
To secure the faithful performance by Subtenant of all the covenants,
conditions and agreements in this Sublease set forth and contained on the part
of Subtenant to be fulfilled, kept, observed and performed including, but not by
way of limitation, such covenants and agreements in this Sublease which become
applicable upon the termination of the same by re-entry or otherwise, Subtenant
shall deposit with Sublandlord a security deposit in the amount of Twelve
Million One Hundred Thousand Dollars ($12,100,000) (the "Security Deposit"),
payable in stages as follows:
a. $8,500,000 within ten (10) business days following the execution of
this Sublease by both parties.
b. $3,600,000 upon: 1) the Commencement Date of the Third Floor and
Fourth Floor of Building Four, or 2) such earlier date as Subtenant
gains access under Paragraph 2.2(b) herein (Fixturing Period) .
The Security Deposit may be in the form of cash or an irrevocable standby letter
of credit, as described below. Subtenant agrees that: (a) the Security Deposit
or any portion thereof may be applied to the curing of any default under this
Sublease or the Work Letter Agreement (provided that with respect to Work Letter
Agreement defaults the Construction Security Deposit must first be exhausted)
that may exist at the time of application, including any Rent owing at the end
of the Sublease term or to the payment of any Abatement Reimbursement Rent that
may become due pursuant to Paragraph 13.3, without prejudice to any other remedy
or remedies which Sublandlord may have on account thereof; (b) upon such
11
application Subtenant shall (i) pay Sublandlord on demand the amount so applied
which shall be added to the Security Deposit so the same may be restored to its
original amount, or (ii) in the event that Subtenant elects to deposit a Letter
of Credit, upon written notice from Sublandlord to Subtenant specifying the
amount drawn on the Letter of Credit and the particular purpose for which such
amount was applied, Subtenant shall deliver within ten (10) days (at its sole
cost and expense) to Sublandlord an amendment to the Letter of Credit or a
replacement Letter of Credit in an amount equal to the then existing balance of
the Letter of Credit (prior to such draw);(c) should the Master Lease be
assigned by Sublandlord, the Security Deposit or any portion thereof not
previously applied and the Prepaid Rent or any portion thereof not previously
applied shall be turned over (or assigned) to Sublandlord's assignee, and upon
assumption of Sublandlord's obligations under this Sublease, Subtenant shall
release Sublandlord from any and all liability with respect to the Security
Deposit and/or its application or return; (d) Sublandlord or its successor shall
not be obligated to hold the Security Deposit as a separate fund, but on the
contrary may commingle the same with its other funds; (e) the sum deposited or
the portion thereof not previously applied, shall be returned to Subtenant
without interest following the expiration of the Term of this Sublease or any
renewal or extension thereof, except to the extent reasonably required to cure
any breach by Subtenant of any of its obligations hereunder and provided that
Subtenant has vacated the Premises and surrendered possession thereof to
Sublandlord at the expiration of the Term or any extension or renewal thereof as
provided herein; (f) in the event that Sublandlord terminates this Sublease or
Subtenant's right to possession by reason of a default by Subtenant, Sublandlord
may apply the Security Deposit against damages suffered to the date of such
termination and/or may retain the Security Deposit to apply against such damages
as may be suffered or shall accrue thereafter by reason of Subtenant's default;
(g) in the event any bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings shall be instituted by or against Subtenant, or its
successors or assigns, the Security Deposit shall be deemed to be applied first
to the payment of any Rent due Sublandlord for all periods prior to the
institution of such proceedings, and the balance, if any, of the Security
Deposit may be retained or paid to Sublandlord in partial liquidation of
Sublandlord's damages.
If Subtenant elects to deposit the Security Deposit by a letter of credit,
such letter of credit shall be an irrevocable, unconditional, standby letter of
credit in a form substantially similar to the form attached hereto as Exhibit F
and incorporated herein (such letter of credit, together with any renewal or
replacement letters of credit delivered or to be delivered by Subtenant under
this Paragraph, shall be referred to herein collectively as the "Letter of
Credit"). The Letter of Credit shall be issued by a national money center bank
with an office in San Francisco, California (the "Issuer"). The final form of
the Letter of Credit, the identity of the Issuer, and the form of any
replacement Letter of Credit shall be acceptable to Sublandlord in its sole
discretion. The Letter of Credit shall be for an initial term of not less than
twelve (12) months and shall be maintained in force at all times from issuance
through sixty (60) days following the expiration or earlier termination of this
Sublease. If Subtenant fails to deliver to Sublandlord either a replacement
Letter of Credit or cash in the full amount of the Security Deposit required
hereunder at least forty-five (45) days prior to the expiration date of an
outstanding Letter of Credit, such failure shall be a default under this
Sublease (without the requirement of notice) entitling Sublandlord, in addition
to its other remedies, to draw down all or part of the current Letter of Credit.
Sublandlord shall have the right, upon a transfer or assignment of its rights as
landlord under this Sublease, to require Subtenant to deliver a replacement
Letter of Credit designating Sublandlord's successor as the beneficiary, at
Subtenant's sole cost and expense. No draw under the Letter of Credit shall be
deemed a waiver of, or be deemed to have cured, any default by Subtenant under
any provision of this Sublease except to the extent directly applied to cure
such default(s).
Each time the financial milestones described below have been met, and
Subtenant is not in default under this Sublease as of the effective date of any
reduction of the Security Deposit, the required Security Deposit shall be
reduced by twenty-five percent (25%) of its then existing amount, which
reduction shall be effective on the first day of any calendar quarter following
receipt by Sublandlord of a valid and complete "Security Deposit Notice" as
defined below (with respect to such reduction).
In order to qualify for a Security Deposit reduction as described above,
Subtenant must have achieved four (4) consecutive quarters, not including any
quarters counted toward any previous Security Deposit reduction hereunder, in
12
which Subtenant has positive net income (as reported in the Subtenant's
Condensed Consolidated Statement of Operations as filed on Form 10-Q), and
Subtenant's total aggregate net income over such four quarters is Five Million
Dollars ($5,000,000) or more. For purposes of this paragraph, the computation of
"net income" for each such quarter shall exclude certain non-cash expenses
including only the following: amortization of deferred stock-based compensation,
amortization of acquired intangible assets and write-offs of in-process research
and development, facilities abandonment write-downs, and acquisition related
charges, as those items are set forth on Subtenant's Condensed Consolidated
Statement of Operations.
If Subtenant qualifies for a reduction in the Security Deposit, Subtenant
shall provide Sublandlord with written notice requesting that the Security
Deposit be reduced as provided above (the "Security Deposit Notice"), which
notice must be accompanied by evidence (which may include audited or reviewed
financial statements for the applicable time periods) demonstrating to
Sublandlord's reasonable satisfaction that Subtenant has met the required
financial milestones. If Subtenant provides Sublandlord with a valid Security
Deposit Notice, Sublandlord shall cooperate with Subtenant to promptly reduce
the total amount of the Letter of Credit, or in the event of a cash Security
Deposit, refund the applicable portion of the Security Deposit to Subtenant
within forty-five (45) days after the later to occur of (a) Sublandlord's
receipt of the Security Deposit Notice, or (b) the date upon which Subtenant is
entitled to a reduction in the Security Deposit as provided above.
Notwithstanding anything herein to the contrary, (a) in no event will the
amount of the required Security Deposit be less than (i) two (2) months of the
total Base Rent payable during the final year of the Original Term, during the
Original Term, and (ii) two (2) months of the total Base Rent payable during the
final year of the Option Period, during the Option Period (see Paragraph 39),
and (b) in the event Sublandlord applies any portion of the Security Deposit
pursuant to the provisions of this Paragraph 4, Subtenant shall be disqualified
from reduction in the Security Deposit for a period of twenty-four (24) months
following such application.
5. Use.
5.1. Use. Subtenant shall use the Premises for those uses permitted under
the Master Lease ("Agreed Use"), and for no other purpose, without the prior
written consent of Sublandlord (which consent may be withheld in Sublandlord's
reasonable discretion) and the Master Landlord (which consent may be withheld by
Master Landlord pursuant to the terms of Section 5.01 of the Master Lease).
Subtenant's use of the Premises shall be subject to all of the terms and
conditions of the Master Lease relating to use.
Subject to Sublandlord's reasonable prior written approval as to time
and location (electronic mail shall be acceptable for such submission of
requests and approvals), and subject to each of Subtenant's indemnification
obligations hereunder, Subtenant shall be permitted to host social events during
which alcoholic beverages may be responsibly served within the Project,
including the exterior Common Areas about or around Building One.
5.2. Hazardous Materials.
(a) Reportable Uses Require Consent. The term "Hazardous Materials" as
used in this Sublease shall be defined as in subsection 17.22(a) of the Master
Lease. Subtenant shall not engage in any activity in or on the Premises which
constitutes a Reportable Use (as defined below) of any Hazardous Materials
without the express prior written consent of Sublandlord and timely compliance
at Subtenant's expense with all Applicable Requirements as defined in Paragraph
5.3. "Reportable Use" shall mean (i) the installation or use of any above or
below ground storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of any Hazardous Materials that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority, and/or (iii) the
presence at the Premises of any Hazardous Materials with respect to which any
Applicable Requirements requires that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the foregoing,
subject to consent of Master Landlord and in compliance with all Applicable
13
Requirements Subtenant may use and/or store the following materials (to the
extent such use does not expose the Premises or neighboring property to any
meaningful risk of contamination or damage or expose Sublandlord to any
liability therefor): (i) any ordinary and customary materials reasonably
required to be used in the normal course of the Agreed Use, so long as such use
is not a Reportable Use, and (ii) up to six hundred and sixty (660) gallons of
diesel fuel even though such use is a Reportable Use so long as Subtenant makes
proper report of the use of such material In addition, Sublandlord may condition
its consent to any Reportable Use upon receiving written consent of Master
Landlord and such additional assurances as Sublandlord reasonably deems
necessary to protect itself, the public, the Premises and/or the environment
against damage, contamination, injury and/or liability, including, but not
limited to, the installation (and removal on or before Sublease expiration or
termination) of protective modifications (such as concrete encasements) and/or
increasing the Security Deposit.
(b) Duty to Inform Sublandlord. If Subtenant knows, or has reasonable
cause to believe, that a Hazardous Materials have come to be located in, on,
under or about the Premises, other than as previously consented to by
Sublandlord, Subtenant shall immediately give written notice of such fact to
Sublandlord, and provide Sublandlord with a copy of any report, notice, claim or
other documentation which it has concerning the presence of such Hazardous
Materials.
(c) Subtenant Remediation. Subtenant shall not cause or permit any
Hazardous Materials to be spilled or released in, on, under, or about the
Premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Subtenant's expense, take all investigatory and/or remedial action
reasonably recommended, whether or not formally ordered or required, for (i) the
cleanup of any contamination in violation of Environmental Laws (as defined in
Section 17.22(a)) or of the Master Lease), and (ii) the maintenance, security
and/or monitoring of the Premises or neighboring properties, to the extent that
such contamination was caused or materially contributed to by Subtenant, or
pertaining to or involving any Hazardous Materials brought onto the Premises
during the term of this Sublease, by or for Subtenant, or any third party.
(d) Sublandlord's Hazardous Materials Representation. Sublandlord
represents that, to the best of Sublandlord's knowledge, Exhibit I of the Master
Lease (attached hereto) and Exhibit M (attached hereto) are a complete
description of the Hazardous Materials on, around, or beneath the Property as of
the Effective Date. For the sake of convenience these exhibits shall be provided
in a separate binding from the Sublease and a list of all the materials shall be
included in Exhibit M hereto and Subtenant acknowledges that it has received
such documents. Subtenant acknowledges that in providing this representation,
Sublandlord has satisfied any obligations of disclosure pursuant to California
Health & Safety Code 25359.7.
(e) Subtenant Indemnification. Subtenant shall indemnify, defend and
hold Sublandlord and Master Landlord, their agents, employees, Lenders (as
defined with respect to Sublandlord in Paragraph 29.1 of the Sublease and as
used by Master Landlord in the Master Lease), and ground lessor, if any,
harmless from and against any and all loss of rents and/or damages, liabilities,
judgments, claims, expenses, penalties, and attorneys' and consultants' fees
arising out of or involving any Hazardous Materials brought onto the Premises
during the term (and any extension thereof) of this Sublease in violation of
Environmental Laws or Master Lease by or for Subtenant, or any third party,
including but not limited to other subtenants of the Project (other than
Sublandlord while Sublandlord is a tenant of the Project). Subtenant's
obligations shall include, but are not limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Subtenant, and the cost of investigation, removal, remediation,
restoration and/or abatement, and shall survive the expiration or termination of
this Sublease. No termination, cancellation or release agreement entered into by
Sublandlord and Subtenant shall release Subtenant from its obligations under
this Sublease with respect to Hazardous Materials, unless specifically so agreed
by Sublandlord in writing at the time of such agreement. Subtenant shall not be
responsible or liable for, nor have an obligation to indemnify, defend or hold
harmless, pursuant to this Subparagraph 5.2(e), Sublandlord and Master Landlord,
their agents, employees, Lenders, and ground lessor, if any, from any and all
loss of rents and/or damages, liabilities, judgments, claims, expenses,
penalties, and attorneys' and consultants' fees, not directly or indirectly
caused by Subtenant.
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5.3. Subtenant's Compliance with Applicable Requirements. Except as
otherwise expressly provided in this Sublease, Subtenant shall, at Subtenant's
sole expense, fully, diligently and in a timely manner, comply with all
applicable laws, covenants or restrictions of record, regulations, ordinances,
and building codes ("Applicable Requirements"), the requirements of any
applicable fire insurance underwriter or rating bureau, and the recommendations
of Sublandlord's engineers and/or consultants which relate in any manner to the
Premises to the Agreed Use of the Premises, without regard to whether said
requirements are now in effect or become effective later. Subtenant shall,
within 10 days after receipt of Sublandlord's written request, provide
Sublandlord with copies of all permits and other documents, and other
information evidencing Subtenant's compliance with any Applicable Requirements
specified by Sublandlord, and shall immediately upon receipt, notify Sublandlord
in writing (with copies of any documents involved) of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to or involving
the failure of Subtenant or the Premises to comply with any Applicable
Requirements.
5.4. Inspection; Compliance. Subject to Subparagraph 32.2, Sublandlord and
any of Sublandlord's Lenders (as defined in Paragraph 29.1) and consultants
shall have the right to enter into Premises at any time, in the case of an
emergency, and otherwise at reasonable times, for the purpose of inspecting the
condition of the Premises and for verifying compliance by Subtenant with this
Sublease. The cost of any such inspections shall be paid by Sublandlord, unless
a violation of Applicable Requirements, or a contamination is found to exist or
be imminent, or the inspection is requested or ordered by a governmental
authority. In such case, Subtenant shall upon request reimburse Sublandlord for
the cost of such inspection, so long as such inspection is reasonably related to
the violation or contamination.
6. Delivery of Possession.
6.1. Condition.
(a) Generally. Subject to Paragraph 40 and 6.2 below, the Premises
shall be in compliance with the terms of Section 5.02(a) of the Master Lease as
of the Sublease Commencement Date. Any alterations or repairs of the Premises,
during the period from the Sublease Commencement Date to any Commencement Date
for any portion of the Premises tendered by Sublandlord to Subtenant subsequent
to the Sublease Commencement Date, to maintain such compliance shall be paid for
and performed in accordance with Paragraphs 3.2 and 6.2 herein. Notwithstanding
anything to the contrary contained in this Sublease, upon Subtenant's request,
Sublandlord shall use commercially reasonable efforts to (1) enforce Master
Landlord's one year warranty as described in Section 5.04 of the Master Lease,
and (2) pursue any and all of the contractor's and manufacturer's guarantees and
warranties and causes of action ("Construction Warranties") (to the extent such
Construction Warranties are assigned to Sublandlord). Subject to Sublandlord
receiving timely notice of the need for such enforcement, Sublandlord shall
enforce the warranties described in Subparagraphs 6.1(a)(1) and 6.1(a)(2) above
for Subtenant's benefit to the extent such warranties are available with respect
to matters that affect the Premises and/or the Project and which give rise to an
obligation of Subtenant (either directly or as a result of costs passed through
from Sublandlord to Subtenant under the terms of this Sublease). In addition,
Sublandlord shall tender possession of the Premises, the configuration of which
is described below, to Subtenant broom clean and free of debris with all offices
wired with CAT 5E data lines and substantially in accordance with the terms of
the second sentence of Paragraph 5.03 of the Master Lease (except with respect
to B1F1, which shall be delivered in accordance with the Work Letter).
Sublandlord specifically disclaims any and all representations and warranties,
express or implied, oral or written, associated with the Premises, including but
not limited to those concerning habitability, safety, suitability or fitness for
Subtenant's intended purposes. Subtenant hereby accepts the Premises in the
condition existing when possession is tendered without such representations,
warranties or covenants by Sublandlord. Sublandlord has provided Subtenant and
Subtenant acknowledges receipt of Construction Drawings by Garcia Francica
identified as Delta 1-19-01 and Delta NSI 4-13-01) (including detailed
mechanical, electrical and plumbing information) for the Building One.
15
Premises Configuration
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
Building No. Floor No. No. of Offices No. of Conference Rooms No. of IDC Rooms
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
One 1 0 0 2
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
2 31 10 2
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
3 33 13 2
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
4 31 15 2
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
Four 3 28 16 2
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
4 28 15 2
- ------------------ ------------- ------------------- ------------------------------ ------------------------------
(b) Building One. The rights and obligations of the parties regarding
construction of the Subtenant Improvements (as defined in the Work Letter
Agreement attached hereto as Exhibit I) in and around Building One are stated in
the Work Letter Agreement and such Work Letter Agreement is incorporated herein
by this reference.
(c) Building Four Conduit. In addition, prior to delivery to Subtenant
of any Building Four portion of the Premises (or any substituted premises as
provided for hereunder), Sublandlord shall provide free of charge two (2) each
four-inch conduit to be used by Subtenant at its sole cost and expense to
connect Subtenant's computer facilities in Building One to those in Building
Four or such substituted premises.
6.2. Compliance. Sublandlord makes no representation or warranty whatsoever
with respect to compliance of the Premises with the Applicable Requirements
except as expressly provided herein. If Subtenant knows, or has reasonable cause
to believe, that any violation of an Applicable Requirement exists, Subtenant
shall immediately give written notice of such fact to Sublandlord, and provide
Sublandlord with a copy of any report, notice, claim or other documentation
which it has concerning such violation or possible violation so that Sublandlord
may enforce its rights to have such violations corrected and paid by Master
Landlord pursuant to Article V of the Master Lease. Subject to allocation of
costs as set forth below, performance of the work necessary to bring the
Premises into compliance shall be the responsibility of Subtenant if Sublandlord
so elects. Subtenant is responsible for determining whether or not the
Applicable Requirements, and especially the zoning, are appropriate for
Subtenant's intended use, and acknowledges that past uses of the Premises may no
longer be allowed. If the Applicable Requirements are hereafter changed so as to
require during the term of this Sublease the construction of an addition to or
an alteration of the Project, the remediation of any Hazardous Materials not
known as of the Sublease Commencement Date, or the reinforcement or other
physical modification of the Project ("Capital Expenditure"), then to the extent
that such work is not the responsibility of Master Landlord under the terms of
the Master Lease, Sublandlord and Subtenant shall allocate the cost of such work
as follows:
(a) Subject to Paragraph 6.2(c) below, if such Capital Expenditures
are required as a result of the specific and unique use of the Premises by
Subtenant as compared with uses by tenants in general, Subtenant shall be fully
responsible for the cost thereof.
(b) If such Capital Expenditure is not the result of the specific and
unique use of the Premises by Subtenant (such as, governmentally mandated
seismic modifications), then Sublandlord and Subtenant shall allocate the
obligation to pay for the portion of such costs reasonably attributable to the
Premises, amortized over the remaining term of the Master Lease (including
interest on the unamortized balance as is then reasonable in the judgment of
Sublandlord's
16
accountants). Notwithstanding the foregoing, if such Capital Expenditure is
required during the last 2 years of this Sublease or if Sublandlord reasonably
determines that it is not economically feasible to pay its share thereof,
Sublandlord shall have the option to terminate this Sublease upon 90 days prior
written notice to Subtenant unless Subtenant notifies Sublandlord, in writing,
within 10 days after receipt of Sublandlord's termination notice that Subtenant
will pay for such Capital Expenditure. However, in such an event, Sublandlord
agrees that the Premises shall remain vacant during the remainder of the Term,
and this representation shall survive the termination of this Sublease.
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered by
Subtenant as a result of an actual or proposed change in use, change in
intensity of use, or modification to the Premises then, and in that event,
Subtenant shall be fully responsible for the cost thereof, and Subtenant shall
not have any right to terminate this Sublease.
6.3. Acknowledgements. Subtenant acknowledges that Subtenant has made such
investigation as it deems necessary with reference to the physical condition of
the Property and assumes all responsibility therefor as the same relate to its
occupancy of the Premises, and Sublandlord has not made any oral or written
representations or warranties with respect to said matters other than as set
forth in this Sublease.
7. Utilities and Services.
7.1. Standard Subtenant Utilities and Services. Subject to applicable
government rules, regulations, and guidelines and the rules or actions of the
utility furnishing the service, Sublandlord shall provide the utilities and
services described in this Paragraph 7 on all days during the term of this
Sublease, unless otherwise stated in this Sublease. The cost of all utilities
and services described in this Paragraph 7 shall be reimbursed to Sublandlord as
Operating Expenses, except as otherwise provided.
7.2. Heating and Air-Conditioning; Lobby Access; Subtenant Access. Subject
to Paragraph 7.3 below, Sublandlord shall provide heating and air-conditioning
when necessary for normal comfort for normal office use in the Premises, as
reasonably determined by Sublandlord, on Mondays through Fridays from 7 a.m.
through 6 p.m. or such shorter periods as may be prescribed by any applicable
policies or regulations adopted by any utility or governmental agency, except
for the dates of observation of such locally or nationally recognized holidays
as designated by Sublandlord from time to time and currently including New
Year's Day, Martin Luther King Day, Presidents' Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day, the Friday following Thanksgiving Day, and
Christmas Day ("Holidays"), such periods being defined herein as ("HVAC Hours").
Once the Sublease term has commenced with respect to any portion of Building One
and Building Four, respectively, Sublandlord shall provide access to the
Building One and Building Four lobbies, respectively, for use by Subtenant's
invitees on Mondays through Fridays from 8 a.m. through 5 p.m., excluding
Holidays ("Lobby Hours"). Sublandlord shall provide Subtenant access to the
Premises twenty-four (24) hours per day, seven (7) days per week.
7.3. Electricity and Gas. Subject to Subtenant's payment for electricity
and gas furnished to the Premises as described in Section 7.3.1, Sublandlord
shall provide gas and electricity for lighting and power in the Premises if:
(a) The connected electrical load for lighting does not exceed an
average of one (1) watt per square foot of the Premises during the HVAC Hours on
a monthly basis; and
(b) The connected electrical load (encompassing HVAC and office "plug
load" meaning the electrical receptacles/outlets where Subtenant may run
electrical office equipment and machinery) for all other power purposes does not
exceed an average of two (2) watts per square foot of the Premises during the
HVAC Hours on a monthly basis.
17
Except as mutually agreed by the parties, electricity for Subtenant's lighting
and other power purposes shall be at approximately one-hundred and ten (110)
volts. No electrical receptacle/outlet in the Premises for the supply of power
shall require a current capacity exceeding 110 volts AC/twenty (20) amperes.
Sublandlord shall replace lamps, starters, and ballasts for Building-standard
lighting fixtures only within the Premises on Subtenant's request and at
Subtenant's expense. Subtenant shall replace lamps, starters, and ballasts for
non-Building-standard lighting fixtures within the Premises at Subtenant's
expense. Sublandlord expressly reserves the right to select the electricity and
telecommunications access providers for the Buildings and/or the Project.
Notwithstanding anything contained in this Paragraph 7.3, Sublandlord shall
not be required to provide any electricity or gas to Building One of the
Premises. Pending appropriate Sublandlord, Master Landlord (if required) and
regulatory approvals as set forth in this Sublease, Building Four Floors Three
and Four may be separately metered for gas and electricity (for plug load and
lighting, not HVAC) prior to their respective Commencement Dates or as otherwise
agreed by Subtenant and Sublandlord. All costs associated with the installation
of such separate metering shall be borne by Subtenant.
7.3.1 Notwithstanding anything to the contrary contained in this
Sublease, except as specifically provided below, Subtenant shall not be
allocated any costs for electricity and gas under Paragraphs 3.2(b) or 7.7
herein (with respect to extended HVAC Hours).
With respect to Building One, Subtenant shall contract directly with the
provider for electricity and gas to Building One and shall be exclusively
responsible for the payment of all electricity and gas furnished to that
building.
With respect to Building Four, Floors Three and Four or any portions
thereof (or substitute premises pursuant to the exercise of Sublandlord's rights
under Paragraph 40) (the "August 2003 Space"), Subtenant shall pay for
electricity and gas for the August 2003 Space based on the immediately preceding
month's electricity and gas bill for Building One, which amount shall be paid
concurrently with Sublease Expenses. Upon the applicable Commencement Date or
Early Commencement date, Subtenant shall provide a copy of the immediately
preceding month's electricity and gas bill to Sublandlord. The calculation of
Subtenant's electricity and gas costs for the August 2003 Space shall be
determined by dividing the immediately preceding month's electricity and gas
bill for Building One by the number of square feet of Rentable Area of the
Premises for that building (i.e., 175,082) and multiplying that "cost per square
foot" by the total number of square feet contained within the August 2003 Space.
After provision of the initial electricity and gas bill, a copy of each
preceding month's electricity and gas bill for Building One shall be included
with Subtenant's payment of Sublease Expenses.
7.4. Water; Trash Disposal. Sublandlord shall provide water from the
regular Building outlets for drinking, lavatory, and toilet purposes.
Sublandlord shall provide regular trash disposal.
7.5. Janitorial Services. Sublandlord shall provide janitorial services in
and about the Premises on Mondays through Fridays, except on Holidays. The
current schedule for janitorial service is attached hereto Exhibit L, which is
subject to change by Sublandlord. Sublandlord shall not be required to provide
janitorial services to above-standard improvements installed in the Premises.
Subtenant may procure additional janitorial services for the Premises solely
from Sublandlord's designated janitorial service provider at Subtenant's sole
and exclusive cost.
7.6. Elevator. Elevator service for the use of Subtenant, in common with
other occupants of the Buildings, 24 hours a day, 7 days a week, year-round
(except for non-operation for maintenance and safety purposes). Subtenant shall
not use the elevators to access areas of the Buildings occupied by other tenants
and Sublandlord reserves the right to take appropriate measures to restrict such
access. Subtenant shall release Sublandlord and shall indemnify, protect,
defend, and hold Sublandlord harmless from all liabilities, claims, costs,
expenses, and damages arising therefrom or in connection with Subtenant's use
and the use of its employees, contractors, suppliers, customers, and
18
invitees, except to the extent that such liabilities, claims, costs, expenses,
and damages arise from the grossly negligent maintenance of such elevators by
Sublandlord or its agent.
7.7. Overstandard Subtenant Use. Subtenant shall not, without Sublandlord's
prior written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
building standard lights in the Premises that may affect the temperature
otherwise maintained by the air-conditioning system or increase the water
normally furnished to the Premises by Sublandlord under this Paragraph.
Furthermore, Subtenant shall not use any machines or equipment where such use is
in violation of the Master Lease.
If such consent is given, Sublandlord shall have the right to install
supplementary air-conditioning units or other facilities in the Premises,
including supplementary or additional metering devices. On billing by
Sublandlord, Subtenant shall pay the cost for such supplementary facilities,
including the cost of (a) installation, operation, and maintenance; (b)
increased wear and tear on existing equipment; and (c) other similar charges.
If Subtenant uses water, electricity, heat, or air-conditioning in excess of
that required to be supplied by Sublandlord under this Paragraph (as a result,
for example, of extended hours of operation, heavier use of duplicating,
computer, telecommunications, or other equipment in excess of the normal use for
general office uses in the Project, or a density of workers in excess of the
normal density for general office uses in the Project) Subtenant shall pay to
Sublandlord, on billing, the cost of (a) the excess service; (b) installation,
operation, and maintenance of equipment installed to supply the excess service;
and (c) increased wear and tear on existing equipment caused by Subtenant's
excess consumption. Sublandlord may install devices to separately meter any
increased use or reasonably and equitably estimate the cost of such increased
use. On demand, Subtenant shall pay the increased cost directly to Sublandlord,
including the cost of the additional metering devices.
Subtenant's use of electricity shall never exceed the capacity of the feeders
serving the Building and Premises or the risers or wiring installation. If heat,
ventilation, or air-conditioning are used on the Premises during hours other
than those for which Sublandlord is obligated to supply such utilities under
this Paragraph, Sublandlord shall supply such utilities to Subtenant at an
hourly cost to Subtenant as Sublandlord shall from time to time establish.
Amounts payable by Subtenant to Sublandlord under this Paragraph 7.7 for use of
additional utilities shall be payable in their entirety by Subtenant upon
invoicing by Sublandlord and are excluded from Operating Expenses.
7.8. Interruption of Utilities. Subtenant agrees that Sublandlord shall not
be liable for damages, by abatement of Rent or otherwise, for failure to furnish
or delay in furnishing any service (including telephone and telecommunication
services) or for diminution in the quality or quantity of any service when the
failure, delay, or diminution is entirely or partially caused by:
(a) Breakage, repairs, replacements, or improvements;
(b) Strike, lockout, or other labor trouble;
(c) Inability to secure electricity, gas, water, or other fuel at the
Building;
(d) Accident or casualty;
(e) Act or default of Subtenant or other parties; or
(f) Any other cause beyond Sublandlord's reasonable control.
Such failure, delay, or diminution shall not be considered to constitute an
eviction or a disturbance of Subtenant's use and possession of the Premises or
relieve Subtenant from paying Rent or performing any of its obligations under
this
19
Sublease.
Sublandlord shall not be liable under any circumstances for a loss of or
injury to property, for personal injury or death, or for injury to or
interference with Subtenant's business, including loss of profits through, in
connection with, or incidental to a failure to furnish any of the utilities or
services under this Paragraph 7. Sublandlord may comply with mandatory or
voluntary controls or guidelines promulgated by any government entity relating
to the use or conservation of energy, water, gas, light, or electricity or the
reduction of automobile or other emissions without creating any liability of
Sublandlord to Subtenant under this Sublease as long as compliance with
voluntary controls or guidelines does not materially and unreasonably interfere
with Subtenant's use of the Premises.
7.9. Utility Providers. Except with respect to Building One, Sublandlord
may, in Sublandlord's sole and absolute discretion, at any time and from time to
time, contract, or require Subtenant to contract, for utility services
(including generation, transmission, or delivery of the utility service) with
utility service providers of Sublandlord's choosing. Subtenant shall fully
cooperate with Sublandlord and any utility service provider selected by
Sublandlord. Subtenant shall permit Sublandlord and the utility service provider
to have reasonable access to the Premises and the utility equipment serving the
Premises, including lines, feeders, risers, wiring, pipes, and meters. Subtenant
shall either pay or reimburse Sublandlord for its share of costs associated with
any change of utility service, including the cost of any new utility equipment,
within ten (10) days after Sublandlord's written demand for payment or
reimbursement. Under no circumstances shall Sublandlord be responsible or liable
for any loss, damage, or expense that Subtenant may incur as a result of any
change of utility service, including any change that makes the utility supplied
less suitable for Subtenant's needs, or for any failure, interference, or defect
in any utility service. No such change, failure, interference, or defect shall
constitute an actual or constructive eviction of Subtenant, or entitle Subtenant
to any abatement of Rent, or relieve Subtenant from any of Subtenant's
obligations under this Sublease. For purposes of Building One, if Subtenant
elects to contract for utility with a different utility service provider, then
Subtenant shall either pay directly or reimburse Sublandlord for all costs
associated with such change of utility service, including the cost of any new
utility equipment.
7.10. Telecommunications. Neither Subtenant nor its contractors,
representatives, or service providers shall, without Sublandlord's prior written
consent (which consent shall not be unreasonably withheld), install, maintain,
operate, alter, repair, or replace any wire, cable, conduit, antenna, satellite
dish or other facility or equipment for use in connection with any telephone,
television, telecommunications, computer, Internet, or other communications or
electronic systems, services or equipment (which systems, services, and
equipment are referred to collectively as "Telecommunications Equipment") in,
on, or about the Building or the roof or exterior walls. Without limiting the
generality of the foregoing, Sublandlord shall have the right to limit the
number of carriers, vendors, or other operators providing Telecommunications
Equipment in or to the Building, as deemed reasonably necessary or appropriate
by Sublandlord for the orderly and efficient management and operation of the
Building. Any determination made by Sublandlord under this Paragraph shall be
made in accordance with Sublandlord's sole reasonable discretion, provided,
however, that with regard to any request by Subtenant to install
Telecommunications Equipment on the roof of a Building, Subtenant agrees that
Sublandlord may, without limitation, condition its consent on (i) Subtenant's
payment of rent for Subtenant's use of such roof space, in an amount determined
by Sublandlord in its sole discretion, and (ii) the installation by Subtenant,
at its sole cost and expense, of a structural platform and/or access walkway to
protect the roof from damage from the placement of and access to such
Telecommunications Equipment. Sublandlord may also require (i) that any such
work on or involving the roof (and including, without limitation, any roof
penetrations approved by Sublandlord) be performed, at Subtenant's cost, by a
contractor designated or approved by Sublandlord; (ii) Subtenant's obtaining and
paying for all costs associated with obtaining proper clearances for personnel
involved in erecting, operating, or maintaining such Telecommunications
Equipment from the Department of the Air Force or Onizuka Air Station; (iii)
Subtenant's obtaining Onizuka Air Station concurrence to erect any Radio
Frequency Emitters, antenna towers, or antenna arrays so as to avoid radio
frequency interference; (iv) Subtenant's compliance with any additional
requirement of the Department of the Air Force and/or Onizuka Air Station; and
(v) proper evidence of compliance with all requirements of the Master Lease. In
addition, if Sublandlord determines that the riser or telecommunications closet
space in the Building is inadequate to accommodate any Telecommunications
Equipment proposed by Subtenant along
20
with the existing and/or future needs of other occupants and users of the
Building and/or the Project, Sublandlord may condition Sublandlord's approval of
Subtenant's Telecommunications Equipment on the construction of additional riser
or telecommunications closet space as designated by Sublandlord at Subtenant's
expense.
Any installation, maintenance, operation, alteration, repair, or replacement of
Telecommunications Equipment by or for Subtenant shall be subject to all of the
requirements and provisions of this Sublease and the Master Lease, and shall not
interfere with the operation (including, without limitation, transmissions, or
reception) of any other Telecommunications Equipment located in the Building
and/or the Project. Subtenant acknowledges that there is limited space and
facilities in the Building to accommodate Telecommunications Equipment, and
agrees to reasonably cooperate with Sublandlord and with other providers and
users of Telecommunications Equipment to share the available space and
facilities and to coordinate the efficient collocation of Telecommunications
Equipment in the Building. Access to and use of space within conduit, utility
closets, risers, raceways, switching rooms, the roof, and other facilities in
the Building for the installation, maintenance, operation, alteration, repair,
or replacement of Telecommunications Equipment shall be subject to Sublandlord's
approval and to such rules and regulations as may be promulgated by Sublandlord
from time to time. Subtenant shall repair any damage caused by Subtenant's
installation, maintenance, operation, alteration, repair, or replacement of
Telecommunications Equipment, and shall indemnify, protect, defend, and hold
Sublandlord harmless from all liabilities, claims, costs, expenses, and damages
arising therefrom or in connection therewith, including, without limitation: (i)
any claims by other tenants of the Building and/or the Project or other third
parties that Subtenant's installation, maintenance, operation, alteration,
repair, or replacement of Telecommunications Equipment has caused interference
or interruption with the operation of other Telecommunications Equipment; and
(ii) any voiding of or other effect that Subtenant's installation, maintenance,
operation, alteration, repair, or replacement of Telecommunications Equipment
may have on any warranty with respect to the roof or other portions of the
Building and/or the Project. Sublandlord shall not be liable for any damage to
or interference with Subtenant's business or any loss of income from it, or for
loss of or damage to Subtenant's Telecommunications Equipment caused by or
resulting from any damage to or interference with Subtenant's Telecommunications
Equipment, or the operation of it, including without limitation, damage, or
interference caused by or resulting from the installation, maintenance,
operation, alteration, repair, or replacement of other Telecommunications
Equipment in the Building and/or the Project, whether by or for Sublandlord,
other tenants of the Building and/or the Project, or other third parties, and
Subtenant waives all claims against Sublandlord for it, except that Sublandlord
shall indemnify, protect, defend, and hold Subtenant harmless from all
liabilities, claims, costs, expenses, and damages to the extent arising out of
or in connection with the gross negligence or willful acts of Sublandlord or its
agents, employees, or representatives. Sublandlord's approval of Subtenant's
installation of any Telecommunications Equipment shall not constitute a
representation that any such Telecommunications Equipment will function
effectively in or on the Building.
7.11. Utility Additions. Sublandlord reserves the right to install new or
additional utility facilities throughout the Project for the benefit of
Sublandlord or Subtenant, or any other tenant of the Project, including without
limitation such utilities as plumbing, electrical systems, security systems,
communication systems, and fire protection and detection systems.
7.12. Security.
(a) Common/Amenity Areas. Sublandlord shall provide security services
for the Common Areas and, if appropriate, the Amenity Areas, at such levels of
protection, in such a manner, and at such times as Sublandlord determines to be
appropriate in its sole discretion, the cost of which shall be included in
Operating Expenses. Such services may include: guard patrol, stationing of a
security officer in multi-tenant Building lobbies during Lobby Hours, monitoring
of the access control system, issuing and programming access control cards,
rotation and storage of closed circuit television tapes, and coordination of
responses to fire and medical emergencies.
(b) Premises. Sublandlord shall provide a base level of security
services as follows: (i) guard service provided by the security company selected
and hired by Sublandlord to manage Project security ("Security
21
Company") and (ii) the security equipment serving the Premises, including
the control of access thereto, as part of the integrated Project security system
("Security System"), which system will be centrally-operated by the Security
Company and includes monitoring of the access control system, issuing and
programming access control cards, rotation and storage of closed circuit
television tapes. Such Security System shall allow for Subtenant to control
access to the Premises in its sole discretion, subject to Paragraph 32 and
Master Landlord's rights under the Master Lease. Sublandlord makes no
representation that the base level of security services specified are adequate
to protect Subtenant's property, business operations or persons in the Premises.
Subtenant shall be required to comply with and shall cause Subtenant's
employees, agents, independent contractors, guests and invitees to comply with
all procedures and policies required by the Security Company or Sublandlord in
connection with Project security. Subtenant acknowledges that the security
protection provided to the Premises by the Security Company is by its nature a
shared service for the benefit of all Project tenants and that Premises security
may be adversely impacted as a result of simultaneous fire and medical
emergencies taking place in separate areas of the Project, and that Subtenant
shall have no claim for reduction of payments required under this Paragraph 7.12
or any other sort of claim in connection with any such circumstance.
(c) Additional Security Services. Subtenant shall have the right in
its sole discretion and at its sole expense to obtain additional security
services for its Premises so long as Subtenant uses Security Company for the
provision of such services.
(d) No Warranty; Indemnity and Release. Sublandlord makes no warranty
or representation of any kind whatsoever with regard to the Security Company or
the Security System or the services provided under this Paragraph 7.12,
including without limitation their quality, adequacy, efficacy or
appropriateness. Subtenant hereby releases, indemnifies, protects, defends and
holds harmless the Sublandlord, Sublandlord's lenders, partners, members,
property management company (if other than Sublandlord), agents, directors,
officers, employees, representatives, contractors (specifically excluding
Security Company), successors and assigns and each of their respective partners,
members, directors, heirs, employees, representatives, agents, contractors,
heirs, successors and assigns, Master Landlord, any ground lessor, partners and
Lenders, from and against any and all liabilities, claims, liens, damages,
demands, penalties, costs, losses, judgments, charges and expenses (including
reasonable attorneys' and consultants' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision, of any kind arising from or in anyway related to,
directly or indirectly, involving, or in connection with the Security System as
provided to Subtenant under this Paragraph 7.12, or the security services as
provided to Subtenant by the Security Company under this Paragraph 7.12. If any
action or proceeding is brought against Sublandlord by reason of any of the
foregoing matters, Subtenant shall upon notice defend the same at Subtenant's
expense by counsel reasonably satisfactory to Sublandlord and Sublandlord shall
cooperate with Subtenant in such defense. Sublandlord need not have first paid
any such claim in order to be defended or indemnified. With respect to the
release provided in this Paragraph 7.12, Subtenant waives the benefits of Civil
Code section 1542, which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release which if known by him must have materially affected his
settlement with the debtor.
8. Maintenance and Repairs; Utility Installations, Trade Fixtures and
Alterations.
8.1. Sublandlord's Obligations. In accordance with the Master Lease,
Sublandlord shall keep the Project, including the Premises, Common Areas (except
to the extent Master Landlord is responsible for the Outside Areas under the
Master Lease), and equipment whether used exclusively for the Premises or in
common with other premises, in good condition and repair; provided, however,
Sublandlord 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
Buildings or are above then Building standards. Except for costs made the sole
responsibility of Subtenant under other provisions of this Sublease,
22
the costs pertaining to Sublandlord's obligations under this Paragraph 8.1 are
Operating Expenses. Except as otherwise specifically provided herein, there
shall be no abatement of rent or liability to Subtenant on account of any injury
or interference with Subtenant's business with respect to any improvements,
alterations or repairs made by Sublandlord to the Project or any part thereof.
Except as otherwise provided in Paragraph 13.4(b), Subtenant expressly waives
the benefits of any statute now or hereafter in effect which would otherwise
afford Subtenant the right to make repairs at Sublandlord's expense or to
terminate this Sublease because of Sublandlord's failure to keep the Premises in
good order, condition and repair.
8.2. Subtenant's Obligations. Notwithstanding the designation of the costs
of Sublandlord's obligation to keep the Premises in good condition and repair as
Operating Expenses, Subtenant shall be solely responsible for payment of the
cost therefor to Sublandlord as additional rent for that portion of the cost of
any maintenance and repair of the Premises, or any equipment (wherever located)
that serves only Subtenant or the Premises, to the extent such cost is
attributable to causes beyond normal wear and tear. Subtenant shall also be
solely responsible for 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 are above then Building standards.
Sublandlord may, at its option, upon reasonable notice, elect to have Subtenant
perform any particular such maintenance or repairs the cost of which is
Subtenant's sole responsibility hereunder.
8.3. Utility Installations; Trade Fixtures; Alterations.
(a) Definitions. The term "Utility Installations" refers to all floor
and window coverings, air lines, power panels, electrical distribution, security
and fire protection systems, communication systems, lighting fixtures, HVAC
equipment, plumbing, and fencing in or on the Premises. The term "Trade
Fixtures" shall mean Subtenant's machinery and equipment that can be removed
without doing material damage to the Premises. The term "Alterations" shall mean
any modification of the improvements, other than Utility Installations or Trade
Fixtures, whether by addition or deletion. "Subtenant Owned Alterations and/or
Utility Installations" are defined as Alterations and/or Utility Installations
made by Subtenant that are not yet owned by Sublandlord pursuant to Paragraph
8.4(a).
(b) Consent. Subtenant shall not make any Alterations or Utility
Installations to the Premises without Sublandlord's prior written consent and
the prior written consent of Master Landlord if and as required under the Master
Lease; provided however, Subtenant shall be entitled to make any Alterations to
the Premises that: (i) do not affect the Building systems, exterior appearance,
structural components or structural integrity, and (ii) do not exceed fifty
thousand dollars ($50,000) cumulatively over any one (1) year period (commencing
from the Effective Date), without the prior written consent of Sublandlord and
Master Landlord. Notwithstanding anything to the contrary herein, Subtenant
shall be entitled to request a final and binding decision regarding removal and
restoration (as described in Paragraph 8.4(c) below) of the Premises with
respect to any Alteration by Sublandlord at the time Sublandlord consents to
such Alteration, which determination shall be delivered within five (5) business
days following such request and delivery by Subtenant to Sublandlord of a copy
of all plans and specifications for the proposed Alteration. Sublandlord will
forward similar requests to Master Landlord at the request of Subtenant, but
such determinations as to Restoration by Master Landlord shall be in Master
Landlord's sole discretion. Sublandlord may, as a precondition to granting such
approval, require Subtenant to utilize a contractor and architect chosen and/or
approved by Sublandlord and to follow requirements set by the Department of the
Air Force and/or Onizuka Air Station. Any Alterations or Utility Installations
that Subtenant shall desire to make and which require the consent of the
Sublandlord shall be presented to Sublandlord in written form with detailed
plans. Consent shall be deemed conditioned upon Subtenant's: (i) acquiring all
applicable governmental permits, (ii) furnishing Sublandlord with copies of both
the permits and the plans and specifications prior to commencement of the work,
(iii) compliance with all conditions of said permits and other Applicable
Requirements in a prompt and expeditious manner, and (iv) acceptance of
responsibility for and payment of all costs and expenses associated with any
approved Alterations or Utility Installations. Any Alterations or Utility
Installations shall be performed in a workmanlike manner with good and
sufficient materials. Subtenant shall promptly upon completion furnish
Sublandlord with as-built plans and specifications. For work which costs an
amount in excess of one month's
23
Base Rent, Sublandlord may condition its consent upon Subtenant providing a
lien and completion bond and/or upon Subtenant's posting an additional Security
Deposit with Sublandlord for such Alteration or Utility Installation.
(c) Indemnification. Subtenant shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for
Subtenant at or for use on the Premises, which claims are or may be secured by
any mechanic's or materialman's lien against the Premises or any interest
therein. Subtenant shall give Sublandlord not less than 10 days notice prior to
the commencement of any work in, on or about the Premises, and Sublandlord shall
have the right to post notices of non-responsibility. If Subtenant shall contest
the validity of any such lien, claim or demand, then Subtenant shall, at its
sole expense defend and protect itself, Sublandlord and the Premises against the
same and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof. If Sublandlord shall require, Subtenant
shall furnish a surety bond in an amount equal to 150% of the amount of such
contested lien, claim or demand, indemnifying Sublandlord against liability for
the same. If Sublandlord elects to participate in any such action, Subtenant
shall pay Sublandlord's attorneys' fees and costs.
8.4. Ownership; Removal; Surrender; and Restoration.
(a) Ownership. Subject to Sublandlord's right to require removal or
elect ownership as hereinafter provided, all Alterations and Utility
Installations made by Subtenant shall be the property of Subtenant, but
considered a part of the Premises. Sublandlord may, at any time, elect in
writing to be the owner of all or any specified part of the Subtenant Owned
Alterations and Utility Installations. Unless otherwise instructed per Paragraph
8.4(b) hereof, all Subtenant Owned Alterations and Utility Installations shall,
at the expiration or termination of this Sublease, become the property of
Sublandlord and be surrendered by Subtenant with the Premises.
(b) Removal. By delivery to Subtenant of written notice from
Sublandlord not earlier than 90 and not later than 30 days prior to the end of
the term of this Sublease, Sublandlord may require that any or all Subtenant
Owned Alterations or Utility Installations be removed by the expiration or
termination of this Sublease.
(c) Surrender; Restoration. Subject to Paragraph 14, Subtenant shall
surrender the Premises by the Expiration Date or any earlier termination date or
any later expiration date for any extension to the term hereof, with all of the
improvements, parts and surfaces thereof broom clean and free of debris, and in
good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice to the extent such
obligation to maintain is the responsibility of Subtenant under Paragraph 8.2
herein. Subtenant shall repair any damage occasioned by the installation,
maintenance or removal of Trade Fixtures, Subtenant owned Alterations and/or
Utility Installations, furnishings, and equipment as well as the removal of any
storage tank installed by or for Subtenant. Subtenant shall also comply with the
requirements of Subparagraph 5.2(c) herein. Trade Fixtures shall remain the
property of Subtenant and shall be removed by Subtenant. The failure by
Subtenant to timely vacate the Premises pursuant to this Paragraph 8.4(c)
without the express written consent of Sublandlord shall constitute a holdover
under the provisions of Paragraph 25 below.
9. Insurance; Waiver; Subrogration.
9.1. Cost of Sublandlord's Insurance. The cost of the premiums for the
insurance policies required to be carried by Sublandlord pursuant Article VII of
the Master Lease shall be an Operating Expense.
9.2. Subtenant's Insurance. Subtenant shall maintain in full force and
effect at all times during the term of this Sublease, at Subtenant's sole cost
and expense, for the protection of Subtenant and Sublandlord, as their interests
may appear, policies of insurance issued by a carrier or carriers reasonably
acceptable to Sublandlord and its lender which afford the following coverages:
(i) worker's compensation and employer's liability, as required by law; (ii)
commercial general liability insurance (occurrence form) providing coverage
against any and all claims for host liquor
24
liability, bodily injury and property damage (including but not limited to
personal property, whether leased or owned, Trade Fixtures, Subtenant Owned
Alterations and Utility Installations) occurring in, on or about the Premises
arising out of Subtenant's and Subtenant's employees, directors, officers,
agents, partners, members, lenders, suppliers, shippers, contractors, customers,
invitees, successors and assigns' use or occupancy of the Premises. Such
insurance shall include coverage for blanket contractual liability, fire damage,
premises, personal injury, completed operations and products liability. Such
insurance shall have a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence with a Two Million Dollar ($2,000,000)
aggregate limit and excess/umbrella insurance in the amount of Eight Million
Dollars ($8,000,000). If Subtenant has other locations which it owns or leases,
the policy shall include an aggregate limit per location endorsement; (iii)
comprehensive automobile liability insurance with a combined single limit of at
least $1,000,000 per occurrence for claims arising out of any company-owned
automobiles or other automobile used in the conduct of company business; (iv)
"all risk" or "special form or equivalent" property insurance, including without
limitation, sprinkler leakage, covering damage to or loss of any of Subtenant's
Property located in, on or about the Premises, and in addition, coverage for
business interruption of Subtenant, together with, if the property of any of
Subtenant's invitees, vendors or customers is to be kept in the Premises,
warehouser's legal liability or bailee customers insurance for the full
replacement cost of the property belonging to such parties and located in the
Premises. Such insurance shall be written on a replacement cost basis (without
deduction for depreciation) in an amount equal to one hundred percent (100%) of
the full replacement value of the aggregate of the items referred to in this
clause (iv); and (v) such other insurance or higher limits of liability as is
then customarily required for similar types of buildings within the general
vicinity of the Project or as may be reasonably required by any of Sublandlord's
lenders. Notwithstanding the foregoing, Subtenant shall not be required to
obtain insurance coverage for sprinkler leakage or business interruption to
Subtenant's business but Subtenant shall assume all the risk associated with
such lack of coverage.
9.3. Insurance Policies. Insurance required to be maintained by Subtenant
shall be written by companies (i) licensed to do business in the State of
California, (ii) domiciled in the United States of America, and (iii) having a
"General Policyholders Rating" of at least A:X (or such higher rating as may be
required by a lender having a lien on the Premises) as set forth in the most
current issue of "A.M. Best's Rating Guides." Any deductible amounts under any
of the insurance policies required hereunder shall not exceed Five Thousand
Dollars ($5,000). Prior to occupancy and as a condition precedent of Delivery of
Possession, Subtenant shall deliver to Sublandlord certificates of insurance for
all insurance required to be maintained by Subtenant hereunder at the time of
execution of this Sublease by Subtenant. Subtenant shall, prior to expiration of
each policy, furnish Sublandlord with certificates of renewal or "binders"
thereof. Each certificate shall expressly provide that such policies shall not
be cancelable or otherwise subject to reduction in coverage except after thirty
(30) days prior written notice to the parties named as additional insureds as
required in this Sublease (except for cancellation for nonpayment of premium, in
which event cancellation shall not take effect until at least ten (10) days'
notice has been given to Sublandlord). Subtenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms of this
Sublease under a blanket insurance policy, provided such blanket policy
expressly affords coverage for the Premises and for Sublandlord as required by
this Sublease.
9.4. Failure of Subtenant to Purchase and Maintain Insurance. If Subtenant
fails to obtain and maintain the insurance required herein throughout the term
of this Sublease, Sublandlord may, but without obligation to do so, purchase the
necessary insurance and pay the premiums therefor. If Sublandlord so elects to
purchase such insurance, Subtenant shall promptly pay to Sublandlord as Rent,
the amount so paid by Sublandlord, upon Sublandlord's demand therefor. In
addition, Sublandlord may recover from Subtenant and Subtenant agrees to pay, as
Rent, any and all losses, damages, expenses and costs which Sublandlord may
sustain or incur by reason of Subtenant's failure to obtain and maintain such
insurance.
9.5. Additional Insureds and Coverage. Each of Sublandlord and Master
Landlord, and at Sublandlord's request from time to time, Sublandlord's property
management company or agent(s) and Sublandlord's lender(s) having a lien against
the Premises or any other portion of the Project shall be named as additional
insureds or loss payees (as applicable) under all of the policies required in
Paragraph 9.2(ii)-(v) and with respect to the Subtenant
25
Alterations. Additionally, all of such policies shall provide for severability
of interest. All insurance to be maintained by Subtenant shall, except for
workers' compensation and employer's liability insurance, be primary, without
right of contribution from insurance maintained by Sublandlord. Any
umbrella/excess liability policy (which shall be in "following form") shall
provide that if the underlying aggregate is exhausted, the excess coverage will
drop down as primary insurance. The limits of insurance maintained by Subtenant
shall not limit Subtenant's liability under this Sublease. It is the parties'
intention that the insurance to be procured and maintained by Subtenant as
required herein shall provide coverage for any and all damage or injury arising
from or related to Subtenant's operations of its business and/or Subtenant's or
Subtenant's employees, directors, officers, agents, partners, members, lenders,
suppliers, shippers, contractors, customers, invitees, successors and assigns'
use of the Premises and any of the areas within the Project. Notwithstanding
anything to the contrary contained herein, to the extent Sublandlord's cost of
maintaining insurance with respect to any Buildings within the Project is
increased as a result of Subtenant's acts, omissions, Alterations, improvements,
use or occupancy of the Premises, Subtenant shall pay one hundred percent (100%)
of, and for, each such increase as Rent.
9.6. Waiver of Subrogation. Nothwithstanding anything to the contrary in
this Sublease, Sublandlord and Subtenant hereby mutually waive their respective
rights of recovery against each other for any loss of, or damage to, either
parties' property to the extent that such loss or damage is insured by an
insurance policy required to be in effect by this Sublease or the Master Lease
at the time of such loss or damage. Each party shall obtain any special
endorsements, if required by its insurer, whereby the insurer waives its rights
of subrogation against the other party. This provision is intended to waive
fully, and for the benefit of the parties hereto, any rights and/or claims which
might give rise to a right of subrogation in favor of any insurance carrier.
9.7. No Representation of Adequate Coverage. Sublandlord makes no
representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Subtenant's property, business operations or
obligations under this Sublease.
10. Limitation of Liability and Indemnity.
(a) Except to the extent of damage resulting from the gross negligence
or willful misconduct of only Sublandlord or its Indemnitees (defined below) or,
Sublandlord's material default of the provisions of this Sublease beyond any
applicable cure period, Subtenant agrees to protect, defend (with counsel
reasonably acceptable to Sublandlord) and hold Sublandlord and Sublandlord's
lenders, partners, members, property management company, agents, directors,
officers, employees, representatives, contractors (except as provided in
Subparagraph 7.12(d) herein), successors and assigns and each of their
respective partners, members, directors, heirs, employees, representatives,
agents, contractors, heirs, successors and assigns (collectively, the
"Indemnitees") harmless and indemnify the Indemnitees from and against all
liabilities, damages, demands, penalties, costs, losses, judgments, charges and
expenses (including reasonable attorneys' fees, costs of court and expenses
necessary in the prosecution or defense of any litigation including the
enforcement of this provision) (collectively, "Claims") arising from or in any
way related to, directly or indirectly, (i) Subtenant's and Subtenant's
employees, agents, invitees, guests, representatives and contractors
(collectively, "Subtenant's Representatives") use of the Premises, Security
System, and other portions of the Project, (ii) the conduct of Subtenant's
business at the Premises (iii) any activity, work or thing done, permitted or
suffered by Subtenant in or about the Premises, (iv the Premises, Security
System, the Alterations or with the Subtenant's property (whether leased or
owned or held in bailment) therein, including, but not limited to, any liability
for injury to person or property of Subtenant, Subtenant's employees, directors,
officers, agents, partners, members, lenders, suppliers, shippers, contractors,
customers, invitees, successors and assigns' or third party persons, and/or (v)
Subtenant's failure to perform any covenant or obligation of Subtenant under
this Sublease. Subtenant agrees that the obligations of Subtenant herein shall
survive the expiration or earlier termination of this Sublease.
(b) Except to the extent of damage resulting from the gross negligence
or willful misconduct of only Sublandlord or its Indemnitees or, Sublandlord's
material default of the provisions of this Sublease beyond any
26
applicable cure periods, Subtenant agrees that neither Sublandlord nor any
of the Indemnitees shall at any time or to any extent whatsoever be liable,
responsible or in any way accountable for any loss, liability, injury, death or
damage to persons or property which at any time may be suffered or sustained by
Subtenant or by any person(s) whomsoever who may at any time be using, occupying
or visiting the Premises, Security System or any other portion of the Project,
including, but not limited to, any acts, errors or omissions of any other
tenants or occupants of the Project. Subtenant shall not, in any event or
circumstance, be permitted to offset or otherwise credit against any payments of
Rent required herein for matters for which Sublandlord may be liable hereunder.
Sublandlord and its authorized representatives shall not be liable for any
interference with light or air.
(c) Sublandlord agrees that, to the extent Subtenant suffers damages
or incurs liabilities arising out of Sublandlord's role as an occupant of the
Project, as opposed to Sublandlord's roles as Sublandlord hereunder or as tenant
under the Master Lease, the waiver of liability granted under the first sentence
of Section 10(b) above shall not apply. Further, Subtenant and Sublandlord agree
that neither party shall be liable for any indirect, consequential, incidental
or special damages suffered or incurred by the other party or such party's
lenders, partners, members, property management company, agents, directors,
officers, employees, representatives, contractors, successors and assigns,
provided however, that nothing in this sentence shall be construed to limit the
remedies and damages that are otherwise available to Sublandlord pursuant to
Sections 13.2(a) or 13.2(b) of this Sublease. The provisions of this
Subparagraph 10(c) shall supercede any conflicting provisions of this Sublease.
11. Property Taxes
11.1. Payment of Taxes. Sublandlord shall pay the "real property taxes"
described in Article IX of the Master Lease, as well as any other taxes for
which Sublandlord is responsible pursuant to Master Lease Section 9.01, and any
such amounts shall be included in the calculation of Operating Expenses or
Master Lease Expenses under Paragraph 3.2.
11.2. Additional Improvements. Notwithstanding Paragraph 11.1 hereof,
Subtenant shall, however, pay to Sublandlord the entirety of any increase in
real property taxes if assessed solely by reason of Alterations, Trade Fixtures
or Utility Installations placed upon the Premises by Subtenant or at Subtenant's
request.
11.3. Personal Property Taxes. Subtenant shall pay prior to delinquency all
taxes assessed against and levied upon Subtenant Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Subtenant contained in the Premises. When possible, Subtenant shall cause its
Subtenant Owned Alterations and Utility Installations, Trade Fixtures,
furnishings, equipment and all other personal property to be assessed and billed
separately from the real property of the Project. If any of Subtenant's said
property shall be assessed with the real property of the Project, Subtenant
shall pay Sublandlord the taxes attributable to Subtenant's property within 10
days after receipt of a written statement setting forth the taxes applicable to
Subtenant's property.
12. Assignment and Subletting. Except as expressly permitted in Paragraph
12.10 below, Subtenant shall not, either voluntarily or involuntarily or by
operation of law, assign, sublet, mortgage or otherwise encumber all or any
portion of its interest in this Sublease or in the Premises or permit the
Premises to be occupied by anyone other than Subtenant or Subtenant's employees
without (i) obtaining the prior written consent of Sublandlord, which consent
shall not be unreasonably withheld, conditioned or delayed, subject to the
provisions of this Paragraph 12, and (ii) full compliance with all applicable
Master Lease restrictions. In the event of any such attempted assignment,
subletting, mortgage or other encumbrance without such consent or without
compliance with all applicable Master Lease restrictions, Sublandlord may, at
its option, void such attempted assignment, subletting, mortgage or other
encumbrance.
12.1. Generally. No assignment, subletting, mortgage or other encumbrance
of Subtenant's interest in this Sublease shall relieve Subtenant of its
obligation to pay the rent and to perform all of the other obligations to be
performed by Subtenant hereunder. In this connection, any such assignment,
sublease or encumbrance shall expressly
27
provide that it is subject to the terms and provisions of this Sublease.
Moreover, any subletting by Subtenant of any portion of the Premises shall be at
a market rental rate and upon market terms and, if Sublandlord so requests,
shall require that the assignee or sublessee remit directly to Sublandlord, on a
monthly basis, all rent due to Subtenant by said assignee or sublessee. For this
purpose, "market" shall mean a rental rate and terms comparable to the rental
rate and terms then being offered by other landlords leasing comparable space in
comparable commercial office buildings that are located within a three (3) mile
radius of the Premises. The acceptance of rent by Sublandlord from any other
person shall not be deemed to be a waiver by Sublandlord of any provision of
this Sublease or to be a consent to any subletting, assignment, mortgage or
other encumbrance. Consent to one sublease, assignment, mortgage or other
encumbrance shall not be deemed to constitute consent to any subsequent
attempted subletting, assignment, mortgage or other encumbrance. If Subtenant is
a corporation which is not required under the Securities Exchange Act of 1934 to
file periodic informational reports with the Securities and Exchange Commission,
or is an unincorporated association or partnership, the transfer, assignment or
hypothecation of any stock or interest in such corporation, association or
partnership in the aggregate of fifty percent (50%) shall be deemed an
assignment within the meaning of this Paragraph 12.
12.2. Notice. If Subtenant desires at any time to assign this Sublease or
to sublet the Premises or any portion thereof for the Term, it shall first
notify Sublandlord of its desire to do so at least thirty (30) days but not more
than ninety (90) days prior to the date Subtenant desires the assignment or
sublease to be effective. At that time, Subtenant shall submit in writing to
Sublandlord (i) the name of the proposed subtenant or assignee; (ii) the nature
of the proposed subtenant's or assignee's business to be carried on in the
Premises together with a detailed description of the proposed subtenant's or
assignee's business experience and duration of the current enterprise; (iii)
whether the number of square feet in the Rentable Area of the Premises per
person which are proposed by the subtenant or assignee to occupy the Premises
would be less than one hundred and seventy-five (175) square feet and in
compliance with fire and safety regulations; (iv) the terms and provisions of
the proposed sublease or assignments and the proposed effective date thereof;
and (v) such financial information as Sublandlord may request concerning the
proposed subtenant or assignee (which information shall be requested within
fifteen (15) days following receipt of Subtenant's notice). The submission
pursuant to clause (iv) shall include a copy of any agreement, escrow
instructions or other document which contains or memorializes the terms and
provisions of the transaction for which Sublandlord's consent is required.
Similarly, if Subtenant desires to mortgage or encumber its interest in this
Sublease, Subtenant shall first supply to Sublandlord in writing such
information as to such transaction as may be requested by Sublandlord.
12.3. Sublandlord's Election; Recapture. At any time within thirty (30)
days after Sublandlord's receipt of the last of the information specified in
Paragraph 12.2, above, Sublandlord may by written notice to Subtenant elect (i)
to disapprove of such assignment or sublease; or (ii) to approve Subtenant's
sublease or assignment of the portion of the Premises so proposed to be
subleased or assigned by Subtenant, as the case may be; or (iii) in the event of
a proposed subletting, collectively with all other subleases of Subtenant then
in effect, of more than sixty percent (60%) of the Premises, to terminate this
Sublease as to the portion (including all) of the Premises so proposed to be
subleased or assigned and recapture such space effective as of the date
specified as the proposed commencement date in Subtenant's notice with a
proportionate abatement in the Rent payable hereunder, provided, however, that
Sublandlord must provide Subtenant with written notice of its intent to
recapture hereunder within ten (10) days of written notice from Subtenant
indicating its desire to sublet, assign or transfer such portion of the
Premises, otherwise Sublandlord's right to recapture for such particular
transfer shall be deemed waived. Subtenant shall, at Subtenant's own cost and
expense, discharge in full any commissions which may be due and owing as the
result of any proposed assignment or subletting, whether or not the Premises are
recaptured pursuant hereto and rented by Sublandlord to the proposed subtenant
or assignee or any other tenant. If Sublandlord does not disapprove the proposed
subletting or assignment in writing and does not exercise any option set forth
in this Paragraph 12.3 within said thirty (30) day period, Subtenant may within
ninety (90) days after the expiration of said thirty (30) day period enter into
a valid assignment or sublease of the Premises or portion thereof, upon the
terms and conditions set forth in the information furnished by Subtenant to
Sublandlord pursuant to Paragraph 12.2 above. It is provided, however, that any
material change in such terms shall be subject to Sublandlord's consent and
rights of termination and recapture as provided in this Paragraph.
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12.4. Sublandlord's Discretion; Factors. Sublandlord shall have the right
to approve or disapprove any proposed assignee or subtenant. In exercising such
right of approval or disapproval, Sublandlord shall be entitled to take into
account any fact or factor which Sublandlord reasonably deems relevant to such
decision, including but not limited to the following, all of which are agreed by
Subtenant to be reasonable factors for Sublandlord's consideration:
(a) The financial strength of the proposed assignee or subtenant,
including, but not limited to, the adequacy of its working capital to pay all
expenses anticipated in connection with any proposed remodeling of the Premises.
Sublandlord may also consider the business experience of the proposed subtenant
or assignee and the longevity of the current enterprise.
(b) The proposed use of the Premises by such proposed assignee or
subtenant and the compatibility of such proposed use within the quality and
nature of the other uses in the Building. The foregoing may include an analysis
by Sublandlord of the number and persons per square foot (as described above)
proposed by the subtenant or assignee to occupy the Premises, it being
understood and agreed that Sublandlord may disapprove a subtenant or assignee
which represents an unreasonable increase in population levels.
(c) Any violation which the proposed use by such proposed assignee or
subtenant would cause any other rights granted by Sublandlord to other tenants
of the building.
(d) Any adverse impact, including a greater intensity of use of the
parking, building mechanical, electrical or plumbing facilities or any other
services or facilities of the building, which may result from the occupancy of
the Premises by the proposed subtenant or assignee.
(e) Whether there exists any default by Subtenant pursuant to this
Sublease or any non-payment or non-performance by Subtenant under this Sublease
which, with the passage of time and/or the giving of notice, would constitute a
default under this Sublease.
(f) The business reputation, character, history and nature of the
business of the proposed assignee or subtenant objections to which shall be
provided by Sublandlord in writing.
(g) Whether the proposed assignee or subtenant is an existing tenant
of the building, it being understood and agreed that Sublandlord will disapprove
a subletting or assignment to such an existing tenant if Sublandlord can
reasonably provide such tenant's additional space requirements.
(h) Whether the proposed assignee or subtenant is a person with whom
Sublandlord is actively negotiating for space in the Project or with whom
Sublandlord has negotiated during the six (6) month period ending with the date
Sublandlord receives notice of such proposed assignment or subletting, it being
understood and agreed that Sublandlord may disapprove a subletting or assignment
to such potential direct tenant so long as Sublandlord was (at the time of
Sublandlord's negotiations) and remains able to accommodate the space needs of
such proposed assignee or subtenant.
(i) Whether the proposed assignee or subtenant is a governmental
entity or agency, it being understood and agreed that Sublandlord may disapprove
the proposed subletting or assignment as being inconsistent with the character
of the building, particularly if such proposed assignee or subtenant intends to
have its premises open to members of the public.
(j) Any possibility that such assignment or subletting could trigger
the Master Landlord's rights of recapture under Paragraph 11.06 of the Master
Lease, except assignment or subletting specifically excluded from recapture
pursuant to Master Landlord's consent or separate agreement between Master
Landlord and Subtenant.
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(k) Whether the proposed sublease is for less than an entire floor of
a Building or includes a portion of the Premises that is less than an entire
floor of a Building, it being understood and agreed that Sublandlord's
disapproval of such a subletting shall be deemed to be reasonable if Subtenant
does not agree to pay all costs and expenses associated with demising and
restoring such space.
Moreover, Sublandlord shall be entitled to be reasonably satisfied that
each and every covenant, condition or obligation imposed upon Subtenant by this
Sublease and each and every right, remedy or benefit afforded Sublandlord by
this Sublease is not impaired or diminished by such assignment or subletting.
Sublandlord and Subtenant acknowledge that the express standards and provisions
set forth in this Sublease dealing with assignment and subletting, including
those set forth in this Paragraph 12.4, have been freely negotiated and are
reasonable at the date hereof taking into account Subtenant's proposed use of
the Premises and the nature and quality of the building. No withholding of
consent by Sublandlord for any reason deemed sufficient by Sublandlord shall
give rise to any claim by Subtenant or any proposed assignee or subtenant or
entitle Subtenant to terminate this Sublease, to recover contract damages or to
any abatement of rent. In this connection, Subtenant hereby expressly waives its
rights under California Civil Code Section 1995.310 with respect to the
enumerated discretion factors. Moreover, approval of any assignment of
Subtenant's interest shall, whether or not expressly so stated, be conditioned
upon such assignee assuming in writing all obligations of Subtenant hereunder.
12.5. Bonus Rent. As a condition to Sublandlord's consent to an assignment
or subletting, Sublandlord shall be entitled to receive, in the case of a
subletting, one hundred percent (100%) of all rent (however denominated and
paid) payable by the subtenant to Subtenant less reasonable leasing commissions
in excess of that payable by Subtenant to Sublandlord pursuant to the other
provisions of this Sublease and, in the case of an assignment, one hundred
percent (100%) of all consideration given, directly or indirectly, by the
assignee to Subtenant, in connection with such assignment; provided, however,
that in making such calculation in the case of a subletting of less than the
entire Premises, rent payable by Subtenant to Sublandlord pursuant to the other
provisions of this Sublease shall be adjusted downward, pro-rata, to apply only
to the portion of the Premises being sublet. For the purposes of this Paragraph
12.5, the term "rent" shall mean all consideration paid or given, directly or
indirectly, for the use of the Premises or any portion thereof. The term
"consideration" shall mean and include money, services, property or any other
thing of value such as payment of costs, cancellation of indebtedness,
discounts, rebates, free or abated rent, bonuses, and similar inducements. The
terms "sublet" and "sublease" and their variants shall include a sublease as to
which Subtenant is sublessor and any sub-sublease or other sub-subtenancy,
irrespective of the number of tenancies and tenancy levels between the ultimate
occupant and Sublandlord, as to which Subtenant receives any consideration, as
defined in this Paragraph, and Subtenant shall require on any sublease which it
executes that Subtenant receive the entire profit from all sub-subtenancies,
irrespective of the number of levels thereof. Any rent or other consideration
which is to be passed through to Sublandlord by Subtenant pursuant to this
Paragraph shall be paid to Sublandlord promptly upon receipt by Subtenant and
shall be paid in cash, irrespective of the form in which received by Subtenant
from any subtenant or assignee. In the event that any rent or other
consideration received by Subtenant from a subtenant or assignee is in a form
other than cash, Subtenant shall pay to Sublandlord in cash the fair value of
such consideration.
12.6. Options Personal. All Options (as defined in Paragraph 38 below) to
extend, renew or expand and all reserved, reduced cost or free parking rights,
in each case if any, contained in this Sublease are personal to Subtenant
(and/or Subtenant's Affiliates as defined in Paragraph 12.10 below). Consent by
Sublandlord to any assignment or subletting shall not include consent to the
assignment or transfer of any such rights or options with respect to the
Premises. All such options, rights, privileges and extra services shall
terminate upon such subletting or assignment unless Sublandlord specifically
grants the same in writing to such assignee or subtenant.
12.7. Encumbrances. Sublandlord has advised Subtenant that Sublandlord's
normal policy is not to allow any encumbrance or hypothecation of the
subtenant's interest pursuant to subleases of space in the Building(s) in which
the Premises are located. Subtenant understands and acknowledges that, should
Subtenant propose to encumber or
30
hypothecate its interest in this Sublease, Sublandlord may refuse to consent
thereto for any reason deemed sufficient by Sublandlord, and may condition such
consent upon such conditions as Sublandlord, in its sole judgment, deems
reasonable. In no event may Subtenant encumber or hypothecate its interest in
this Sublease until and unless Subtenant shall first have received the written
consent of Sublandlord. In the event that Sublandlord consents to any proposed
encumbrance or hypothecation by Subtenant, the person or entity receiving a lien
upon or security interest in Subtenant's interest in this Sublease shall not be
entitled to transfer such interest except in compliance with the provisions of
this Paragraph 12.
12.8. Merger; Attornment. The voluntary or other surrender of this Sublease
by Subtenant or a mutual cancellation hereof shall not work a merger, and shall,
at the option of Sublandlord, terminate all or any existing subleases or
subtenancies or shall operate as an assignment to Sublandlord of such subleases
or subtenancies. Any sub-sublease of the Premises shall be subject and
subordinate to the provisions of this Sublease, shall not extend beyond the term
of this Sublease, and shall provide that the sub-sublessee shall attorn to
Sublandlord, at Sublandlord's sole option, in the event of the termination of
this Sublease.
12.9. Sublandlord's Costs. Subtenant shall reimburse Sublandlord, on
demand, for all costs and expenses incurred by Sublandlord in connection with
any proposed assignment or subleasing by Subtenant, including reasonable
attorneys' fees. Subtenant shall also pay to Sublandlord, its administrative
fee, as established by Sublandlord from time to time, in connection with
Sublandlord's review and consideration of any such request for Sublandlord's
consent.
12.10. Affiliates. Notwithstanding anything to the contrary contained in
this Paragraph 12, but subject to all Master Lease restrictions and requirements
including Master Landlord's consent, Subtenant may assign this Sublease, without
receipt of Sublandlord's consent, to an "Affiliate" of Subtenant.
"Affiliate"shall be defined to be any entity which controls, is controlled by,
or is under common control with Subtenant or which acquires all or substantially
all of Subtenant's stock or assets or which results from the merger or
consolidation of Subtenant with another entity, so long as such transaction was
not entered into as a subterfuge to avoid the obligations and restrictions of
this Sublease and provided that the purported assignee is not a "competitor" of
Sublandlord. In connection with any assignment of the type described in this
Paragraph 12.10:
(a) The assignee shall, within ten (10) days after receipt of written
request from Sublandlord, execute and deliver to Sublandlord a written
assignment of the obligations of Subtenant pursuant to this Sublease accruing
from and after the effective date of the assignment and in form and substance
reasonably satisfactory to Sublandlord.
(b) No such assignment shall release Subtenant from any of the obligations
of the subtenant hereunder, whether accruing prior to or subsequent to the
effective date of such transaction.
(c) No such assignment shall be accompanied by a change in use from that
permitted pursuant to Paragraph 5 of this Sublease.
(d) Within ten (10) days after the effective date of such assignment,
Subtenant shall notify Sublandlord in writing of such occurrence, the effective
date thereof, the name of the assignee, any addition or change in the addresses
for notice pursuant to this Sublease and the facts which bring such transaction
within the scope of this Paragraph 12.10.
Subtenant agrees to reimburse Sublandlord for Sublandlord's reasonable
costs and attorneys' fees incurred in connection with the review, processing and
documentation of any such transaction. For purposes of the foregoing definition
of Affiliate, an entity is a "competitor" of Sublandlord if the entity owns,
operates, maintains, or controls participates significantly (in the reasonable
opinion of Sublandlord) in the ownership, management, control, operation, or
profits of any business substantially similar to the business of Sublandlord.
For purposes of the foregoing definitions of "Affiliate" and "competitor",
"control" means the direct or indirect ownership of more than fifty percent
(50%) of the
31
voting securities of an entity or possession of the right to vote more than
fifty percent (50%) of the voting interest in the ordinary direction of the
entity's affairs.
13. Default; Breach; Remedies.
13.1. Default; Breach. A "Default" is defined as a failure by the Subtenant
to comply with or perform any of the terms, covenants, conditions or rules and
regulations under this Sublease. A "Breach" is defined as the occurrence of one
or more of the following Defaults, and the failure of Subtenant to cure such
Default within any applicable grace period:
(a) The abandonment of the Premises or the vacating of the Premises
without providing a commercially reasonable level of security, or where the
coverage of the property insurance described in Paragraph 9 of this Sublease or
Article VII of the Master Lease is jeopardized as a result thereof, or without
providing reasonable assurances to minimize potential vandalism.
(b) The failure of Subtenant to make any payment of Rent (including
Abatement Reimbursement Rent) or any Security Deposit required to be made by
Subtenant hereunder, whether to Sublandlord or to a third party, when due, to
provide reasonable evidence of insurance or surety bond, or to fulfill any
obligation under this Sublease which endangers or threatens life or property,
where such failure continues for a period of five (5) business days following
written notice to Subtenant.
(c) The failure by Subtenant to provide (i) reasonable written
evidence of compliance with Applicable Requirements, (ii) the rescission of an
unauthorized assignment or subletting, (iii) an Estoppel Certificate, (iv) a
requested subordination, (v) evidence concerning any guaranty (if any is
provided herein), (vii) any document requested under Paragraph 7.11 (utility
additions) and/or Paragraph 41 (easements), or (viii) any other documentation or
information which Sublandlord may reasonably require of Subtenant under the
terms of this Sublease, where any such failure continues for a period of 10 days
following written notice to Subtenant.
(d) A Default by Subtenant as to the terms, covenants, conditions or
provisions of this Sublease, or of the rules and regulations adopted under
Paragraph 1.5 hereof, other than those described in subparagraphs 13.1 (a), (b)
or (c), above, where such Default continues for a period of 30 days after
written notice; provided, however, that if the nature of Subtenant's Default is
such that more than 30 days are reasonably required for its cure, then it shall
not be deemed to be a Breach if Subtenant commences such cure within said 30 day
period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making of
any general arrangement or assignment for the benefit of creditors; (ii)
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 Subtenant, the same is
dismissed within 60 days); (iii) the appointment of a trustee or receiver to
take possession of substantially all of Subtenant's assets located at the
Premises or of Subtenant's interest in this Sublease, where possession is not
restored to Subtenant within 30 days; or (iv) the attachment, execution or other
judicial seizure of substantially all of Subtenant's assets located at the
Premises or of Subtenant's interest in this Sublease, where such seizure is not
discharged within 30 days; provided, however, in the event that any provision of
this subparagraph (e) is contrary to any applicable law, such provision shall be
of no force or effect, and not affect the validity of the remaining provisions.
(f) The discovery that any financial statement of Subtenant or of any
guarantor given to Sublandlord was materially false.
(g) If the performance of Subtenant's obligations under this Sublease
is guaranteed: (i) the death of a guarantor, (ii) the termination of a
guarantor's liability with respect to this Sublease other than in accordance
with
32
the terms of such guaranty, (iii) a guarantor's becoming insolvent or the
subject of a bankruptcy filing, (iv) a guarantor's refusal to honor the
guaranty, or (v) a guarantor's breach of its guaranty obligation on an
anticipatory basis, and Subtenant's failure, within 60 days following written
notice of any such event, to provide written alternative assurance or security,
which, when coupled with the then existing resources of Subtenant, equals or
exceeds the combined financial resources of Subtenant and the guarantors that
existed at the time of execution of this Sublease.
13.2. Remedies. If Subtenant fails to perform any of its affirmative duties
or obligations, within 10 days after written notice (or in case of an emergency,
without notice), Sublandlord may, at its option, perform such duty or obligation
on Subtenant's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Sublandlord shall
be due and payable by Subtenant upon receipt of invoice therefor. If any check
given to Sublandlord by Subtenant shall not be honored by the bank upon which it
is drawn, Sublandlord, at its option, may require all future payments to be made
by Subtenant to be by cashier's check. In the event of a Breach, Sublandlord
may, with or without further notice or demand, and without limiting Sublandlord
in the exercise of any right or remedy which Sublandlord may have by reason of
such Breach:
(a) Terminate Subtenant's right to possession of the Premises by any
lawful means, in which case this Sublease shall terminate and Subtenant shall
immediately surrender possession to Sublandlord. In such event Sublandlord shall
be entitled to recover from Subtenant: (i) the unpaid Rent which had been earned
at the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the Subtenant proves
could have been reasonably avoided; (iii) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Subtenant proves could be
reasonably avoided; and (iv) any other amount necessary to compensate
Sublandlord for all the detriment proximately caused by the Subtenant's failure
to perform its obligations under this Sublease or which in the ordinary course
of things would be likely to result therefrom, 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 that portion of any leasing commission paid by Sublandlord in connection
with this Sublease applicable to the unexpired term of this Sublease. The worth
at the time of award of the amount referred to in provision (iii) of the
immediately preceding sentence shall be computed by discounting such amount at
the discount rate of the Federal Reserve Bank of the District within which the
Premises are located at the time of award plus one percent. Efforts by
Sublandlord to mitigate damages caused by Subtenant's Breach of this Sublease
shall not waive Sublandlord's right to recover damages under Paragraph 12. If
termination of this Sublease is obtained through the provisional remedy of
unlawful detainer, Sublandlord shall have the right to recover in such
proceeding any unpaid Rent and damages as are recoverable therein, or
Sublandlord may reserve the right to recover all or any part thereof in a
separate suit. If a notice and grace period required under Paragraph 13.1 was
not previously given, a notice to pay rent or quit, or to perform or quit given
to Subtenant under the unlawful detainer statute shall also constitute the
notice required by Paragraph 13.1. In such case, the applicable grace period
required by Paragraph 13.1 and the unlawful detainer statute shall run
concurrently, and the failure of Subtenant to cure the Default within the
greater of the two such grace periods shall constitute both an unlawful detainer
and a Breach of this Sublease entitling Sublandlord to the remedies provided for
in this Sublease and/or by said statute.
(b) Continue the Sublease and Subtenant's right to possession and
recover the Rent as it becomes due, in which event Subtenant may sublet or
assign, subject only to reasonable limitations. Acts of maintenance, efforts to
relet, and/or the appointment of a receiver to protect the Sublandlord's
interests, shall not constitute a termination of the Subtenant's right to
possession.
(c) Pursue any other remedy now or hereafter available under the laws
or judicial decisions of the state wherein the Premises are located. The
expiration or termination of this Sublease and/or the termination of Subtenant's
right to possession shall not relieve Subtenant from liability under any
indemnity provisions of this Sublease as to matters occurring or accruing during
the term hereof or by reason of Subtenant's occupancy of the Premises.
33
13.3. Inducement Recapture. Any agreement for free or abated rent or other
charges (to the extent not repaid by Subtentant to Sublandlord), or for the
giving or paying by Sublandlord to or for Subtenant of any cash or other bonus,
inducement or consideration for Subtenant's entering into this Sublease, all of
which concessions are hereinafter referred to as "Inducement Provisions", shall
be deemed conditioned upon Subtenant's full and faithful performance of all of
the terms, covenants and conditions of this Sublease. Upon Breach of this
Sublease by Subtenant which results in the termination of this Sublease, any
such Inducement Provision shall automatically be deemed deleted from this
Sublease and of no further force or effect, and any rent, other charge, bonus,
inducement or consideration theretofore abated, given or paid by Sublandlord
under such an Inducement Provision less any Abatement Reimbursement Rent paid
pursuant to Paragraph 3.3 shall be immediately due and payable by Subtenant to
Sublandlord. The acceptance by Sublandlord of rent or the cure of the Breach
which initiated the operation of this paragraph shall not be deemed a waiver by
Sublandlord of the provisions of this paragraph with respect to any future
Breach unless specifically so stated in writing by Sublandlord at the time of
such acceptance.
13.4. Breach by Sublandlord.
(a) Notice of Breach. Sublandlord shall not be deemed in breach of
this Sublease unless Sublandlord fails within a reasonable time to perform an
obligation required to be performed by Sublandlord. For purposes of this
Paragraph, a reasonable time shall in no event be more than 30 days after
receipt by Sublandlord, and any Lender whose name and address shall have been
furnished Subtenant in writing for such purpose, of written notice specifying
wherein such obligation of Sublandlord has not been performed; provided,
however, that if the nature of Sublandlord's obligation is such that more than
30 days are reasonably required for its performance, then Sublandlord shall not
be in breach if performance is commenced within such 30 day period and
thereafter diligently pursued to completion. Notwithstanding the foregoing, in
the event of an emergency (as reasonably determined by Subtenant's director of
facilities) and where Sublandlord has not commenced repairs within a reasonable
time, then Subtenant shall have the right to call the service provider
designated by Sublandlord. Sublandlord shall provide a list of such designated
service providers to Subtenant in advance of the Sublease Commencement Date.
(b) Performance by Subtenant on Behalf of Sublandlord. In the event
that neither Sublandlord nor Lender cures said breach within 30 days after
receipt of said notice, or if having commenced said cure they do not diligently
pursue it to completion, then Subtenant may elect to cure said breach at
Subtenant's expense and offset from Rent an amount equal to the greater of one
month's Base Rent or the Security Deposit, and to pay an excess of such expense
under protest, reserving Subtenant's right to reimbursement from Sublandlord.
Subtenant shall document the cost of said cure and supply said documentation to
Sublandlord.
14. Damage or Destruction; Condemnation. Notwithstanding anything in this
Sublease to the contrary, in the event of a fire or other casualty affecting the
Project or the Premises, or of a taking of all or a part of the Project or
Premises under the power of eminent domain, Sublandlord shall not be required to
obtain the consent of Subtenant in order to exercise any right which may have
the effect of terminating the Master Lease. In the event Sublandlord is
entitled, under the Master Lease, to a rent abatement as a result of a fire or
other casualty or as a result of a taking under the power of eminent domain,
then Subtenant shall be entitled to Subtenant's Abatement Share (defined below)
of such rent abatement unless the effect on the Premises of such fire or other
casualty or such taking shall be substantially disproportionate to the amount of
the abatement, in which event the parties shall equitably adjust the abatement
as between themselves, based on the relative impact of the fire or other
casualty, or the taking, as the case may be. "Subtenant's Abatement Share" is
defined, for purposes of this Sublease, as the percentage determined by dividing
the portion of the square footage in the Rentable Area of the Premises with
respect to which possession has been tendered to Subtenant by the total Rentable
Area of the Buildings under the Master Lease (as defined in the Commencement
Date letters thereof). If the Master Lease imposes on Sublandlord the obligation
to repair or restore leasehold improvements or alterations, Subtenant shall be
responsible for repair or restoration of leasehold improvements or alterations
made by Subtenant. Subtenant shall make any insurance proceeds resulting from
the loss which Sublandlord is obligated to repair
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or restore available to Sublandlord and shall permit Sublandlord to enter the
Premises to perform the same, subject to such conditions as Subtenant may
reasonably impose.
15. Brokerage Fees. Each party warrants to the other that it has had no dealings
with any broker or agent in connection with this Sublease other than Cushman and
Wakefield ("CW") as broker for Sublandlord and CB Richard Ellis ("CB") as broker
for Subtenant. Sublandlord shall pay CW a commission pursuant to a separate
written Exclusive Listing Agreement dated March 22, 2001, which commission is to
be shared with CB pursuant to an agreement between CW and CB, a copy of such
agreement is attached hereto as Exhibit N. No other commissions shall be payable
in connection with this transaction. Each party covenants to hold harmless and
indemnify the other party from and against any and all costs (including
reasonable attorneys' fees), expense or liability for any compensation,
commissions and charges claimed by any other broker or other agent with respect
to this Sublease or the negotiation thereof on behalf of such indemnifying
party.
16. Estoppel Certificates.
(a) Each Party (as "Responding Party") shall within ten (10) days
after written notice from the other Party (the "Requesting Party") execute,
acknowledge and deliver to the Requesting Party a statement in writing in form
substantially similar to the form of estoppel certificate attached hereto as
Exhibit H and incorporated herein by this reference ("Estoppel Certificate"),
plus such additional information, confirmation and/or statements as may be
reasonably requested by the Requesting Party.
(b) If the Responding Party shall fail to execute or deliver the Estoppel
Certificate within such ten (10) day period, the Requesting Party may execute an
Estoppel Certificate stating that: (i) the Sublease is in full force and effect
without modification except as may be represented in good faith, using
reasonable business judgment, by the Requesting Party, (ii) there are no uncured
defaults in the Requesting Party's performance, and (iii) if Sublandlord is the
Requesting Party, not more than one (1) month's rent has been paid in advance.
Prospective purchasers and encumbrances may rely upon the Requesting Party's
Estoppel Certificate, and the Responding Party shall be estopped from denying
the truth of the facts contained in said Certificate.
(c) If Sublandlord acquires an ownership interest in the Premises and
desires to finance, refinance, or sell the Premises, or any part thereof, or if
Sublandlord desires to assign, pledge, or hypothecate Sublandlord's leasehold
interest pursuant to the Master Lease, then in the event that Subtenant is no
longer a publicly traded company, Subtenant shall deliver to any potential
lender, purchaser, recipient of such pledge or hypothecation, or
assigneedesignated by Sublandlord such financial statements as may be reasonably
required by such lender or purchaser, including but not limited to Subtenant's
financial statements for the past three (3) years. All such financial statements
shall be received by Sublandlord and such lender or purchaser in confidence and
shall be used only for the purposes herein set forth.
17. Definition of Sublandlord. The term "Sublandlord" as used herein shall mean
the holder at the time in question of Lessee's (as defined in the Master Lease)
interest in the Master Lease. In the event of a transfer of Sublandlord's title
or interest in the Master Lease, Sublandlord shall deliver to the transferee or
assignee (in cash or by credit) any unused Security Deposit held by Sublandlord.
Upon such transfer or assignment and delivery of the Security Deposit, as
aforesaid, the prior Sublandlord shall be relieved of all liability with respect
to the obligations and/or covenants under this Sublease thereafter to be
performed by the Sublandlord. Subject to the foregoing, the obligations and/or
covenants in this Sublease to be performed by the Sublandlord shall be binding
only upon the Sublandlord as hereinabove defined. Notwithstanding the above, and
subject to the provisions of Paragraph 20 below, the original Sublandlord under
this Sublease, and all subsequent holders of the Sublandlord's interest in this
Sublease shall remain liable and responsible with regard to the potential duties
and liabilities of Sublandlord pertaining to Hazardous Materials as outlined in
Paragraph 5.2 above.
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18. Severability. The invalidity of any provision of this Sublease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary, the word
"days" as used in this Sublease shall mean and refer to calendar days.
20. Limitation on Liability. Subject to the provisions of Paragraph 17 above and
only if Sublandlord acquires an ownership interest in the Premises, the
obligations of Sublandlord under this Sublease shall not constitute personal
obligations of Sublandlord, or its employees, directors, officers, shareholders,
or its sucessors and assigns or their respective heirs, and Subtenant shall look
to Sublandlord's interest in the Premises, and to no other assets of
Sublandlord, for the satisfaction of any liability of Sublandlord with respect
to this Sublease, and shall not seek recourse against the individual employees,
directors, officers, shareholders, successors and assigns of Sublandlord, or any
of their personal assets or those of their heirs for such satisfaction. In the
event that Sublandlord has only a leasehold interest in the Premises, the
obligations of Sublandlord under this Sublease shall not constitute personal
obligations of Sublandlord's employees, directors, officers, shareholders, or
Sublandlord's sucessors and assigns or their respective heirs, and Subtenant
shall look to Sublandlord for the satisfaction of any liability of Sublandlord
with respect to this Sublease, and shall not seek recourse against the
individual employees, directors, officers, shareholders, successors and assigns
of Sublandlord, or any of their personal assets or those of their heirs for such
satisfaction.
21. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Sublease.
22. No Prior or Other Agreements. This Sublease is a complete integration and
contains all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or understanding shall
be effective.
23. Notices.
23.1. Notice Requirements. Except as otherwise provided herein, all notices
required or permitted by this Sublease or applicable law shall be in writing and
may be delivered in person (by hand or by courier) or may be sent by regular,
certified or registered mail or U.S. Postal Service Express Mail or other
nationally-recognized overnight courier, with postage prepaid and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 23.
The addresses noted in the Basic Sublease Information above shall be that
Party's address for delivery or mailing of notices. Either Party may by written
notice to the other specify a different address for notice. A copy of all
notices to Sublandlord shall be concurrently transmitted to such party or
parties at such addresses as Sublandlord may from time to time hereafter
designate in writing.
23.2. Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantee next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the Postal Service or courier. If notice is received
after 5:00 p.m. Pacific Time on a business day or on a Saturday, Sunday or legal
holiday, it shall be deemed received on the next business day.
23.3 Notices from Master Landlord.
Each party shall provide to the other party a copy of any notice or demand
received from or delivered to Master Landlord as soon as practicable thereafter,
but preferably within seventy-two (72) hours of receiving, and concurrently upon
delivering, such notice or demand. Notwithstanding the foregoing, Sublandlord
shall only be required to provide
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copies of any notices or demand affecting the Premises or those affecting the
interests of all subtenants in the Project.
24. Waivers. No term, covenant or condition hereof shall be deemed waived,
except by written consent of the party against whom the waiver is claimed, and
any waiver of a breach of any term, covenant or condition hereof shall not be
deemed a waiver of any other term, covenant or condition hereof, or of any
subsequent breach of the same or of any other term, covenant or condition
hereof. Sublandlord's consent to, or approval of, any act shall not be deemed to
render unnecessary the obtaining of Sublandlord's consent to, or approval of,
any subsequent or similar act by Subtenant, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Sublease requiring such
consent. The acceptance of Rent by Sublandlord shall not be a waiver of any
Default or Breach by Subtenant. Any payment by Subtenant may be accepted by
Sublandlord on account of moneys or damages due Sublandlord, notwithstanding any
qualifying statements or conditions made by Subtenant in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Sublandlord at or before
the time of deposit of such payment.
25. No Right To Holdover. Subtenant has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of this
Sublease. In the event that Subtenant holds over, then the Base Rent shall be
increased to one hundred and fifty percent (150%) of the Base Rent applicable
immediately preceding the expiration or termination. Nothing contained herein
shall be construed as consent by Sublandlord to any holding over by Subtenant.
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; Construction of Agreement. All provisions of this
Sublease to be observed or performed by Subtenant are both covenants and
conditions. In construing this Sublease, all headings and titles are for the
convenience of the Parties only and shall not be considered a part of this
Sublease. Whenever required by the context, the singular shall include the
plural and vice versa. This Sublease shall not be construed as if prepared by
one of the Parties, but rather according to its fair meaning as a whole, as if
both Parties had prepared it.
28. Binding Effect; Choice of Law. This Sublease shall be binding upon the
parties, their personal representatives, successors and assigns and be governed
by the laws of the State of California. Any litigation between the Parties
hereto concerning this Sublease shall be initiated in the county in which the
Premises are located.
29. Subordination; Attornment; Non-Disturbance.
29.1. Subordination. This Sublease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed upon the Project or any portion thereof, to any and all
advances made on the security thereof, and to all renewals, modifications, and
extensions thereof. Subtenant agrees that the holders of any such Security
Devices (in this Sublease together referred to as "Lender") shall have no
liability or obligation to perform any of the obligations of Sublandlord under
this Sublease. Any Lender may elect to have this Sublease and/or any Option
granted hereby superior to the lien of its Security Device by giving written
notice thereof to Subtenant, whereupon this Sublease and such Options shall be
deemed prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
29.2. Attornment. In the event that Sublandlord transfers its leasehold
interest in the Premises, or such interest is acquired by another upon the
foreclosure or termination of a Security Device to which this Sublease is
subordinated (i) Subtenant shall attorn to such transferee, and upon request,
enter into a new lease, containing all of the terms and provisions of this
Sublease, with such new owner for the remainder of the term hereof, or, at the
election of such transferee, this Sublease shall automatically become a new
sublease between Subtenant and such transferee, upon all of the terms and
conditions hereof, for the remainder of the term hereof, and (ii) Sublandlord
shall thereafter be relieved
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of any further obligations hereunder and such transferee shall assume all of
Sublandlord's obligations hereunder, except that such transferee shall not: (a)
be liable for any act or omission of any prior Sublandlord or with respect to
events occurring prior to transfer; (b) be subject to any offsets or defenses
which Subtenant might have against any prior Sublandlord, (c) be bound by
prepayment of more than one month's rent, or (d) be liable for the return of any
security deposit paid to any prior Sublandlord.
29.3. Self-Executing. The agreements contained in this Paragraph 29 shall
be effective without the execution of any further documents; provided, however,
that, upon written request from Sublandlord or a Lender in connection with a
sale, financing or refinancing of the Premises, Subtenant and Sublandlord shall
execute such further writings as may be reasonably required to separately
document any subordination, attornment and/or Non-Disturbance Agreement provided
for herein.
29.4 Nondisturbance Agreement.
(a) Upon the execution of this Sublease, Sublandlord shall use
diligent efforts to obtain an agreement ("SNDA") reasonably satisfactory to
Subtenant in recordable form, whereby any existing lenders shall agree that
notwithstanding any foreclosure under a Security Device and subsequent or
previous termination of the Master Lease, Subtenant, upon paying the rents and
fulfilling the other obligations required of Subtenant under this Sublease,
shall not be disturbed in its occupation of the Sublease Premises, and such
Lenders shall continue to recognize Subtenant's tenancy pursuant to the terms
and conditions of this Sublease, subject to and in accordance with the
provisions of the Recognition Agreement referenced in Section 30.1 below, and
subject to customary terms and conditions contained in such subordination,
non-disturbance and attornment agreements. Notwithstanding the fact that this
Sublease shall become binding upon Sublandlord and Subtenant when fully executed
by them, the parties acknowledge and agree that this Sublease is expressly
conditioned upon obtaining an SNDA as described above. If such SNDA is not so
obtained within thirty (30) days following the Effective Date of this Sublease,
then either party may terminate this Sublease upon written notice to the other
party, and in such event, Sublandlord shall promptly return to Subtenant any
prepaid Rent and Security Deposit (less any amounts to which Sublandlord is
entitled under this Sublease) paid or delivered by Subtenant to Sublandlord
pursuant to this Sublease, and neither party shall have any liability to the
other party thereafter accruing.
(b) Upon any subsequent financing or refinancing of the Project (so
that a new Security Device is hereafter placed upon or against all or any
portion of the Project), Sublandlord shall use diligent efforts to obtain an
SNDA with respect to such new Security Device, substantially in accordance with
the provisions of Section 29.4(a). The subordination provisions of Section 29.1
shall not be binding or enforceable with respect to such new Security Device
unless and until such SNDA is obtained for the protection of Sublandlord and
Subtenant.
30. Master Lease Provisions
30.1. Sublease Subordinate. This Sublease and all the rights of parties
hereunder are subject and subordinate to the Master Lease. In the event the
Master Lease is terminated for any reason, then, on the date of such
termination, this Sublease automatically shall terminate and be of no further
force or effect, and the parties hereto shall be relieved of any liability
thereafter accruing, except for liabilities of that parties that by the terms of
this Sublease shall survive expiration or earlier termination. Each party agrees
that it will not, by its act or omission to act, cause a default under the
Master Lease which would lead to the termination of the Master Lease by Master
Landlord. In furtherance of the foregoing, the parties hereby confirm, each to
the other, that as time is of the essence it is not practical in this Sublease
agreement to enumerate all of the rights and obligations of the various parties
under the Master Lease and specifically to allocate those rights and obligations
in this Sublease agreement. Accordingly, in order to afford to Subtenant the
benefits of this Sublease and of those provisions of the Master Lease which by
their nature are intended to benefit the party in possession of the Premises,
and in order to protect Sublandlord against a default by Subtenant which might
cause a default or event of default by Sublandlord under the Master Lease:
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(a) Except as otherwise expressly provided herein, Sublandlord shall
perform its covenants and obligations under the Master Lease which do not
require for their performance possession of the Premises and which are not
otherwise to be performed hereunder by Subtenant on behalf of Sublandlord. For
example, Sublandlord shall at all times keep in full force and effect all
insurance required of Sublandlord as tenant under the Master Lease.
(b) Except as otherwise expressly provided herein, from and after the
Sublease Commencement Date (or Commencement Date or Early Commencement or
Fixturing Period access date as the case may be), Subtenant shall perform all
affirmative covenants and shall refrain from performing any act which is
prohibited by the negative covenants of the Master Lease, where the obligation
to perform or refrain from performing is by its nature imposed upon the party in
possession of the Premises. If practicable, and where given appropriate advance
notice by Sublandlord, Subtenant shall perform affirmative covenants which are
also covenants of Sublandlord under the Master Lease at least five (5) days
prior to the date when Sublandlord's performance is required under the Master
Lease. If Subtenant fails to comply with any of the obligations of the preceding
sentence, and does not cure within the applicable cure period, then Sublandlord
shall have the right to enter the Premises to cure any default by Subtenant
under this Paragraph.
In particular, and without limiting the foregoing, Subtenant shall
fulfill, at Subtenant's sole cost and expense (including reimbursement of costs
included as Operating Expenses), all obligations imposed on occupants of the
Project in connection with the Moffett Park Transportation Demand Management
Plan described in Section 5.07 of the Master Lease and made part of the Master
Lease as Exhibit M, including any amendments or revisions thereto (the "Plan").
Subtenant acknowledges that the Plan applies to the occupants of the Project as
a group rather than individually and Subtenant agrees to reasonably cooperate
and coordinate efforts with Sublandlord and other Project occupants in order to
effectively and efficiently carry out the Plan. Sublandlord agrees to coordinate
Plan compliance efforts on behalf of the Project, either itself or through its
designee, and Subtenant shall cooperate with same. For purposes of this
Paragraph 30.1, Sublandlord or its designee shall have the have the right, in
its sole reasonable discretion, to determine what constitutes "obligations
imposed on occupants of the Project in connection with the Plan" as that phrase
applies to Subtenant; provided, that, greater Plan requirements may not be
imposed on Subtenant than on other Project occupants (including Sublandlord)
under like circumstances, and provided that Subtenant shall be reasonably
notified of obligations not included in the Master Lease or this Sublease.
(c) Sublandlord hereby grants to Subtenant the right to receive all of
the services with respect to the Premises which are to be provided by Master
Landlord under the Master Lease. Sublandlord shall have no responsibility for or
be liable to Subtenant for any default, failure or delay on the part of Master
Landlord in the performance or observance by Master Landlord of any of its
obligations under the Master Lease, nor shall such default by Master Landlord
affect this Sublease or waive or defer the performance of any of Subtenant's
obligations hereunder except to the extent that such default by Master Landlord
excuses performance by Sublandlord, under the Master Lease. In the event of
Master Landlord's failure to perform its obligations under the Master Lease that
inure to the benefit of Subtenant hereunder, Sublandlord shall, after written
request from Subtenant, take such steps as Sublandlord determines to be
commercially reasonable to secure Master Landlord's performance of such
obligations, provided (i) Subtenant pays, on demand, all costs and expenses of
Sublandlord associated therewith, (ii) Subtenant provides security reasonably
satisfactory to Sublandlord to pay such costs and expenses and (iii) Subtenant
is not in default under this Sublease.
Subtenant acknowledges that it has been provided with a copy of the Master
Lease and that it has reviewed and analyzed all of its provisions, including the
Exhibits thereto, and that Subtenant is familiar with all of said provisions.
Notwithstanding anything in this Sublease to the contrary, (i) obligations of
either party under this Sublease shall not include acts for which Master
Landlord is responsible under the Master Lease and (ii) Subtenant's rights under
this Sublease shall not include any rights (vis a vis the Master Landlord) not
granted to Sublandlord as "Lessee" under the Master Lease nor any rights that
are in violation of the provisions of the Master Lease, except as specifically
granted by Master Landlord. Subtenant agrees to promptly notify Sublandlord of
any default of Master Landlord under the Master Lease of which Subtenant becomes
aware.
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If the termination of the Master Lease (and the resulting termination of
this Sublease) occurs, Sublandlord shall have no liability therefor to Subtenant
unless such termination results from Sublandlord's breach of the Master Lease or
this Sublease. Sublandlord agrees to request from Master Landlord, at the time
Sublandlord requests Master Landlord's consent to this Sublease (see Paragraph
30.5), Master Landlord's agreement ("Recognition Agreement"), on commercially
reasonable terms and conditions, not to disturb Subtenant's occupancy of the
Premises in the event of Sublandlord's default and a resulting termination of
the Master Lease.
Notwithstanding anything to the contrary in this Sublease, Sublandlord
shall not be required to fulfill any obligation if unable to perform through no
fault of Sublandlord. Subtenant agrees that it will not take or permit any
action or fail to perform or observe any obligation, which causes an event of
default under the Master Lease and/or causes the Master Lease to be terminated
or forfeited, and Subtenant shall indemnify, defend, protect and hold harmless
Sublandlord from and against any and all claims, demands, suits, costs,
expenses, damages and liabilities, including reasonable attorneys' fees, arising
by reason of any act or omission on the part of the indemnifying party which is
in breach of this Paragraph.
30.2. Cooperation With Subtenant. Sublandlord agrees to use commercially
reasonable efforts to cooperate with Subtenant in (1) obtaining for Subtenant
Master Landlord's consent to any action for which the Master Lease requires
Master Landlord's consent, and (2) delivering any notice to Master Landlord as
required by any provision of the Master Lease, including, without limitation,
forwarding (as soon as practicable after Sublandlord's receipt) any request made
by Subtenant to Master Landlord for consent or approval, and providing Master
Landlord with all information required (or that Master Landlord may reasonably
request) regarding any such request. The fact that Master Landlord has consented
to an action of Subtenant shall not in any way limit or restrict any right of
Sublandlord to withhold Sublandlord's consent to such action. Sublandlord shall
have no liability to Subtenant by reason of Master Landlord's refusal to consent
to any action of Subtenant.
30.3. Sublandlord Representations. Sublandlord hereby represents and
warrants that, at the time of Sublandlord's execution of this Sublease, (i) the
document attached as Exhibit A to this Sublease is a complete copy of the Master
Lease and that the Master Lease represents the entire agreement between
Sublandlord and Master Landlord with respect to the lease of the Premises, (ii)
the Master Lease is in full force and effect, and (ii) Sublandlord has not
assigned, encumbered or otherwise transferred any interest in the Premises.
30.4. Modification. Subject to Paragraph 30.7, Sublandlord shall neither
amend nor modify the Master Lease in such a way that will materially adversely
affect Subtenant's interest in this Sublease or increase Subtenant's
obligations, costs, or expenses, without the prior written consent of Subtenant,
which consent shall not be unreasonably withheld, conditioned or deferred.
30.5. Consent To This Sublease. Subtenant acknowledges that, under the
terms of the Master Lease, this Sublease requires the prior written consent of
the Master Landlord, and that this Sublease shall not be effective until such
written consent is given. In accordance with this Master Lease requirement,
Subtenant shall have no right to use or occupy the Premises prior to such time
as Master Landlord provides its consent to this Sublease. Sublandlord agrees to
use reasonable efforts to obtain Master Landlord's consent and Subtenant agrees
to provide any information regarding Subtenant which Master Landlord may
reasonably request. This Sublease shall become binding upon Sublandlord and
Subtenant only when fully executed by Sublandlord and Subtenant. Sublandlord and
Subtenant acknowledge and agree that this Sublease is expressly conditioned upon
obtaining the Master Landlord's consent following such full execution in the
form substantially identical to Exhibit G attached hereto, or other form
mutually agreeable to the parties in their sole discretion. If Master Landlord
has not provided the Sublease Consent within forty-five (45) days after receipt
of a signed Sublease from Subtenant, then both Sublandlord and Subtenant shall
have the right, by written notice to the other party, to terminate this
Sublease. For purposes of this Subparagraph 30.5, (i) Subtenant may require that
Master Landlord agree to a Recognition Agreement and it shall be deemed
reasonable of Subtenant to reject Master Landlord's consent to this Sublease if
Master Landlord refuses such an agreement and (ii) Sublandlord and Subtenant may
each
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require that Master Landlord expressly consent to the Option contained in this
Sublease at Paragraph 39 and it shall be deemed reasonable of either Sublandlord
or Subtenant to reject Master Landlord's consent to this Sublease if Master
Landlord refuses such consent. The aforementioned 45-day time period shall not
be extended by reason of Master Landlord's refusal to either condition of the
previous sentence.
30.6. Defined Terms. Terms used in this Sublease as defined terms and not
otherwise defined herein shall have the same meanings as in the Master Lease.
30.7. Multiple New Master Leases. Master Landlord has expressed to
Sublandlord an interest in having the land underneath the Buildings divided into
four or more legal parcels, with the result that each Building be located on a
separate legal parcel. Sublandlord shall have the right, in its sole discretion,
to agree to an amendment of the Master Lease , and Subtenant agrees to
concurrently enter into a new sublease or subleases on substantially the same
terms as this Sublease in which Subtenant agrees to accept reasonable property
restrictions placed in connection with the reparcelization The procedure for
entering into such new sublease agreements shall be as follows: Sublandlord
shall give Sublessee notice of the amendment of the Master Lease, and,
thereafter, Sublandlord and Sublessee shall use reasonable good faith efforts to
agree upon, execute and deliver a new sublease agreement or agreements, which
sublease agreement(s) shall be, cumulatively, substantially similar to this
Sublease. Sublandlord shall be entitled to retain any benefit conferred on or
granted to Sublandlord by virtue of the foregoing activities; Sublandlord and
Subtenant shall each bear their own costs in connection with the same.
30.8. Conflict. In the event of a conflict between the provisions of this
Sublease and the provisions of the Master Lease, as between Sublandlord and
Subtenant the provisions of this Sublease shall control.
31. Attorneys' Fees. If either Party brings an action or proceeding involving
the Premises whether founded in tort, contract or equity, or to declare rights
hereunder, the Prevailing Party (as hereafter defined) in any such proceeding,
action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such
fees may be awarded in the same suit or recovered in a separate suit, whether or
not such action or proceeding is pursued to decision or judgment. The term,
"Prevailing Party" shall include, without limitation, a Party who substantially
obtains or defeats the relief sought, as the case may be, whether by compromise,
settlement, judgment, or the abandonment by the other Party of its claim or
defense. The attorneys' fees 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 addition, Sublandlord shall be entitled to attorneys'
fees, costs and expenses incurred in the preparation and service of notices of
Default and consultations in connection therewith, whether or not a legal action
is subsequently commenced in connection with such Default or resulting Breach.
32. Sublandlord's Access to Premises.
32.1. Generally. Sublandlord and Sublandlord's agents shall have the right
to enter the Premises at any time, in the case of an emergency, and otherwise
upon reasonable notice by telephone or electronic mail to Subtenant's designated
contact or substitute for the purpose of inspecting the Premises; showing the
Premises to prospective purchasers, lenders, or prospective tenants and realtors
(prospective tenants and realtors during the last year of the Sublease term or
any extensions thereto); making such alterations, repairs, improvements or
additions to the Premises as Sublandlord may deem necessary or desirable or that
Subtenant fails to perform; to access security and HVAC controls and network
connections for HVAC and security, as well as fiber ties that may be located in
IDC rooms on the Premises; and such other purposes as Sublandlord may deem
necessary or desirable, including but not limited to proper functioning of
Building climate control and Project security systems. Sublandlord may at any
time place on the Premises any ordinary "For Sale" signs and Sublandlord may
during the last 6 months of the term hereof place on the Premises any ordinary
"For Lease" signs. Subtenant may at any time place on the Premises any ordinary
"For Lease" sign. Notwithstanding any other provision of this Paragraph 32,
Sublandlord may enter the Premises at any time to take possession due to any
Breach of this Sublease.
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32.2. Subtenant's Waiver. Sublandlord may enter the Premises without the
abatement of Rent and may take steps to accomplish the stated purposes.
Subtenant waives any claims for damages caused by Sublandlord's entry, including
damage claims for: (i) injuries; (ii) inconvenience to or interference with
Subtenant's business; (iii) lost profits; (iv) loss of occupancy or quiet
enjoyment of the Premises. During such entry Sublandlord shall accord reasonable
care to Subtenant's property and comply with Subtenant's reasonable security
measures which have been made known to Sublandlord.
32.3. Method of Entry. For entry as permitted by this Paragraph 32,
Sublandlord shall at all times have a key or, if applicable, a card key with
which to unlock all the doors in the Premises. In an emergency situation,
Sublandlord shall have the right to use any means that Sublandlord considers
proper to open the doors in and to the Premises. Any such entry into the
Premises by Sublandlord shall not be considered a forcible or unlawful entry
into, or a detainer of, the Premises or an actual or constructive eviction of
Subtenant from any portion of the Premises.
33. Auctions. Subtenant shall not conduct, nor permit to be conducted, any
auction upon the Premises without Sublandlord's prior written consent.
Sublandlord shall not be obligated to exercise any standard of reasonableness in
determining whether to permit an auction.
34. Signs. Except as provided in this Paragraph 34, Subtenant shall not place
any sign upon the Project without Sublandlord's prior written consent. All signs
must comply with all Applicable Requirements. Subtenant shall be permitted, at
Subtenant's sole cost and expense, to install signage on the face of
Project-standard monuments in the Project as well as directory signage in the
lobby of each Building it occupies. In addition, Subtenant shall be allotted
exterior building signage to the maximum size permitted by the City of Sunnyvale
requirements for exterior building signage at the Project so long as such
signage is no larger than that of Sublandlord, and Subtenant shall be permitted
to place such exterior building signage on Building One so as to be visible from
the freeway. Only Subtenant shall be allowed to put exterior building signage on
Building One. Sublandlord shall approve exterior building signage which
substantially complies with the Site Signage Plan (as it specifically applies to
Building One), attached hereto as Exhibit O (the parties acknowledge that the
Site Signage Plan attached hereto shall be submitted to the City of Sunnyvale by
Ariba, Inc. In the event that such plan is not approved by the City of
Sunnyvale, the parties shall cooperate with each other to submit a revised plan
to the City of Sunnyvale consistent with the intent of this Paragraph 34.
Subtenant shall not be entitled to use other Project signage areas without
paying for such use at the rate applicable from time to time as set by
Sublandlord. All signs are subject to Master Landlord's prior written consent as
provided in the Master Lease and all other applicable restrictions and
requirements contained therein.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Sublandlord, the voluntary or other surrender of this Sublease by Subtenant, the
mutual termination or cancellation hereof, or a termination hereof by
Sublandlord for Breach by Subtenant, shall automatically terminate any
sub-sublease or lesser estate in the Premises; provided, however, that
Sublandlord may elect to continue any one or all existing subtenancies.
Sublandlord's failure within 10 days following Sublandlord's actual knowledge of
any such event to elect to the contrary by written notice to the holder of any
such lesser interest, shall constitute Sublandlord's election to have such event
constitute the termination of such interest.
36. Consents. Except as otherwise provided herein, wherever in this Sublease the
consent of a Party is required to an act by or for the other Party, such consent
shall not be unreasonably withheld or delayed. Sublandlord's actual reasonable
costs and expenses (including but not limited to architects', attorneys',
engineers' and other consultants' fees) incurred in the consideration of, or
response to, a request by Subtenant for any Sublandlord consent, including but
not limited to consents to an assignment, a subletting or the presence or use of
any Hazardous Materials, shall be paid by Subtenant upon receipt of an invoice
and supporting documentation therefor. Sublandlord's consent to any act,
assignment or subletting shall not constitute an acknowledgment that no Default
or Breach by Subtenant of this Sublease exists, nor shall such consent be deemed
a waiver of any then existing Default or Breach, except as may be otherwise
specifically stated in writing by Sublandlord at the time of such consent. The
failure to specify herein any particular
42
condition to Sublandlord's consent shall not preclude the imposition by
Sublandlord at the time of consent of such further or other conditions as are
then reasonable with reference to the particular matter for which consent is
being given. In the event that either Party disagrees with any determination
made by the other hereunder and reasonably requests the reasons for such
determination, the determining party shall furnish its reasons in writing and in
reasonable detail within 10 business days following such request.
37. Quiet Possession. Subject to payment by Subtenant of the Rent and
performance of all of the covenants, conditions and provisions on Subtenant's
part to be observed and performed under this Sublease, Subtenant shall have
quiet possession and quiet enjoyment of the Premises during the term hereof.
38. Options. If Subtenant is granted an option, as defined below, then the
following provisions shall apply.
38.1. Definition. "Option" shall mean: (a) the right to extend the term of
or renew this Sublease or to extend or renew any lease or sublease that
Subtenant has on other property of Sublandlord (b) the right of first refusal or
first offer to lease or sublease either the Premises or other property of
Sublandlord; (c) the right to purchase or the right of first refusal to purchase
the Premises or other property of Sublandlord.
38.2. Options Personal To Original Subtenant. Any Option granted to
Subtenant in this Sublease is personal to the original Subtenant, and cannot be
assigned, except to an Affiliate as defined herein, or exercised by anyone other
than Subtenant or said Affiliate and only while the original Subtenant or said
Affiliate is in possession of the Premises (including properly approved
subleasing or assignment pursuant to Paragraph 12) unless otherwise agreed to by
Sublandlord in writing and, if requested by Sublandlord, with Subtenant
certifying that Subtenant has no intention of assigning or subletting for a
period of one (1) year.
38.3. Multiple Options. In the event that Subtenant has any multiple
Options to extend or renew this Sublease, a later Option cannot be exercised
unless the prior Options have been validly exercised.
38.4. Master Lease Options. "Master Lease Option" shall mean: (a) the right
to extend the term of or renew the Master Lease or to extend or renew any lease
or sublease that Sublandlord has on other property of Master Landlord, (b) the
right of first refusal or first offer to lease or sublease either the Premises
or other property of Master Landlord; (c) the right to purchase or the right of
first refusal to purchase the Premises or other property of Master Landlord.
Subtenant shall have no right whatsoever in any Master Lease Option and
Sublandlord shall have the sole and absolute discretion regarding its exercise
of its Master Lease Options.
38.5. Effect of Default on Options.
(a) Subtenant shall have no right to exercise an Option: (i) during
the period commencing with the giving of any notice of Default and continuing
until said Default is cured, (ii) during the period of time any Rent is unpaid
(without regard to whether notice thereof is given Subtenant), (iii) during the
time Subtenant is in Breach of this Sublease, or (iv) in the event that
Subtenant has been given 3 or more notices of separate Default, whether or not
the Defaults are cured, during the 12 month period immediately preceding the
exercise of the Option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Subtenant's inability to exercise an
Option because of the provisions of Paragraph 38.5(a) above.
(c) An Option shall terminate and be of no further force or effect,
notwithstanding Subtenant's due and timely exercise of the Option, if, after
such exercise and prior to the commencement of the extended term, (i) Subtenant
fails to pay Rent for a period of 30 days after such Rent becomes due (without
any necessity of Sublandlord to give notice thereof), (ii) Sublandlord gives to
Subtenant 3 or more notices of separate Default during any 12 month period,
whether or not the Defaults are cured, or (iii) Subtenant commits a Breach of
this Sublease.
43
39. Option to Extend Term. Subject to Master Landlord's binding consent thereto
and subparagraph (c) of this Paragraph 39, Sublandlord hereby grants to
Subtenant the following Option to extend the term of this Sublease:
(a) Subtenant shall have the Option to extend the term of this
Sublease for an additional sixty-four (64) months and twenty-four (24) days
starting immediately upon expiration of the Original Term ("Option Term"). The
Option Term shall be under all of the covenants, terms and conditions of the
Sublease, except that the following provisions will not be part of this Sublease
for the Option Term: (i) the amount of Base Rent to be paid by Subtenant during
the Option Term, which shall be established as set forth below, and (ii) the
Option to extend provided for in this Paragraph. If Subtenant elects to exercise
the Option, Subtenant shall give Sublandlord written notice of such election
("Option Notice") not more than two hundred ten (210) days nor less than one
hundred eighty (180) days before the end of the Original Term, time being of the
essence. No later than one (1) month prior to the commencement of the Option
Term, the Security Deposit shall be increased to the minimum amount allowable
during the Option Term as set forth in Paragraph 4.
(b) If Subtenant exercises the Option, Base Rent for the Option Term
shall be as follows:
- --------------------------------------------------------------------------
Period $/month/SF SF $/month
- --------------------------------------------------------------------------
8/1/07 to 7/31/08 $4.61 263,823 $1,216,224
- --------------------------------------------------------------------------
8/1/08 to 7/31/09 $4.79 263,823 $1,263,712
- --------------------------------------------------------------------------
8/1/09 to 7/31/10 $4.99 263,823 $1,316,477
- --------------------------------------------------------------------------
8/1/10 to 7/31/11 $5.19 263,823 $1,369,241
- --------------------------------------------------------------------------
8/1/11 to 7/31/12 $5.39 263,823 $1,422,066
- --------------------------------------------------------------------------
8/1/12 to 12/24/12 $5.61 263,823 $1,480,047
- --------------------------------------------------------------------------
(c) Notwithstanding anything to the contrary in this Sublease, except
with respect to Building One, in the event Subtenant exercises the Option,
Sublandlord shall have the right to relocate Subtenant for the Option Term to
other space comparable to the Premises in the Project (e.g. one floor above the
other) (such relocated portion of the Premises shall with the Building One
premises constitute the Premises for the purpose of this Sublease), and the
parties shall enter into a new sublease (or lease, if applicable) or an
amendment to this Sublease, whichever is deemed appropriate by Sublandlord, for
the Option Term, on terms that are materially similar to the terms of this
Sublease, as reasonably determined by Sublandlord. If Sublandlord decides to
relocate Subtenant, Sublandlord shall:
(i) Give Subtenant notice within sixty (60) days of
Sublandlord's receipt of the Option Notice;
(ii) Pay all reasonable costs associated with such
relocation;
(iii) Provide Subtenant at Sublandlord's expense with tenant
improvements at least equal in quality to those in the Premises; and
(iv) Move Subtenant's effects at Sublandlord's expense to
the new space at a time and in a manner reasonably selected to reduce
inconvenience to Subtenant.
The parties shall execute an amendment to this Sublease or a new sublease (or
lease, if applicable) stating the relocation of the Premises and such other
changed terms as are reasonably determined by Sublandlord to be necessary or
appropriate.
44
40. Substitution of Other Premises. Sublandlord shall have the right to relocate
Subtenant from any portion of the Premises not part of a Building fully-occupied
by Subtenant (e.g. Building One after Subtenant has reached the Commencement
Date on each of the four (4) floors therein) to other space in the Project
comparable to such portion of the Premises (e.g. one floor above the other)
(such substituted portion of the Premises shall with the remaining original
premises constitute the Premises for the purpose of this Sublease), and the
parties shall enter into a new sublease (or lease, if applicable) or an
amendment to this Sublease, whichever is deemed appropriate by Sublandlord on
terms that are materially similar to the terms of this Sublease, as reasonably
determined by Sublandlord. If Sublandlord decides to relocate Subtenant,
Sublandlord shall:
(a) Give Subtenant prior notice;
(b) Pay all reasonable costs associated with such relocation;
(c) Provide Subtenant at Sublandlord's expense with tenant
improvements at least equal in quality to those in the portion of the Premises
from which Subtenant is relocated; and
(d) Move Subtenant's effects at Sublandlord's expense to the new space
at a time and in a manner that will inconvenience Subtenant as little as
possible.
The parties shall execute an amendment to this Sublease stating the relocation
of the portion of the Premises and such other changed terms as are reasonably
determined by Sublandlord to be necessary or appropriate.
41. Reservations. Sublandlord reserves the right: (i) to grant, without the
consent or joinder of Subtenant, such easements, rights and dedications that
Sublandlord deems necessary, (ii) to cause the recordation of parcel maps and
restrictions, and (iii) to create and/or install new utility raceways, so long
as such easements, rights, dedications, maps, restrictions, and utility raceways
do not unreasonably interfere with the use of the Premises by Subtenant.
Subtenant agrees to sign any documents reasonably requested by Sublandlord to
effectuate such rights.
42. 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.
43. Authority. Each individual executing this Sublease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver
this Sublease on its behalf. Each party shall, within 30 days after request,
deliver to the other party satisfactory evidence of such authority.
44. Amendments. This Sublease may be modified only in writing, signed by the
Parties in interest at the time of the modification. As long as they do not
materially change Subtenant's obligations, costs, or expenses hereunder,
Subtenant agrees to make such reasonable non-monetary modifications to this
Sublease as may be reasonably required by a Lender in connection with the
obtaining of normal financing or refinancing of the Premises.
45. Exhibits. Attached hereto are the following Exhibits which constitute a part
of this Sublease:
(a) Exhibit A - Master Lease (exclusive of Exhibit I which shall be
provided separately to the parties as described below in the note to
Exhibit M)
(b) Exhibit B - Premises
45
(c) Exhibit C - Sublandlord's Rules and Regulations
(d) Exhibit D - Commencement Date Memorandum
(e) Exhibit E - Ravendale Lease
(f) Exhibit F - Letter of Credit
(g) Exhibit G - Consent to Sublease
(h) Exhibit H - Estoppel Certificate
(i) Exhibit I - Work Letter Agreement Agreement (including Attachment
1 (Conceptual Plan) and Attachment 2 (B1F1 Shell Work: Bldg 1 1st Floor
Only Addendum 5 Revised April 13, 2001 and Supplemental Instruction N)
thereto)
(j) Exhibit J - Cafeteria Access Agreement
(k) Exhibit K - Fitness Center Access Agreement
(l) Exhibit L - Janitorial Services Description
(m) Exhibit M - Additional Environmental Report and Materials (For
convenience, Exhibit M shall be provided along with Exhibit I of the Master
Lease in a separate "environmental" binder)
(n) Exhibit N - Brokers' Letter
(o) Exhibit O - Site Signage Plan
46
IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
Ariba, Inc.,
a Delaware corporation
By: /s/ Robert M. Calderoni
-----------------------------
Robert M Calderoni
Its: Chief Financial Officer
-----------------------------
SUBTENANT:
Interwoven , Inc.,
a Delaware corporation
By: /s/ David M. Allen
-----------------------------
David M. Allen
Its: Chief Financial Officer
-----------------------------
47
BROKER EXECUTION
By signing below, the indicated real estate broker or agent is not being
made a party hereto but is signifying its agreement with the provisions hereof
concerning brokerage.
SUBLANDLORD'S BROKER: ADDRESS:
Cushman & Wakefield of California, Inc. 2055 Gateway Place, Suite 550
San Jose, California 95110
By: /s/ Hernan Santos
---------------------------
Hernan Santos
Its: Director
SUBTENANT'S BROKER: ADDRESS:
CB Richard Ellis 1195 W. Fremont Avenue
Sunnyvale, California 94087
By: /s/ Scott G. Mathisen
---------------------------
Scott G. Mathisen
Its: Senior Vice President
48
EXHIBIT A
---------
MASTER LEASE
1. Phase I Environmental Site Assessment of the Property Located at 1111
Lockheed Martin Way Buildings 104 and 105, and Adjacent Land,
Sunnyvale, California dated April 22, 1999 (Job No.
04.0018178.001.001); prepared by McLaren/Hart, Inc. located at 1320
Harbor Bay Parkway, Suite 100, Alameda, California 94502
2. Phase II Environmental Site Assessment Lockheed Martin Missiles and
Space Facility Buildings 104 and 105, Mountain View, California dated
October 4, 1999 (Job No. 99-108B); prepared by Iris Environmental
located in Oakland, California
The above mentioned items (Exhibit I to the Master Lease have been provided
in a separate binder hereto titled "Ariba Plaza Exhibit I to the Master
Lease and Exhibit M to the Sublease", otherwise Master Lease is provided in
its entirety herein.
TECHNOLOGY CORNERS
TRIPLE NET MULTIPLE BUILDING LEASE
Between
MOFFETT PARK DRIVE LLC
a California limited liability company
as
LESSOR
and
ARIBA, INC.
a Delaware corporation
as
LESSEE
for
PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California 94089
1
ARTICLE I
---------
PARTIES
-------
Section 1.01. Parties. This Lease, dated for reference purposes, and
----------------------
effective as of March 15, 2000, is made by and between MOFFETT PARK DRIVE LLC, a
California limited liability company, or assignee, ("Lessor") and ARIBA, INC., a
Delaware corporation ("Lessee").
ARTICLE II
----------
PREMISES
--------
Section 2.01. Demise of Premises. Lessor hereby leases to Lessee and
---------------------------------
Lessee leases from Lessor for the term, at the rental, and upon all of the terms
and conditions set forth herein, Premises consisting of four free standing, four
story office and research and development buildings (shown as Buildings "One,"
"Two," "Three," and "Four" on Exhibit "A" hereto) and one ancillary building to
be used for such service and/or food purposes such as fitness spa, a day care,
dry cleaners and cafeteria for the benefit of Lessee's employees as determined
by Lessee but subject to Lessor's consent which shall not be unreasonably
withheld and subject to Lessor determining that it can obtain all City permit
and approval requirements pertaining to same ("Amenity Building") (collectively
"Buildings") to be constructed by Lessor on real property situated in the City
of Sunnyvale, County of Santa Clara, State of California and commonly known as
1111 Lockheed Martin Way, Sunnyvale, California (the "Property"). Each office
and research and development Building will consist of approximately one hundred
seventy five thousand (175,000) rentable square feet and the Amenity Building of
approximately fifteen thousand (15,000) rentable square feet, as more
particularly described and depicted herein in Exhibit "A" for a total of seven
hundred fifteen thousand (715,000) rentable square feet. The actual rentable
square footage of the Buildings (the "Rentable Area") will be determined and
certified by Lessor's architect by a method described as "dripline," whereby the
measurement encompasses the outermost perimeter of each constructed building,
including every projection thereof and all area beneath each such projection,
whether or not enclosed, with no deduction for any inward deviation of structure
and with the measurement being made floor by floor, beginning from the top of
the Building. The Buildings, including the Amenity Building, and appurtenances
described herein, the Property, and all other improvements to be built on the
Property including a parking structure are together designated as the "Project."
Each Building for which the Delivery Date as provided in Section 3.01(b) (or any
earlier deemed Delivery Date as provided in Section 4.01) has occurred, and
those portions of the Project (other than the Buildings) as to which possession
has been tendered to Lessee following substantial completion of all improvements
to be constructed thereon by Lessor, shall collectively be referred to herein as
the "Premises."
Section 2.02. Outside Area. During the Lease Term, Lessee shall have the
---------------------------
right to use the Outside Area defined herein surrounding the Buildings. Lessor
reserves the right to modify the Outside Area, including reducing the size or
changing the configuration and elements thereof in its sole discretion and to
close or restrict access from time-to-time for repair, maintenance or to prevent
a dedication thereof, provided that Lessee nonetheless shall have access to
parking and the Premises (including all Buildings) at all times. Lessor further
reserves the right to establish, repeal and amend from time-to-time rules and
regulations for the use of the Outside
1
Area and to grant reciprocal easements or other rights to use the Outside Area
to owners of other property, which shall not unreasonably interfere with use or
enjoyment of the Premises.
Section 2.03. Parking. Lessor shall provide Lessee with parking as
----------------------
required by the City of Sunnyvale at the Premises. In the event Lessor elects or
is required by any law to limit or control parking at the Premises, whether by
validation of parking tickets or any other method of assessment, Lessee agrees
to participate in such validation or assessment program under such reasonable
rules and regulations as are from time-to-time established by Lessor.
Section 2.04. Construction.
------------------------------
(a) Government Approvals. Lessor shall diligently pursue
---------------------
obtaining governmental approval of a Site Plan and Buildings designs and
elevations with respect to the development of the Premises, copies of which are
attached hereto as Exhibit "A." The parties acknowledge and agree that the final
footprint and elevations of the Buildings may vary from those attached as
Exhibit "A" because the plans and specifications will undergo a plancheck
process with the City of Sunnyvale and Lessor will make such revisions as are
required or are otherwise deemed necessary or appropriate by Lessor, provided
however, that nothing herein shall be deemed to relieve Lessor from the duty to
develop the Buildings substantially in compliance with Exhibit "A."
(b) Construction of Building Shells. Lessor, utilizing Rudolph &
--------------------------------
Sletten (or such alternate as Lessor in its sole discretion may select) as
general contractor ("General Contractor"), shall construct the "Building Shell"
(as defined in the attached Exhibit "D") for each Building in accordance with
(i) plans and specifications to be attached as Exhibit "B" and (ii) all existing
applicable municipal, local, state and federal laws, statutes, rules,
regulations and ordinances. Lessor shall pay all costs of constructing the
Building Shells. Lessor and Lessee acknowledge and agree that the definition of
"Building Shell" includes all required landscaping and site improvements for the
Project as set forth in plans approved by the Lessor and the City of Sunnyvale.
(c) Construction of Tenant Improvements. All improvements not
------------------------------------
included within the scope of the Building Shells shall be deemed "Tenant
Improvements." Lessor, using the General Contractor, shall construct the Tenant
Improvements and Lessee shall pay all costs associated with same.
(d) Tenant Improvement Plans and Cost Estimate. Lessee shall
-------------------------------------------
work with Lessee's architect to develop interior schematic drawings and Lessee
shall approve final interior schematic drawings for the Tenant Improvements for
all Buildings and obtain Lessor's approval thereof (which approval shall not be
unreasonably withheld or delayed) no later than May 15, 2000. Lessee shall work
with Lessor's architect to develop working drawings outlining, among other
things, Lessee's wall layout, detailed electrical, plumbing and air conditioning
requirements and finishes ("Working Drawings") and Lessee shall approve final
Working Drawings for the Buildings on or before July 1, 2000 for Building Three
and the Amenity Building, July 21, 2000 for Building Four, August 5, 2000 for
Building Two and September 8, 2000 for Building One. The cost of the interior
schematic drawings and Working Drawings shall be a Tenant Improvement cost and
Lessor agrees that Lessor's architect's fees shall not vary
2
materially from the range of fees charged for similar work for similar
tenant improvements under similar time constraints by architects of similar
ability, experience and expertise in the Silicon Valley community. Based on this
information, Lessor shall cause the General Contractor to prepare and deliver to
Lessee a budget for the Tenant Improvements ("Budget"). Lessee shall approve the
Budget (or modify the same with Lessor's consent), in writing, within ten (10)
business days thereafter. The Working Drawings and Budget must be approved by
Lessor in writing and be of quality equal to or greater than the Interior
Specifications standards set forth in Exhibit "C." Once the Budget is approved,
Lessor shall enter into a guaranteed maximum price contract with the General
Contractor for the construction of the Tenant Improvements consistent with the
approved Budget. A Lessee representative may attend construction meetings
between Lessor and its General Contractor concerning Tenant Improvements, but
nothing herein shall either (i) create or imply a duty on the part of Lessor to
notify Lessee of such meetings, or (ii) invalidate or otherwise affect in any
manner anything which takes place at or as a result of any such meeting which
Lessee's representative fails to attend, whether or not it had notice of same.
(e) Construction Plans. The complete, detailed plans and
-------------------
specifications for the construction of the Shell Buildings shall be attached as
Exhibit "B" and incorporated into this Lease. Attached as Exhibit "C" to this
Lease is a Work Letter Agreement for Tenant Improvements, and Exhibit "D," Cost
Responsibilities of Lessor and Lessee, which together with this Section 2.04,
describe the planning and payment responsibilities of Lessor and Lessee with
respect to the construction of the Building Shells and Tenant Improvements at
the Premises. All approved Tenant Improvements shall be constructed in
accordance with a construction schedule approved by Lessor and no portion of any
Building shall remain unimproved.
(f) Tenant Improvement Costs. Lessor shall provide to Lessee
-------------------------
semi-improved "cold" shell facilities as described in Exhibit "D" attached.
Lessor shall cause the General Contractor to construct the Tenant Improvements
outlined in Exhibit "D," as further outlined in the Tenant Improvement Work
Letter attached as Exhibit "C" and Lessee shall pay all costs and expenses of
same. Subcontracts for all Tenant Improvement Work shall be obtained by a sealed
competitive bid process (involving at least two qualified bidders) wherever
practical and as to work done without such process, Lessor or the General
Contractor shall provide reasonable assurance to Lessee that the cost and
expense of same is competitive in the industry for first-class workmanship and
materials. Lessor shall use good faith efforts (and instruct the General
Contractor to do same) to keep Lessee generally informed as to all aspects of
the pricing, bidding, contracting and construction processes with respect to the
Tenant Improvements.
(g) Payment for Tenant Improvements. Within six (6) months after
--------------------------------
execution of this Lease by both parties, Lessee shall deposit with Lessor an
unconditional, irrevocable standby letter of credit in the amount of Fourteen
Million, Three Hundred Thousand Dollars ($14,300,000), with Lessor as
beneficiary and providing for payment on presentation of Lessor's drafts) on
sight, without documents, drawable in whole or in part on a money center bank in
San Francisco acceptable to Lessor with a twelve (12) month term and in all
other ways in form acceptable to Lessor, with, in all cases, Lessor's approval
being in its sole discretion. Within ten (10) business days after the Budget is
approved by Lessor and Lessee, Lessee shall deposit cash in an amount equal to
twenty-five (25%) percent of the amount budgeted for Tenant Improvements
(together with the cost of any Tenant Improvements already made) with Lessor's
3
construction lender to be held in an interest bearing escrow account. Said
construction lender shall issue payments from said account pursuant to the
construction contract for the Tenant Improvements until the account is
exhausted, whereupon any remaining payments shall be made 100% directly by
Lessee. Lessor shall manage the construction of the Tenant Improvements for a
supervision fee of 3% of the Budget (as the same may change by agreement of the
parties) due and payable in nine equal monthly installments beginning on the
first day of the calendar month following the calendar month in which the Budget
is first approved. Lessor may draw down on the letters of credit in whole or in
part and in such amounts as it deems appropriate in its sole discretion if
Lessee fails to comply with any of its obligations under this Lease including,
without limitation, full and timely payments of amounts due under the
construction contract for Tenant Improvements. Lessor stall return the aforesaid
letter of credit upon the lien free completion of Tenant Improvements, payment
of all amounts due to the General Contractor for the Tenant Improvements,
acceptance of same by Lessee and commencement of payment of rent as to all
Buildings, provided that if those events have not occurred prior to expiration
of the letter of credit, Lessor shall be entitled to draw on said letter of
credit in an amount equal to any amount then outstanding with respect to the
construction or installation of Tenant Improvements or for any other amount then
due or unpaid under this Lease.
(h) Lessee's Fixturing Period. Lessor shall provide Lessee
--------------------------
access to each Building during the thirty (30) day period prior to the Delivery
Date for such Building ("Lessee's Fixturing Period") for the purpose of
installing furnishings and equipment, e.g. security system, furniture system and
phone and data system, provided, that Lessee and Lessee's employees and
contractors shall at all times avoid interfering with Lessor's ongoing work to
bring the Premises to a substantially completed condition. Except for payment of
Base Rent, all terms and provisions of this Lease shall apply during Lessee's
Fixturing Period, including, without limitation, Lessee's indemnity and other
obligations set forth in Sections 7.07., 7.08. and 17.22. hereof and payment of
Additional Rent pursuant to Section 4.05 hereof.
ARTICLE III
-----------
TERM
----
Section 3.01. Lease Term.
-------------------------
(a) Commencement Date. The term of this Lease ("Lease Term")
------------------
shall be for at least twelve (12) years beginning on the earlier of (i) the date
Lessee first occupies any part of any Building (other than by the fixturing
activities authorized under Section 2.04.(h) or conducts business at the
Premises or (ii) the date a Certificate of Occupancy first is issued affecting
any Building (the "Commencement Date") provided that, (i) for each day of delay
by Lessee in failing to approve the interior schematic drawings or the Working
Drawings when required under Section 2.04(d), (ii) for each day of delay by
Lessee in failing to approve the Budget, in writing, within seven (7) days after
delivery by the General Contractor as provided in Section 2.04(d), or (iii) )
for each day of delay caused by any changes to the approved Working Drawings
requested by Lessee or (iv) ) for each day that any other act or omission by
Lessee causes the construction schedule for Tenant Improvements to be delayed
(collectively "Lessee Delay"), the Commencement Date shall occur one (1) day in
advance of the date of issuance of the first Certificate of Occupancy for each
day of delay provided that Lessor shall give Lessee written notice of any such
Lessee Delay described in clause (iii), or (iv) within seven (7) business days
4
after commencement of the alleged delay. For example, if seven (7) days of
Lessee Delay causes the date of issuance of the Certificate of Occupancy to
occur on January 8, 2001 rather than January 1, 2001, the Commencement Date
shall be January 1, 2001 for all purposes, including payment of Base Rent and
Additional Rent. The Lease Term shall expire, unless sooner terminated or
extended as provided herein, on the date which completes twelve (12) years after
the Commencement Date ("Expiration Date"). The parties shall execute a
"Memorandum of Commencement of Lease Term" when the Commencement Date becomes
known, which shall include a certification of the actual Rentable Area of the
Buildings determined by the methodology described in Section 2.01. and the
actual monthly installments of Base Rent to be paid pursuant to Section 4.01.,
and shall be substantially in the form attached hereto as Exhibit "E."
Certificate of Occupancy means a document so titled or its equivalent, 1
signifying that the Building in question can be legally occupied.
(b) Scheduled Delivery Dates. Lessor shall use commercially
-------------------------
reasonable efforts to cause Certificates of Occupancy to be issued for Building
Three no later than January 25, 2001, ("First Scheduled Delivery Date"); then
February 15, 2001 for Building Four; March 8, 2001 for Building Two; and March
29, 2001 for Building One and March 29, 2001 for the Amenity Building. If a
Certificate of Occupancy is not issued for any one or more Buildings on or
before its Scheduled Delivery Date, this failure shall not affect the validity
of this Lease or the obligations of Lessee under it. If the Commencement Date is
adjusted for delay from any cause, the Expiration Date shall be likewise
adjusted for a like period. It is understood and agreed that the Amenity
Building may be delayed by the particular permitting, planning and finishing
needs of the uses) desired by Lessee. The actual delivery date for each Building
shall be the date on which Lessor tenders possession of the Building to Lessee
after a Certificate of Occupancy is issued for such Building ("Delivery Date").
(c) Termination in Event of Delay. If for any reason Lessor is
------------------------------
unable to cause the issuance of a Certificate of Occupancy for any Building, on
or before the date which is one hundred eighty (180) days after the Scheduled
Delivery Date for such Building (for a reason other than Lessee Delay or delay
excused under Section 17.21.), Lessee, at its sole election, may terminate this
Lease upon giving notice within ten (10) days thereafter. Failure to give such
notice within said time period constitutes an irrevocable waiver of the
foregoing right to terminate under this Section 3.01(c).
(d) Occupancy. Lessee shall commence occupancy of each Building
----------
no later than thirty (30) days after its Delivery Date.
Section 3.02. Option to Extend.
-------------------------------
(a) Exercise. Lessee is given one (1) option to extend the Lease
---------
Term ("Option to Extend") for a five (5) year period ("Extended Term") following
the date on which the initial Lease Term would otherwise expire, which option
may be exercised only by written notice ("Option Notice") from Lessee to Lessor
given not less than twelve (12) months prior to the Expiration Date of the
initial Lease Term ("Option Exercise Date"); provided, however, if Lessee is in
material default under this Lease (after written notice and beyond the
expiration of any applicable notice period) on the Option Exercise Date or on
any day thereafter on or before the last day of the initial Lease Term, the
Option Notice shall be totally ineffective, and this
5
Lease shall expire on the last day of the initial Lease Term, if not sooner
terminated in accordance with the terms of this Lease.
(b) Extended Term Rent. In the event Lessee exercises its Option
-------------------
to Extend set forth herein, all the terms and conditions of this Lease shall
continue to apply except that the Base Rent payable by Lessee during the Option
Term shall be equal to one hundred percent (100%) of Fair Market Rent (defined
below), as determined under subparagraph (c) below. A "Fair Market Rent" shall
mean the effective rate being charged (including periodic adjustments thereto as
applicable during the period of the Extended Term), for comparable space in
similar buildings in the vicinity, i.e. of a similar age and quality considering
any recent renovations or modernization, and floor plate size or, if such
comparable space is not available, adjustments shall be made in the
determination of Fair Market Rent to reflect the age and quality of the
Buildings and Premises as contrasted to other buildings used for comparison
purposes, with similar amenities, taking into consideration: size, location,
floor level, leasehold improvements or allowances provided or to be provided,
term of the lease, extent of services to be provided, the time that the
particular rate under consideration became or is to become effective, and any
other relevant terms or conditions applicable to both new and renewing tenants,
but in no event less than the monthly Base Rent prevailing during the last year
of the initial Lease Term and without any downward adjustment in rent for the
Amenity Building which shall be deemed to be of identical Fair Market Rent value
as the four office and research and development Buildings.
(c) Determination of Fair Market Rent.
----------------------------------
(i) Negotiation. If Lessee so exercises the Option to
------------
Extend in a timely manner, the parties shall then meet in good faith to
negotiate the Base Rent for the Premises for the Extended Term, during the first
thirty (30) days after the date of the delivery by Lessee of the Option Notice
(the "Negotiation Period"). If, during the Negotiation Period, the parties agree
on the Base Rent applicable to the Premises for the Extended Term, then such
agreed amount shall be the Base Rent payable by Lessee during the Extended Term.
(ii) Arbitration. In the event that the parties are
------------
unable to agree on the Base Rent for the Premises within the Negotiation Period,
then within ten (10) days after the expiration of the Negotiation Period, each
party shall separately designate to the other in writing an appraiser to make
this determination. Each appraiser designated shall be a member of MAI and shall
have at least ten (10) years experience in appraising commercial real property
in Santa Clara County. The failure of either party to appoint an appraiser
within the time allowed shall be deemed equivalent to appointing the appraiser
appointed by the other party, who shall then determine the Fair Market Rent for
the Premises for the Extended Term. Within five (5) business days of their
appointment, the two designated appraisers shall jointly designate a third
similarly qualified appraiser. Within thirty (30) days after their appointment,
each of the two appointed appraisers shall submit to the third appraiser a
sealed envelope containing such appointed appraiser's good faith determination
of the Fair Market Rent for the Premises for the Extended Term; concurrently
with such delivery, each such appraiser shall deliver a copy of his or her
determination to the other appraiser. The third appraiser shall within ten (10)
days following receipt of such submissions, then determine which of the two
appraisers' determinations most closely reflects Fair Market Rent as defined
above. The determination most closely reflecting the third appraiser's
determination shall be the Base Rent for the Premises during the Extended
6
Term; the third appraiser shall have no rights to adjust, amend or
otherwise alter the determinations made by the appraiser selected by the
parties, but must select one or the other of such appraisers' submissions. The
determination by such third appraiser shall be final and binding upon the
parties. Said third appraiser shall, upon selecting the determination which most
closely resembles Fair Market Rent, concurrently notify both parties hereto. The
parties shall share the appraisal expenses equally. If the Extended Term begins
prior to the determination of Fair Market Rent, Lessee shall pay monthly
installments of Base Rent equal to one hundred ten percent (110%) of the monthly
installment of Base Rent in effect for the last year of the initial Lease Term
(in lieu of "holdover rent" payable under Section 17.09(b)). Once a
determination is made, any over payment or under payment shall be reimbursed as
a credit against, or paid by adding to, the monthly installment of Base Rent
next falling due.
Section 3.03. Financing Contingency. Notwithstanding any other provision
------------------------------------
hereof it is understood and agreed that this Lease may be terminated by Lessor
on five (5) days advance written notice to Lessee if Lessor determines that it
is unable to obtain financing of the Project on terms and conditions
satisfactory to Lessor in its sole discretion, provided, that if Lessor has not
exercised its right to terminate under this Section 3.03 on or before March 31,
2000, it shall be deemed to have waived such right and this provision shall
automatically expire and become null and void.
ARTICLE IV
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RENT: TRIPLE NET LEASE
----------------------
Section 4.01. Base Rent. Subject to adjustment of Rentable Area pursuant
------------------------
to Section 2.01(a) and concomitant adjustment to Base Rent, Lessee shall pay to
Lessor as Base Rent an initial monthly installment of Three Dollars ($3.00) per
square foot of Rentable Area of the Premises as determined under Section 2.01.,
in advance, on the first day of each calendar month of the Lease Term,
commencing on the Commencement Date. Base Rent for any period during the Lease
Term which is for less than one month shall be a pro rata portion of the monthly
installment (based on the actual days in that month). It is expected that Base
Rent will be calculated initially on the first Building on its Delivery Date and
that it will be increased by the Rentable Area of each other Building as of the
Delivery Date for such Building (or as to each Building, such earlier deemed
Delivery Date as may result from Lessee Delay with respect to such Building,
calculated in the same manner as the advancement of the Commencement Date is
calculated, i.e. advanced by one day for each day of delay in completion of the
subject Building caused by Lessee Delay).
Section 4.02. Rent Adjustment. The Base Rent set forth in Section 4.01.
------------------------------
above shall be adjusted upward by an annual compounded increase of four percent
(4%), as of the first day of the thirteenth (13th) full calendar month following
the Commencement Date and as of the first day of every thirteenth (13th)
calendar month thereafter during the Lease Term, as shown on Exhibit "E"
attached hereto.
Section 4.03. Advance Rental. Lessee shall pay to Lessor upon execution
-----------------------------
hereof an advance payment equal to one month of estimated Base Rent for
Buildings in the sum of Two Million One Hundred Forty-Five Thousand Dollars and
no Cents $2,145,000.00, subject to being adjusted upon final measurement of each
of the Buildings on or before the Delivery Date for
7
such Building, said payment to be applied to the first monthly installments of
Base Rent (and Base Rent for the following months, to the extent this advance
payment exceeds the first monthly installments of Base Rent as a result of said
final measurement of the Buildings). If the Commencement Date is other than the
first day of a calendar month, the first installment of Base Rent shall be paid
on the first day of the calendar month immediately succeeding the Commencement
Date and shall include pro rata payment for the calendar month in which the
Commencement Date occurs, less credit for the advance payment.
Section 4.04. Absolute Triple Net Lease.
-----------------------------------------
(a) This Lease is what is commonly called a "Absolute Triple Net
Lease," it being understood that Lessor shall receive the Base Rent set forth in
Section 4.01. free and clear of any and all expenses, costs, impositions, taxes,
assessments, liens or charges of any nature whatsoever. Lessee shall pay all
rent in lawful money of the United States of America to Lessor at the notice
address stated herein or to such other persons or at such other places as Lessor
may designate in writing on or before the due date specified for same without
prior demand, set-off or deduction of any nature whatsoever. It is the intention
of the parties hereto that this Lease shall not be terminable for any reason by
Lessee, and that except as herein expressly provided in Articles III, VIII and
XIII, concerning delay, destruction and condemnation, Lessee shall in no event
be entitled to any abatement of or reduction in rent payable under this Lease.
Any present or future law to the contrary shall not alter this agreement of the
parties.
(b) To the extent not paid pursuant to other provisions of this
Lease, and at Lessor's sole election, Lessor may submit invoices and Lessee
shall pay Additional Rent in monthly installments on the first day of each month
in advance in an amount to be estimated by Lessor, based on Lessor's experience
in managing office/research and development projects. Within ninety (90) days
following the end of the period used by Lessor in estimating Additional Rent,
Lessor shall furnish to Lessee a statement (hereinafter referred to as "Lessor's
Statement") of the actual amount of Lessee's proportionate share of such
Additional Rent, or Lessor shall remit or credit to Lessee, as the case may be,
the difference between the estimated amounts paid by Lessee and the actual
amount of Lessee's Additional Rent for such period as shown by such statement.
Monthly installments for the ensuing year shall be adjusted upward or downward
as set forth in Lessor's Statement.
Section 4.05. Additional Rent. In addition to the Base Rent reserved by
------------------------------
Section 4.01., Lessee shall pay (with respect to the Premises), as Additional
Rent, all taxes, assessments, fees and other impositions in accordance with the
provisions of Article IX, insurance premiums in accordance with the provisions
of Article VII, operating charges, maintenance, repair and replacement costs and
expenses in accordance with the provisions of Article VI and any other charges,
costs and expenses (including appropriate reserves therefor) which are
contemplated or which may arise under any provision of this Lease during the
Lease Term, plus a Management Fee to Lessor equal to 3% of the Base Rent. The
Management Fee is due and payable, in advance, with each installment of Base
Rent. All of such charges, costs, expenses, Management Fee and all other amounts
payable by Lessee hereunder, shall constitute Additional Rent, and upon the
failure of Lessee to pay any of such charges, costs or expenses, Lessor shall
have the same rights and remedies as otherwise provided in this Lease for the
failure of Lessee to pay Base Rent. Notwithstanding any other provision of this
Lease, Additional Rent shall not include:
8
(i) depreciation, interest, or amortization on mortgages or ground
lease payments, (ii) legal fees incurred in negotiating and enforcing tenant
leases, (iii) real estate brokers' leasing commissions, (iv) initial
improvements to tenant spaces, or alterations thereto requested by tenants, (v)
costs of any items to the extent Lessor receives reimbursement for same from
insurance proceeds or a third party, (vi) interest, principal, depreciation,
attorney fees, costs of environmental investigations or reports, points, fees,
and other lender costs and closing costs on any mortgage or mortgages, ground
lease payments, or other debt instrument encumbering any portion of the
Property, (vii) costs of (a) partnership or corporate accounting and legal
matters; defending or prosecuting any lawsuit with any mortgagee, lender, ground
lessor, broker, tenant, occupant, or prospective tenant or occupant; selling or
syndicating any of Lessor's interest in the Property; and disputes between
Lessor and Lessor's property manager; (b) the salaries of management personnel
who are not directly related to the Property and primarily engaged in the
operation, maintenance, and repair of the Property, except to the extent that
those costs and expenses are included in the management fees; (c) wages,
salaries, and other compensation paid to any executive employee of Lessor or
Lessor's property manager above the grade of building manager for the Property;
(viii) costs incurred because any Building or Outside Areas violate any valid,
applicable building code, regulation, or law in effect and as interpreted by
government authorities before the date on which this Lease is signed for fines,
penalties, interest, and the costs of repairs, replacements, alterations, or
improvements necessary to make any Building or Outside Areas comply with
applicable past laws in effect and as interpreted by government authorities
before the date on which this Lease is signed, such as sprinkler installation or
requirements under the Americans With Disabilities Act of 1990 (42 USC ss.ss.
12101-12213); (ix) costs of initial construction of the Buildings and other
improvements to the Property; (x) charitable or political contributions made by
Lessor.
Section 4.06. Security Deposit. Within five (5) business days after the
-------------------------------
date on which this Lease is executed by Lessee and Lessor, Lessee shall deposit
with Lessor a Security Deposit equal to twelve (12) months of Base Rent
estimated in the amount of Twenty Five Million Seven Hundred Forty Thousand
Dollars and no Cents ($25,740,000.00) in the form of cash. or an unconditional,
irrevocable standby letter of credit, with Lessor as beneficiary and providing
for payment on presentation of Lessor's drafts on sight without documents and
drawable in whole or in part on a money center bank in San Francisco approved by
Lessor and otherwise in a form acceptable to Lessor, all in its sole discretion,
with a term of at least twelve (12) months and with a term during the last year
of the Lease Term which includes at least one full month following the
Expiration Date (the "Security Deposit"). The Security Deposit shall be held by
Lessor as security for the faithful performance by Lessee of all of the terms,
covenants, and conditions of this Lease applicable to Lessee. If Lessee defaults
with respect to any provision of this Lease, including but not limited to, the
provisions relating to the construction of Tenant Improvements and the condition
of the Premises upon Lease Termination, Lessor may (but shall not be required
to) use, apply or retain all or any part of the Security Deposit for the payment
of any amount which Lessor may spend by reason of Lessee's default or to
compensate Lessor for any loss or damage which Lessor may suffer by reason of
Lessee's default and if all or any part of the Security Deposit is in the form a
of a letter of credit, Lessor may draw on all or any part of same and thereafter
retain any unapplied portion as a cash Security Deposit. If any portion of the
Security Deposit is so used or applied, Lessee shall, within ten (10) days after
written demand therefor, deposit cash with Lessor in an amount sufficient to
restore the Security Deposit to its original amount. Lessee's failure to do so
shall be a material default and breach of this Lease by
9
Lessee. The rights of Lessor pursuant to this Section 4.06. are in addition to
any rights which Lessor may have pursuant to Article XII below. If Lessee fully
and faithfully performs every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned,(without interest) to
Lessee (or, at Lessor's option, to the last assignee of Lessee's interests
hereunder) at Lease expiration or termination and after Lessee has vacated the
Premises. Lessor shall not be required to keep the Security Deposit separate
from Lessor's general funds or be deemed a trustee of same. If the Security
Deposit is in whole or in part in the form of a Letter of Credit, failure of
Lessee to deliver a replacement Letter of Credit to Lessor at least forty-five
(45) business days prior to the expiration date of any current Letter of Credit
shall constitute a separate default entitling Lessor to draw down immediately
and entirely on the current Letter of Credit and the proceeds shall constitute a
cash Security Deposit. The amount of the Security Deposit shall be reduced to a
cash amount equal to three months of Base Rent at the rate scheduled for the
final year of the initial Lease Term, in cash, upon Lessee's achievement of four
(4) consecutive calendar quarters of an annualized run rate of $750,000,000.00
in revenue and $100,000,000.00 in net income.
ARTICLE V
---------
USE
---
Section 5.01. Permitted Use and Limitations on Use. The Premises shall
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be used and occupied only for office, research and development, together with
such ancillary uses which do not cause excessive wear of the Premises or
increase the potential liability of Lessor, and for no other use, without
Lessor's prior written consent. Lessee shall not use, suffer or permit the use
of the Premises in any manner that will tend to create waste, nuisance or
unlawful acts. In no event shall it be unreasonable for Lessor to withhold its
consent as to uses which it determines would tend to increase materially the
wear of the Premises or any part thereof or increase the potential liability of
Lessor or decrease the marketability, financability, leasability or value of the
Premises. Lessee shall not do anything in or about the Premises which will (i)
cause structural injury to any Building, or (ii) cause damage to any part of any
Building except to the extent reasonably necessary for the installation of
Lessee's trade fixtures and Lessee's Alterations, and then only in a manner
which has been first approved by Lessor in writing. Lessee shall not operate any
equipment within the Premises which will (i) materially damage any Building or
the Outside Area, (ii) overload existing electrical systems or other mechanical
equipment servicing any Building, (iii) impair the efficient operation of the
sprinkler system or the heating, ventilating or air conditioning ("HVAC")
equipment within or servicing any Building, or (iv) damage, overload or corrode
the sanitary sewer system. Lessee shall not attach. hang or suspend anything
from the ceiling, roof, walls or columns of any Building or set any load on the
floor in excess of the load limits for which such items are designed nor operate
hard wheel forklifts within the Premises. Any dust, fumes, or waste products
generated by Lessee's use of the Premises shall be contained and disposed so
that they do not (i) create an unreasonable fire or health hazard, (ii) damage
the Premises, or (iii) result in the violation of any law. Except as approved by
Lessor, Lessee shall not change the exterior of any Building, or install any
equipment or antennas on or make any penetrations of the exterior or roof of any
Building. Lessee shall not conduct on any portion of the Premises any sale of
any kind, including any public or private auction, fire sale,
going-out-of-business sale, distress sale or other liquidation sale. No
materials, supplies, tanks or containers, equipment, finished products or
semifinished products, raw materials, inoperable vehicles or articles of any
nature shall be stored upon or
10
permitted to remain within the Outside Areas of the Premises
except in fully fenced and screened areas outside the Buildings which have been
designed for such purpose and have been approved in writing by Lessor for such
use by Lessee.
Section 5.02. Compliance with Law.
----------------------------------
(a) Lessor shall deliver each Building to Lessee free of
violations of any covenants or restrictions of record, or any applicable law,
building code, regulation or ordinance in effect on the date of delivery,
including without limitation, the Americans with Disability Act.
(b) Except as provided in Section 5.02.(a), Lessee shall, at
Lessee's cost and expense, comply promptly with all statutes, ordinances, codes,
rules, regulations and orders, and all covenants and restrictions of record, and
requirements applicable to the Premises and Lessee's use and occupancy of same
in effect during any part of the Lease Term, whether the same are presently
foreseeable or not, and without regard to the cost or expense of compliance.
(c) By executing this Lease, Lessee acknowledges that it has
reviewed and satisfied itself as to its compliance, or intended compliance with
the applicable zoning and permit laws, hazardous materials and waste
requirements, and all other statutes, laws, or ordinances relevant to the uses
stated in Section 5.01., above.
Section 5.03. Condition of Premises at Delivery of Possession. Subject
--------------------------------------------------------------
to all of the terms of this Lease for the construction of Tenant Improvements.
Lessor shall deliver each Building to Lessee with the plumbing, lighting,
heating, ventilating, air conditioning, gas, electrical, and sprinkler systems
and loading doors as set forth in Exhibit "D" in proper operating condition and
built substantially in accordance with the approved plans therefor, and in a
workmanlike manner. Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises in their condition existing as of the Commencement Date,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use and condition of the Premises,
and any covenants or restrictions, liens, encumbrances and title exceptions of
record, and accepts this Lease subject thereto and to all matters disclosed
thereby and by any exhibits attached hereto. Lessee acknowledges that neither
Lessor nor any agent of Lessor has made any representation or warranty as to the
present or future suitability of the Premises for the conduct of Lessee's
business.
Section 5.04. Defective Condition at Commencement Date. In the event
-------------------------------------------------------
that it is determined, and Lessee notifies Lessor in writing, as to each
Building within one year after delivery of such Building to Tenant, that any of
the obligations of Lessor set forth in Section 5.02.(a) or Section 5.03.(a) were
not performed with respect to such Building, then it shall be the obligation of
Lessor, and the sole right and remedy of Lessee, after receipt of written notice
from Lessee setting forth with specificity the nature of the failed performance,
to promptly, within a reasonable time and at Lessor's sole cost, correct same.
Lessee's failure to give such written notice to Lessor within each such one year
period shall constitute a conclusive presumption that Lessor has complied with
all of Lessor's obligations under the foregoing Sections 5.02. and 5.03., and
any required correction after that date shall be performed by Lessee, at its
sole cost and expense except for those express obligations of Lessor under
Section 6.01(b). As each Building is delivered, Lessor shall promptly assign to
Lessee all of Lessor's contractor's and
11
manufacturer's guarantees, warranties and causes of action with respect to the
subject Building except those pertaining to Lessor obligations which could arise
under this Section 5.04. and at the end of each one year period described above
of the Lease Term, Lessor shall promptly assign to Lessee all of Lessor's
remaining contractor's and/or manufacturer's guarantees, warranties, and causes
of action with respect to the subject Building except those pertaining to Lessor
obligations which could arise under Section 6.01(b).
Section 5.05. Building Security. Lessee acknowledges and agrees that it
--------------------------------
assumes sole responsibility for security at the Premises for its agents,
employees, invitees, licensees, contractors, guests and visitors and will
provide such systems and personnel for same including, without limitation, the
Outside Area as it deems necessary or appropriate and at its sole cost and
expense. Lessee acknowledges and agrees that Lessor does not intend to provide
any security system or security personnel at the Premises, including, without
limitation, at the Outside Areas.
Section 5.06. Rules and Regulations. Lessor may from time-to-time
------------------------------------
promulgate reasonable and nondiscriminatory rules and regulations applicable for
the care and orderly management of the Premises. Such rules and regulations
shall be binding upon Lessee upon delivery of a copy thereof to Lessee, and
Lessee agrees to abide by such rules and regulations. A copy of the initial
Rules and Regulations is attached hereto as Exhibit "L." If there is a conflict
between the rules and regulations and any of the provisions of this Lease, the
provisions of this Lease shall prevail. Lessor shall not be responsible for the
violation of any such rules and regulations by any person, including, without
limitation, Lessee or its employees, agents, invitees, licensees, guests,
visitors or contractors.
Section 5.07. Moffett Park TDM Plan. Lessee has reviewed and analyzed
------------------------------------
the Moffett Park Transportation Demand Management Plan (a copy of which is
attached hereto as Exhibit M), and understands that it is obligated to comply
fully and timely with same (and any revisions, supplements or successor plans
thereto) at Lessee's sole cost and expense to achieve the specified goal, and
that failure to do so will (i) constitute a material default hereunder, and (ii)
expose Lessor to possible penalties and damages to which Lessee's indemnity
obligations under this Lease shall apply, provided, that, Lessee shall have no
obligation with respect to the construction of the Light Rail Station and Lessor
shall, at its own cost and expense comply with the obligation to (i) design and
designate parking spaces for exclusive use of carpools and vanpools, (ii)
install bicycle racks and lockers, (iii) install a carpool/vanpool/shuttle
pickup area, and (iv) install pedestrian, bike circulation links, perimeter
walking and jogging paths, and meditation gardens and seating areas required
under Part II of the TDM Plan, as well as any other site improvement work (i.e.
with respect to the Project exterior but not to the Buildings), required by
amendment to the TDM Plan prior to the Commencement Date. Lessor shall construct
shower and clothing lockers required under the TDM Plan (and any other interior
improvements required by amendment to the TDM Plan) at Lessee cost and expense
as part of the Tenant Improvements.
12
ARTICLE VI
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MAINTENANCE, REPAIRS AND ALTERATIONS
------------------------------------
Section 6.01. Maintenance of Premises.
--------------------------------------
(a) Throughout the Lease Term (except as provided in 6.01.(b)),
Lessee, at its sole cost and expense, shall keep, maintain, repair and replace
the Premises and all improvements and appurtenances in or serving the Premises,
including, without limitation, all interior and exterior walls, all doors and
windows, all roof membranes, all elevators and stairways, all wall surfaces and
floor coverings, all Tenant Improvements and alterations, additions and
improvements installed during the Lease Term, all sewer, plumbing, electrical,
lighting, heating, ventilation and cooling systems, fire sprinklers, fire safety
and security systems, fixtures and appliances and all wiring and glazing, in the
same good order, condition and repair as they are in on the Commencement Date,
or any later date of installation, reasonable wear excepted, provided that wear
which could be prevented by first class maintenance shall not be deemed
reasonable.
(b) Lessor, at its sole cost and expense, shall repair defects
in the exterior walls (including all exterior glass which is damaged by
structural defects in such exterior walls), supporting pillars, structural
walls, roof structure and foundations of the Buildings and sewer storm drainage
and plumbing systems outside the Buildings but within the Project, provided that
the need for repair is not caused by Lessee, in which event Lessor shall repair
same and Lessee shall reimburse Lessor for the cost and expense of same except
to the extent of insurance proceeds received for same. Lessor shall replace the
roof membrane of each Building, the parking lot surface, landscaping, drainage,
irrigation, sprinkler systems as well as sewer and plumbing systems outside the
Buildings when the useful life of each has expired, and Lessee shall pay that
portion of the cost of each replacement, together with annual interest at the
Agreed Rate which shall be amortized over the useful life of each such
replacement applicable to the balance of the Lease Term, in equal monthly
installments due and payable with installments of Base Rent. Lessee shall give
Lessor written notice of any need of repairs which are the obligation of Lessor
hereunder and Lessor shall have a reasonable time to perform same. Should Lessor
default as provided in Section 12.03 with respect to its obligation to make any
of the repairs assumed by it hereunder, Lessee shall have the right to perform
such repairs and Lessor agrees that within thirty (30) days after written demand
accompanied by detailed invoice(s), it shall pay to Lessee the cost of any such
repairs together with accrued interest from the date of Lessee's payment at the
Agreed Rate. Lessor shall not be liable to Lessee, its employees, invitees, or
licensees for any damage to person or property, and Lessee's sole right and
remedy shall be the performance of said repairs by Lessee with right of
reimbursement from Lessor of the reasonable fair market cost of said repairs,
not exceeding the sum actually expended by Lessee, together with accrued
interest from the date of Lessee's payment at the Agreed Rate, provided that
nothing herein shall be deemed to create a right of setoff or withholding by
Lessee of Base Rent or Additional Rent or any other amounts due herein. Lessee
hereby expressly waives all rights under and benefits of Sections 1941 and 1942
of the California Civil Code or under any similar law, statute or ordinance now
or hereafter in effect to make repairs and offset the cost of same against rent
or to withhold or delay any payment of rent or any other of its obligations
hereunder as a result of any default by Lessor under this Section 6.01.(b).
13
(c) Lessee agrees to keep the Premises, both inside and out,
clean and in sanitary condition as required by the health, sanitary and police
ordinances and regulations of any political subdivision having jurisdiction and
to remove all trash and debris which may be found in or around the Premises.
Lessee further agrees to keep the interior surfaces of each Building, including,
without limitation, windows, floors, walls, doors, showcases and fixtures, clean
and neat in appearance.
(d) If Lessee refuses or neglects to commence such repairs
and/or maintenance for which Lessee is responsible under this Article VI within
a thirty (30) day period (or as soon as practical and in no event later than ten
(10) days if the failure to initiate the repair threatens to cause further
damage to the Premises) after written notice from Lessor and thereafter
diligently prosecute the same to completion, then Lessor may (i) enter the
Premises (except in an emergency, upon at least twenty-four (24) hours advanced
written notice) during Lessor's business hours and cause such repairs and/or
maintenance to be made and shall not be responsible to Lessee for any loss or
damage occasioned thereby and Lessee agrees that upon demand, it shall pay to
Lessor the reasonable cost of any such repairs, not exceeding the sum actually
expended by Lessor, together with accrued interest from the date of Lessor's
payment at the Agreed Rate, and (ii) elect to enter into a maintenance contract
at a market rate for first-rate maintenance with a third party for the
performance of all or a part of Lessee's maintenance obligations, whereupon,
Lessee shall be relieved from its obligations to perform those maintenance
obligations expressly covered by such maintenance contract, and Lessee shall
bear the entire cost of such maintenance contract which shall be due and paid in
advance, as Additional Rent, on a monthly basis with Lessee's Base Rent
payments.
Section 6.02. Maintenance of Outside Areas. Subject to 6.01.(c) and
-------------------------------------------
subject to Lessee paying the cost and expense for same pursuant to Section 4.05,
Lessor shall maintain, repair and replace all improvements on the Property and
outside of the Buildings, including, without limitation, landscaping, sidewalks,
walkways, driveways, curbs, parking lots (including striping), parking
structure, sprinkler systems, lighting (per City of Sunnyvale requirements), and
surface water drainage systems ("Outside Areas").
Section 6.03. Alterations, Additions and Improvements. No alterations,
------------------------------------------------------
additions, or improvements ("Alterations") shall be made to the Premises by
Lessee without the prior written consent of Lessor which Lessor will not
unreasonably withhold, provided, however, that Lessee may make Alterations which
do not affect any Building system, exterior appearance, structural components or
structural integrity and which do not exceed, with respect to each Building,
collectively Fifty Thousand Dollars ($50,000) in cost within any twelve (12)
month period, without Lessor's prior written consent. As a condition to Lessor's
obligation to consider any request for consent hereunder, Lessee shall pay
Lessor upon demand for the reasonable costs and expenses of consultants,
engineers, architects and others for reviewing plans and specifications and for
monitoring the construction of any proposed Alterations. Lessor may require
Lessee to remove any such Alterations at the expiration or termination of the
Lease Term and to restore the Premises to their prior condition by written
notice given on or before the earlier of (i) the expiration of the Lease Term,
or (ii) thirty (30) days after termination of the Lease, or (iii) thirty (30)
days after a written request from Lessee for such notice from Lessor provided,
that, if Lessee requests same from Lessor, Lessor will notify Lessee within five
(5) business days after receipt of Lessee's request and a copy of all plans and
specifications for the proposed Alteration
14
whether it will require removal. All Alterations to be made to the Premises
shall be made under the supervision of a competent, California licensed
architect and/or competent California licensed structural engineer (each of whom
has been reasonably approved by Lessor and such approval will not be
unreasonably withheld) and shall be made in accordance with plans and
specifications which have been furnished to and approved by Lessor in writing
prior to commencement of work. All Alterations shall be designed, constructed
and installed at the sole cost and expense of Lessee by California licensed
architects, engineers, and contractors approved by Lessor, in compliance with
all applicable law, and in good and workmanlike manner. Any Alteration except
furniture and trade fixtures, shall become the property of Lessor at the
expiration, or sooner termination of the Lease, unless Lessor directs otherwise,
provided that Lessee shall retain title to all furniture and trade fixtures
placed on the Premises. All heating, lighting, electrical, air conditioning,
full height partitioning (but not moveable, free standing cubicle-type
partitions which do not extend to the ceiling or connect to Building walls),
drapery and carpeting installations made by Lessee together with all property
that has become an integral part of the Premises, shall be and become the
property of Lessor upon the expiration, or sooner termination of the Lease, and
shall not be deemed trade fixtures. Within sixty (60) days after completion of
any Alteration, Lessee shall provide Lessor with a complete set of "as built"
plans for same.
Section 6.04. Covenant Against Liens. Lessee shall not allow any liens
-------------------------------------
arising from any act or omission of Lessee to exist, attach to, be placed on, or
encumber Lessor's or Lessee's interest in the Premises or any part thereof, or
any portion thereof, by operation of law or otherwise. Lessee shall not suffer
or permit any lien of mechanics, material suppliers, or others to be placed
against the Premises or any portion thereof with respect to work or services
performed or claimed to have been performed for Lessee or materials furnished or
claimed to have been furnished to Lessee or the Premises. Lessor has the right
at all times to post and keep posted on the Premises any notice that it
considers necessary for protection from such liens. At least seven (7) days
before beginning construction of any Alteration, Lessee shall give Lessor
written notice of the expected commencement date of that construction to permit
Lessor to post and record a notice of nonresponsibility. If any such lien
attaches or Lessee receives notice of any such lien, Lessee shall cause the lien
to be promptly released and removed of record. Despite any other provision of
this Lease, if the lien is not released and removed within twenty (20) days
after Lessor delivers notice of the lien to Lessee, Lessor may immediately take
all action necessary to release and remove the lien, without any duty to
investigate the validity of it. All expenses (including reasonable attorney fees
and the cost of any bond) incurred by Lessor in connection with a lien incurred
by Lessee or its removal shall be considered Additional Rent under this Lease
and be immediately due and payable by Lessee.
Section 6.05. Reimbursable Capital Expenditures. Except for items of
------------------------------------------------
capital expenditures which are to be made at Lessor's sole cost and expense
pursuant to the first sentence of Section 6.01(b) above, capital expenditures,
together with interest thereon at the Agreed Rate, for any replacement item at
the Premises for which Lessor is responsible hereunder made by Lessor in excess
of One Hundred Thousand Dollars ($100,000.00) during the Lease Term shall be
amortized over the remaining Lease Term for the useful life of such replacement
item with the numerator being the number of months remaining in the Lease Term
and the denominator being the number of months of the useful life of the
improvements as determined by Lessor in its sole discretion. Lessee shall be
obligated for such amortized portion of any such
15
expenditure in equal monthly installments due and payable with each installment
of Base Rent during the Lease Term.
ARTICLE VII
-----------
INSURANCE
---------
Section 7.01. Property/Rental Insurance for Premises. At all times
-----------------------------------------------------
during the Lease Term, Lessor shall keep the Premises insured against loss or
damage by fire and those risks normally included in the term "all risk,"
including, without limitation, coverage for (i) earthquake and earthquake
sprinkler leakage, (ii) flood, (iii) loss of rents and extra expense for
eighteen (18) months, including scheduled rent increases, (iv) boiler and
machinery, (v) Tenant Improvements, and (vi) fire damage legal liability form,
including waiver of subrogation. Any deductibles shall be paid by Lessee. The
amount of such insurance shall not be less than 100% of replacement cost.
Insurance shall include a Building Ordinance and Increased Cost of Construction
Endorsement insuring the increased cost of reconstructing the Premises incurred
due to the need to comply with applicable statutes, ordinances and requirements
of all municipal, state and federal authorities now in force, which or may be in
force hereafter. Any recovery received from said insurance policy shall be paid
to Lessor and thereafter applied by Lessor to the reconstruction of the Premises
in accordance with the provisions of Article VIII below. Lessee, in addition to
the rent and other charges provided herein, shall reimburse Lessor for the cost
of the premiums for all such insurance covering the Premises in accordance with
Article IV. Such reimbursement and shall be made within (15) days of Lessor's
delivery of a copy of Lessor's statement therefor. Lessee shall pay to Lessor
any deductible (subject to the above conditions) owing within fifteen (15) days
after delivery of notice from Lessor of the amount owing. To the extent
commercially available, Lessor's insurance shall have a deductible not greater
than fifteen percent (15%) for earthquake and five percent (5%) for the basic
"all risk" coverage.
Section 7.02. Property Insurance for Fixtures and Inventory. At all
------------------------------------------------------------
times during the Lease Term, Lessee shall, at its sole expense, maintain
insurance with "all risk" coverage on any fixtures, furnishings, merchandise,
equipment or personal property in or on the Premises, whether in place as of the
date hereof or installed hereafter. The amount of such insurance shall not be
less than one hundred percent (100%) of the replacement cost thereof, and Lessor
shall not have any responsibility nor pay any cost for maintaining any types of
such insurance. Lessee shall pay all deductibles.
Section 7.03. Lessor's Liability Insurance. At all times during the
-------------------------------------------
Lease Term, Lessor shall maintain a policy of policies of comprehensive general
liability insurance naming Lessor (and such others as designated by Lessor)
against liability for bodily injury, property damage on our about the Premises,
with combined single limit coverage in an amount determined by Lessor in its
sole discretion and which amount is presently in excess of Thirty Million
Dollars ($30,000,000.00). Lessee, in addition to the rent and other charges
provided herein, agrees to pay to Lessor the premiums for all such insurance.
The insurance premiums shall be paid in accordance with Article IV, within (15)
days of Lessor's delivery of a copy of Lessor's statement therefore.
16
Section 7.04. Liability Insurance Carried by Lessee. At all times during
----------------------------------------------------
the Lease Term (and any holdover period) Lessee shall obtain and keep in force a
commercial general liability policy of insurance protecting Lessee, Lessor and
any Lenders) whose names are provided to Lessee as Additional Insureds against
claims from bodily injury, personal injury and property damage based upon
involving or arising out of ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be on an
occurrence basis, providing a single limit coverage in amount of not less than
Ten Million Dollars ($10,000,000) per occurrence with an Additional Lessors or
Premises Endorsements and containing an "Amendment of the Pollution Exclusion
Endorsement" for damage caused by heat, smoke, fumes from a hostile fire. The
limits of said insurance required by this Lease as carried by Lessee shall not,
however limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by the Lessee shall be primary to and not
contributory with, any similar insurance carried by Lessor whose insurance shall
be considered excess insurance only.
Section 7.05. Lessee to Furnish Proof of Insurance. Lessee shall furnish
---------------------------------------------------
to Lessor prior to the Commencement Date, and at least thirty (30) days prior to
the expiration date of any policy, certificates indicating that the property
insurance and liability insurance required to be maintained by Lessee is in full
force and effect for the twelve (12) month period following such expiration
date; that Lessor has been named as an additional insured to the extent of
contractual liability assumed in Section 7.07. "Indemnification" and Section
7.08. "Lessor as Party Defendant"; and that all such policies will not be
canceled unless thirty (30) days' prior written notice of the proposed
cancellation has been given to Lessor. The insurance shall be with insurers
approved by Lessor, provided, however, that such approval shall not be
unreasonably withheld so long as Lessee's insurance carrier has a Best's
Insurance Guide rating not less than A+ VIII. Lessor shall furnish to Lessee,
prior to the Commencement Date, and at least ten (10) days prior to the
expiration date of any policy, or if later in each case, within ten (10)
business days after receipt of a written request for same, certificates
indicating that the property insurance and liability insurance required to be
maintained by Lessor is in full force and effect for the twelve (12) month
period following such expiration date.
Section 7.06. Mutual Waiver of Claims and Subrogation Rights. Lessor and
-------------------------------------------------------------
Lessee hereby release and relieve the other, and waive their entire claim of
recovery for loss or damage to property arising out of or incident to fire,
lightning, and the other perils included in a standard "all risk" insurance
policy when such property constitutes the Premises, or is in, on or about the
Premises, whether or not such loss or damage is due to the negligence of Lessor
or Lessee, or their respective agents, employees, guests, licensees, invitees,
or contractors. Lessee and Lessor waive all rights of subrogation against each
other on behalf of, and shall obtain a waiver of all subrogation rights from,
all property and casualty insurers referenced above.
Section 7.07. Indemnification and Exculpation.
----------------------------------------------
(a) Except as otherwise provided in Section 7.07.(b), Lessee
shall indemnify and hold Lessor free and harmless from any and all liability,
claims, loss, damages, causes of action (whether in tort or contract, law or
equity, or otherwise), expenses, charges, assessments, fines, and penalties of
any kind, including without limitation, reasonable attorney fees, expert witness
fees and costs, arising by reason of the death or injury of any person,
including any person who is an employee, agent, invitee, licensee, permittee,
visitor, guest or contractor of
17
Lessee, or by reason of damage to or destruction of any property, including
property owned by Lessee or any person who is an employee, agent, invitee,
permitee, visitor, or contractor of Lessee, caused or allegedly caused (1) while
that person or property is in or about the Premises; (2) by some condition of
the Premises; (3) by some act or omission by Lessee or its agent, employee,
licensee, invitee, guest, visitor or contractor or any person in, adjacent, on,
or about the Premises with the permission, consent or sufferance of Lessee; (4)
by any matter connected to or arising out of Lessee's occupation or use of the
Premises, or any breach or default in timely observance or performance of any
obligation on Lessee's part to be observed or performed under this Lease.
(b) Notwithstanding the provisions of Section 7.07.(a) of this
Lease, Lessee's duty to indemnify and hold Lessor harmless shall not apply to
any liability, claims, loss or damages to the extent caused solely by Lessor's
active negligence or willful acts of misconduct.
(c) Lessee hereby waives all claims against Lessor for damages
to goods, wares and merchandise and all other personal property in, on, or about
the Premises and for injury or death to persons in, on, or about the Premises
from any cause arising at any time to the fullest extent permitted by law and in
no event shall Lessor be liable for lost profits or other consequential damages
arising from any cause or for any damage which is or could be covered by the
insurance Lessee is required to carry under this Lease.
Section 7.08. Lessor as Party Defendant. If by reason of an act or
----------------------------------------
omission of Lessee or any of its employees, agents, invitees, licensee,
visitors, guests or contractors, Lessor is made a party defendant or a
cross-defendant to any action involving the Premises or this Lease, Lessee shall
hold harmless and indemnify Lessor from all liability or claims of liability,
including all damages, attorney fees and costs of suit.
ARTICLE VIII
------------
DAMAGE OR DESTRUCTION
---------------------
Section 8.01. Destruction of the Premises.
-------------------------------------------
(a) In the event of a partial destruction of the Premises during
the Lease Term from any cause, Lessor, upon receipt of, and to the extent of,
insurance proceeds paid in connection with such casualty, shall forthwith repair
the same, provided the repairs can be made within a reasonable time under state,
federal, county and municipal applicable law, but such partial destruction shall
in no way annul or void this Lease, (except as provided in Section 8.01.(b)
below) provided that Lessee shall be entitled to a proportionate credit for rent
equal to the payment of rental income insurance received by Lessor. Lessor shall
use diligence in making such repairs within a reasonable time period, acts of
God, strikes and delays beyond Lessor's control excepted, in which instance the
time period shall be extended accordingly, and this Lease shall remain in full
force and effect, with the rent to be proportionately reduced as provided in
this Section. If the Premises are damaged by any peril within twelve (12) months
prior to the last day of the Lease Term and, in the reasonable opinion of the
Lessor's architect or construction consultant, the restoration of the Premises
cannot be substantially completed within ninety (90) days after the date of such
damage and such damage renders unusable more than thirty percent
18
(30%) of the Premises, Lessor may terminate this Lease on sixty (60) days
written notice to Lessee.
(b) If the Premises are damaged or destroyed by any cause to the
extent of more than fifty percent (50%) of the total Rentable Area of all
office/research and development Buildings which are then part of the Premises
during the Lease Term, Lessor shall notify Lessee within sixty (60) days after
such damage or destruction whether it will repair the same within twelve (12)
months (subject to force majeure) from the date of such notice and if Lessor
states that it will not repair within said twelve (12) months (subject to force
majeure) this Lease shall terminate ten (10) business days after Lessor gives
its notice. In the event Lessor elects to repair, Lessor shall commence repairs
within a reasonable time and diligently proceed to complete such repairs, in
each instance subject to force majeure delays. In the event of termination,
Lessor shall pay to Lessee all insurance proceeds, if any, received by Lessor as
a result of the damage or destruction to the extent allocable to unamortized
Tenant Improvements or other Alterations installed in the damaged Buildings at
Lessee's sole cost and expense, using an amortization schedule of equal monthly
installments over the first sixty (60) months following the delivery of each
damaged Building, but only to the extent such payment will not violate the terms
and conditions of any trust deed recorded against the Project or Premises or
constitute a default thereunder.
Section 8.02. Waiver of Civil Code Remedies. Lessee hereby expressly
--------------------------------------------
waives any rights to terminate this Lease upon damage or destruction to the
Premises, including without limitation any rights pursuant to the provisions of
Section 1932, Subdivision 2 and Section 1933, Subdivision 4, of the California
Civil Code, as amended from time-to-time, and the provisions of any similar law
hereinafter enacted.
Section 8.03. No Abatement of Rentals. The Rentals and other charges due
--------------------------------------
under this Lease shall not be reduced or abated by reason of any damage or
destruction to the Premises (except to the extent of proceeds received by Lessor
from the rental loss insurance), and Lessor shall be entitled to all proceeds of
the insurance maintained pursuant to Section 7.01. above during the period of
rebuilding pursuant to Section 8.01.(a) above, or if the Lease is terminated
pursuant to Section 8.01.(a) above. Lessee shall have no claim against Lessor,
including, without limitation, for compensation for inconvenience or loss of
business, profits or goodwill during any period of repair or reconstruction.
Section 8.04. Liability for Personal Property. In no event shall Lessor
----------------------------------------------
have any liability for, nor shall it be required to repair or restore, any
injury or damage to Lessee's personal property or to any other personal property
or to Alterations in or upon the Premises by Lessee.
ARTICLE IX
----------
REAL PROPERTY TAXES
-------------------
Section 9.01. Payment of Taxes. Lessee shall pay the real property tax,
-------------------------------
including any escaped or supplemental tax and any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license, fee,
charge, excise or imposition ("real property tax"), imposed, assessed or levied
on or with respect to the Premises by any Federal, State, County, City or other
political subdivision or public authority having the direct or indirect power to
tax,
19
including any improvement district thereof or any community facilities district,
as against any legal or equitable interest of Lessor in the Premises or against
the Premises or any part thereof applicable to the Premises for a period of time
included within the Lease Term. All such payments shall be made at least ten
(10) days prior to the delinquency date for such payment or ten (10) days after
Lessee's receipt of the tax bill, whichever is later. Notwithstanding the
foregoing, Lessee shall not be required to pay any net income taxes, franchise
taxes, or any succession or inheritance taxes of Lessor. If any anytime during
the Lease Term, the State of California or any political subdivision of the
state, including any county, city, city and county, public corporation,
district, or any other political entity or public corporation of this state,
levies or assesses against Lessor a tax, fee, charge or imposition, excise on
rents under the Lease, the square footage of the Premises, the act of entering
into this Lease, or the occupancy of Lessee, or levies or assesses against
Lessor any other tax, fee, or excise, however described, including, without
limitation, a so-called value added, business license, transit, commuter,
environmental or energy tax fee, charge or excise or imposition related to the
Premises as a direct substitution in whole or in part for, or in addition to,
any real property taxes on the Premises, Lessee shall pay ten (10) days before
delinquency or ten (10) days after receipt of the tax bill, whichever is later,
that tax, fee, charge, excise or imposition.
Section 9.02. Pro Ration for Partial Years. If any such taxes paid by
-------------------------------------------
Lessee shall cover any period prior to the Commencement Date or after the
Expiration Date of the Lease Term, Lessee's share of such taxes shall be
equitably prorated to cover only the period of time within the tax fiscal year
during which this Lease shall be in effect, and Lessor shall reimburse Lessee to
any extent required. If Lessee shall fail to pay any such taxes, Lessor shall
have the right to pay the same in which case Lessee shall repay such amount to
Lessor within ten (10) days after written demand, together with interest at the
Agreed Rate.
Section 9.03. Personal Property Taxes.
--------------------------------------
(a) Lessee shall pay prior to delinquency all taxes imposed,
assessed against and levied upon trade fixtures, furnishings, equipment and all
other personal property of Lessee contained in the Premises or elsewhere at the
Project. When possible, Lessee shall cause said trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real property, Lessee shall pay Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Lessee's property.
(c) If Lessee shall fail to pay any such taxes, Lessor shall
have the right to pay the same, in which case Lessee shall repay such amount to
Lessor with Lessee's next rent installment together with interest at the Agreed
Rate.
ARTICLE X
---------
UTILITIES
---------
Section 10.01. Lessee to Pay. Lessee shall pay prior to delinquency and
-----------------------------
throughout the Lease Term, all charges for water, gas, heating, cooling, sewer,
telephone, electricity, garbage,
20
air conditioning and ventilation, janitorial service, landscaping and all other
materials and utilities supplied to the Premises. The disruption, failure, lack
or shortage of any service or utility due to any cause whatsoever shall not
affect any obligation of Lessee hereunder, and Lessee shall faithfully keep and
observe all the terms, conditions and covenants of this Lease and pay all rent
due hereunder, all without diminution, credit or deduction.
ARTICLE XI
----------
ASSIGNMENT AND SUBLETTING
-------------------------
Section 11.01. Lessor's Consent Required. Except as provided in Section
-----------------------------------------
11.02, Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, license or otherwise transfer or encumber all or any part of
Lessee's interest in this Lease or in the Premises or any part thereof, without
Lessor's prior written consent which Lessor shall not unreasonably withhold or
delay. Lessor shall respond in writing to Lessee's request for consent hereunder
in a timely manner and any attempted assignment, transfer, mortgage,
encumbrance, subletting or licensing without such consent shall be void, and
shall constitute a breach of this Lease. By way of example, but not limitation,
reasonable grounds for denying consent include: (i) poor credit history or
insufficient financial strength of transferee, (ii) transferee's intended use of
the Premises is inconsistent with the permitted use or will materially and
adversely affect Lessor's interest. Lessee shall reimburse Lessor upon demand
for Lessor's reasonable costs and expenses (including attorneys' fees, architect
fees and engineering fees) involved in renewing any request for consent whether
or not consent is granted.
Section 11.02. Lessee Affiliates. Without the approval of Lessor, Lessee
---------------------------------
may assign or sublet the Premises, or any portion thereof, to any corporation
which controls, is controlled by, or is under common control with Lessee, or to
any corporation resulting from the merger or consolidation with Lessee, or to
any person or entity which acquires all, or substantially all of the assets of
Lessee as a going concern of the business that is being conducted on the
Premises ("Affiliates"), provided that said assignee or sublessee assumes, in
full, the obligations of Lessee under this Lease and provided further that the
use to which the Premises will be put does not materially change and provided
further, Lessee shall provide Lessor at least ten (10) business days advance
written notice of any such assignment or sublease, including fully executed
assignment or sublease documents and evidence that the transaction is of a type
described in this Section 11.02. Any such assignment or sublease shall not, in
any way, affect or limit the liability of Lessee under the terms of this Lease.
Section 11.03. No Release of Lessee. Regardless of Lessor's consent, no
------------------------------------
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without the necessity of exhausting remedies
against said assignee.
Section 11.04. Excess Rent. In the event Lessor shall consent to a
---------------------------
sublease or an assignment, Lessee shall pay to Lessor with its regularly
scheduled Base Rent payments, fifty percent (50%) of all sums and the fair
market value of all consideration collected or received by
21
Lessee from a sublessee or assignee which are in excess of the Base Rent and
Additional Rent due and payable with respect to the subject space pursuant to
Article IV for the time period encompassed by the sublease or assignment term,
after first deducting reasonable leasing commissions, provided that this
provision shall not apply to consideration for the first twelve (12) months of
the first sublease of any space within any office/research development Building
(and not to any subsequent sublease of such space) so long as such sublease is
for at least twenty four (24) months and that the consideration for the second
and any subsequent twelve (12) month period of such sublease (including
extension options) is not less than the consideration for the first twelve (12)
months.
Section 11.05. No Impairment of Security. Lessee's written request to
-----------------------------------------
Lessor for consent to an assignment or subletting or other form of transfer
shall be accompanied by (a) the name and legal composition of the proposed
transferee; (b) the nature of the proposed transferee's business to be carried
on in the Premises; (c) the terms and provisions of the proposed transfer
agreement; and (d) such financial and other reasonable information as Lessor may
request concerning the proposed transferee.
Section 11.06. Lessor's Recapture Rights.
-----------------------------------------
(a) Lessor's Recapture Rights. Notwithstanding any other
---------------------------
provision of this Article 11, in the event that Lessee proposes to sublease or
assign or otherwise transfer any interest in this Lease or the Premises or any
part thereof affecting (collectively with all other such subleases, assignments,
or transfers then in effect) more than sixty percent (60%) of the square footage
of the total Rentable Area of the four (4) office/research and development
Buildings ("Recapture Space"), then Lessor shall have the option to recapture
the Recapture Space by written notice to Lessee ("Recapture Notice") given
within ten (10) business days after Lessor receives any notice of such proposed
assignment or sublease or other transfer ("Transfer Notice"). A timely Recapture
Notice terminates this Lease for the Recapture Space, effective as of the date
specified in the Transfer Notice. If Lessor declines or fails timely to deliver
a Recapture Notice, Lessor shall have no further right under this Section 11.06
to the Recapture Space unless it becomes available again after such transfer by
Lessee or unless Lessee proposes another such transfer. For purposes of this
Section 11.05, the Rentable Area of the Amenity Building shall not be utilized
in the calculation of Recapture Space. This Section 11.06 shall not apply to the
sublease of space or assignment of this Lease to an Affiliate as defined in
Section 11.02 above.
(b) Consequences of Recapture. To determine the new Base Rent
---------------------------
under this Lease if Lessor recaptures the Recapture Space, the then current Base
Rent (immediately before Lessor's recapture) under the Lease shall be multiplied
by a fraction, numerator of which is the square feet of the Rentable Area
retained by Lessee after Lessor's recapture and the denominator of which is the
total square feet of the Rentable Area before Lessor's recapture. The Additional
Rent, to the extent that it is calculated on the basis of the square feet within
the affected Building, shall be reduced to reflect Lessee's proportionate share
based on the square feet of the Building-retained by Lessee after Lessor's
recapture. This Lease as so amended shall continue thereafter in full force and
effect. Either party may require written confirmation of the amendments to this
Lease necessitated by Lessor's recapture of the Recapture Space. If Lessor
recaptures the Recapture Space, Lessor shall, at Lessor's sole expense,
construct, paint, and furnish any
22
partitions required to segregate the Recapture Space from the remaining Premises
retained by Lessee.
ARTICLE XII
-----------
DEFAULTS: REMEDIES
------------------
Section 12.01. Defaults. The occurrence of any one or more of the
------------------------
following events shall constitute a material default and breach of this Lease by
Lessee:
(a) The abandonment of the Premises by Lessee or the commission
of waste at the Premises or the making of an assignment or subletting in
violation of Article XI, provided however, abandonment shall be considered to
not occur if the Premises are maintained and occupied to the extent necessary to
maintain the insurance on each and every portion of the Premises;
(b) 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, if such
failure continues for a period of five (5) business days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit in the form required by applicable Unlawful Detainer
statutes such Notice shall constitute the notice required by this paragraph,
provided that the cure period stated in the Notice shall be five (5) business
days rather than the statutory three (3) days;
(c) Lessee's failure to provide, (i) any instrument or assurance
as required by Section 7.05, or (ii) estoppel certificate as required by Section
15.01, or (iii) any document which Lessee is obligated to provide under Section
17.13 subordinating this Lease to a Lender's deed of trust if such failure
continues for five (5) business days after written notice of the failure from
Lessor to Lessee. In the event Lessor serves Lessee with a Notice to Perform
Covenant or Quit in the form required by applicable Unlawful Detainer Statutes,
such Notice shall constitute the notice required by this paragraph, provided
that the cure period stated in the Notice shall be five (5) business days rather
than the statutory three (3) days;
(d) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in paragraph (a) (b) or (c) above, if such failure
continues for a period of ten (10) days after written notice thereof from Lessor
to Lessee; provided, however, that if the nature of Lessee's default is such
that more than ten (10) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commences such cure within said
ten (10) day period and thereafter diligently prosecutes such cure to
completion;
(e) (i) The making by Lessee of any general arrangement or
assignment for the benefit of creditors; (ii) the filing by Lessee of a
voluntary petition in bankruptcy under Title 11 U.S.C. or the filing of an
involuntary petition against Lessee which remains uncontested for a period of
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; 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, provided, however, in the event that
23
any provisions of this Section 12.01(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 any guarantor of Lessee's obligations hereunder, was
materially false;
(g) The failure by Lessee to timely observe and perform any
obligation under the City of Sunnyvale TDM Plan or any successor or similar plan
or requirement if such failure continues for five (5) business days (or if
longer, any cure period provided by the City of Sunnyvale before it levies any
penalty, fines or taxes or any other action adverse to Lessor) after written
notice of the failure from Lessor to Lessee;
(h) The failure by Lessee to deposit timely any letters of
credit or to fail to timely pay the General Contractor for costs of Tenant
Improvements as required by Sections 2.04(g) if such failure continues for five
(5) business days after written notice of the failure from Lessor to Lessee.
Section 12.02. Remedies. In the event of any such material default and
------------------------
breach by Lessee, Lessor may at any time thereafter, and without limiting Lessor
in the exercise of any right or remedy which Lessor may have by reason of such
default and breach:
(a) Terminate Lessee's right to possession of the Premises by
any lawful means including by way of unlawful detainer (and without any further
notice if a notice in compliance with the unlawful detainer statutes and in
compliance with paragraphs (b), (c) (d) (g) or (h) of Section 12.01 above has
already been given), in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event Lessor
shall be entitled to recover from Lessee all damages incurred by Lessor by
reason of Lessee's default including, but not limited to, (i) the cost of
recovering possession of the Premises including reasonable attorneys' fees
related thereto; (ii) the worth at the time of the award of any unpaid rent that
had been earned at the time of the termination, to be computed by allowing
interest at the Agreed Rate but in no case greater than the maximum amount of
interest permitted by law, (iii) the worth at the time of the award of the
amount by which the unpaid rent that would have been earned between the time of
the termination and the time of the award exceeds the amount of unpaid rent that
Lessee proves could reasonably have been avoided, to be computed by allowing
interest at the Agreed Rate but in no case greater than the maximum amount of
interest permitted by law, (iv) the worth at the time of the award of the amount
by which the unpaid rent for the balance of the Lease Term after the time of the
award exceeds the amount of unpaid rent that Lessee proves could reasonably have
been avoided, to be computed by discounting that amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one per
cent (1%), (v) any other amount necessary to compensate Lessor for all the
detriment proximately caused by Lessee's failure to perform obligations under
this Lease, including brokerage commissions and advertising expenses, expenses
of remodeling the Premises for a new tenant (whether for the same or a different
use), and any special concessions made to obtain a new tenant, and (vi) any
other amounts, in addition to or in lieu of those listed above, that may be
permitted by applicable law.
24
(b) Maintain Lessee's right to possession as provided in Civil
Code Section 1951.4 in which case this Lease shall continue in effect whether or
not Lessee shall have 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 of California. Unpaid amounts
of rent and other unpaid monetary obligations of Lessee under the terms of this
Lease shall bear interest from the date due at the Agreed Rate.
Section 12.03. Default by Lessor. Lessor shall not be in default under
---------------------------------
this Lease 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 that 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 thirty (30)
day period and thereafter diligently prosecutes the same to completion. In the
event Lessor does not commence performance within the thirty (30) day period
provided herein, Lessee may perform such obligation and will be reimbursed for
its expenses by Lessor together with interest thereon at the Agreed Rate
provided, however, that if the parties are in dispute as to what constitutes
Lessor's obligations under this Lease, any such dispute shall be resolved by
arbitration in a manner identical to that provided in Section 8.02 above. Lessee
waives any right to terminate this Lease or to vacate the Premises on Lessor's
default under this Lease. Lessee's sole remedy on Lessor's default is an action
for damages or injunctive or declaratory relief. Notwithstanding the foregoing,
nothing herein shall be deemed applicable in the event of Lessor's delay in
delivery of the Premises. In that situation, all rights and remedies shall be
determined under Section 3.01 above.
Section 12.04. Late Charges. Lessee hereby acknowledges that late
----------------------------
payment by Lessee to Lessor of rent and 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. 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
Premises. Accordingly, if any installment of rent or any other sum due from
Lessee shall not be received by Lessor or Lessor's designated agent within five
(5) days after such amount is due and owing, Lessee shall pay to Lessor a late
charge equal to five percent (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. In the event that a late charge
is payable hereunder, whether or not collected, for three (3) consecutive
installments of rent, then rent shall automatically become due and payable
quarterly in advance, rather than monthly, notwithstanding Section 4.01 or any
other provision of this Lease to the contrary.
25
ARTICLE XIII
------------
CONDEMNATION OF PREMISES
------------------------
Section 13.01. Total Condemnation. If the entire Premises, whether by
-----------------------------------
exercise of governmental power or the sale or transfer by Lessor to any
condemnor under threat of condemnation or while proceedings for condemnation are
pending, at any time during the Lease Term, shall be taken by condemnation such
that there does not remain a portion suitable for occupation, this Lease shall
then terminate as of the date transfer of possession is required. Upon such
condemnation, all rent shall be paid up to the date transfer of possession is
required, and Lessee shall have no claim against Lessor or the award for the
value of the unexpired portion of this Lease Term.
Section 13.02. Partial Condemnation. If any portion of the Premises is
------------------------------------
taken by condemnation during the Lease Term, whether by exercise of governmental
power or the sale for transfer by Lessor to an condemnor under threat of
condemnation or while proceedings for condemnation are pending, this Lease shall
remain in full force and effect except that in the event a partial taking leaves
the Premises unfit for the conduct of the business of Lessee, then Lessee shall
have the right to terminate this Lease effective upon the date transfer of
possession is required. Moreover, Lessor shall have the right to terminate this
Lease effective on the date transfer of possession is required if more than
thirty-three percent (33%) of the total square footage of the Premises is taken
by condemnation. Lessee and Lessor may elect to exercise their respective rights
to terminate this Lease pursuant to this Section by serving written notice to
the other within thirty (30) days after receipt of notice of condemnation. All
rent shall be paid up to the date of termination, and Lessee shall have no claim
against Lessor for the value of any , unexpired portion of the Lease Term. If
this Lease shall not be canceled, the rent after such partial taking shall be
that percentage of the adjusted base rent specified herein, equal to the
percentage which the square footage of the untaken part of the Premises,
immediately after the taking, bears to the square footage of the entire Premises
immediately before the taking. If Lessee's continued use of the Premises
requires alterations and repair by reason of a partial taking, all such
alterations and repair shall be made by Lessee at Lessee's expense. Lessee
waives all rights it may have under California Code of Civil Procedure Section
1265.130 or otherwise, to terminate this Lease based on partial condemnation.
Section 13.03. Award to Lessee. In the event of any condemnation,
-------------------------------
whether total or partial, Lessee shall have the right to claim and recover from
the condemning authority such compensation as may be separately awarded or
recoverable by Lessee for loss of its business fixtures, or equipment belonging
to Lessee immediately prior to the condemnation. The balance of any condemnation
award shall belong to Lessor (including, without limitation, any amount
attributable to any excess of the market value of the Premises for the remainder
of the Lease Term over the then present value of the rent payable for the
remainder of the Lease Term) and Lessee shall have no further right to recover
from Lessor or the condemning authority for any claims arising out of such
taking. Except as provided below, in connection with a condemnation: (a) Lessor
shall be entitled to receive all compensation and anything of value awarded,
paid, or received in settlement or otherwise ("Award"); and (b) Lessee
irrevocably assigns and transfers to Lessor all rights to and interests in the
Award and fully releases and relinquishes any claim to, right to make a claim
on, or interest in the Award. Notwithstanding the foregoing, Lessee shall have
the right to make a separate claim in the condemnation proceeding for: (a)
reasonable
26
removal and relocation costs for any leasehold improvements that
Lessee has the right to remove and elects to remove (if condemnor approves of
the removal), (b) loss of goodwill, (c) relocation costs under Government Code
section 7262, the claim for which Lessee may pursue by separate action
independent of this Lease, but (d) only to the extent that any of the foregoing
does not reduce the amount of the Award payable to Lessor. Lessee shall also be
entitled to receive, if the Award expressly provides for same, an amount equal
to the unamortized cost of the Tenant Improvements or other Alterations
installed in any condemned Building at Lessee's sole cost and expense, using an
amortization schedule of equal monthly amounts for the first sixty (60) months
following the Delivery Date (or deemed Delivery Date) for such Building, but
only to the extent such payment will not violate the terms and conditions of any
trust deed recorded against the Project or Premises or constitute a default
thereunder.
ARTICLE XIV
-----------
ENTRY BY LESSOR
---------------
Section 14.01. Entry by Lessor Permitted. Lessee shall permit Lessor
----------------------------------------
and its employees, agents and contractors to enter the Premises and all parts
thereof (i) upon forty-eight (48) hours notice (or without notice in an
emergency), including, without limitation, the Building and all parts thereof at
all reasonable times for any of the following purposes: to inspect the Premises;
to maintain the Premises; to make such repairs to the Premises as Lessor is
obligated or may elect to make; to make repairs, alterations or additions to any
other portion of the Premises, and (ii) upon twenty-four (24) hours notice to
show the Premises and post "To Lease" signs for the purposes of reletting during
the last twelve (12) months of the Lease Term (provided that Lessee has failed
to exercise its option to extend) or extended Lease Term to show the Premises as
part of a prospective sale by Lessor or to post notices of nonresponsibility.
With respect to any such entry which is not an emergency entry, Lessor agrees
not to unreasonably disturb Lessee's use or enjoyment of the Premises, and to
minimize disruption to Lessee as much as reasonably practical, Lessor shall have
such right of entry without any rebate of rent to Lessee for any loss of
occupancy or quiet enjoyment of the Premises hereby occasioned.
ARTICLE XV
----------
ESTOPPEL CERTIFICATE
--------------------
Section 15.01. Estoppel Certificate.
--------------------------------------
(a) Each party ("Certifying Party") shall at any time upon not less
than fifteen (15) days' prior written notice from the other execute, acknowledge
and deliver to the other a statement in writing (i) certifying, if true, that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying, if true, 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, if true, that there
are not, to Certifying Party's knowledge, any uncured defaults on the part of
the other party, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrances of the Premises.
(b) Each party's failure to deliver such statement within such time
shall be conclusive upon such party (i) that this Lease is in full force and
effect, without modification
27
except as may be represented by the other party on the notice, (ii) that there
are no uncured defaults in the other party's performance, and (iii) that not
more than one month's rent has been paid in advance.
ARTICLE XVI
-----------
LESSOR'S LIABILITY
------------------
Section 16.01. Limitations on 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 of the Premises. 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 aforesaid, be binding on Lessor's successors and assigns, only during their
respective periods of ownership. For any breach of this Lease by Lessor, the
liability of Lessor (including all persons and entities that comprise Lessor,
and any successor Lessor) and any recourse by Lessee against Lessor shall be
limited to the interest of Lessor, and Lessor's successors in interest, in and
to the Premises. On behalf of itself and all persons claiming by, through, or
under Lessee, Lessee expressly waives and releases Lessor and each member, agent
and employee of Lessor from any personal liability for breach of this Lease.
ARTICLE XVII
------------
GENERAL PROVISIONS
------------------
Section 17.01. 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.
Section 17.02. Agreed Rate Interest on Past-Due Obligations. Except as
-----------------------------------------------------------
expressly herein provided, any amount due to either party not paid when due
shall bear interest at the Bank of America prime rate plus one percent (1 %)
("Agreed Rate"). Payment of such interest shall not excuse or cure any default
by Lessee under this Lease. Despite any other provision of this Lease, the total
liability for interest payments shall not exceed the limits, if any, imposed by
the usury laws of the State of California. Any interest paid in excess of those
limits shall be refunded to the payor by application of the amount of excess
interest paid against any sums outstanding in any order that payee requires. If
the amount of excess interest paid exceeds the sums outstanding, the portion
exceeding those sums shall be refunded in cash to the payor by the payee. To
ascertain whether any interest payable exceeds the limits imposed, any
nonprincipal payment (including late charges) shall be considered to the extent
permitted by law to be an expense or a fee, premium, or penalty rather than
interest.
Section 17.03. Time of Essence. Time is of the essence in the
--------------------------------
performance of all obligations under this Lease.
Section 17.04. Additional Rent. Any monetary obligations of Lessee to
-------------------------------
Lessor under the terms of this Lease shall be deemed to be Additional Rent and
Lessor shall have all the rights and
28
remedies for the nonpayment of same as it would have for nonpayment of Base
Rent, except that the one year requirement of Code of Civil Procedure Section
1161(2) shall apply only to scheduled installments of Base Rent and not to any
Additional Rent. All references to "rent" (except specific references to either
Base Rent or Additional Rent) shall mean Base Rent and Additional Rent.
Section 17.05. Incorporation of Prior Agreements, Amendments and
----------------------------------------------------------------
Exhibits. This Lease (including Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M
- ---------
and N contains all agreements of the parties with respect to any matter
mentioned herein. No prior 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 Lessor nor any
employees or agents of the Lessor has made any oral or written warranties or
representations to Lessee relative to the condition or use by Lessee of said
Premises 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 Lease Term except as otherwise specifically stated in this
Lease. Neither party has been induced to enter into this Lease by, and neither
party is relying on, any representation or warranty outside those expressly set
forth in this Lease.
Section 17.06. Notices.
-----------------------
(a) Written Notice. Any notice required or permitted to be given
--------------
hereunder shall be in writing and shall be given by a method described in
paragraph (b) below and shall be addressed to Lessee or to Lessor at the
addresses noted below, next to the signature of the respective parties, as the
case may be. Either party may by notice to the other specify a different 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, but delay or failure of delivery to such person shall not affect the
validity of the delivery to Lessor or Lessee.
(b) Methods of Delivery:
-------------------
(i) When personally delivered to the recipient, notice is
effective on delivery. Delivery to the person apparently designated to receive
deliveries at the subject address is personally delivered if made during
business hours (e.g. receptionist).
(ii) When mailed by certified mail with return receipt requested,
notice is effective on receipt if delivery is confirmed by a return receipt.
(iii) When delivery by overnight delivery Federal
Express/Airborne/United Parcel Service/DHL Worldwide Express with charges
prepaid or charged to the sender's account, notice is effective on delivery if
delivery is confirmed by the delivery service.
(c) Refused, Unclaimed or Undeliverable Notices. Any correctly
--------------------------------------------
addressed notice that is refused, unclaimed, or undeliverable because of an act
or omission of the party to be notified shall be considered to be effective as
of the first date that the notice was refused,
29
unclaimed, or considered undeliverable by the postal authorities, messenger, or
overnight delivery service.
Section 17.07. Waivers. No waiver of any provision hereof shall be
----------------------
deemed a waiver of any other provision hereof or of any subsequent breach of the
same or any other provisions. Any consent to, or approval of, any act shall not
be deemed to render unnecessary the obtaining of consent to or approval of any
subsequent act. 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.
Section 17.08. Recording. Either Lessor or Lessee shall, upon request
------------------------
of the other, execute, acknowledge and deliver to the other a "short form"
memorandum of this Lease for recording purposes, provided that Lessee shall also
simultaneously execute in recordable form and deliver to Lessor a Quit Claim
Deed as to its leasehold and any other interest in the Premises and hereby
authorizes Lessor to date and record the same only upon the expiration or sooner
termination of this Lease.
Section 17.09. Surrender of Possession; Holding Over.
-----------------------------------------------------
(a) At the expiration of the Lease, Lessee agrees to deliver up and
surrender to Lessor possession of the Premises and all improvements thereon
broom clean and, in as good order and condition as when possession was taken by
Lessee, excepting only ordinary wear and tear (wear and tear which could have
been avoided by first class maintenance practices and in accordance with
industry standards shall not be deemed "ordinary"). Upon expiration or sooner
termination of this Lease, Lessor may reenter the Premises and remove all
persons and property therefrom. If Lessee shall fail to remove any personal
properly which it is entitled or obligated to remove from the Premises upon the
expiration or sooner termination of this Lease, for any cause whatsoever,
Lessor, at its option, may remove the same and store or dispose of them, and
Lessee agrees to pay to Lessor on demand any and all expenses incurred in such
removal and in making the Premises free from all dirt, litter, debris and
obstruction, including all storage and insurance charges. If the Premises are
not surrendered at the end of the Lease Term, Lessee shall indemnify Lessor
against loss or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, actual damages for lost rent and with
respect to any claims of a successor occupant.
(b) If Lessee, with Lessor's prior written consent, remains in
possession of the Premises after expiration of the Lease Term and if Lessor and
Lessee have not executed an express written agreement as to such holding over,
then such occupancy shall be a tenancy from month to month at a monthly Base
Rent equivalent to 125% (for the first three months of holdover) and thereafter
150% of the monthly rental in effect immediately prior to such expiration, such
payments to be made as herein provided for Base Rent. In the event of such
holding over, all of the terms of this Lease, including the payment of
Additional Rent all charges owing hereunder other than rent shall remain in
force and effect on said month to month basis.
Section 17.10. Cumulative Remedies. No remedy or election hereunder by
----------------------------------
Lessor shall be deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law
30
or in equity, provided that notice and cure periods set forth in Article XII are
intended to extend and modify statutory notice provisions to the extent
expressly stated in Section 12.01.
Section 17.11. Covenants and Conditions. Each provision of this Lease
----------------------------------------
to be observed or performed by Lessee shall be deemed both a covenant and a
condition.
Section 17.12. Binding Effect; Choice of Law. Subject to any provisions
---------------------------------------------
hereof restricting assignment or subletting by Lessee and subject to the
provisions of Article XVI, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California and any legal or equitable action or proceeding
brought with respect to the Lease or the Premises shall be brought in Santa
Clara County, California.
Section 17.13. Lease to be Subordinate. Lessee agrees that this Lease
--------------------------------------
is and shall be, at all times, subject and subordinate to the lien of any
mortgage or other encumbrances which Lessor may create during the Lease Term
against the Premises including all renewals, replacements and extensions thereof
provided, however, that regardless of any default under any such mortgage or
encumbrance or any sale of the Premises under such mortgage, so long as Lessee
timely performs all covenants and conditions of this Lease and continues to make
all timely payments hereunder, this Lease and Lessee's possession and rights
hereunder shall not be disturbed by the mortgagee or anyone claiming under or
through such mortgagee. Lessee shall execute any documents subordinating this
Lease within ten (10) days after delivery of same by Lessor so long as the
Lender agrees therein that this Lease will not be terminated if Lessee is not in
default following a foreclosure, including, without limitation, any
Subordination Non-Disturbance and Attornment Agreement ("SNDA") which is
substantially in the form attached hereto as Exhibit "F." Lessor shall also
utilize its commercially reasonable efforts to obtain a non-disturbance
agreement from any existing lender.
Section 17.14. Attorney' Fees. If either party herein brings an action
-------------------------------
to enforce the terms hereof or to declare rights hereunder, the prevailing party
in any such action, on trial or appeal, shall be entitled to recover its
reasonable attorneys' fees, expert witness fees and costs as fixed by the Court.
Section 17.15. Signs. Lessee shall not place any sign upon the exterior
---------------------
of any Building without Lessor's prior written consent, which consent shall not
be unreasonably withheld and which consent is hereby given to the signage
described in Exhibit "G" hereto. Lessee, at its sole cost and expense, after
obtaining Lessor's prior written consent, shall install, maintain and remove
prior to expiration of this Lease (or within ten (10) days after any earlier
termination of this Lease) all signage in full compliance with (i) all
applicable law, statutes, ordinances and regulations and (ii) all provisions of
this Lease concerning Alterations.
Section 17.16. 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.
Section 17.17. Guarantor. [Intentionally Omitted] [Exhibit H]
------------------------
31
Section 17.18. Quiet Possession. Upon Lessee timely paying the rent for
---------------------------------
the Premises and timely 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
Lease Term, subject to all of the provisions of this Lease.
Section 17.19. Easements. 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 or other documents, and take
such other actions, which are reasonably necessary or appropriate to accomplish
such granting and recordation, upon request of Lessor, and failure to do so
within ten (10) business days of a written request to do so shall constitute a
material breach of this Lease.
Section 17.20. Authority. Each individual executing this Lease on
--------------------------
behalf of a corporation, limited liability company or partnership represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of such entity in accordance with a duly adopted resolution of the
governing group of the entity empowered to grant such authority, and that this
Lease is binding upon said entity in accordance with its terms. Each party shall
provide the other with a certified copy of its resolution within ten (10) days
after execution hereof, but failure to do so shall in no manner (i) be evidence
of the absence of authority or (ii) affect the representation or warranty. It is
understood that this Lease shall not be binding on Lessor unless and until
Lessor shall have executed same and delivered a fully executed copy of this to
Lessee.
Section 17.21. Force Majeure Delays. In any case where either party
------------------------------------
hereto is required to do any act (other than the payment of money), delays
caused by or resulting from Acts of God or Nature, war, civil commotion, fire,
flood or other casualty, labor difficulties, shortages of labor or materials or
equipment, unplanned delays in governmental permitting or approval process,
government regulations, unusually severe weather, or other causes beyond such
party's reasonable control the time during which act shall be completed, shall
be deemed to be extended by the period of such delay, whether such time be
designated by a fixed date, a fixed time or "a reasonable time."
Section 17.22. Hazardous Materials.
-------------------------------------
(a) Definition of Hazardous Materials and Environmental Laws.
----------------------------------------------------------
"Hazardous Materials" means any (a) substance, product, waste or other material
of any nature whatsoever which is or becomes listed regulated or addressed
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. sections 9601, et seq. ("CERCLA"); the Hazardous Materials
Transportation Act ("HMTA") 49 U.S.C. section 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. section 6901, et seq. ("RCRA"); the
Toxic Substances Control Act, 15 U.S.C. sections 2601, et seq. ("TSCA"); the
Clean Water Act, 33 U.S.C. sections 1251, et seq.; the California Hazardous
Waste Control Act, Health and Safety Code sections 25100, et seq.; the
California Hazardous Substances Account Act, Health and Safety Code sections
26300, et seq.; the California Safe Drinking Water and Toxic Enforcement Act,
Health and Safety Code sections 25249.5, et seq.; California Health and Safety
Code
32
sections 25280, et seq.; (Underground Storage of Hazardous Substances); the
California Hazardous Waste Management Act, Health and Safety Code sections
25170.1, et seq.; California Health and Safety Code sections 25501. et seq.
(Hazardous Materials Response Plans and Inventory); or the Porter-Cologne Water
Quality Control Act, California Water Code sections 13000, et seq., all as
amended, or any other federal, state or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to or
imposing liability (including, but not limited to, response, removal and
remediation costs) or standards of conduct or performance concerning any
hazardous, toxic or dangerous waste, substance or material, as now or at any
time hereafter may be in effect (collectively, "Environmental Laws"); (b) any
substance, product, waste or other material of any nature whatsoever whose
presence in and of itself may give rise to liability under any of the above
statutes or under any statutory or common law theory based on negligence,
trespass, intentional tort, nuisance, strict or absolute liability or under any
reported decisions of a state or federal court, (c) petroleum or crude oil,
including but not limited to petroleum and petroleum products contained within
regularly operated motor vehicles and (d) asbestos.
(b) Lessor's Representations and Disclosures. Lessor represents that it
-----------------------------------------
has provided Lessee with a description of the Hazardous Materials on or beneath
the Property as of the date hereof, attached hereto as Exhibit I and
incorporated herein by reference; Lessee acknowledges that in providing the
attached Exhibit I, Lessor has satisfied its obligations of disclosure pursuant
to California Health & Safety Code Section 25359.7 which requires:
"Any owner of nonresidential real property who knows, or has reasonable
cause to believe, that any release of hazardous substances has come to be
located on or beneath that real property shall, prior to the sale, lease or
rental of the real property by that owner, give written notice of that condition
to the buyer, lessee or renter of the real property."
(c) Use of Hazardous Materials. Lessee shall not cause or permit any
---------------------------
Hazardous Materials to be brought upon, kept or used in, on or about the
Property by Lessee, its agents, employees, contractors, licensee, guests,
visitors or invitees without the prior written consent of Lessor. Lessor shall
not unreasonably withhold such consent so long as Lessee demonstrates to
Lessor's reasonable satisfaction that such Hazardous Materials are necessary or
useful to Lessee's business and will be used, kept and stored in a manner that
complies with all applicable Environmental Laws. Lessee shall, at all times,
use, keep, store, handle, transport, treat or dispose all such Hazardous
Materials in or about the Property in compliance with all applicable
Environmental Laws. Lessee shall remove all Hazardous Materials used or brought
onto the Property during the Lease Term from the Property prior to the
expiration or earlier termination of the lease.
(d) Use of Property. Lessee shall not use the Property in any manner
----------------
that could cause or contribute to the migration or release of any existing
contamination and shall not interfere with response actions taken on or around
the Property.
(e) Lessee's and Lessor's Environmental Indemnity. Lessee agrees to
-----------------------------------------------
indemnify and hold Lessor harmless from any liabilities, losses, claims,
damages, penalties, fines, attorney fees, expert fees, court costs, remediation
costs, investigation costs, or other expenses resulting from or arising out of
the use, storage, treatment, transportation, release,
33
presence, generation, or disposal of Hazardous Materials on, from or about
the Property, and/or subsurface or ground water, after the Commencement Date
from an act or omission of Lessee (or Lessee's successor), its agents,
employees, invitees, vendors, contractors, guests or visitors. Lessor agrees to
indemnify and hold Lessee harmless from any liabilities, losses, claims,
damages, penalties, fines, attorney fees, expert fees, court costs, remediation
costs, investigation costs, or other expenses resulting from or arising out of
the use, storage, treatment, transportation, release, presence, generation, or
disposal of Hazardous Materials on, from or about the Property, and/or
subsurface or ground water, prior to the Commencement Date from an act or
omission of Lessor (or Lessor's predecessor), its agents, employees, invitees,
vendors, contractors, guests or visitors.
(f) Lessee's Obligation to Promptly Remediate. If the presence of
-----------------------------------------
Hazardous Materials on the Premises after the Commencement Date results from an
act or omission of Lessee (or Lessee's successors), its agents, employees,
invitees, vendors, contractors, guests, or visitors results in contamination or
deterioration of the Property or any water or soil beneath the Property, Lessee
shall promptly take all action necessary or appropriate to investigate and
remedy that contamination, at its sole cost and expense, provided that Lessor's
approval of such action shall first be obtained. Lessor's approval shall not be
unreasonably withheld.
(g) Notification. Lessor and Lessee each agree to promptly notify the
------------
other of any communication received from any governmental entity concerning
Hazardous Materials or the violation of Environmental Laws that relate to the
Property.
Section 17.23. Modifications Required by Lessor's Lender. If any lender
---------------------------------------------------------
of Lessor requires a modification of this Lease that will not increase Lessee's
cost or expense or materially and adversely change Lessee's rights and
obligations, this Lease shall be so modified and Lessee shall execute whatever
documents are required by such lender and deliver them to Lessor within ten (10)
days after the request.
Section 17.24. Brokers. Lessor and Lessee each represents to the other
------------------------
that it has had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, except for the real estate brokers or agents
identified on the signature page hereof ("Brokers") and that they know of no
other real estate broker or agent who is entitled to a commission or finder's
fee in connection with this Lease. Each party shall indemnify, protect, defend,
and hold harmless the other party against all claims, demands, losses,
liabilities, lawsuits, judgments, and costs and expenses (including reasonable
attorney fees) for any leasing commission, finder's fee, or equivalent
compensation alleged to be owning on account of the indemnifying party's
dealings with any real estate broker or agent other than the Brokers. The terms
of this Section 17.24 shall survive the expiration or earlier termination of the
Lease Term.
Section 17.25. Right of First Offer to Lease Adjacent Project.
----------------------------------------------------------------
(a) If Lessor enters into a Purchase and Sale Agreement to purchase
certain real property which is adjacent to the Project and which is depicted on
Exhibit "N" hereto and on which Lessor desires to develop an additional
office/research and development project "Adjacent Project," Lessee shall have a
right of first offer ("Right of First Offer") to lease the Adjacent Project
subject to paragraphs (b) through (g) below.
34
(b) This Section 17.25 shall automatically and permanently become null
and void if at the time Lessor enters into the aforesaid Purchase and Sale
Agreement or at the time Lessee exercises the Right of First Offer: (i) this
Lease is not in full force and effect, (ii) Lessee is in default beyond any
expressly notice and cure period provided under this Lease, and (iii) Lessee's
then current financial condition, as revealed by its most recent financial
statements (which shall include quarterly and annual financial statements,
including income statements, balance sheets, and cash flow statements), fail to
demonstrate that either: (1) Lessee's net worth is at least equal to its net
worth at the time this Lease was signed; or (2) Lessee meets other financial
criteria acceptable to Lessor in its sole discretion.
(c) If Lessee is not in default beyond any express notice and cure
period provided under this Lease when Lessor enters into said Purchase and Sale
Agreement or at the time Lessee exercises its Right of First Offer, Lessor shall
not lease the Adjacent Project to another lessee unless and until Lessor has
first offered it to Lessee in writing (the "Offer Notice") and either (i) Lessee
rejects such offer or (ii) a period of five (5) business days has elapsed from
the date that Lessor has delivered the Offer Notice to Lessee, without Lessee
having notified Lessor in writing of its acceptance of such Offer Notice,
delivered a signed Lease and supplied Lessor with current financial statements
pursuant to Section 17.25 (b), whichever event occurs first. The Offer Notice
shall contain the following information: (a) a general description of the number
of buildings to be built and the approximate rentable square feet of each, (b)
the date on which the Lessor expects the lease term to commence, (c) the base
rent. There shall be attached to the Offer Notice a form of written Lease
containing such other terms and conditions upon which Lessor wishes to lease the
Adjacent Project.
(d) If Lessee timely delivers to Lessor, in accordance with the
conditions of this Section 17.25, written notice of Lessee's acceptance of the
Offer Notice together with a signed Lease (without modification of any kind) and
Lessee's financial statements and Lessor determines pursuant to Section 17.25(b)
that Lessee meets all of the conditions provided in this Section 17.25, then
Lessee shall be deemed to have duly exercised its right hereunder and Lessor
shall execute the Lease.
(e) If Lessee declines or fails to duly and timely accept the Offer
Notice and to return same with the signed Lease and financial statements as
provided in Section 17.25(d), or fails to meet all of the conditions provided in
Section 17.25(b), this Section 17.25 shall automatically become null and void
and have no further force and effect and Lessor shall thereafter be free to
lease the Adjacent Project in portions or in its entirety to any tenant at any
time without regard to the restrictions in this Section 17.25 and on whatever
terms and conditions Lessor may decide in its sole discretion, without again
complying with all the provisions of this Section 17.25.
(f) This Right of First Offer is personal to the Lessee signing this
Lease and shall become null and void upon the occurrence of an assignment of the
Lease or a sublet of all or more than fifty percent (50%) of the Rentable Area
of the Premises for the remainder of the Lease Term other than to an Affiliate
of said Lessee.
35
(g) This Right of First Offer shall become null and void upon the
occurrence of any transfer of title to the Premises or Project by Lessor,
including without limitation, by foreclosure or otherwise.
Section 17.26. Right of First Offer to Purchase Premises. Should Lessor
---------------------------------------------------------
determine at any time during the Lease Term that it intends to sell the
Premises, and Lessee is not then in default beyond any express notice and cure
period provided under this Lease, it shall notify Lessee of the terms and
conditions on which it wishes to sell in the form of a Purchase and Sale
Agreement which shall have terms and conditions sufficient to constitute a
binding contract (once signed by both parties) to accomplish the purchase and
sale and which terms and conditions shall otherwise be in the sole discretion of
Lessor. If Lessee does not sign and hand-deliver the signed Purchase and Sale
Agreement to Lessor (without modification of any kind) within five (5) business
days after Lessor delivers same to Lessee, or if Lessee fails to provide with
said signed Purchase and Sale Agreement financial statements demonstrating that
Lessee's net worth is at least equal to its net worth at the time this Lease is
executed, or if Lessee fails to timely perform all of its obligations under the
Purchase and Sale Agreement or the escrow established thereunder is terminated
for any reason, this Section 17.26 shall automatically become null and void and
have no further force and effect and Lessor shall thereafter be free to sell the
Premises or Project in portions or in its entirety to any buyer at any tune
without regard to the restrictions in this Section 17.26 and on whatever terms
and conditions Lessor may decide in its sole discretion, without again complying
with any of the provisions of this Section 17.26. This Right of First Offer is
personal to the Lessee signing this Lease and shall become null and void upon
the occurrence of an assignment of the Lease or a sublet of all or more than
fifty percent (5O%) of the Premises for the remainder of the Lease Term other
than to an Affiliate of said Lessee. This Right of First Offer shall become null
and void upon the occurrence of any transfer of title to the Premises or Project
by Lessor, including without limitation, by foreclosure or otherwise. This Right
of First Offer shall be subordinate to the lien of any deed of trust recorded
against the Project or Premises at any time. This Right of First Offer shall not
apply with respect to any transfer of title or other interest in the Project or
Premises to an entity which is an "Affiliate" of Lessor (as that Lessor is used
herein Section 11.02 to describe entity relationships of Lessee) or to Lehman
brothers or any entity related to Lehman Brothers.
Section 17.27. List of Exhibits.
----------------------------------
Ref. Page
---------
EXHIBIT A: Real Property Legal Description,
Site Plan, and Building Elevations
EXHIBIT B: Plans and Specifications for Shell Buildings
EXHIBIT C: Work Letter Agreement for Tenant
Improvements and Interior Specification Standards
EXHIBIT D: Cost Responsibilities of Lessor and Lessee
EXHIBIT E: Memorandum of Commencement of Lease
Term and Schedule of Base Rent
36
EXHIBIT F: SNDA
EXHIBIT G: Signage Exhibit
EXHIBIT H: Guaranty of Lease [Intentionally Omitted]
EXHIBIT I: Hazardous Materials Disclosure
EXHIBIT J: [Intentionally omitted]
EXHIBIT K: [Intentionally omitted]
EXHIBIT L: Rules and Regulations
EXHIBIT M: Moffett Park TDM Plan
EXHIBIT N: Adjacent Project
37
LESSOR AND LESSEE EACH HAS CAREFULLY READ AND HAS REVIEWED THIS LEASE AND BEEN
ADVISED BY LEGAL COUNSEL OF ITS OWN CHOOSING AS TO EACH TERM AND PROVISION
CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOWS ITS INFORMED AND
VOLUNTARY CONSENT THERETO. EACH PARTY HEREBY AGREE THAT, AT THE TIME THIS LEASE
IS EXECUTED, THE TERMS AND CONDITIONS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
Executed at San Jose, California, as of the reference date.
LESSOR: ADDRESS:
MOFFET PARK DRIVE LLC, c/o Jay Paul Company
a California limited liability company 353 Sacramento Street, Suite 1740
San Francisco, California 94111
By: GATEWAY LAND COMPANY, INC.
a California corporation,
Managing Member With a copy to:
By: /s/ Jay Paul
-------------------------------------- Thomas G. Perkins, Esq.
Jay Paul, President 99 Almaden Blvd., 8th Floor
San Jose, CA 95113
Telephone: 408/993-9911
Facsimile: 408/286-3312
LESSEE: ADDRESS:
ARIBA, INC., 1565 Charleston Road
a Delaware corporation Mountain View, CA 94041
ATTN: Chief Financial Officer
By: /s/ Edward P. Kinsey
--------------------------------------
Edward P. Kinsey
-------------------------------------- 1111 Lockhead Martin Way
(Type or print name) Sunnyvale, CA 94089
Its: Vice President - Finance
-------------------------------------- (After Commencement Date)
Chief Executive Officer Copies to:
-------------------------------------- ---------
Ariba - Real Estate Dept. and
Ariba - Legal Dept.
1111 Lockhead Martin Way
Sunnyvale, CA 94089
38
BROKER EXECUTION
----------------
By signing below, the indicated real estate broker or agent is not
being made a party hereto but is signifying its agreement with the provisions
hereof concerning brokerage.
LESSOR'S BROKER: ADDRESS:
Cornish & Carey Commercial 2804 Mission College Boulevard
Suite 120
By: Santa Clara, California 95054
----------------------------------
Phil Mahoney
(Type or print name)
Its: Executive Vice President
LESSEE'S BROKER: ADDRESS:
Cushman & Wakefield 2055 Gateway Place, Suite 550
San Jose, California 95110
By: /s/ John McMann
---------------------------------
John McMann
(Type or print name)
Its: Associate Director
39
EXHIBIT A
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
REAL PROPERTY LEGAL DESCRIPTION,
SITE PLAN AND BUILDING ELEVATIONS
---------------------------------
(See Attached)
[INSERT MOFFET PARK GRAPHIC HERE]
Moffett Park Site Plan
Exhibit shows the Moffett Park site plan, which includes four buildings and a
parking area.
[INSERT MOFFET PARK GRAPHIC DRIVE ELEVATION HERE]
Elevation
Exhibit shows Lockheed Way and Moffett Park Drive elevation.
Order No. 517852
Page No. 7
LEGAL DESCRIPTION
REAL PROPERTY in the City of Sunnyvale, County of Santa Clara, State of
California, described as follows:
PARCEL ONE:
Commencing at the point of intersection of the Westerly line of that certain
parcel of land conveyed to Lockheed Aircraft Corporation, by Deed recorded
February 1, 1956 in Book 3403, at page 27, Official Records of Santa Clara
County, with the Northerly line of the existing State Highway in Santa Clara
County, Road IV-SCI-66-B (Bayshore Highway); thence along said Westerly line,
North 15(degree) 22' 44" East 811.7 feet to the true point of beginning of the
parcel to be described; thence from said true point of beginning, leaving said
line and going along the line of lands to be acquired by the Division of
Highways, South 5(degree) 45' 46" West 230.86 feet; thence along a curve to the
left with a radius of 284.00 feet, through a central angle of 1(degree) 16' 18",
an arc distance of 55.87 feet to a point of compound curvature; thence along the
arc of a curve to the left with a radius of 41.00 feet, through a central angle
of 63(degree) 58' 31', an arc distance of 45.79 feet; thence South 69(degree)
29' 03" East 185.61 feet; thence on the arc of a curve to the left with a radius
of 410.00 feet (the tangent to said curve at the point of beginning bears South
80(degree) 59' 31" East), through a central angle of 20(degree) 55' 04", an arc
distance of 149.68 feet; thence North 78(degree) 05' 25" East 269.53 feet;
thence on the arc of a curve to the left with a radius of 1924.00 feet, through
a central angle of 5(degree) 24' 34", an arc distance of 181.65 feet; thence
North 72(degree) 40' 51" East 601.58 feet; thence on the arc of a curve to the
left with a radius of 960.00 feet, through a central angle of 6(degree) 52' 02",
an arc distance of 115.06 feet; thence continuing along said line to be conveyed
to the Division of Highways, North 65(degree) 48' 49" East 146.38 feet to a
point in the Easterly line of said parcel, said point bears North 14(degree) 52'
20" East 359.40 feet from the center line of the existing State Highway in Santa
Clare County, Road 4-SC1-113-A; thence along said Easterly line of said parcel,
North 14(degree) 52' 20" East 454.56 feet to the Southeasterly corner of that
certain 82.703 acre tract shown on Record of Survey of a portion of Lot 5A of
the Murphy Partition of the Rancho Pastoria De Las Borregas, filed for record
February 7, 1957 In Book 78 of Maps, at page 32, Santa Clara County Records;
thence along the Southwesterly line of said 82.703 acre parcel, North 75(degree)
07' 40" West (called North 75(degree) 08' West on said Record of Survey),
1520.01 feet to the Westerly line of that certain tract of land hereinabove
referred to, a description of which was recorded In Book 3403, at page 27,
Official Records of Santa Clara County; thence along the Westerly line of said
tract, South 15(degree) 22' 44" West 860.31 feet to the true point of beginning.
EXCEPTING THEREFROM that portion thereof described in the deed to the United
States of America, recorded September 18, 1968 in Book 8265, page 381, Official
Records, and more particularly described as follows:
Beginning at the intersection of the Northerly line of the lands conveyed to the
State of California and recorded in Book 4035 of Official Records, at page 591,
in the Office of the County Recorder of the County of Santa Clara, State of
California with the Easterly line of Lot
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
Order No. 517852
LEGAL DESCRIPTION (Continued) Page No. 8
5A of the "Partition of that part of the Rancho Pastoria De Las Borregas
patented to Martin Murphy, Jr." and recorded in volume G of Maps, at pages 74
and 75 in the Office of the County Recorder, County of Santa Clara, State of
California; thence along the Northerly line of the lands conveyed to the State
of California, South 65(degree) 49' 50" West 147.52 feet; thence along the arc
of a tangent curve to the right, having a radius of 960.00 feet, through a
central angle of 6(degree) 52' 02", a distance of 115.06 feet; thence South
72(degree) 41' 52" West 133.33 feet; thence leaving said Northerly line, North
14(degree) 52' 20" East 636.00 feet; thence South 75(degree) 07' 40" East 320.92
feet to a point on the Easterly line of the above mentioned Lot 5A; thence along
said Easterly line of Lot 5A, South 14(degree) 52' 20" West 455.22 feet to the
point of beginning.
ALSO EXCEPTING THEREFROM that portion thereof described as "PARCEL 2101-A" in
the deed to the Santa Clara County Transit District recorded September 26, 1997,
Document No.13874485, Official Records, and more particularly described as
follows:
Beginning at the Southerly terminus of the Easterly line of that certain 27.755
acre parcel as said parcel is shown on that certain Record of Survey filed in
Book 283 of Maps, page 10, Records of Santa Clara County, California; thence
Northerly along said Easterly line of said 27.755 acre parcel, the following two
(2) described courses: 1) North 15(degree) 45' 47" East 0.73 feet to the true
point of beginning of this description; 2) continuing North 15(degree) 45' 47"
East 45.87 feet to the beginning of a nontangent curve concave Northerly with a
radius of 2739.00 feet; thence leaving said Easterly line of said 27.755 acre
parcel from a tangent bearing of South 74(degree) 51' 31" West along said curve
(with a radius of 2739.00 feet) through a central angle of 12(degree) 37' 47"
and an arc length of 603.76 feet to the beginning of a compound curve concave
Northerly with a radius of 3655.70 feet; thence Westerly along the last said
curve (with a radius of 3655.70 feet) through a central angle of 1(degree) 33'
45" and an arc length of 99.70 feet; thence South 89(degree) 03' 03" West 552.58
feet to the Westerly line of said 27.755 acre parcel and to Point "A"; thence
Southerly along said Westerly line of said 27.755 acre parcel, the following two
(2) described courses: 1) South 6(degree) 41' 08" West 10.31 feet to the
beginning of a curve concave Easterly with a radius of 284.00 feet) 2) Southerly
along the last said curve (with a radius of 284.00 feet) through a central angle
of 5(degree) 49' 42" and an arc length of 28.89 feet; thence leaving said
Westerly line of said 27.755 acre parcel North 89(degree) 03' 03" East 597.76
feet to the beginning of a curve concave Northerly with a radius of 2647.00
feet); thence Easterly along the last said curve (with a radius of 2647.00 feet)
through a central angle of 14(degree) 02' 05" and an arc length of 648.39 feet
to the true point of beginning.
ALSO EXCEPTING THEREFROM that portion thereof described in the deed to The City
of Sunnyvale recorded December 23, 1998, Document No. 14567148, Official Records
and more particularly described as follows:
Beginning at the most Southeasterly corner of said 27.755 acre parcel of land,
as said parcel is shown on that certain Record of Survey filed in Book 263 of
Maps, page 10, Records of Santa Clara County, California, said corner also being
on the Northerly right-of-way line of the lands described in the Deed to the
State of California, recorded on March 21, 1958 in Book 4035 of Official
Records, page 591, Records of Santa Clara County; thence along the Southerly
line of said 27.755 acre parcel of land, and along said Northerly right-of-way
line, the following seven (7) courses: 1) South 72(degree) 40' 51" West 467.92
feel to the beginning of a curve to the right having a radius of 1924.00 feet;
2) along said curve through a central angle of 05(degree) 24' 34" for an arc
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
Order No. 517852
LEGAL DESCRIPTION (Continued) Page No. 9
length of 181.65 feet; 3) South 78(degree) 05' 25" West 269.53 feet to the
beginning of a curve to the right having a radius of 410.00 feet; 4) along said
curve through a center angle of 20(degree) 55' 04" for an arc length of (149.68
feet; 5) North 69(degree) 29' 03" West 185.61 feet to the beginning of a curve
to the right having a radius of 41.00 feet; 6) along said curve through a
central angle of 63(degree) 58' 31" for an arc length of 45.78 feet to the
beginning of a curve to the right having a radius of 284.00 feet; 7) along said
curve through a central angle of 05(degree) 27' 01" for an arc length of 27.02
feet; thence leaving last said lines along the Southerly proposed acquisition
line for the area designated as 2101-A, as shown on the Santa Clara County
Transportation Agency Tasman Corridor Protect Appraisal Map, dated March 22,
1996, the following two (2) courses: 1) North 88(degree) 09' 49" East 597.97
feet to the beginning of a curve to the left, having a radius of 2647.00 feet;
2) along said curve, through a central angle of 14(degree) 02' 05" for an arc
length of 648.39 feet to a point on the Easterly line of said 27.755 acre parcel
of land; thence along said Easterly line South 14(degree) 52' 20" West 0.72 feet
to the point of beginning of this description.
PARCEL TWO:
All that certain real property, being a portion of that certain Relinquishment
from the State of California to the City of Sunnyvale (Request 40500) recorded
as Segment 1 in Document 14249920 in the Official Records of Santa Clara County,
California, and being more particularly described as follows:
Beginning at the most Northerly point of Parcel 1, as said Parcel 1 is described
in that certain Relinquishment No. 22171 as said Relinquishment is recorded in
Book 6174, pages 121-125, Official Records of Santa Clara County, California,
said point being on the Westerly line of said Segment 1 of said Relinquishment
to the City of Sunnyvale; thence Southerly along the generally Easterly line of
said Parcel 1 (generally Westerly line of said Segment 1) the following seven
(7) courses: 1) South 16(degree) 16' 06" West 106.20 feet; 2) North 73(degree)
43' 54" West 18.26 feet to the beginning of a nontangent curve concave Southerly
with a radius of 18.00 feet; 3) from a tangent bearing of North 63(degree) 58'
29" West along said curve (with a radius of 19.00 feet) through a central angle
of 67(degree) 23' 17" and an arc length of 22.35 feet to the beginning of a
compound curve concave Southeasterly with a radius of 74.00 feet; 4)
Southwesterly along the last said curve (with a radius of 74.00 feet) through a
central angle of 50(degree) 48' 34" and an arc length of 65.62 feet; 5) South
2(degree) 10' 20" East 150.75 feet to the beginning of a curve concave Westerly
with a radius of 118.00 feet; 6) Southerly along the last said curve (with a
radius of 118.00 feet) through a central angle of 18(degree) 26' 26" and an arc
length of 37.96 feet; 7) South 16(degree) 16' 06" West 316.73 feet; thence
leaving said generally Easterly line of Parcel 1 (generally Westerly line of
Segment 1) North 89(degree) 03' 03" East 74.12 feet to the Westerly line of that
certain 27.755 acre parcel of land shown on that certain Record of Survey filed
in Book 263 of Maps, page 10, Records of Santa Clara County and to the Easterly
line of said Segment 1 of said Relinquishment to the City of Sunnyvale; thence
Northerly along said Westerly line of said 27.755 acre parcel (Easterly line of
Segment 1) the following two (2) described courses: 1) North 6(degree) 41' 08"
East 133.77 feet; 2) North 16(degree) 16' 11" East 683.38 feet; thence leaving
said Westerly line of said 27.755 acre parcel (Easterly line of Segment 1)
Westerly along the Northerly line of said Segment 1, North 73(degree) 43' 49"
West 40.00 feet to said generally Westerly line of Segment 1; thence Southerly
along said generally Westerly line of Segment 1 South 22(degree) 16' 03" West
163.27 feet to the point of beginning.
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
Order No. 517852
LEGAL DESCRIPTION (Continued) Page No. 10
PARCEL THREE:
All of that certain property being a portion of the Lands of the Santa Clara
Valley Transportation Authority, being more particularly described as follows:
Beginning at the most Northerly point of Parcel 1, as said Parcel 1 is described
in that certain Relinquishment No. 22171 as said Relinquishment is recorded in
Book 6174, pages 121-125, Official Records of Santa Clara County, California,
thence Southerly along the generally Easterly line of said Parcel 1 the
following seven (7) described courses: 1) South 16(degree) 16' 06" West 106.20
feet; 2) North 73(degree) 43' 54" West 18.26 feet to the beginning of a
nontangent curve concave Southerly with a radius of 19.00 feet; 3) from a
tangent bearing of North 63(degree) 58' 29" West along said curve (with a radius
of 19.00 feet) through a central angle of 67(degree) 23' 17" and an arc length
of 22.35 feet to the beginning of a compound curve concave Southeasterly with a
radius of 74.00 feet; 4) Southwesterly along the last said curve (with a radius
of 74.00 feat) through a central angle of 50(degree) 48' 34" and an arc length
of 65.62 feet; 5) South 2(degree) 10' 20" East 150.75 feet to the beginning of a
curve concave Westerly with a radius of 118.00 feet; 6) Southerly along the last
said curve (with a radius of 118.00 feet) through a central angle of 18(degree)
26' 26" and an arc length of 37.96 feet; 7) South 16(degree) 16' 06" West 376.41
feet; thence leaving said generally Easterly line of Parcel 1 South 89(degree)
03' 03" West 48.38 feet to the beginning of a nontangent curve concave Westerly
with a radius of 92.00 feet and to the generally Northerly (and Westerly) line
of said Parcel 1; thence Northerly along said generally Northerly (and Westerly)
line of Parcel 1, the following six (6) described courses: 1) from a tangent
bearing of North 20(degree) 11' 22" East along the last said curve (with a
radius of 92.00 feet) through a central angle of 3(degree) 55' 16" and an arc
length of 6.30 feet; 2) North 16(degree) 16' 06" East 384.44 feet to the
beginning of a curve concave Westerly with a radius of 72.00 feet; 3) Northerly
along the last said curve (with a radius of 72.00 feet) through a central angle
of 18(degree) 26' 26" and an arc length of 23.17 feet; 4) North 2(degree) 10'
20" West 185.66 feet to the beginning of a curve concave Southeasterly with a
radius of 90.00 feet; 5) Northeasterly along the last said curve (with a radius
of 90.00 feet) through a central angle of 93(degree) 51' 33" and an arc length
of 147.43 feet to the beginning of a reverse curve concave Northwesterly with a
radius of 50.00 feet; 6) Northeasterly along the last said curve (with a radius
of 50.00 feet) through a, central angle of 69(degree) 58' 05" and an arc length
of 61.06 feet to the point of beginning.
PARCEL FOUR:
A non-exclusive easement 30 feet in width for the purpose of ingress and egress
and utilities, as reserved In the Deed to the United States of America, recorded
September 18, 1968 in Book 8265 of Official Records, page 381, more particularly
described as follows:
Commencing at the beginning of the Parcel Two described in said Deed; thence
along the Northerly line of the lands conveyed to the State of California, South
65(degree) 49' 50" West 147.52 feet; thence along the arc of a tangent curve to
the right, having a radius of 960.00 feet, through a central angle of 6(degree)
52' 02", a distance of 115.06 feet; thence South 72(degree) 41' 52" West 97.89
feet to the true point of beginning of the reservation; thence from said true
point of beginning of the reservation, South 72(degree) 41' 52" West 35.44 feet;
thence leaving said Northerly line, North 14(degree) 52' 20" East 686.09 feet;
thence South 75(degree) 07' 40" East 30.00 feet; thence South 14(degree) 52' 20"
West 667.22 feet to the true point of beginning of the reservation.
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
Order No. 517852
LEGAL DESCRIPTION (Continued) Page No. 11
PARCEL FIVE:
Storm drain easements with the right of encroachment and access for operation,
maintenance and related functions, as reserved in the Deed to the United States
of America recorded September 18, 1968 in Book 8265 of Official Records, page
381, more particularly described as follows:
Storm Drain Easement No. 1
- --------------------------
Commencing at the beginning of Parcel Two described in said Deed; thence along
the Northerly line of the lands conveyed to the State of California, South
63(degree) 49' 50" West 147.52 feet; thence along the arc of a tangent curve to
the right having a radius of 960.00 feet, through a central angle of 6(degree)
52' 02", a distance of 115.06 feet; thence South 72(degree) 41' 52" West 133.33
feet; thence leaving said Northerly line, North 14(degree) 52' 20" East 78.00
feet to the centerline of the 10-ft. wide storm drain easement which is the true
point of beginning of the reservation of Storm Drain Easement No. 1; thence from
true point of beginning of the reservation of Storm Drain Easement No. 1, South
62(degree) 30' 00" East 50 feet, more or less, along the centerline of the
10-ft. wide easement to the 45-ft. wide drainage easement conveyed to the Santa
Clara County Flood Control and Water Conservation District and recorded in Book
4562 of Official Records, at page 11, in the Office of the County Recorder of
the County of Santa Clara, State of California.
Storm Drain Easement No. 2
- --------------------------
Commencing at the beginning of Parcel Two described In said Deed; thence along
the Northerly line of the lands conveyed to the State of California, South
65(degree) 48' 50" West 147.52 feet; thence along the arc of a tangent curve to
the right, having a radius of 960.00 feet, through a central angle of 6(degree)
52' 02", a distance of 115.06 feet; thence South 72(degree) 41' 52" West 133.33
feet; thence leaving said Northerly line, North 14(degree) 52' 20" East 685.09
feet; thence South 75(degree) 07' 40" East 40.00 feet to the true point of
beginning of the reservation of Storm Drain Easement No. 2; thence from said
true point of beginning of the reservation of Storm Drain Easement No. 2, South
14(degree) 52' 20" West 35.00 feet; thence North 75(degree) 07' 40" West 40.00
feet; thence North 14(degree) 52' 20" East 15.00 feet; thence South 75(degree)
07' 40" East 30.00 feet; thence North 14(degree) 52' 20" East 20.00 feet; thence
South 75(degree) 07' 40" East 10.00 feet to the true point of beginning of the
reservation of Storm Drain Easement No. 2.
PARCEL SIX:
Easements described in and according to the terms and provisions set forth in
the DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, AND RECIPROCAL
EASEMENTS (BAYSHORE/JAGELS/MANILA PARCELS) by Lockheed Martin Corporation
recorded November 9, 1999 as Instrument No. 15053464, Official Records.
APN: 110-02-067
ARB: 110-1-24; 110-2-x61, 64
****
EXHIBIT B
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
SHELL BUILDING PLANS AND SPECIFICATIONS
---------------------------------------
(To be provided)
[INSERT LEASE FLOOR PLAN GRAPHIC HERE - FIRST FLOOR]
[Graphic shows the lay out of the first floor.]
[INSERT LEASE FLOOR PLAN GRAPHIC HERE - SECOND FLOOR]
[Graphic shows lay out of the second floor]
[INSERT LEASE FLOOR PLAN GRAPHIC HERE - THIRD FLOOR]
[Graphic shows lay out of the third floor]
[INSERT LEASE FLOOR PLAN GRAPHIC HERE - FOURTH FLOOR]
[Graphic shows lay out of the fourth floor]
EXHIBIT C
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
WORK LETTER AGREEMENT FOR TENANT IMPROVEMENTS
AND INTERIOR SPECIFICATION STANDARDS
------------------------------------
This agreement supplements the above referenced Lease executed concurrently
herewith and is as follows:
1. Lessee shall devote such time as may be necessary to enable Lessor
to complete and obtain by the respective dates specified in Section 2.04(d) of
the Lease Lessee's written approval, and approval by appropriate government
authorities, of the final Working Drawings. The Working Drawings, as they may be
modified or provided herein, shall be prepared by Lessor in accordance with the
design specified by Lessee and reasonably approved by Lessor. Lessee shall be
responsible for the suitability, for Lessee's needs and business, of the design
and function of all Tenant Improvements. All improvements to be constructed by
Lessor as shown on the Working Drawings, standard or special, shall be defined
as "Tenant Improvements." A11 Tenant Improvements materials shall be of a
quality equal to or greater than the quality of materials described on the
Interior Specification Standards attached hereto as Schedule One.
2. Lessor shall cause General Contractor to complete the construction
of the Tenant Improvements in a good and workmanlike manner and in substantial
accordance with the Working Drawings. Lessor shall not, however, be responsible
for procuring or installing in the Premises any trade fixtures, equipment,
furniture, furnishings, telephone equipment or other personal property
("Personal Property") to be used in the Premises by Lessee, and the cost of such
Personal Property shall be paid by Lessee. Lessee shall conform to all Project
standards in installing any Personal Property and shall be subject to any and
all rules of the site during construction.
3. Payment for the Tenant Improvements shall be pursuant to Section
2.04(g) of the Lease.
4. Lessee shall, by signing the Working Drawings within the time set
forth in Section 2.04 (d) of the Lease, give Lessor authorization to complete
the Tenant Improvements in accordance with such Working Drawings. If Lessee
shall request any change, addition or alteration in the approved Working
Drawings, Lessor shall promptly give Lessee a written estimate of the cost of
engineering and design services to prepare a change order (the "Change Order")
in accordance with such request and the time delay expected because of such
request. If Lessee, in writing, approves such written estimate, Lessor shall
have the Change Order prepared and Lessee shall concurrently reimburse Lessor
for the cost thereof. Promptly upon the
completion of such Change Order, Lessor shall notify Lessee in writing of the
cost and delay which will be chargeable to Lessee by reason of such change,
addition or deletion. Lessee shall within three (3) business days notify Lessor
in writing whether it desires to proceed with such change, addition or deletion,
and in the absence of such written authorization, the Change Order will be
deemed canceled and Lessee shall be chargeable with any delay in the completion
of the Premises resulting from the processing of such Change Order, including
the three (3) business day approval period.
5. If the completion of the Tenant Improvements in the Premises is
delayed (i) at the request of Lessee, (ii) by Lessee's failure to comply with
the forgoing provisions and time frames set forth in Section 2.04(d), or (iii)
by changes in the work ordered by Lessee or by extra work ordered by Lessee, or
(iv) because Lessee chooses to have additional work performed by Lessor, then
Lessee shall be responsible for all costs and any expenses occasioned by such
delay including, without limitation, any costs and expenses attributable to
increases in labor or materials; and there shall be no delay in the commencement
of Lessee's obligation to pay Rent because of Lessor's failure to complete the
Tenant Improvements on time and any such delay in completion shall constitute
Lessee Delay for purposes of Section 3.01(a) of the Lease.
Each person executing this Work Letter Agreement certifies that he or
she is authorized to do so on behalf of and as the act of the entity indicated.
Executed as of March ____, 2000, at _____________ (____________ County),
California.
MOFFETT PARK DRIVE LLC., ARIBA, INC.,
a California limited liability company a Delaware corporation
By: /s/ EDWARD P. KINSEY
By: /s/ JAY PAUL ------------------------------
----------------------------------- Edward P. Kinsey
Jay Paul ------------------------------
Its: Manager (Type or print name)
Its: VP Finance & CFO
-----------------------------
By:
------------------------------
------------------------------
(Type or print name)
Its:
-----------------------------
SCHEDULE ONE
TO
EXHIBIT C
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
INTERIOR SPECIFICATION STANDARDS
--------------------------------
ABBREVIATED BUILDING STANDARDS
------------------------------
Note: The Tenant Improvements shall be Class "A" and their quality must be at a
minimum, per the following standards:
GENERAL OFFICE
CUSTOM CABINETRY
SCOPE: All materials anal labor for the construction and installation
of Cabinetry and all related accessories per WIC Standards.
A. Trade Standards: Woodworking Institute of California (WIC) latest
edition Section 15 and 16 for plastic laminated casework and plastic
laminated countertops. Color of plastic laminate to be selected by
Architect
B. All cabinetry to be constructed to "Custom-Grade" Specifications.
Cabinetry to be flush overlay construction.
C. Plastic Laminate: High Pressure thermoset laminated plastic surfacing
material to equal or surpass NEMA LD3, Nevamar, Wilson Art or approved
equal.
1. Countertops, shelf-tops, splashes, and edges: Grade GP 50,
0.050 inches thick,
2. All other exposed vertical surfaces: Grade GP 28, 0.028 inches
thick
3. Semi-exposed backing sheet: Grade CL 20, 0.020 inches thick
4. Concealed backing sheet: Grade BK 20, 0.020 inches thick
D. Adhesives: Bond surfaces to Type 11 as recommend by Plastic Laminate
Manufacturer.
E. Hinges: Heavy-duty concealed self-closing hinges. Amount of hinges per
Door per WIC. Stanley or approved equal
F. Door and Drawer Pulls: Wire-pull with 4-inch centers; Dull Chrome
finish; Stanley 4483 or approved equal.
G. Drawer slides: Heavy-duty grade with ball-bearings. Stanley, Klein, or
approved equal
H. Door Catches: Heavy-duty commercial friction type.
I. Recessed Adjustable Shelf Standards: Aluminum or zinc-plated recessed
type; Knape & Vogt with clips or approved equal.
J. Base and Wall Cabinets including doors: 3/4-inch thick medium density
particleboard:
1. Conceal all fastenings.
2. Provide clear spaces as required for mechanical and electrical
fittings
3. Plastic laminate and self-edge all shelves.
4. Provide 3/4-inch thick doors and drawer faces.
5. Unless indicated otherwise, all shelving to be adjustable.
6. Provide back and ends on all cabinets.
7. All exposed cabinet faces to be plastic-laminated.
K. Countertops and Shelving: 3/4-inch thick medium density particleboard.
Backsplash to be 3/4 inches thick, glued and screwed into top with
scribed edges. Joints in countertop to be not closer than 24 inches
from sinks. Joints shall be shop fitted, splined, glued and
mechanically fastened.
L. Installation of Cabinetry shall be per WIC instructions, Custom Grade.
WOOD DOORS
SCOPE: All materials and labor necessary for the installation of Wood Doors,
required accessories and preparations for hardware.
A. Non-rated Wood Doors: 1-3/4 inch thick, flush, solid core, plain sliced
Birch veneer with Birch edge. Cores may be either of the following:
Glued block Hardwood Core per NWMA or Particleboard Core per NWMA.
Manufacturer: Algoma, Weyerhaeuser, or approved equal.
B. Fire-rated Wood Doors: 1-3/4 inch thick, flush, solid core, plain
sliced Birch face veneer with Birch Edge with mineral core per rating.
Manufacturer: Algoma, Weyerhaeuser, or approved equal. Doors shall have
a permanent UL label.
C. Vision Panels (where applies): Fire rated vision panel where required.
Set in square metal stop to match metal doorstops as provided by
doorframe manufacturer.
D. Doors shall be 8'- 0" x 3'-0" leafs typical.
ALUMINUM DOOR AND WINDOW FRAMES
SCOPE: All materials and labor necessary for the installation of Aluminum Door
Frames.
A. Frame Manufacturers: Raco, or Ragland Manufacturing Company, Inc.
B. Door Frames: Non-rated and 20-minute label, Raco "Trimstyle" frame with
Trim 700 (3/8 inch by 1- 1/2 inch) with no exposed fasteners.
C. Finish, Door and Window Frame Extrusions, Wall Trim:
1. Painted and oven-cured with "Duralaq" finish.
2. Color: Clear.
3. Finish shall meet or exceed requirements of AAMA
Specifications 603.
4. Coat inside of frame profile with bituminous coating to a
thickness of 1/16 inch where in contact with dissimilar
materials.
DOOR HARDWARE
SCOPE: All materials and labor for the installation of all Door Hardware,
locksets, closers, hinges, miscellaneous door hardware.
A. Swinging Door Lockset and Cylinder: Schlage "L" series with lever
handle with 6 pin cylinder.
B. Keyway: Furnish blank keyways to match existing master key system.
Match existing keyways.
C. Finishes: Satin Chrome, 626 finish. Paint closers to match.
D. Kickplates: 16 gauge stainless steel; 10 inches high: width to equal
door width less 2 inches.
HARDWARE SCHEDULE
Hardware Group A (Typical, rated, single door)
1 Lockset Schlage L9050PD
1-1/2 pair Butt Hinges Hager BB1279
1 Closer Norton 700 Series
1 Stop Quality (332 @ carpet)
1 Smoke Seal Pemko
Hardware Group B (Typical, rated, closet/service door)
1 Lockset Schlage L9080PD
1-1/2 pair Butt Hinges Hager BB1279
1 Closer Norton 700 Series w/ hold-open
1 Stop Quality (332 @ carpet)
1 Smoke Seal Pemko
Hardware Group C (Typical, non-rated door)
1 Lockset Schlage L9050PD
1-1/2 pair Butt Hinges Hager BB1279
1 Stop Quality (332 @ carpet)
Hardware Group D (Typical, non-rated, closet/service door)
1 Lockset Schlage L9080PD
1-1/2 pair Butt Hinges Hager BB1279
1 Stop Quality (332 @ carpet)
Hardware Group E (Card-access door)
1 Electric Lockset Schlage L9080PDGU
1-1/2 pair Butt Hinges Hager BB1279 - NRP
(2 pr @ 8' door)
1 Electric Butt Hager
1 Closer Norton 700 Series w/ hold-open
1 Stop Quality (332 @ carpet)
Hardware Group F (Typical, double door)
1 Electric Lockset Schlage L9050PD
3 pair Butt Hinges Hager BB1270
1 Auto Flush Bolt Glyn Johnson FB-8
1 Dustproof Strike Glyn Johnson DP2
2 Closer Norton 7700 Series
2 Stop Quality (332 @ carpet)
1 Astragal Pemko
1 Coordinator Glyn Johnson
1 Smoke Seal Pemko
GLAZING
SCOPE: All materials and labor for the installation of Glass.
A. Manufacturers: PPG Industries, or Viracon, Inc. See glazing schedule
below.
B. Shop prepares all glazing. Edges to have no chips or fissures.
C. Glazing Materials:
1. Safety Glass: ASTM C1048, fully tempered with horizontal
tempering, Condition A uncoated, Type 1 transparent flat,
Class 1 clear, Quality q3 glazing select, conforming to ANSI
297.1
2. Mirror Glass: Clear float type with copper and silver coating,
organic overcoating, square polished edges, 1/4-inch thick,
3. Wire Glass: Clear, polished both sides, square wire mesh of
woven stainless steel wire 1/2 inch x 1/2 inch grid; 114 inch
thick.
4. Tempered Glass: 1/4 inch thick, no tong marks. UL rated for
1-hour rating.
5. Spacers: Neoprene.
6. Tape to be poly-iso-butylene.
D. Schedule:
1. Type A: 1/4-inch thick mirror, annealed, heat strengthened, or
full tempered as required.
2. Type B: 1/4 inch thick clear float glass, annealed; heat
strengthened, or full tempered as required.
3. Type C: 1/4-inch thick wire glass plate, square pattern
"Baroque"
LIGHT GAUGE METAL FRAMING
SCOPE: All materials and labor necessary for the installation of metal framing
and related accessories.
A. Structural Studs: 14 gauge punched channel studs with knurled
screw-type flanges, prime-coated steel. Manufacturer: United States
Gypsum SJ or approved equal. Submit cut-sheet of material.
B. Partition Studs: 20 gauge studs with key-hole shaped punch-outs at 24
inches on center. Manufacturer: United States Gypsum ST or approved
equal.
C. Fasteners for Structural Studs: Metal screws as recommended by metal
system manufacturer. Weld at all structural connection points.
D. Reinforce framed door and window openings with double studs at each
jamb (flange-to-flange and weld) and fasten to runners with screws and
weld. Reinforce head with 14 gauge double stud same width as wall.
Screw and weld.
E. Provide all accessories as required to fasten metal-framing per
manufacturers recommendations.
F. Provide and install flat-strapping at all structural walls (walls with
concrete footings beneath the walls). Minimum bracing shall be 25% of
structural walls shall be braced with flat-strapping per Manufacturers
recommendations. Weld at all strap ends and at all intermediate studs.
G. Provide foundation clips at 4'-0" on center at structural walls. Anchor
with 1/2 inch diameter by 10 inch long anchor bolts.
H. Non-structural interior partitions shall be anchored with power-driven
fasteners at 4'-0" on center at the concrete slab.
ACOUSTIC CEILING SYSTEM
SCOPE: All materials and labor for the installation of the Acoustic Ceiling
System including T-Bar system, Acoustic Ceiling Panels, Suspension
wiring and fastening devices and Glued-down Ceiling Panels.
A. Manufacturer: Armstrong, or approved equal. Exposed T-bar system;
factory painted; steel construction; rated for intermediate duty.
D. Acoustical Tile: "Second Look", conforming to the following:
1. Size: 24 x 48 inches.
2. Thickness: 3/4 inches.
3. Composition: Mineral.
4. NRC Range: .55 to .60.
5. STC Range: 35 to 39.
6. Flame Spread: ASTME84,0-25. UL Label, 25 or under.
7. Edge: Tegular, Lay-in.
8. Surface Color. White.
9. Surface Finish: Factory-applied washable vinyl latex paint.
G. Installation to be per ASTM C636 structural testing. Lateral support
for each 96 square feet of ceiling flared at 45 degrees in 4
directions.
H. Provide clips for panel uplift restraints at all panels, 2 per panel.
GYPSUM WALLBOARD
SCOPE: Provide all materials and labor for the installation of Gypsum
Wallboard including all accessories and finishes.
A. Standard Gypsum Wallboard: ASTM C36; Ends square cut, tapered edges.
B. Fire Resistant Gypsum Wallboard: ASTM C36, 518 inches thick Type X.
Ends square cut, tapered edges. See Drawings for locations.
C. Moisture-resistant gypsum wallboard: ASTM C630-90.
D. Joint-reinforcing Tape and Joint Compound: ASTM C475, as manufactured
by or recommended by wallboard manufacturer. Minimum 3 coat application
for a smooth finish.
E. Corner Bead: Provide at all exposed outside corners;
F. L-shaped edge trim: Provide at all exposed, intersections with
different materials.
G. All work shall be done in accordance with the USG recommended method of
installation. 1. Finish: smooth.
PAINTING
A. Paint Manufacturers: ICI, Dunn-Edwards Corporation, Kelly Moore.
B. Paint colors shall be selected by the Architect.
C. Painting Schedule: Provide for 4 different color applications
1. P-1: "Field". Color to be selected.
2. P-2: "Accent". Color to be selected.
3. P-3: "Accent". Color to be selected.
4. P-4: "Accent". Color to be selected.
D. Interior Gypsum Wallboard:
1. Primer: Vinyl Wall Primer/Sealer.
2. 1 stand 2nd Coat: Eggshell Acrylic Latex.
E. Metal Framing:
1. Primer: Red Oxide, shop-primed (for non-galvanized) if
exposed.
F. Wood Work, Wood Doors:
1. Two coats of transparent finish. Sand lightly between coats
with steel wool.
INSULATION
A. R-15 in exterior walls.
B. R-25 on Roof.
C. Sound batts in conference, restroom and lobby walls.
ROOF EQUIPMENT
A. Stainless steel mechanical platform and associated access stairs and
guard rail system
B. EIFS roof screen to match detail of exterior GFRC Panel.
FULL HEIGHT GLAZED PARTITION
A. 1/4" glazed partition, in building standard aluminum frame
FINISHES
A. Vinyl Composite Tile: Armstrong stonetex, 12" x 12"
B. Resilient Base: Burke rubber wall base, 4" top set or cove, as
appropriate for VCT or carpet.
C. Window Coverings: Miniblinds, Levelor, color: TBD
D. Carpet:
Option 1: Designweave, Windswept Classic 30
oz. (Direct glue installation) or
equal
Option 2: (cut pile) Designweave, Tempest Classic 32 oz.
Upgrade (Direct glue installation) or equal.
Option 3: (cut pile) Designweave, Sabre Classic, 38 oz.
Upgrade (Direct glue installation) or equal.
KITCHEN FIXTURES
A. Sink: Ekkay stainless steel, GECR-2521-L&R, 20 gauge, 25"w x 21 Y"
D x 5 3/8" D, ADA compliant.
B. Kitchen Faucet: American Standard, Silhouette Single control, #4205
series, spout 9".
KITCHEN APPLIANCES
A. Dishwasher:
Option 1: GE GSD463DZWW, 24'W x 24" D x 34-35" H,
9 gallons/wash
Option 2: Bosch, SHU5300 series, 5.4 gallons/wash-with
water heater
B. Refrigerator:
Full Size: GE, "S" series top-mount, TBX16SYZ,
16.4 cubic feet, recessed, recessed handles,
28" W x 29 118" D x 66" H, white,
optional factory installed ice-maker.
Under-counter:
Option 1: U-Line, #29R, 3.5 cubic feet, white
Option 2: U-Line, Combo 29FF, Frost Free with factory
installed icemaker, 2.1 cubic feet, white
C. Microwave: GE, Spacemaker II JEM25WY, Midsize, 9 cubic feet,
800 watts, 23 13/16" W x 11 13/16"D x 12 5/16" H
Option 1: Under counter Mounting Kit, #4AD19-4
Option 2: Accessory Trim Kit # JXB37WN,
26 1/8" W X 18 1/4" H (built-in application)
D. Garbage Disposal: ISE #77," horsepower
E. Water Heater: To be selected by DES.
PUBLIC SPACES
FRONT BUILDING LOBBY
Walk Off Matts: Design Materials, Sisel, Calcetta #68. Natural,
100% coir
Floor Tile: 3/8" x 18" x 18" Stone or Marble set in
mortar bed in recessed slab as approved by
Owner
Transition Strips: 5/16" x 1%" x random length strips,
cherry wood flooring -
Corridor Carpeting: Carpet over pad, Atlas, New Vista or as
approved by Owner
Lobby Ceiling: Suspended gypsum board ceiling, Painted
Building Lobby: Akarl shades hanging #J1-9'" x 5'-2" or
Pendant Fixture equal as, approved by owner.
Stairs & P & P Railing, Modesto with custom cherry
Mezzanine Railing: guard rail Rep: Oliver Capp (805) 241-8810.
Hand and guard railing P & P Railings,
Modesto stainless steel railing with
horizontal spirals
and custom cherry guard rail cap by others,
fittings dark gray metallic or equal as
approved by Owner.
BACK BUILDING LOBBY & EMERGENCY STAIRS
Walk Off Matts: Design Materials, Sisal, Calcutta #68,
Natural, 100% coir.
Treads & Landings: Carpet covered concrete, as approved by
Owner
Stringers, Risers Painted steel stringer, eggshell finish
& Handrails enamel.
Ceiling: Suspended gypsum board ceiling.
ELEVATORS
Cars: (1) 3800 lb, (1) 3500 lb 150 ft/min by Otis
Elevator Doors: Stainless Steel
Elevator
Interior Paneling: Cherry veneer with stainless steel reveals
and railing
Elevator Floor: Slate 3/8" x 18" x 18" tile as approved by
Owner.
RESTROOMS
Counter tops: Stone/marble or equal as approved by Owner
Walls at Lavatories: Eggshell finish, latex paint, Benjamin Moore
Floor at Toilets: 2" x 2" matte. porcelain ceramic floor
tiles, thin set, Dal tile.
Walls at Toilets: 2" x 2" matte porcelain ceramic floor
tiles, thin set, Dal-tile.
Ceiling: Suspended gypsum board ceiling.
Toilet compartments:
A. Manufactured floor-anchored metal toilet compartments
and wall-hung urinal screens.
B. Approved Manufacturer, Global Steel Products Corp, or
approved equal.
C. Toilet Partitions: Stainless Steel finish.
D. Hardware: Hinges: Manufacturer's standard
self-closing type that can be adjusted to hold door
open at any angle up to 90 degrees. Latch and
Keeper: Surface-mounted latch unit, designed for emergency
access, with combination rubber-faced door strike and keeper.
Coat Hook: Combination hook and rubber-tipped bumper. Door
Pull: Manufacturer's standard.
Ceramic Tile
A. Manufacturer: Dal-Tile or approved equal.
B. Size: 4-1/4" x 4-1/4" for walls, 8 x 8 for floors, %"
liner strip as accent.
C. Glaze: Satin glaze for walls, unglazed tile for
floors.
D. Color: As selected by Architect.
E. Accessories: Base, corner-s, cooed cap and glazed to
match
F. Wall and floor installation: per applicable TCA
G. Waterproof Membrane: Chloraloy or approved equal.
H. Tile Backer Board: 1l2 inch thick wonderboard
I. Grout: Commercial Portland Cement Grout; Custom
Building Products or approved equal
J. Mortar: Latex-Portland cement mortar; Custom Building
Products or approved equal.
RESTROOM:
Toilet: Kohler/American Standard, commercial
quality.
Urinal: Kohler/American Standard, commercial
quality.
Lavatory: Kohler/American Standard, undercounter.
Lavatory Faucet: Kroin handicap lavatory faucet #HV1 LH,
polished chrome.
Soap Dispenser Bobrick, 8226, Lavatory mounted for soaps,
34 fl oz.
Counter:
Toilet accessories:
A. Manufacturer: Bobrick Washroom Equipment, or approved
equal.
B. Schedule: Model numbers used in this schedule are
Bobrick (134) unless otherwise noted.
C. Combination Paper Towel Dispenser/Waste Receptacle:
Recessed, Model B-3944, one per restroom #7151 and
7152, and two per restroom #7050 and 7061.
D. Feminine Napkin Vendor: Recessed, combination
napkin/tampon vendor, Model B-3500, with 25 cent
operation, one per each women's toilet room.
E. Soap Dispenser: Lavatory mounted dispenser, Model
B-822, one per each lavatory.
F. Toilet Paper Dispenser: Surface-mounted, Model JRT,
JR Escort, "In-Sight" by Scott Paper Company, one per
stall.
G. Toilet Seat Cover Dispenser: Recessed, wall-mounted,
Model B-301, one per stall.
H. Sanitary Napkin Disposal: Recessed, wall-mounted,
Model B-353, one per each women's handicapped and odd
stall.
I. Sanitary Napkin Disposal: Partition-mounted, Model
B-354 (serves two stalls).
J. Grab Bars: Horizontal 36", 86206-36: 42", 862-6-42:
one per each handicapped stall.
K. Mop/Broom Holders: 8223-24 (one per janitor closet).
L. Paper Towel Dispensers: Recessed mounted, Model
B-359, one at side wall adjacent to sink.
TENANT CORRIDORS
Walls: Eggshell finish, latex paint, Benjamin Moore.
Floors: Level loop carpet over pad with 4" resilient base
as approved by Owner.
Ceiling: 24" x 24" x 3/4" thick fine fissured type mineral
fiber, Armstrong Cirus acoustical tile (beveled
regular edge) in a 24" x 24" Donn Fineline
suspended grid, white finish.
Water Fountain: Haws Model #1114 Stainless Steel #4.
Cross Corridor 3'-6" x full height, 20 minute rated, pocket
Smoke Detector: assembly, on magnetic hold opens.
Corridor Carpyen "Berta" 35cm x 33 cm, engraved curved
Wall Sconce opaque glass, 2 x 7-9W, #G-23.or equal as
approved by owner
ELECTRICAL
A. 50 foot candles at working surface.
B. 3 Bulb 2x4 parbolic fixtures
C. 1/2 20 Amp circuit for each hard wall office
D. Electrical Devices: Recessed wall mounted devices with plastic cover
plate. Color: white, multi-gang plate 80400 Series duplex wall outlets.
E. Telephone/Data Outlets: Recessed wall mounted, Standard 2x4 wall box
with 3/4 EMT conduit from box to sub out above ceiling walls pull
string, cabling, terminations and cover-plates, color: white, provided
by tenant's vendor. Tenant shall furnish telephone backboard.
F. Light Switches: Dual level rocker type, mounted at standard locations,
with plastic cover plate, 5325-W cover plate single switch 80401-W,
double switch 80409-W. Decors by Leviton, colors: white, and will
comply with Title 24 Energy Codes. Decors by Leviton.
MECHANICAL
A. VAV Reheat system - design/build. Each floor to have a minimum of
thirty zones. Provide reheat boxes on all zones on top floor and at all
exterior zones on lower floor. System shall meet T-24 for ventilation
Design shall be for 73 deg. Ambient interior temperature and 2 1/2
watts per sq. ft. min.
FIRE SPRINKLER SYSTEM
As required by NFPA & factory mutual standard hazard, seismically braced.
END
EXHIBIT D
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
COST RESPONSIBILITIES OF LESSOR AND LESSEE
FOR SHELL TENANT IMPROVEMENTS
-----------------------------
A. Lessor is responsible for the construction of the building shell
improvements which shall include the following items:
Soils Engineer
Civil Engineer
Architectural and Structural Engineer
Landscaping
Empty Electrical Conduits will be provided from the
street to the future electrical room for a 2500 Amp.
Service 277/480 volt service capability for each
building. The electrical conduits will be stubbed up
above the floor level.
Lessor to provide two vertical risers for fire sprinklers.
Testing and Inspection for the shell.
Building Permits for the Shell and exterior Premises.
Utility Connection Fee (Fire Protection).
Area Fees
Construction Insurance
Construction Interest
Construction Taxes
Land Interest (if any)
Temporary Facilities
All site work to include:
Site clearing and grading
Excavating/Fill
Soil compaction
Site drainage
Site utilities
Paving
Curbs and gutters
Sidewalks
Parking lot lights
Curb painting and parking lot striping and
markings as required by the City.
Fences, to include special enclosures for trash
Irrigation System
Lawns and planting
Building Shells to include:
Concrete Formwork
Concrete Reinforcement (if used)
Cast in pace concrete (if used)
Metal decking (if used)
Metal framing (if used)
Rough carpentry as related to shell
Millworks as related to Shell
Glue-Lam structure (if used)
Building roof installation
Roofing tiles
Flashing
Drainage Systems for Roof
Roof Pitch Pans
Caulking/Sealants
Exterior Metal Door/Frames related to the Shell
Wood or Glass Doors as designated as related to the
Exterior Shell
Overhead Doors
Anodized Aluminum Windows
Finish Hardware as related to the Shell Doors
Glass Glazing as specific on plans
Storefront if desired
Gutters over front and rear entrances
Exterior Loading Docks as specific on plans
Water Supply stubbed to the ground floor (first
floor of each Building only)
Roof drainage
Gas piping to face of building at First Floor
Telephone and computer conduits between Buildings
All Government fees applying to the exterior
premises and shell.
B. The following shall be considered interior improvements costs and
shall be the responsibility of the Lessee as provided in the Lease:
Interior Building Permits
Gypsum drywall
Ceramic Tile or elate Tile in Lobbies
Quarry Tile as specified
Quarry Tile as specified
Flag Pole
Meal door framing
All interior Wood doors and Hardware
Custom Woodwork
Specialized Security construction
Interior Glass doors 2nd windows
Acoustical Treatment (suspended ceiling)
Resilient flooring
Any special flooring
Carpeting
Sprayed fire proofing if required by the code on
structural
Steel and metal deck surfaces
Lift and Lift Operator
Interior Painting
Wall Coverings including Ceramic Tiles
Grease Interceptor if required
Drapery, Blinds or Shades
Pedestal floors
Toilet Compartments
Demountable partitions
Firefighting devices (Extinguishers)
Toilet and bath accessories
Lift (Dock levelers)
Plumbing fixtures, trims and vertical piping
Interior electrical distribution
Lighting Electrical controls
Electrical Power Equipment
Built in Audio-Visual facilities
Built-in Projection screens
Water Treatment Discharge
Sinks in Coffee Rooms
Lunch Room plumbing for vending machines
Specialized security systems
Specialized Halon Fire Extinguishing systems
Fire sprinkler head drops and horizontal distribution
Piping off owner-installed vertical risers
Specialized caging
Special piping for Tank Farm (If installed)
Hot water heating system
Cool water system
HVAC units
Ducting controls
Air Tempering Systems
Elevators and elevator pits (Otis Elevator Lessor
Specs)
Mechanical platforms, screens and
associated roof accessories
Stairs
Electrical service (Lessor to provide exterior
conduits)
EXHIBIT E
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
MEMORANDUM
OF
COMMENCEMENT OF LEASE TERM
Pursuant to Article III, Section 3.01, paragraph (a) of the
above-referenced Lease, the parties to said Lease agree to the following:
1. The Commencement Date of the Lease is _____________, 2001 and
the Lease Term commenced on said date. The Expiration Date for
the initial Lease Term is __________, 2013.
2. The date for commencement of rent for Building Three is
__________, 2001; for Building 2 is __________, 2001; for
Building 1 is __________, 2001; for Building 4 is __________,
2001; and for the Amenity Building is ____________, 2001.
3. Attached hereto as a part hereof is a true and correct
schedule of Base Rent.
4. The total Rentable Area of all of the Buildings is __________
( ) rentable square feet.
Each person executing this Memorandum certifies that he or she is
authorized to do so on behalf of and as the act of the entity indicated.
Executed as of __________, 2001, at Sunnyvale (Santa Clara County), California.
MOFFETT PARK DRIVE LLC., ARIBA, INC.,
a California limited liability company a Delaware corporation
By: ___________________________________
By: ___________________________________
_______________________________ (Type or Print Name)
Jay Paul
Its: Manager Its:___________________________________
___________________________________
By: ___________________________________
(Type or print name)
Its:___________________________________
SCHEDULE TO EXHIBIT E
ARIBA LEASE
MEMORANDUM ANA COMMENCEMENT OF RENT
TERM AND SCHEDULE OF BASE RENT
Building 3
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
1/25/01 $3.00 175,000 $525,000.00 $6,300,000.00
1/25/02 $3.11 175,000 $543,375.00 $6,520,500.00
1/25/03 $3.21 175,000 $562,393.13 $6,748,717.50
1/25104 $3.33 175,000 $582,076.88 $6,984,922.81
1/25/05 $3.44 175,000 $602,449.58 $7,229,394.90
1/25/06 $3.56 175,000 $823,535.31 $7,482,423.73
1/25/07 $3.69 175,000 $645,359.05 $7,744,308.56
1/25/08 $3.82 175,000 $687,946.61 $8,015,359.36
1/25/09 $3.95 175,000 $691,324.74 $8,295,896.93
1/25/10 $4.09 175,000 $715,521.11 $8,586,253.33
1/25/11 $4.23 175,000 $740,564.35 $8,886,772.19
1/25/12 $4.38 175,000 $766,484.10 $9,197,809.22
Building 4
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
2/15/01 $3.00 175,000 $525,000.00 $6,300,000.00
2/15/02 $3.11 175,000 $543,375.00 $6,520,500.00
2/15/03 $3.21 175,000 $562,393.13 $6,748,717.50
2/15/04 $3.33 175,000 $582,076.88 $6,984,922.61
2/15/05 $3.44 175,000 $602,449.58 $7,229,394.90
2/15/06 $3.56 175,000 $623,535.31 $7,482,423.73
2/15/07 $3,69 175,000 $645,359.05 $7,744,308.56
2/15/08 $3.82 175,000 $667,946.61 $8,015,359.36
2/15/09 $3.95 175,000 $691,324.74 $8,295,896.93
2/15/10 $4.09 175,000 $715,521.11 $8,586,253.33
2/15/11 $4.23 175,000 $740,564.35 $8,886,772.19
2/15/12 $4.38 175,000 $766,484.10 $9,197,809.22
Building 2
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
3/8/01 $3.00 175,000 $525,000.00 $6,300,000.00
3/8/02 $3.11 175,000 $543,375.00 $6,520,600.00
3/8/03 $3.21 175,000 $582,393.13 $6,748,717.50
3/8/04 $3.33 175,000 $582,076.88 $6,984,922.61
3/8/05 $3.44 175,000 $602,449.58 $7,229,394.80
3/8/06 $3.58 175,000 $623,535.31 $7,482.423.73
3/8/07 $3.69 175,000 $645,359.05 $7,744,308.56
3/8/08 $3.82 175,000 $687,946.61 $8,015,359.36
3/8/09 $3.95 175.000 $691,324.74 $8,295,896.93
3/8/10 $4.09 175,000 $715,521.11 $8,586,253.33
3/8/11 $4.23 175,000 $740,564.35 $8,886,772.19
3/8/12 $4.38 175,000 $766,484.10 $9,197,809.22
Building 1
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
3/29/01 $3,00 175,000 $525,000.00 $6,300,000.00
3/29/02 $3.11 175,000 $543,375.00 $6,520,500.00
3/29/03 $3.21 175,000 $562,393.13 $6,748,717.50
3/29/04 $3.33 175,000 $582,076.88 $6,984,922.61
3/29/05 $3.44 175,000 $602,449.58 $7,229,394.90
3/29/06 $3.56 175,000 $623,535.31 $7,482,423.73
3/29/07 $3.69 175,000 $645,359.05 $7,744,308.56
3/29/08 $3.82 175,000 $667,948.61 $8,015,359.36
3/29/09 $3.95 175,000 $691,324.74 $8,295,896.93
3/29/10 $4.09 175,000 $715,521.11 $8,586,253.33
3/29/11 $4.23 175,000 $740,564.35 $8,886,772.19
3/29/12 $4.38 175,000 $766,484.10 $9,197,809.22
Amenity Building
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
3/29/01 $3.00 15,000 $45,000.00 $540,000.00
3/29/02 $3.11 15,000 $46,575.00 $558,900.00
3/29/03 $3.21 15,000 $48,205.13 $578,481.50
3/29/04 $3.33 15,000 $49,892.30 $598,707.65
3/29/05 $3.44 15,000 $51,638.54 $619,682.42
3/29/06 $3.56 15,000 $53,445.88 $641,350.81
3/29/07 $3.69 15,000 $55,316.49 $663,797.88
3/29/08 $3.82 15,000 $57,252.57 $687,030.80
3/29/09 $3.95 15,000 $59,256.41 $711,076.88
3/29/10 $4.09 15,000 $61,330.38 $735,864.57
3/29/11 $4.23 15,000 $63,476.94 $761,723.33
3/29/12 $4.38 15,000 $65,698.64 $788,383.65
Provided, actual square footage may be adjusted at final measurement per lease.
Provided, actual commencement date will be determined per lease.
EXHIBIT E-3
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
MEMORANDUM
OF
COMMENCEMENT OF LEASE TERM
--------------------------
Pursuant to Article III, Section 3.01, paragraph (a) of the
above-referenced Lease, the parties to said Lease agree to the following:
1. The Commencement Date of the Lease is January 25, 2001 and the
Lease Term commenced on said date. The Expiration Date for the
initial Lease Term is January 24, 2013.
2. The date for commencement of the rent for Building Two is
March 22, 2001; Attached hereto as a part thereof is a true
and correct partial schedule of Base Rent.
-------
3. The total Rentable Area of Building 2 is one hundred
seventy-five thousand eighty-two (175,082) rentable square
feet.
Each person executing this Memorandum certifies that he or she is
authorized to do so on behalf of and as the act of the entity indicated.
Executed as of March __________, 2001, at Sunnyvale (Santa Clara County),
California.
MOFFETT PARK DRIVE LLC., ARIBA, INC.,
a California limited liability a Delaware corporation
company
By: /s/ MICHAEL L. FANOLA
By: /s/ JAY PAUL ------------------------------------
------------------------------- Michael L. Fanola
Jay Paul ------------------------------------
Its: Manager (Type or print name)
Its: VP & Corporate Controller
-----------------------------------
3/30/01
By:
-----------------------------------
-----------------------------------
(Type or print name)
Its:
----------------------------------
SCHEDULE TO EXHIBIT E-3
ARIBA LEASE
MEMORANDUM AND COMMENCEMENT OF RENT
TERM AND SCHEDULE OF BASE RENT
Building 2
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
3/22/01 $3.00 175,082 $525,246.00 $6,302,952.00
4/1/02 $3.12 175,082 $546,255.84 $6,555,070.08
4/1/03 $3.24 175,082 $568,106.07 $6,817,272.84
4/1/04 $3.37 175,082 $590,830.32 $7,089,963.84
4/1/05 $3.51 175,082 $614,463.53 $7,373,562.36
4/1/06 $3.65 175,082 $639,042.07 $7,668,504.84
4/1/07 $3.80 175,082 $664,603.75 $7,975,245.00
4/1/08 $3.95 175,082 $691,187.90 $8,294,254.80
4/1/09 $4.11 175,082 $718,835.42 $8,626,025.04
4/1/10 $4.27 175,082 $747,588.84 $8,971,066.08
4/1/11 $4.44 175,082 $777,492.39 $9,329,908.68
4/1/12 $4.62 175,082 $808,592.09 $9,703,105.08
EXHIBIT E-2
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
MEMORANDUM
OF
COMMENCEMENT OF LEASE TERM
--------------------------
Pursuant to Article III, Section 3.01, paragraph (a) of the
above-referenced Lease, the parties to said Lease agree to the following:
1. The Commencement Date of the Lease is January 25, 2001 and the
Lease Term commenced on said date. The Expiration Date for the
initial Lease Term is January 24, 2013.
2. The date for commencement of the rent for Building Four is
February 15, 2001; Attached hereto as a part thereof is a true
and correct partial schedule of Base Rent.
-------
3. The total Rentable Area of Building 4 is one hundred
seventy-five thousand eighty-two (175,082) rentable square
feet.
Each person executing this Memorandum certifies that he or she is
authorized to do so on behalf of and as the act of the entity indicated.
Executed as of March _____, 2001, at Sunnyvale (Santa Clara County), California.
MOFFETT PARK DRIVE LLC., ARIBA, INC.,
a California limited liability company a Delaware corporation
By: /s/ Allison Chao
___________________________________
By: /s/ Jay Paul Allison Chao
______________________________ ___________________________________
Jay Paul (Type or Print Name)
Its: Manager
Its: VP & Corporate Controller
___________________________________
___________________________________
By: ___________________________________
___________________________________
(Type or print name)
Its: __________________________________
SCHEDULE TO EXHIBIT E-2
ARIBA LEASE
MEMORANDUM AND COMMENCEMENT OF RENT
TERM AND SCHEDULE OF BASE RENT
Building 4
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
2/15/01 $3.00 175,082 $525,246.00 $6,302,952.00
3/1/02 $3.12 175,082 $546,255.84 $6,555,070.08
3/1/03 $3.24 175,082 $568,106.07 $6,817,272.84
3/1/04 $3.37 175,082 $590,830.32 $7,089,963.84
3/1/05 $3.51 175,082 $614,463.53 $7,373,562.36
3/1/06 $3.65 175,082 $639,042.07 $7,668,504.84
3/1/07 $3.80 175,082 $664,603.75 $7,975,245.00
3/1/08 $3.95 175,082 $691,187.90 $8,294,254.80
3/1/09 $4.11 175,082 $718,835.42 $8,626,025.04
3/1/10 $4.27 175,082 $747,588.84 $8,971,066.08
3/1/11 $4.44 175,082 $777,492.39 $9,329,908.68
3/1/12 $4.62 175,082 $808,592.09 $9,703,105.08
EXHIBIT E-1
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
MEMORANDUM
OF
COMMENCEMENT OF LEASE TERM
--------------------------
Pursuant to Article III, Section 3.01, paragraph (a) of the
above-referenced Lease, the. parties to said Lease agree to the following:
1. The Commencement Date of the Lease is January 25, 2001 and the
Lease Term commenced on said date. The Expiration Date for the
initial Lease Term is January 24, 2013.
2. The date for commencement of the rent for Building Three is
January 25, 2001; Attached hereto as a part thereof is a true
and correct partial schedule of Base Rent.
3. The total Rentable Area of Building 3 is one hundred
seventy-five thousand eighty-two (175,082) rentable square
feet.
Each person executing this Memorandum certifies that he or she is
authorized to do so on behalf of and as the act of the entity indicated.
Executed as of March _____, 2001, at Sunnyvale (Santa Clara County), California.
MOFFETT PARK DRIVE LLC., ARIBA, INC.,
a California limited liability company a Delaware corporation
By: /s/ Allison Chao
___________________________________
By: /s/ Jay Paul Allison Chao
______________________________ ___________________________________
Jay Paul (Type or Print Name)
Its: Manager
Its: VP & Corporate Controller
___________________________________
___________________________________
By: ___________________________________
___________________________________
(Type or print name)
Its: __________________________________
SCHEDULE TO EXHIBIT E-1
ARIBA LEASE
MEMORANDUM AND COMMENCEMENT OF RENT
TERM AND SCHEDULE OF BASE RENT
Building 3
- --------- ----------- ------- ----------- -------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- --------- ----------- ------- ----------- -------------
1/25/01 $3.00 175,082 $525,246.00 $6,302,952.00
2/1/02 $3.12 175,082 $546,255.84 $6,555,070.08
2/1/03 $3.24 175,082 $568,106.07 $6,817,272.84
2/1/04 $3.37 175,082 $590,830.32 $7,089,963.84
2/1/05 $3.51 175,082 $614,463.53 $7,373,562.36
2/1/06 $3.65 175,082 $639,042.07 $7,668,504.84
2/1/07 $3.80 175,082 $664,603.75 $7,975,245.00
2/1/08 $3.95 175,082 $691,187.90 $8,294,254.80
2/1/09 $4.11 175,082 $718,835.42 $8,626,025.04
2/1/10 $4.27 175,082 $747,588.84 $8,971,066.08
2/1/11 $4.44 175,082 $777,492.39 $9,329,908.68
2/1/12 $4.62 175,082 $808,592.09 $9,703,105.08
EXHIBIT F
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
SNDA
(See Construction and Permanent SNDA Samples Attached as
Schedule One and Schedule Two, respectively)
SCHEDULE ONE
TO
Exhibit F
To
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
SNDA
----
(See Construction and Permanent SNDA Samples Attached)
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
KEYBANK NATIONAL ASSOCIATION
Real Estate Division
Mailcode WA-31-10-5285
700 Fifth Avenue, 52nd Floor
Seattle, WA 98104-5099
Attn:
-------------------------------
Loan No.:
---------------------------
- --------------------------------------------------------------------------------
SUBORDINATION, ACKNOWLEDGMENT OF LEASE ASSIGNMENT,
NONDISTRUBANCE AND ATTORNMENT AGREEMENT
AND ESTOPPEL CERTIFICATE
(Lease to Deed of Trust)
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR LEASE BECOMING SUBJECT TO
AND OF LOWER PRIORITY THAN THE LIEN OF THE DEED OF TRUST (DEFINED
BELOW).
THIS AGREEMENT AND CERTIFICATE is made this _____ day of __________,
2000, between KEYBANK NATIONAL ASSOCIATION, a national banking association
("Lender") and __________, a __________ ("Tenant").
RECITALS
A. __________ ("Landlord"), is the owner of real property ("Property")
located in __________ County, California, and legally described on Exhibit A.
B. Tenant is a tenant of a portion of the Property ("Premises") under a
lease ("Lease") with Landlord dated __________.
C. Lender has agreed to make a loan ("Loan") to Landlord. In connection
therewith, Landlord has executed or proposes to execute, a Construction Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing
("Deed of Trust") encumbering the Property and securing, among other things, a
promissory note ("Note") in the principal sum of __________ DOLLARS
($__________), of even date herewith, in favor of Lender, which Note is payable
with interest and upon the terms described therein. The Deed of Trust is to be
recorded concurrently herewith.
D. The Deed of Trust constitutes a present assignment to Lender of all
right, title, and interest of Landlord under the Lease.
E. Lender's agreement to make the Loan is conditioned on Tenant's
specific and unconditional subordination of the Lease to the lien of the Deed of
Trust such that the Deed of Trust at all times remains a lien on the Property,
prior and superior to all the rights of Lessee under the Lease, and Tenant's
agreement to attorn to Lender if Lender obtains possession of the Property by
foreclosure or deed in lieu of foreclosure. Tenant is willing to do so in
consideration of the benefits to Tenant from the Loan and the Lease and Lender's
agreement not to disturb Tenant's possession of the Premises under the Lease.
NOW, THEREFORE, Lender and Tenant agree as provided below.
1. Subordination. Tenant hereby intentionally and unconditionally
subordinates the Lease and all of Lessee's right, title and interest thereunder
and in and to the Property to the lien of the Deed of Trust and all of Lender's
rights thereunder, including any and all renewals, modifications and extensions
thereof and agrees that the Deed of Trust and any and all renewals,
modifications and extensions thereof shall unconditionally be and at all times
remain in lien on the Property prior and superior to the Lease. Without limiting
the generality of the foregoing, such subordination shall include all rights of
Tenant in connection with any insurance or condemnation proceeds with respect to
the Premises or Property.
2. Acknowledgment. Tenant understands that Lender would not make the
Loan without this Agreement and the subordination of the Lease to the lien of
the Deed of Trust as set forth herein and that in reliance upon, and in
consideration of, this subordination, specific loans and advances are being and
will be made by Lender and, as part and parcel thereof, specific monetary and
other obligations are being and will be entered into which would not be made or
entered into but for reliance upon this subordination. This Agreement is and
shall be the sole and only agreement with regard to the subordination of the
Lease to the lien of the Deed of Trust and shall supersede and cancel, but only
insofar as would affect the priority between the Deed of Trust and the Lease,
any prior agreement as to such subordination, including, without limitation,
those provisions, if any, contained in the lease which provide for the
subordination of the Lease to a deed or deeds of trust or to a mortgage or
mortgages.
3. Use of Proceeds. Lender, in making disbursements pursuant to the
Note, the Deed of Trust or any loan agreement with respect to the property, is
under no obligation or duty to, nor has Lender represented that it will, see to
the application of such proceeds by the person or persons to whom Lender
disburses such proceeds, and any application or use of such proceeds for
purposes other than those provided for in such agreement or agreements shall not
defeat this agreement to subordinate in whole or in party.
4. Nondisturbance. Lender agrees that Tenant's possession of the
Premises shall not be disturbed by Lender during the tem of the Lease, and
Lender shall not join Tenant in any action or proceeding for the purpose of
terminating the Lease, except upon the occurrence of a default by Tenant under
the Lease and the continuance of such default beyond any cure period given to
Tenant under the Lease.
5. Attornment. If Lender obtains possession of the Property by
foreclosure or deed in lieu of foreclosure, Tenant shall attorn to Lender, be
bound to Lender in accordance with all of the provisions of the Lease for the
balance of the term thereof, and recognize Lender as the
landlord under the Lease for the unexpired term of the Lease. Such attornment
shall be effective without Lender being (i) subject to any offsets or defenses,
or otherwise liable, for any prior act or omission of Landlord, (ii) bound by
any amendment, modification, or waiver of any of the provisions of the Lease, or
by any separate agreement between Landlord and Tenant relating to the Premises
or Property, unless any such action was taken with the prior written consent of
Lender, (iii) liable for the return of any security or other deposit unless the
deposit has been paid to Lender, (iv) bound by any payment of rent or other
monthly payment under the Lease made by Tenant more than one (1) month in
advance of the due date, or (v) bound by any option, right of first refusal, or
similar right of Tenant to lease any portion of the Property (other than the
Premises) or to purchase all or any portion of the Property. Lender's
obligations as landlord under the Lease after obtaining possession of the
Property by foreclosure or deed in lieu of foreclosure shall terminate upon
Lender's subsequent transfer of its interest in the Property.
6. Termination of Lease. Notwithstanding any other provision of this
Agreement, in the event Lender obtains ownership of the Properly by foreclosure
or deed in lieu of foreclosure and the Lease requires the landlord to construct
any improvements on the Premises or Property, the Lease shall terminate unless
(i) Lender delivers written notice to Tenant expressly assuming such obligation
within ten (10) days after the foreclosure sale or acceptance of the deed in
lieu of foreclosure, or (ii) Tenant waives such obligation by delivery of
written notice to Lender within ten (10) days after receiving notice of the
foreclosure or deed in lieu of foreclosure.
7. Covenants of Tenant. Tenant covenants and agrees with Lender as
follows:
(a) Tenant shall pay to Lender all rent and other payments
otherwise payable to Landlord under the Lease upon written demand from Lender.
The consent and approval of Landlord to this Agreement shall constitute an
express authorization for Tenant to make such payments to Lender and a release
and discharge of all liability of Tenant to Landlord for any such payments made
to Lender.
(b) Tenant shall enter into no material amendment or
modification of any of the provisions of the Lease without Lender's prior
written consent.
(c) Tenant shall not subordinate its rights under the Lease to
any other mortgage, deed of trust, or other security instrument without the
prior written consent of Lender.
(d) In the event the Lease is rejected or deemed rejected in
any bankruptcy proceeding with respect to Landlord, Tenant shall not exercise
its option to treat the Lease as terminated under 1 I U.S.C. ss. 365(h), as
amended.
(e) Tenant shall not accept any waiver or release of Tenant's
obligations under the Lease by Landlord, or any termination of the Lease by
Landlord, without Lender's prior written consent.
(f) Tenant shall promptly deliver written notice to Lender of
any default by Landlord under the Lease. Lender shall have the right to cure
such default within thirty (30) days after the receipt of such notice. Tenant
further agrees not to invoke any of its remedies under the Lease until the
thirty (30) days have elapsed, or during any period that Lender is proceeding
to
cure the default with due diligence, or is attempting to obtain the right to
enter the Premises and cure the default.
8. Effect of Assignment. Notwithstanding that Landlord has made a
present assignment of all of its rights under the Lease to Lender, Lender shall
not be liable for any of the obligations of Landlord to Tenant under the Lease
until Landlord has obtained possession of the Property by foreclosure or deed in
lieu of foreclosure, and then only lo the extent provided in paragraph 3 above.
9. Estoppel Certifications. Tenant hereby certifies and represents to
Lender as provided below.
(a) The Lease constitutes the entire agreement between
Landlord and Tenant relating to the premises and the Property.
(b) The Lease is in full force and effect, and has not been
amended, modified, or assigned by Tenant, either orally or in writing.
(c) No payments to become due under the Lease have been paid
more than one (1) month in advance of the due date.
(d) Tenant has no present claim, offset or defense under the
Lease, and Tenant has no knowledge of any uncured breach or default by Landlord
or Tenant under the Lease or of any event or condition which, with the giving of
notice or the passage of time or both, would constitute a breach or default
under the lease.
(e) Tenant has no knowledge of any prior sale, transfer,
assignment, hypothecation or pledge of Landlord's interest under the Lease or of
the rents due under the Lease.
(f) Except as otherwise provided in the Lease, Tenant has made
no agreements with Landlord concerning free rent, partial rent, rebate of rental
payments, setoff, or any other type of rental concession.
10. Costs and Attorneys' Fees. In the event of any claim or dispute
arising out of this Agreement, the party that substantially prevails shall be
awarded, in addition to all other relief, all attorneys' fees and other costs
and expenses incurred in connection with such claim or dispute; including
without limitation those fees, costs, and expenses incurred before or after
suit, and in any arbitration, and any appeal, any proceedings under any present
or future bankruptcy act or state receivership, and any post judgment
proceedings.
11. Notices. All notices to be given under this Agreement shall be in
writing and personally delivered or mailed, postage prepaid, certified or
registered mail, return receipt requested, to Lender at the address indicated on
the first page of this Agreement, and to Tenant at its address indicated below.
All notices which are mailed shall be deemed given three (3) days after the
postmark thereof. Either party may change their address by delivery of written
notice to the other party.
12. Miscellaneous. This agreement may not be modified except in writing
and executed-by the parties hereto or their successors in interest. This
agreement shall inure to the benefit of and by binding upon the parties hereto
and their successors and assigns. As used herein "Landlord" shall include
Landlord's predecessors and successors in interest under the Lease, and "Lender"
shall include any purchaser of the Property at any foreclosure sale. All rights
of Lender herein to collect rents on behalf of Landlord under the Lease are
cumulative and shall be in addition to any and all other rights and remedies
provided by law and by other agreements between Lender end Landlord or others.
If any provision of this Agreement is determined to be invalid, illegal or
unenforceable, such provision shall be considered severed from the rest of this
Agreement and the remaining provisions shall continue in full force and effect
as if such provision had not been included. This Agreement shall be governed by
the laws of the State of California. This Agreement may be executed in one or
more counterparts, all of which together shall constitute one and the same
original.
DATED this ____ day of __________, 2000.
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR LEASE BECOMING
SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF THE DEED OF
TRUST (DEFINED ABOVE). IT IS RECOMMENDED THAT, PRIOR TO THE
EXECUTION OF THIS AGREEMENT, THE PARTIES CONSULT WITH THEIR
ATTORNEYS WITH RESPECT HERETO.
"LENDER"
KEYBANK NATIONAL ASSOCIATION, a
National banking association
By: ________________________________________
Its: _______________________________________
"TENANT"
____________________________________________
a __________________________________________
By: ________________________________________
Its: _______________________________________
Address:
_______________________________________
_______________________________________
_______________________________________
CONSENTED AND AGREED TO:
"LANDLORD"
____________________________________
a __________________________________
By: ________________________________
Its: _______________________________
ALL SIGNATURES MUST BE ACKNOWLEDGED
STATE. OF CALIFORNIA )
) ss.
COUNTY OF )
On __________, 2000, before me, __________ the undersigned, a notary
public in and for said state, personally appeared __________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
EXHIBIT A
TO
SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT AND ESTOPPEL CERTIFICATE
Legal Description
The Property is located in __________ County, California and is legally
described as follows:
SCHEDULE TWO
TO
EXHIBIT F
TO
MOFFETT PARK DRIVE LLC
Lease
To
ARIBA INC.
For Premises
At
1111 Lockheed Martin Way
Sunnyvale, California
SNDA
----
(See Permanent SNDA Sample Attached)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNEMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") made as of the _____ day of __________, 2000, by and among Nomura
Asset Capital Corporation ("Lender"), __________ ("Tenant") and __________
("Landlord").
WITNESSETH:
-----------
WHEREAS, Lender has agreed to make a loan (the "Loan") of up to
__________ to Landlord;
WHEREAS, the Loan will be evidenced by a deed of trust note (the
"Note") of even date herewith made by Landlord to order of Lender and will be
secured by, among other things, a deed of trust, assignment of leases and rents
and security agreement (the "Deed of Trust") of even date herewith made by
Landlord to Lender covering the land (the "Land") described on Exhibit A
attached hereto and all improvements (the "Improvements") now or hereafter
located on the land (the Land and the Improvements hereinafter collectively
referred to as the "Property"); and
WHEREAS, by a lease dated as of __________ (which lease, as the same
may have been amended and supplemented, is hereinafter called the "Lease"),
Landlord leased to Tenant approximately __________ square feet of space located
in the Improvements (the "Premises"); and
WHEREAS, the parties hereto desire to-make the Lease subject and
subordinate to the Deed of Trust.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby agree as follows:
1. The Lease, as the same may hereafter be modified, amended or
extended, and all of Tenant's right, title and interest in and to the Premises
and all rights, remedies and options of Tenant under the Lease, are and shall be
unconditionally subject and subordinate to the Deed of Trust and the lien
thereof, to all the terms, conditions and provisions of the Deed of Trust, to
each and every advance made or hereafter made under the Deed of Trust, and to
all renewals, modifications, consolidations, replacements, substitutions and
extensions of the Deed of Trust, so that at all times the Deed of Trust shall be
and remain a lien on the Property prior and superior to the Lease for all
purposes; provided, however, and Lender agrees, that so long as (A) no event has
occurred and no condition exists, which would entitle Landlord to terminate the
Lease or would cause, without further action of Landlord, the termination of the
Lease or would entitle Landlord to dispossess Tenant from the Premises, (B) the
term of the Lease has commenced and Tenant is in possession of the Premises, (C)
the Lease shall be in full force and effect and shall not have been otherwise
modified or supplemented in any way without Lender's prior written consent, (D)
Tenant shall duly confirm its attornment to Lender or its successor or assign by
written instrument as set forth in Paragraph 3 hereof, (E) neither Lender nor
its successors or assigns shall be liable under any warranty of construction
contained in the Lease or any implied warranty of construction, and (F) all
representations and warranties made herein by Tenant shall be true and correct
as of the date of such attornment; then, and in such event Tenant's leasehold
estate under the Lease shall not be terminated, Tenant's possession of the
Premises shall not be disturbed by Lender and Lender will accept the attornment
of Tenant.
2. Notwithstanding anything to the contrary contained in the Lease,
Tenant hereby agrees that in the event of any act, omission or default by
Landlord or Landlord's agents, employees, contractors, licensees or invitees
which would give Tenant the right, either immediately or after the lapse of a
period of time, to terminate the Lease, or to claim a partial or total eviction,
or to reduce the rent payable thereunder or credit or offset any amounts against
future rents payable thereunder, Tenant will not exercise any such right (i)
until it has given written notice of such act, omission or default to Lender by
delivering notice of such act, omission or default, in accordance with Paragraph
8 hereof, and (ii) until a period of not less than sixty (60) days for remedying
such act, omission or default shall have elapsed following the giving of such
notice. Notwithstanding the foregoing, in the case of any default of Landlord
which cannot be cured within such sixty (60) day period, if Lender shall within
such period proceed promptly to cure the same (including such time as may be
necessary to acquire possession of the Premises if possession is necessary to
effect such cure) arid thereafter shall prosecute the curing of such default
with diligence, then the time within which such default may be cured by Lender
shall be extended for such period as may be necessary to complete the curing of
the same with diligence. Lender's cure of Landlord's default shall not be
considered an assumption by Lender of Landlord's other obligations under the
Lease. Unless Lender otherwise agrees in writing, Landlord shall remain solely
liable to perform Landlord's obligations under the Lease (but only to the extent
required by and subject to the limitation included with the Lease), both before
and after Lender's exercise of any right or remedy under this Agreement. If
Lender or any successor or assign becomes obligated to perform as Landlord under
the Lease, such person or entity will be released from those obligations when
such person or entity assigns, sells or otherwise transfers its interest in the
Premises or the Property.
3. Without limitation of any of the provisions of the Lease, in the
event that Lender succeeds to the interest of Landlord or any successor to
Landlord, then subject to the provisions of this Agreement including, without
limitation, Paragraph 1 above, the Lease shall nevertheless continue in full
force and effect and Tenant shall and does hereby agree to attorn to and accept
Lender and to recognize Lender as its Landlord under the Lease for the then
remaining balance of the term thereof, and upon request of Lender, Tenant shall
execute and deliver to Lender an agreement of attornment reasonably satisfactory
to Lender.
4. If Lender succeeds to the interest of Landlord or any successor to
Landlord, in no event shall Lender have any liability for any act or omission of
any prior landlord under the Lease which occurs prior to the date Lender
succeeds to the rights of Landlord under the Lease, nor any liability for
claims, offsets or defenses which Tenant might have had against Landlord. In no
event shall Lender have any personal liability as successor to Landlord and
Tenant shall look only to the estate and property of Lender in the Land and the
Improvements for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money in the event
of any default by Lender as Landlord under the
Lease, and no other property or assets of Lender shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to the Lease.
5. Tenant agrees that no prepayment of rent or additional rent due
under the Lease of more than one month in advance, and no amendment,
modification, surrender or cancellation of the Lease, and no waiver or consent
by Landlord under the terms of the Lease, shall be binding upon or as against
Lender, as holder of the Deed of Trust, and as Landlord under the Lease if it
succeeds to that position, unless consented to in writing by Lender. In
addition, and notwithstanding anything to the contrary set forth in this
Agreement, Tenant agrees that Lender, as holder of the Deed of Trust, and as
Landlord under the Lease if it succeeds to that position, shall in no event have
any liability for the performance or completion of any initial work or
installations or for any loan or contribution or rent concession towards initial
work, which are required to be made by Landlord (A) under the Lease or under any
related Lease documents or (B) for any space which may hereafter become part of
said Premises, and any such requirement shall be inoperative in the event Lender
succeeds to the position of Landlord prior to the completion or performance
thereof. Tenant further agrees with Lender that Tenant will not voluntarily
subordinate the Lease to any lien or encumbrance without Lender's prior written
consent.
6. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute and
be construed as one and the same instrument.
7. All remedies which Lender may have against Landlord provided herein,
if any, are cumulative and shall be in addition to any and all other rights and
remedies provided by law and by other agreements between Lender and Landlord or
others. If any party consists of multiple individuals or entities, each of same
shall be jointly and severally liable for the obligations of such party
hereunder.
8. All notices to be given under this Agreement shall be in writing and
shall be deemed served upon receipt by the addressee if served personally or, if
mailed, upon the first to occur of receipt of the refusal of delivery as shown
on a return receipt, after deposit in the United States Postal Service certified
mail, postage prepaid, addressed to the address of Landlord, Tenant or Lender
appearing below, or, if sent by telegram, when delivered by or refused upon
attempted delivery by the telegraph office. Such addresses may be changed by
notice given in the same manner. If any party consists of multiple individuals
or entities, then notice to any one of same shall be deemed notice to pay such
party.
Lender's Address:
Nomura Asset Capital Corporation
Two World Financial Center, Building B
New York, New York 10281-1198
Attn: Ms. Sheryl McAfee
Tenant's Address:
____________________________________
____________________________________
____________________________________
____________________________________
Attn: ______________________________
Landlord's Address:
____________________________________
____________________________________
____________________________________
Attn: ______________________________
9. This Agreement shall be interpreted and construed in accordance with
and governed by the laws of the State of California.
10. This Agreement shall apply to, bind and inure to the benefit of the
parties hereto and their respective successors and assigns. As used herein
"Lender" shall include any subsequent holder of the Deed of Trust.
11. Tenant acknowledges that Landlord has assigned to Lender its right,
title and interest in the Lease and to the rents, issues and profits of the
Property and the Property pursuant to the Deed of Trust, and that Landlord has
been granted the license to collect such rents provided no Event of Default has
occurred under, and as defined in, the Deed of Trust. Tenant agrees to pay all
rents and other amounts due under the Lease directly to Lender upon receipt of
written demand by Lender, and Landlord hereby consents thereto. The assignment
of the Lease to Lender, or the collection of rents by Lender pursuant to such
assignment, shall not obligate Lender to perform Landlord's obligations under
the Lease.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By: ________________________________________
Name:
Title:
[LANDLORD]
By: ________________________________________
[TENANT]
By: ________________________________________
STATE. OF CALIFORNIA )
) ss.
COUNTY OF )
On __________, 2000, before me, __________ the undersigned, a notary
public in and for said state, personally appeared __________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
EXHIBIT G
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
SIGNAGE EXHIBIT
---------------
(To be provided)
EXHIBIT H
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
Guaranty of Lease
-----------------
[Intentionally Omitted]
EXHIBIT I
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
HAZARDOUS MATERIALS DISCLOSURE
------------------------------
Lessor has provided Lessee, and Lessee acknowledges that it has
received and pursuant to Section 17.22(b) of the Lease, reviewed same, a copy of
each of those certain documents entitled: (i) PHASE I, ENVIRONMENTAL SITE
ASSESSMENT OF THE PROPERTY LOCATED AT 1111 LOCKHEED MARTIN WAY SUNNYVALE,
CALIFORNIA, Prepared for: Lockheed Martin Corporation, Missiles and Space,
Sunnyvale, California, Prepared by: McLaren/Hart, Inc., Alameda, California,
April 22, 1999, Job No. 04.0018178.001.001; and (ii) PHASE II, ENVIRONMENTAL
SITE ASSESSMENT, LOCKHEED MARTIN MISSILES AND SPACE FACILITY, BUILDINGS 104 AND
105, SUNNYVALE, CALIFORNIA, Prepared for: The Jay Paul Company, San Francisco,
California, Prepared by: IRIS ENVIRONMENTAL, Oakland, California, October 4,
1999, Job No. 99-108-B.
LESSEE
ARIBA INC.
a Delaware corporation
By: ________________________________________
________________________________________
(Type or print name)
Its: _______________________________________
By: ________________________________________
________________________________________
(Type or print name)
Its: _______________________________________
EXHIBIT J
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
[INTENTIONALLY LEFT BLANK]
EXHIBIT K
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
[INTENTIONALLY LEFT BLANK]
EXHIBIT L
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
RULES AND REGULATIONS
---------------------
1. Lessee and Lessee's employees shall not in any way obstruct the sidewalks,
entry passages, pedestrian passageways, driveways, entrances and exits to the
Project or the Buildings, and they shall use the same only as passageways to and
from their respective work areas.
2. Any sash doors, sashes, windows, glass doors, lights and skylights that
reflect or admit light into any Building shall not be covered or obstructed by
the Lessee. Water closets, urinals and wash basins shall not be used for any
purpose other than those for which they were constructed, and no rubbish,
newspapers, food or other substance of any kind shall be thrown into them.
Lessee shall not mark, drive nails, screw or drill into, paint or in any way
deface the exterior walls, roof, foundations, bearing walls or pillars without
the prior written consent of Lessor, which consent may be withheld in Lessor's
sole discretion. The expense of repairing any breakage, stoppage or damage
resulting from a violation of this rule shall be borne by Lessee.
3. No awning or shade shall be affixed or installed over or in the windows or
the exterior of the Premises except with the consent of Lessor, which may be
withheld in Lessor's discretion.
4. No boring or cutting for wires shall be allowed, except with the consent of
Lessor, which consent may be withheld in Lessor's discretion.
5. Lessee shall not do anything in the Premises, or bring or keep anything
therein, which will in any way increase or tend to increase the risk of fire or
the rate of fire insurance or which shall conflict with the regulations of the
fire department or the law or with any insurance policy on the Premises or any
part thereof, or with any rules or regulations established by any administrative
body or official having jurisdiction, and it shall-not use any machinery
therein, even though its installation may have been permitted, which may cause
any unreasonable noise, jar, or tremor to the floors or walls, or which by its
weight might injure the floors of the Premises.
6. Lessor may reasonably limit weight, size and position of all safes, fixtures
and other equipment used in the Premises. If Lessee shall require extra heavy
equipment, Lessee shall notify Lessor of such fact and shall pay the cost of
structural bracing to accommodate it. All damage done to the Premises or Project
by installing, removing or maintaining extra heavy equipment shall be repaired
at the expense of Lessee.
7. Lessee and Lessee's officers, agents and employees shall not make nor permit
any loud, unusual or improper noises nor interfere in any way with other Lessees
or those having business with them, nor bring into or keep within the Project
any animal or bird or any bicycle or other vehicle, except such vehicle as
Lessor may from time to time permit.
8. No machinery of any kind will be allowed in the Premises without the written
consent of Lessor. This shall not apply, however, to customary office equipment
or trade fixtures or package handling equipment.
9. All freight must be moved into, within and out of the Project only during
such hours and according to such reasonable regulations as may be posted from
time to time by Lessor.
10. No aerial or satellite dish or similar device shall be erected on the roof
or exterior walls of the Premises, or on the grounds, without in each instance,
the written consent of Lessor. Any aerial so installed without such written
consent shall be subject to removal without notice at any time. Lessor may
withhold consent in its sole discretion.
11. All garbage, including wet garbage, refuse or trash shall be placed by the
Lessee in the receptacles appropriate for that purpose and only at locations
prescribed by the Lessor.
12. Lessee shall not burn any trash or garbage at any time in or about the
Premises or any area of the Project.
13. Lessee shall observe all security regulations issued by the Lessor and
comply with instructions and/or directions of the duly authorized security
personnel for the protection of the Project and all tenants therein.
14. Any requirements of the Lessee will be considered only upon written
application to Lessor at Lessor's address set forth in the Lease.
15. No waiver of any rule or regulation by Lessor shall be effective unless
expressed in writing and signed by Lessor or its authorized agent.
16. Lessor reserves the right to exclude or expel from the Project any person
who, in the judgment of Lessor, is intoxicated or under the influence of liquor
or drugs, or who shall in any manner do any act in violation of the law or the
rules and regulations of the Project.
17. Lessor reserves the right at any time to change or rescind any one or more
of these rules and regulations or make such other and further reasonable rules
and regulations as in Lessor's judgment may from time to time be necessary for
the operation, management, safety, care and cleanliness of the Project and the
Premises, and for the preservation of good order therein, as well as for the
convenience of other occupants and tenants of the Project. Lessor shall not be
responsible to Lessee or the any other person for the non-observance or
violation of the rules and regulations by any other tenant or other person.
Lessee shall be deemed to have read these rules and have agreed to abide by them
as a condition to its occupancy of the Premises.
18. Lessee shall abide by any additional rules or regulations which are ordered
or requested by any governmental or military authority.
19. In the event of any conflict between these rules and regulations, or any
further or modified rules and regulations from time to time issued by Lessor,
and the Lease provisions, the Lease provisions shall govern and control.
20. Lessor specifically reserves to itself or to any person or firm it selects,
(i) the right to place in and upon the Project, coin-operated machines for the
sale of cigarettes, candy and other merchandise or service, and (ii) the revenue
resulting therefrom.
EXHIBIT M
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
Moffett Park Drive TDM Plan
---------------------------
Moffett Park Office Project
Transportation Demand Management Plan
Prepared for
Jay Paul Company
and
City of Sunnyvale
Prepared by:
Meyer, Mohaddes Associates
San Bruno, Calif.
February 22, 2000
TABLE OF CONTENTS
Executive Summary iii
I. Project Description
A. Project Overview & Site Map 1
B. Transit Services 2
C. Bicycle Routes 4
II. TDM Site Facilities and Amenities
A. Light-Rail Station 5
B. Preferential Carpool/Vanpool Parking 5
C. Bicycle Storage 5
D. Showers and Clothing Lockers for Cyclocommuters 5
E. Carpool/Vanpool/Shuttle Pickup Areas 5
F. On-Site Services and Amenities 5
III. Commuter Information and Marketing
A. Ridematching Services 6
B. Transit Information 6
C. Cyclo-Commute Information 6
D. Special Events 6
E. Promotional Materials 6
F. Telecommute Assistance 6
G. Alternative-Work-Schedule Assistance 6
IV. Commuter Services Operation
A. Connection to Caltrain Station 7
B. Guaranteed-Ride-Home Service 7
V. Financial Incentives 8
VI. Program Monitoring, Reporting and Assurance of Success
A. Annual Commuter Survey 8
B. Annual Report to City 8
C. TDM Goal 8
D. Achievement of TDM Goal 8
VII. Summary and Concluding Comments 9
- Executive Summary -
Moffett Park Office Project TDM Plan
A comprehensive TDM Program will be implemented for the Moffett Park Office
project to meet the Transportation Demand Management (TDM) Goal - that at least
15% of all on-site employees are commuting via some means other than driving
alone. The overall strategy of the Moffett Park TDM Program is (1) Provide
personalized information about commute options, (2) offer incentives, (3) remove
barriers to use of commute alternatives, and (4) maintain awareness of the TDM
Program. The project will be occupied by a single tenant, who will carry out the
ongoing TDM Program activities. If necessary, this initial program will be
expanded or revised in order to achieve the TDM Goal in the most cost-effective
manner.
I. Project Description
The proposed project, located near Moffett Park Drive and Lockheed Way, will
replace an existing Lockheed-Martin research and development facility containing
approx. 456,400 square feet, with an office-park campus containing 636,562
square feet in four buildings, plus 15,000 square feet-in a separate Fitness
Center. With the new Tasman West light-rail line and station immediately
adjacent, the site will enjoy excellent transit service.
II. Site Facilities and Amenities
The project design will include a number of features and amenities to encourage
and support the use of alternative commute modes. This will include the
following physical elements:
A. Light-Rail Station - A new station will be constructed immediately
------------------
adjacent to the project site, with convenient pedestrian access to the
project buildings. In addition to serving the employees at the Moffett
Park Office Project, the new station will serve roughly 4,000 employees
at nearby sites.
B. Designated Carpool/Vanpool Parking - Minimum of 10% of all spaces;
----------------------------------
located convenient to building entrance(s). These spaces will be
designed for full-sized vehicles. Additional spaces will be designated
when current spaces are fully utilized. Users must obtain a carpool
parking permit.
C. Bicycle storage - For 109 bicycles total, consisting of 82 bicycle
---------------
lockers plus 27 bicycle racks. This is consistent with VTA Bicycle
Guidelines.
D. Showers and Clothing Lockers - At least 15 showers (10 men, 5 women),
----------------------------
plus 82 clothing lockers (55 men, 27 women) guaranteed to
cyclocommuters. Each building will contain showers and lockers, but
exact locations and numbers will be determined in the final design, to
best meet the needs of the initial tenant.
E. Carpool/Vanpool/Shuttle Pickup Area - A convenient and safe area for
-----------------------------------
boarding and discharging passengers from carpools, vanpools, and
shuttles.
F. On-Site Amenities - Pedestrian/bike circulation links to adjacent
-----------------
properties, perimeter walking and jogging paths, plus meditation
gardens and seating areas. A restaurant/cafeteria and a fitness center
will also be included in the project, and will be built as a tenant
improvement.
III. Commuter Information & Marketing
Information and marketing services will be offered to tenants and their
employees. This will include certain services to employees, and other services
to the tenants (employers). All tenants will be required to assist in the
delivery of these services to their employees who wish to participate. Services
to employees will include:
A. Ride-matching - Personalized carpool matching and vanpool information
-------------
for employees. This will either be performed on-site or off-site (e.g.
by RIDES).
B. Transit Information - General transit info (maps, schedules) for nearby
-------------------
service, personalized transit info (routes & schedules) on request,
plus information on how to purchase transit passes via the Internet and
by mail. .
C. Cyclo-Commute Information - General bike info (route maps, tips for new
-------------------------
cyclists, references to local bike organizations), plus "bike-buddy"
matching upon request.
D. Special Events - One or more on-site events per year promoting
--------------
carpools, vanpools, transit, bicycling, and/or other commuting options.
E. Promotional Materials - This will consist of posters, flyers, brochures
---------------------
or other material describing TDM opportunities, distributed via
bulletin boards, paycheck stuffers, email, or other means.
The following services will also be provided to tenants, upon their request:
F. Alternative Work Schedule Assistance - Guidance to tenants wishing to
------------------------------------
establish flextime or compressed-work-week programs for their
employees.
G. Telecommute Assistance - Guidance to tenants wishing to establish
----------------------
telecommuting programs for their employees.
IV. Commuter Service Operation
To support the incentives and information elements of the TDM Program, a number
of ongoing services will be provided to commuters at the site:
A. Connection to Caltrain Station - The project will contribute to the
------------------------------
operating costs of the Moffett Park Area Shuttle, which currently
offers 5 runs in the morning and 6 runs in the evening to/from the
Sunnyvale Caltrain Station. With the completion of the LRT station at
Moffett Park, improved access to Caltrain will be available via a
transfer at the Mountain View station to the LRT. At that time, the
shuttle subsidy may be discontinued, in order to shift those trips onto
the LRT line.
B. Guaranteed Ride Home Service - GRH services will be provided either by
----------------------------
VTA or directly via subsidized taxi rides or rental cars. Reasonable
usage limitations on number of trips per month or year will apply to
prevent abuse.
V. Financial Incentives
All tenants will be required to either purchase a VTA Eco Pass for bus and light
rail for each full-time employee, or purchase a monthly pass (or equivalent) at
a cost of up to $65 per month for each employee who commutes via public
transportation on a substantially full-time basis. The tenant may elect to offer
both incentives.
VI. Program Monitoring, Reporting and Assurance of Success
Management and monitoring of the TDM Program will include the following:
A. Annual Commuter Survey - A survey of tenants' employees will be
----------------------
conducted yearly, using City-approved methodology, to measure the
employees on-site who are commuting via alternative modes.
B. Annual TDM Report to City - A report will be prepared and submitted to
-------------------------
City each year, presenting the results of the Commuter Survey and
summarizing TDM Program activities.
C. TDM Goal - The Applicant has established a TDM Goal for this project,
--------
that at least 15% of all onsite employees travel to work by some means
other than driving alone.
D. Achievement of TDM Goal - The Applicant understands that provisions
-----------------------
will be included in the Development Agreement defining remedies for
failure to attain the TDM Goal, and that such remedies may include
financial penalties proportional to any shortfall.
I. Project Description
A. Project Overview
The proposed project site is located near the intersection of Moffett Park Drive
and Lockheed Way, in the City of Sunnyvale. Please see Figure 1 for a map of the
project location. The site now contains a Lockheed-Martin research and
development facility totaling approx. 456,400 square feet of space. The proposed
development will remove the existing facilities and construct an attractive,
office-park campus consisting of four buildings containing 636,562 square feet
of space, plus a separate Fitness Center containing 15,000 square feet. Please
see Figure 2 for a preliminary Site Plan. The primary uses of this space will be
general office, intended to support the vibrant local economy that is uniquely
characterized by computer, software, and Internet-related enterprises.
[INSERT FIGURE 1 GRAPHIC HERE.]
Location Map
[Figure shows map of the project location and identifies study intersections.]
FIGURE 2. PRELIMINARY SITE PLAN
B. Transit Services
1. Light-Rail Transit - With the opening of the Tasman West light-rail
line extension, plus the new station immediately adjacent to the
project site (and with convenient pedestrian access to the project
buildings), the site will offer excellent light-rail transit service to
the site's employees and visitors.
2. Commuter Rail - The Sunnyvale Caltrain Station at Evelyn & Francis,
offers all-day commuter-rail service to points along the peninsula
between San Jose and San Francisco, plus commute-period service between
Gilroy and San Jose. The Sunnyvale station includes automobile parking
and bicycle lockers, plus is wheelchair-accessible. This Caltrain
station is less than two miles from the site, and may be reached via a
shuttle service that currently makes five trips in the morning and six
trips in the afternoon. With the completion of the LRT station adjacent
to the project, convenient access to the Caltrain station in Mountain
View will be provided via the Tasman West line.
3. Bus Service - A number of VTA bus routes serve the project site, either
adjacent or within walking distance. These bus routes are shown in
Figure 3, along with the new light-rail line.
FIGURE 3.
VTA Transit Service Near Project Site
Figure shows map of express routes, local routes and limited stop bus routes and
light rail routes in the vicinity of the project site.
C. Bicycle Routes
Several bicycle routes are available in the vicinity of the project site. These
routes are shown in Figure 4.
FIGURE 4.
Bicycle Routes Near Project Site
Figure shows study intersections, existing bike lanes and existing bike paths in
the vicinity of the project site.
II. Site Facilities and Amenities
The physical infrastructure and environment can have a substantial impact on the
success of a TDM Program, by making it easier (or harder) for employees to use
alternative transportation modes. Being a new development, the Moffett Park
Office Project offers the opportunity to optimize the elements of the physical
environment to fully support those who choose not to drive alone to work. Thus,
the project design will include a number of features and amenities to encourage
and support the use of alternative commute modes. This will include:
A. Light-Rail Station - To encourage transit usage by employees and
------------------
visitors to the site, a new station on the Tasman West light-rail line
will be constructed as part of the proposed project. The new station
will be located on Moffett Park Drive, immediately adjacent to the
project site. The site design will include convenient pedestrian access
from the new station to the project buildings. In addition to serving
the employees at the Moffett Park Office Project, the new station will
also serve roughly 4,000 employees at nearby sites.
B. Designated Carpool/Vanpool Parking - This will serve as a convenience
----------------------------------
incentive to carpoolers and vanpoolers, and it will also be a visible
reminder to all employees of the benefits of ridesharing. A minimum of
10% of all on-site parking spaces will be designated for exclusive use
of carpools and vanpools. These spaces will be located convenient and
visible to the building entrances, and will be designed for full-sized
vehicles to make it easier to enter/exit the carpool and vanpool
vehicles. Additional preferential spaces will be designated when the
current spaces are folly utilized. Users of these spaces will be
required to obtain a carpool or vanpool parking permit.
C. Bicycle storage - A concern among many bicyclists is the fear of theft
---------------
of their expensive bicycles. Secure bicycle storage facilities can
largely eliminate this deterrent to using their bikes to commute. The
project design will include 109 bicycle spaces -- 82 enclosed lockers
for individual bicycles plus 27 racks. The amount of bike storage is
consistent with the VTA Bicycle Guidelines.
D. Showers and Clothing Lockers - Riding a bike to work can be vigorous
----------------------------
exercise, and many cyclocommuters work up a sweat. To insure workplace
harmony, at least 10 showers for men and at least 5 for women, plus 55
clothes lockers for men and 27 for women, will be available to
full-time cyclocommuters. Each building and the Fitness Center will
contain some of these 15 showers and 82 clothes lockers, but the exact
locations and numbers will be determined in the final design, to best
meet the needs of the initial tenant.
E. Carpool/Vanpool/Shuttle Pickup Area - Some people are concerned about
-----------------------------------
waiting for a carpool or vanpool in an unsafe place or one that is not
sheltered from adverse weather conditions. To allay this fear, a
convenient and safe area will be provided on the site for boarding and
discharging passengers from carpools, vanpools, and shuttles.
F. On-Site Amenities - Some commuters find it difficult to leave their car
-----------------
at home because they may need it at work for lunch trips or other
daytime travel to meet personal or business needs. To reduce this
concern, the site design will incorporate pedestrian and
bicycle circulation links to adjacent properties, pleasant
walking/jogging paths at the perimeter of the property, plus attractive
meditation gardens and seating areas. A restaurant/cafeteria and a
fitness center will be developed as a part of the project, and will be
built as a tenant improvement.
III. Commuter Information & Marketing
To encourage the maximum use of commute alternatives, commuters must be fully
aware of all travel options available for their trip to/from work. To insure
that they are fully aware, the TDM Program must first gain their interest in
ridesharing, and then provide high-quality information about that option in a
timely and personalized manner. The TDM Program will deliver a range of
information and marketing services to tenants and employees. This will include
certain services targeted to employees, and other services to the tenants
(employers). All tenants will be required to assist in the delivery of these
services to all of their employees who wish to participate. Services to
employees will include the following:
A. Ride-matching - This will include personalized carpool-matching and
-------------
vanpool information for employees. Carpool-matching information will
inform commuters about other people who live and work nearby and have
similar work schedules. Vanpool information will inform commuters about
any existing vanpools that they could use to get to work. This
information function may be performed on-site via electronic or manual
means, or may be performed off-site (for example, by RIDES, the
regional ridesharing agency).
B. Transit Information - This will include general transit information
-------------------
(maps and timetables for all transit routes near the project site, plus
personalized transit info (specific routes, schedules and fares) upon
request by any employee on-site for his/her commute trip. It will also
include information and assistance on how to purchase transit passes
via the Internet and Postal Service.
C. Cyclo-Commute Information - This will include general bike information
-------------------------
(route maps, tips for new cyclists, referrals to local bike
organizations), plus personalized assistance ("bike-buddy" matching)
upon request.
D. Promotional Events - Research has shown that many commuters decide to
------------------
adopt an alternative mode in response to a specific occurrence (e.g. a
car breakdown). Promotional activities (events, materials, etc.) are
important to insure a high awareness of available commute options when
that event occurs. To maintain awareness of commute options and
resources, the TDM Program will include one or more on-site events each
year promoting carpools, vanpools, transit, bicycling, and/or other
commuting options.
E. Promotional Materials - To maintain awareness between the periodic
---------------------
promotional events, the TDM Program will maintain a continuing presence
of promotional materials. This will consist of posters, flyers,
brochures or other material describing TDM opportunities, distributed
via bulletin boards, paycheck stuffers, email, or other means.
Commuter Information and Marketing activities will also include the following
services to tenants, upon their request:
F. Alternative-Work- Schedule Assistance - This will consist of guidance
-------------------------------------
and assistance to tenants who wish to establish flextime or
compressed-work-week programs for their employees. The TDM Program will
supply information (publications, websites, etc.), and referrals to
specialists (organizations, consultants, etc.).
G. Telecommute Assistance - As before, this will consist of guidance and
----------------------
assistance to tenants who wish to establish telecommute/telework
programs for their employees. The TDM Program will supply information
resources, plus referrals to appropriate specialists, if desired.
IV. Commuter Services Operation
To support the incentives and information elements of the TDM Program, and to
remove barriers to ridesharing, a number of operational services will be
provided to commuters at the site:
A. Connection to Caltrain Station - The project will contribute to the
------------------------------
operating costs of the Moffett Park Area Shuttle, which currently
offers 5 runs in the morning and 6 runs in the evening to/from the
Sunnyvale Caltrain Station. A map of the current route is shown in
Figure 5. With the completion of the LRT station adjacent to the
project, convenient access to Caltrain will be provided via a platform
to-platform transfer at the Mountain View Caltrain station to the
Tasman West LRT line on which the new station is located. At that time,
the shuttle subsidy may be discontinued, in order to shift those trips
off the local roadways and onto the light-rail service.
Figure 5. Route of Moffett Park Area Shuttle
[INSERT FIGURE 5 ROUTE OF MOFFETT PARK AREA SHUTTLE HERE]
[FIGURE SHOWS A MAP OF THE MOFFETT PARK AREA CALTRIAN SHUTTLE ROUTE]
B. Guaranteed Ride Home Service - Research on barriers to ridesharing has
----------------------------
revealed that many potential users of commute alternatives are
prevented from doing so because they fear that they would be stranded
at work in case of a daytime emergency or unexpected overtime work.
Guaranteed-RideHome (GRH) Services are a proven way to effectively
respond to this concern by providing a means to travel home in those
instances. These GRH services will be provided either by VTA (as part
of the Eco Pass program, or directly via subsidized taxi rides or
rental cars. To prevent abuse, reasonable limitations on number of
trips per month or year may apply.
V. Financial Incentives
Financial incentives have been shown to be strong motivators for use of public
transit for many commuters. Undercurrent federal law, it is relatively easy for
employers to subsidize the use of public transit for their employee's travel to
work, and these subsidies are exempt from federal income taxes if the monthly
subsidy does not exceed $65. It is much more difficult to subsidize the use of
carpools, bicycles, and other commute alternatives without incurring federal
income tax liabilities.
To take maximum advantage of the tax-exempt, transit subsidies now available,
all tenants will be required to either:
(1) purchase a VTA Eco Pass for each full-time employee, or
(2) purchase a monthly pass or equivalent ticket books at a cost of up to $65
per month for each employee who travels to work via public transportation on a
full-time basis.
The tenant may elect to do both.
The Santa Clara Valley Transportation Authority (VTA) Eco Pass program offers
unlimited use on all VTA buses and light rail lines, seven days a week. The $65
per month transit subsidy could be applied to any public transit service in the
Bay area, and to qualified vanpool services. In general, these transit subsidies
would not be subject to federal income taxes, yielding an equivalent after-tax
benefit of almost $100 per month to transit users.
VI. Program Monitoring, Reporting and Assurance of Success
The effectiveness of the Moffett Park Office Project TDM Program will be
regularly measured and documented, to assure achievement of the City's TDM Goal.
The following procedures will be used:
A. Annual Commuter Survey - A survey of tenant's employees will be
----------------------
conducted yearly to measure the number of on-site employees who are
commuting via alternative modes. To insure accuracy, the survey will
utilize City-approved methodology and will be subject to audit by the
City. This will serve as a standardized "yardstick" by which the
success of the TDM Program can be measured.
B. Annual TDM Report to City - A TDM Report will be prepared and submitted
-------------------------
to the City each year. The TDM Report will present the results of the
Commuter Survey and also summarize current TDM Program activities. It
will also identify changes to the TDM Program to be made during the
next year.
C. TDM Goal -- The Applicant has defined a TDM Goal for the Moffett Park
--------
Office Project - that at least 15% of all employees who regularly work
at the site are commuting via some means other than driving alone. This
Goal includes proportional credits for those employees who avoid
driving as a result of compressed work schedules (e.g. 4/40, 9/80) and
part-time telecommuting by those who normally work at the site.
D. Achievement of TDM Goal - The Applicant understands that provisions
-----------------------
will be included in the development agreement defining remedies for
failure to attain the TDM Goal, and that these remedies may include
financial penalties proportional to any shortfall. The Applicant
reserves the right to expand or revise this initial TDM program, if
necessary, in order to achieve the TDM Goal in the most cost-effective
manner.
VII. Summary and Concluding Comments
This TDM Plan proposes a comprehensive set of TDM actions that will be
implemented for the Moffett Park Office project to meet the TDM Goal - that at
least 15% of all on-site employees are commuting via some means other than
driving alone. The overall strategy of the Moffett Park TDM Program is:
o Provide full information about commute options,
o Offer incentives to those who use commute alternatives,
o Remove barriers to use of these commute alternatives, and
o Maintain high awareness of the TDM Program by employees at the site.
The Moffett Park Office Project will be occupied by a single tenant. This tenant
will operate and manage the TDM Program, and will deliver the ongoing services
described in this TDM Plan. The TDM Program Manager will also cooperate with the
TDM programs of nearby employers to maximize ridesharing opportunities.
The proposed TDM Program consists of a balanced set of measures, including:
(1) Site design (facilities and amenities) that reduce auto dependency,
(2) Information about the major commute alternatives available,
(3) Operation of transportation services to increase the attractiveness of
transit and ridesharing,
(4) Financial incentives to encourage the use of public transit, and
(5) Program monitoring, reporting and remedial measures to assure success.
EXHIBIT N
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
Adjacent Project
----------------
(See Attached)
[INSERT ADJACENT PROJECT GRAPHIC HERE.]
Adjacent Project
[Graphic shows the Lockheed Martin Missiles & Space Co. of Sunnyvale, California
preliminary lot line adjustment map. On the map the Ariba campus and the
adjacent project are identified.]
EXHIBIT B
---------
PREMISES
[INSERT ARIBA PLAZA, BUILDING 1 - 1st FLOOR GRAPHIC HERE.]
Ariba Plaza
Building 1 - 1st Floor
[Graphic, dated 4/11/01, shows the floor plan of Ariba Plaza, Building 1, First
Floor.]
[ENTER ARIBA PLAZA, BUILDING 1 - 2nd FLOOR GRAPHIC HERE.]
Ariba Plaza
Building 1 - 2nd Floor
[Graphic, dated 4/11/01, shows the floor plan of Ariba Plaza, Building 1, Second
Floor.]
[INSERT ARIBA PLAZA, BUILDING 1 - 3rd FLOOR GRAPHIC HERE.]
Ariba Plaza
Building 1 - 3rd Floor
[Graphic, dated 4/11/01, shows the floor plan of Ariba Plaza, Building 1, Third
Floor.]
[ENTER ARIBA PLAZA, BUILDING 1 - 4th FLOOR GRAPHIC HERE.]
Ariba Plaza
Building 1 - 4th Floor
[Graphic, dated 4/11/01, shows the floor plan of Ariba Plaza, Building 1, Fourth
Floor.]
[ENTER ARIBA PLAZA, BUILDING 4 - 4th FLOOR GRAHIC HERE.]
Ariba Plaza
Building 4 - 4th Floor
[Graphic, dated 4/11/01, shows the floor plan of Ariba Plaza, Building 4, Fourth
Floor.]
EXHIBIT C
---------
SUBLANDLORD'S RULES AND REGULATIONS
A. General Rules and Regulations. The following rules and regulations govern
the use of the Building and the Project Common Areas. Subtenant will be
bound by such rules and regulations and agrees to cause Subtenant's
employees, subtenant's, assignees, contractors, suppliers, customers, and
invitees to observe the same.
1. Subtenant shall not in any way obstruct the sidewalks, halls, elevators,
stairways, entry passages, pedestrian passageways, driveways, entrances and
exits to the Project or the Buildings, and they shall use the same only as
passageways to and from their respective work areas.
2. Any sash doors, sashes, windows, glass doors, lights, and skylights that
reflect or admit light into any Building shall not be covered or obstructed
by the Subtenant. Water closets, urinals and wash basins shall not be used
for any purpose other than those for which they were constructed, and no
rubbish, newspapers, food or other substance of any kind shall be thrown
into them. Subtenant shall not mark, drive nails, screw or drill into,
paint or in any way deface the exterior walls, roof, foundations, bearing
walls or pillars without the prior written consent of the Sublandlord,
which consent may be withheld in Sublandlord's sole discretion. The expense
of repairing any breakage, stoppage or damage resulting from a violation of
this rule shall be borne by Subtenant. Cleaning of equipment of any type is
prohibited.
3. No awning or shade shall be affixed or installed over or in the windows or
the exterior of the Premises except with the consent of the Sublandlord,
which may be withheld in Sublandlord's discretion.
4. No boring or cutting for wires shall be allowed, except with the consent of
the Sublandlord, which may be withheld in Sublandlord's discretion.
5. Subtenant shall not do anything in the Premises, or bring or keep anything
therein, which will in any way increase or tend to increase the risk of
fire or the rate of fire insurance or which shall conflict with the
regulations of the fire department or the law or with any insurance policy
on the Premises or any part thereof, or with any rules or regulations
established by any administrative body or official having jurisdiction, and
it shall not use any machinery therein, even though its installation may
have been permitted, which may cause any unreasonable noise, jar or tremor
to the floors or walls, or which by its weight might injure the floors of
the Premises.
6. Sublandlord may reasonably limit weight, size and position of all safes,
fixtures and other equipment used in the Premises. If Subtenant shall
require extra heavy equipment, Subtenant shall notify Sublandlord of such
fact and shall pay the cost of structural bracing to accommodate it. All
damage done to the Premises or Project by installing, removing or
maintaining extra heavy equipment shall be repaired at the expense of the
Subtenant.
7. Subtenant and Subtenant's officers, agents and employees shall not make nor
permit any loud, unusual or improper noises nor interfere in any way with
other Subtenants or those having business with them, nor bring into or keep
within the Project any animal or bird (except seeing-eye dogs) or any
bicycle or other vehicle, except such vehicle as Sublandlord may from time
to time permit.
8. No machinery of any kind will be allowed in the Premises without the
written consent of Sublandlord. This shall not apply, however, to customary
office equipment or trade fixtures or package handling equipment.
9. All freight must be moved into, within and out of the Project only during
such hours and according to such reasonable regulations as may be posted
from time to time by Sublandlord.
10. No aerial or satellite dish or similar device shall be erected on the roof
or exterior walls of the Premise, or on the grounds, without in each
instance, the written consent of Sublandlord. Any aerial so installed
without such
written consent shall be subject to removal without notice at any time.
Sublandlord may withhold consent in its sole discretion. Subtenant will not
interfere with radio or television broadcasting or reception from or in the
Project or elsewhere.
11. All garbage, including wet garbage, refuse or trash shall be placed by the
Subtenant in the receptacles appropriate for that purpose and only at
locations prescribed by the Sublandlord.
12. Subtenant shall not burn any trash or garbage at any time in or about the
Premises or any area of the Project.
13. Subtenant shall observe all security regulations issued by Sublandlord and
comply with instructions and/or directions of the duly authorized security
personnel for the protection of the Project and all tenants therein.
14. Any requirements of the Subtenant will be considered only upon written
application to Sublandlord and Sublandlord's address set forth in the
Sublease. However, for minor day to day repairs and emergency repairs,
Subtenant may call Sublandlord for such repairs or other service via
Sublandlord's emergency hotline for immediate service. Such requirement
must promptly be filed under written application as set forth above as soon
as possible thereafter.
15. No waiver of any rule or regulation of Sublandlord shall be effective
unless expressed in writing and signed by Sublandlord or its authorized
agent.
16. Sublandlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Sublandlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of the law or rules and regulations of the Project. Sublandlord
will in all cases retain the right to control and prevent access thereto of
all persons whose presence in the reasonable judgement of Sublandlord would
be prejudicial to the safety character, reputation, and interest of the
Project and it's tenants, provided that nothing herein contained will be
constructed to prevent such access to persons with whom any Subtenant
normally deals in the ordinary course of it's business, unless such persons
are engaged in illegal or unlawful activities. No Subtenant and no employee
or invitee of any Subtenant will go upon the roof of the Building.
17. Sublandlord specifically reserves to itself or to any person or firm it
selects, (i) the right to place in and upon the Project, coin-operated
machines for the sale of cigarettes, candy and other merchandise or
service, and (ii) the revenue resulting therefrom.
18. Except as specifically provided in the Sublease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice may be installed or displayed on any part of the outside or the
inside of the Building or the Project without the prior written consent of
the Sublandlord. Sublandlord will have the right to remove, at Subtenant's
expense and without notice, any sign installed or displayed in violation of
this rule. All approved signs or lettering on doors and walls are to be
printed, painted, affixed, or inscribed at the expense of the Subtenant and
under direction of Sublandlord by a person or company designated or
approved by Sublandlord.
19. If Sublandlord objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar attached or used in connection with any
window or door of the Premises, are placed on any windowsill, which is
visible from the exterior of the Premises, Subtenant will immediately
discontinue such use. Subtenant agrees not to place anything against or
near glass partitions or doors or windows, which may appear unsightly from
outside the Premises including from within any interior common areas.
20. Sublandlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, distribution of handbills, or any other written
material, peddling, sales, and displays or products, goods, and wares, in
all portions of the Project except as may be expressly permitted under the
Sublease. However, Subtenant shall be allowed to use an outside catering
vendor to cater Subtenant's own, internal events. Sublandlord reserves the
right to prohibit, restrict and regulate the use of common areas of the
Project and Building by invitees of Subtenant's providing services to
Subtenant's on a periodic or daily basis including food and beverage
vendors. Such restrictions may include limitations on time, place, manner
and
duration of access to a Subtenant's Premises for such purposes. Without
the limiting of the foregoing, Sublandlord may require that such parties
use service elevators, halls, passageways and stairways for such purposes
to preserve access within the Building for Subtenant's and the general
public.
21. Sublandlord reserves the right to exclude from any Building unless that
person is known to be person or employee in charge of the building, or had
a pass or is properly identified. Subtenant will be responsible for all
persons for whom it requests and will be liable to Sublandlord for all acts
of such persons. Sublandlord will not be liable for damages for any error
with regard to the admission to or exclusion from the Building of any
person. Sublandlord reserves the right to prevent access to the Building in
case of invasion, mob, riot, public excitement, or other commotion by
closing the doors or by other appropriate action.
22. The directory of the Building or the Project will be provided exclusively
for the display of the name and location of Subtenant's only and
Sublandlord reserves the right to exclude any other names therefrom.
23. Subtenant will not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the Premises.
24. Subtenant may not rekey any doors in the Premises without Ariba's prior
written consent. Upon any such rekeying, Subtenant shall deliver to
Sublandlord a copy of such new key. Subtenant, upon the termination of it's
tenancy, will deliver to Sublandlord the keys to all doors which have been
furnished to Subtenant or rekeyed by Subtenant, and in the event of loss of
any keys so furnished by Sublandlord, will pay Sublandlord therefor.
25. Except with respect to Building One, Freight elevator(s) will be available
for use by all subtenants in the building, subject to such reasonable
scheduling as Sublandlord, in it's discretion, deems appropriate. Except
with respect to Building One, no equipment, furniture, materials, packages,
supplies, merchandise or other property will be received in the building or
carried in the elevators except between such hours and in such elevators as
may be designated by Sublandlord. Except as otherwise agreed between
Subtenant and Sublandlord, and except with respect to Building One,
Subtenant's initial move in and subsequent deliveries of bulky items, such
as furniture, safes, and similar items will, unless otherwise agreed in
writing by Sublandlord, be made during the hours of 5:30 p.m. and 7:30
a.m., or on Saturday or Sunday. Except with respect to Building One,
deliveries during normal office hours shall be limited to normal office
supplies and other small items. No deliveries will be made which impede or
interfere with other Subtenant's of the operation of the Building.
26. Subtenant will not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Subtenant will not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Sublandlord or other
occupants of the Building by reason of odors or vibrations, nor will
Subtenant bring into or keep in or about the Premises any pets or other
animals (except seeing-eye dogs).
27. Subtenant will not use any method of heating or air conditioning other than
that supplied by Sublandlord without Sublandlord's prior written consent.
28. Subtenant will not waste electricity, water or air conditioning and agrees
to cooperate fully with Sublandlord to assure the most effective operation
of the Building's heating and air conditioning and to comply with any
governmental energy-saving rules, law or regulations of which Subtenant has
actual notice, and will refrain from attempting to adjust controls.
29. Without the written consent of Sublandlord, Subtenant will not use the name
of the Building or the Project in connection with or in promoting or
advertising the business of Subtenant except as Subtenant's address.
30. Subtenant will close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and lighting or gas before
Subtenant and its employees leave the Premises. Subtenant will be
responsible for any damage or injuries sustained by other Subtenant's or
occupants of the Building or by Sublandlord for noncompliance with this
rule.
31. Subtenant will not conduct, nor permit to be conducted, either voluntarily
or involuntarily, any auction upon the Premises without first having
obtained Sublandlord's prior written consent, which consent Sublandlord may
withhold in it's sole and absolute discretion.
32. Sublandlord reserves the right to direct electricians as to where and how
telephones and telegraph wires are to be introduced to the Premises.
Subtenant will not cut or bore holes for wires. Subtenant will not affix
any floor covering to the floor of the Premises in any manner except as
approved by Sublandlord. Subtenant shall repair any damage resulting from
noncompliance with this rule.
33. Subtenant will store all its trash and garbage within it's Premises or in
other facilities provided by Sublandlord. Subtenant will not place in any
trash box or receptacle any material, which cannot be disposed of in the
ordinary and customary manner of trash and garbage disposal. All garbage
and refuse disposal is to be made in accordance with directions issued from
time to time by Sublandlord.
34. The Premises will not be used for lodging or for the storage of merchandise
held for sale to the general public, or for lodging or for manufacturing of
any kind, nor shall the Premises be used for any improper, immoral or
objectionable purpose. No cooking will be done or permitted on the Premises
without Sublandlord's consent, except the use by Subtenant of approved
equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, and the use of a microwave oven for employees use will
be permitted, provided that such equipment and use is in accordance with
all applicable federal, state, county and city laws, codes, ordinances,
rules and regulations.
35. Neither Subtenant nor any of it's employees, agents, customers and invitees
may use in any space or in the Common Areas of the Building or the Project
any hand truck except those equipped with rubber tires and side guards or
such other material-handling equipment as Sublandlord may approve.
Subtenant will not bring any other vehicles of any kind into the Building,
including bicycles.
36. Subtenant agrees to comply with all safety, fire protection and evacuation
procedures established by Sublandlord or any governmental agency.
37. Subtenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
38. To the extend Sublandlord reasonably deems it necessary to exercise
exclusive control over any portions of the Common Areas for the mutual
benefit of the Subtenant's in the Building or the Project, Sublandlord may
do so subject to reasonable, non-discriminatory additional rules and
regulations.
39. Smoking is not allowed in the Building. You must be at least forty (40)
feet from any entry to the Building. Sublandlord may require Subtenant and
any of it's employees, agents, clients, customers, invitees and guests who
desire to smoke, to smoke within designated smoking areas within the
Project.
40. Employees of Sublandlord will not perform any work or do anything outside
of their regular duties unless under special instructions from Sublandlord,
and no employee of Sublandlord will admit any person (Subtenant or
otherwise) to any office without specific instructions from Sublandlord.
41. Subtenant shall not store any property, temporarily or permanently, in the
Common Areas. Any such storage shall be permitted only by the prior written
consent of Sublandlord, which consent may be revoked at any time.
In the event that any unauthorized storage shall occur, Sublandlord shall
have the right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and charge the cost to
Subtenant, which cost shall be immediately payable upon demand by
Sublandlord.
42. These Rules and Regulations are in addition to, and will not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Sublease. Sublandlord may waive any one or
more of these Rules and Regulations for the benefit of Subtenant or any
other Subtenant, but no such waiver by Sublandlord will be construed as a
waiver of such Rules and Regulations in favor of Subtenant or any other
Subtenant, nor prevent Sublandlord from thereafter enforcing any such Rules
and Regulations against any or all of the Subtenant's of the Project.
43. Sublandlord reserved the right at any time to change or rescind any one or
more of these rules and regulations or make such other and further
reasonable rules and regulations as in Sublandlord's judgment may from time
to time be necessary for the operation, management, safety, care and
cleanliness of the Project and the Premises, and for the preservation of
good order therein, as well as for the convenience of the other occupants
and tenants of the Project. Sublandlord shall not be responsible to
Subtenant or the any other person for the non-observance or violation of
the rules and regulations by any other tenant or other person. Subtenant
shall be deemed to have read these rules, and have agreed to abide by them
as a condition to its occupancy of the Premises.
44. Subtenant shall abide by any additional rules or regulations which are
ordered or requested by any governmental or military authority.
45. In the event of any conflict between these rules and regulations, or any
further or modified rules and regulations from time to time issued by
Sublandlord, and the Sublease provisions, the Sublease provisions shall
govern and control.
B. Parking Rules and Regulations. The following rules and regulations govern
the use of the parking facilities, which serve the Project. Subtenant will
be bound by such rules and regulations and agrees to cause it's employees,
subtenant's, assignees, contractors, suppliers, customers and invitees to
observe the same:
1. Subtenant will not permit or allow any vehicles that belong to or are
controlled by Subtenant or Subtenant's employees, subtenant's, customers or
invitees to be loaded, unloaded or parked in areas other than those
designated by Sublandlord for such activities. No vehicles are to be left
in the parking areas overnight and no vehicles are to be parked in the
parking areas other than normally sized passenger automobiles, motorcycles
and pick-up trucks. No extended term storage of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in aisles
or on ramps; (c) where "no parking" signs are posted; (d) in cross-hatched
areas; and (e) in such other areas as may be designated from time to time
by Sublandlord or Sublandlord's parking operator.
6. Sublandlord reserves the right, without cost or liability to Sublandlord,
to tow any vehicle if such vehicle's audio theft alarm system remains
engaged for an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
8. Sublandlord may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at
such car
owner's expense. Subtenant agrees to use it's best efforts to acquaint it's
employees, subtenant's, assignees, contractors, suppliers, customers and
invitees with these parking provisions, rules and regulations.
9. Parking stickers, access cards or any other device or form of
identification supplied by Sublandlord as a condition of use of the parking
facilities shall remain the property of Sublandlord. Parking identification
devices, if utilized by Sublandlord, must be displayed as requested any may
not be mutilated in any manner. The serial number of the parking
identification device may not be obliterated. Parking identification
devices, if any are not transferable and any device in the possession of an
unauthorized holder will be void. Sublandlord reserves the right to refuse
the sale of monthly stickers or other parking identification devices to
Subtenant or any of it's agents, employees or representatives who willfully
refuse to comply with these rules and regulations and all un posted city,
state or federal ordinances, laws or agreements.
10. Loss or theft of parking identification devices or access cards must be
reported to the management office in the Project immediately, and a lost or
stolen report must be filed by the Subtenant or user of such parking
identification device or access card at the time. Sublandlord has the right
to exclude any vehicle from the parking facilities that does not have a
parking identification device or valid access card. Any parking
identification device or access card, which is reported lost or stolen, and
which is subsequently found in the possession of an unauthorized person
will be confiscated and the illegal holder will be subject to prosecution.
11. All damage or loss claimed to be the responsibility of Sublandlord must be
reported, itemized in writing and delivered to the management office
located within the Project within ten (10) business days after any claimed
damage or loss occurs. Any claim not so made is waived. Sublandlord is not
responsible for damage by water or fire, or for the acts or omissions of
others, or for articles left in vehicles. In any event, the total liability
of Sublandlord, if any, is limited to Two Hundred Fifty Dollars ($250.00)
for all damages or loss to any car. Sublandlord is not responsible for loss
of use.
12. The parking operators, managers or attendants are not authorized to make or
allow any exceptions to these rules and regulations made by the parking
operators, managers or attendants without the express written consent of
Sublandlord will not be deemed to have been approved by Sublandlord.
13. Sublandlord reserves the right, without cost or liability to Sublandlord,
to tow any vehicle, which is used or parked in violation of these rules and
regulations.
14. Sublandlord reserves the right from time to time to modify and/or adopt
such other reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems necessary for the operation of the parking
facilities.
15. In the event of any conflict between these rules and regulations, or any
further or modified rules and regulations from time to time issued by
Sublandlord, and the Sublease provisions, the Sublease provisions shall
govern and control.
EXHIBIT D
---------
COMMENCEMENT DATE MEMORANDUM
[Sublandlord's Notice Address]
Dear Sir or Madam,
With reference to that certain sublease agreement ("Sublease") dated
_________, 200__, by and between Ariba, Inc., a Delaware corporation
("Sublandlord"), and __________________ ________________, a(n)
_______________________ ("Subtenant"), for certain premises located at ______
Eleventh Avenue, Sunnyvale, California (the "Premises"), in accordance with
Paragraph 2.1 of the Sublease, Subenant acknowledges and certifies to
Sublandlord as follows:
With respect to __________________________ [describe relevant portion of
Premises, with reference to attached diagram if less than an entire floor]
("Partial Premises"):
1. The term commenced on ___________, 200__;
2. Subtenant has accepted and is currently in possession of the Partial
Premises; and
3. The number of square feet of the Partial Premises is _______ [if less
than an entire floor].
Each person executing this Memorandum certifies that he or she is
authorized to do so on behalf of and as the act of Subtenant. In Witness
Whereof, this Commencement Date Memorandum is executed on _____________, 200__.
SUBTENANT
________________________________, a(n)
_______________________
By: _________________________
Print Name: _________________________
Title: _________________________
By: _________________________
Print Name: _________________________
Title: _________________________
EXHIBIT E
---------
RAVENDALE LEASE
1st AMENDMENT TO LEASE
THIS 1st AMENDMENT TO LEASE (this "1st Amendment") is made this 7th day of June
2000 between Spieker Properties, L.P., a California limited partnership,
("Landlord"), and Interwoven, Inc., a Delaware corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into a Lease dated May 1, 2000,
(as amended, the "Lease"), for those certain premises located at 385 Ravendale
Drive, Mountain View, California (the "Premises"), as more fully described in
the Lease. Capitalized terms used but not otherwise defined herein shall have
the meanings given them in the Lease; and
WHEREAS, the Scheduled Term Commencement Date was to be July 15, 2000,
Landlord and Tenant desire to modify the Scheduled Term Commencement Date and
the Scheduled Expiration Date.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby mutually agree as follows:
1. Scheduled Term Commencement Date: September 1, 2000
2. Early Occupancy: Paragraph 39.C is deleted in its entirety and
replaced by the following:
Upon full execution of this Lease, Tenant shall have the right to
occupy the Premises on July 1, 2000, for purposes of installing
cabling, fixtures and furniture, with all terms and conditions of this
Lease in full force and effect except that Tenant shall not be required
to pay Rent for the period July 1, 2000 through August 31, 2000.
3. Scheduled Expiration Date: August 31, 2007
Except as expressly modified above, all terms and conditions of the Lease remain
in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have entered into this 1st
Amendment as of the date first written above.
LANDLORD: TENANT:
Spieker Properties, L.P., Interwoven, Inc.
a California limited partnership a Delaware corporation
By: Spieker Properties, Inc. By: /s/ David M. Allen
a Maryland corporation ---------------------------
its General Partner David Allen
Its: Vice President & CFO
By: /s/ Eric T. Luhrs
----------------------------
Eric T. Luhrs
Vice President
BASIC LEASE INFORMATION
INDUSTRIAL NET
LEASE DATE: May 1, 2000
(same as date in first paragraph of Lease)
TENANT: Interwoven. Inc., a Delaware corporation
TENANT'S NOTICE ADDRESS: 385 Ravendale Drive, Mountain View, CA
TENANT'S BILLING ADDRESS: 385 Ravendale Drive, Mountain View, CA
TENANT CONTACT: David Allen PHONE NUMBER:(408) 774-2000
FAX NUMBER: (408) 774-2002
LANDLORD: Spieker Properties, L.P., a California limited partnership
LANDLORD'S NOTICE ADDRESS: 2180 Sand Hill Road, Suite 100, Menlo Park, CA 94025
LANDLORD'S REMITTANCE ADDRESS: Spieker Properties
P.O. Box 45587
Dept, 10794
San Francisco, CA 94145-0587
Project Description: That one (1) building commonly known as 385 Ravendale Drive
in Mountain View, California. The Project is outlined in green on
Exhibit B.
Building Description: Approximately 35,206 rentable square feet at 385 Ravendale
Avenue In Mountain View, CA 94043. The Building is outlined in
blue on Exhibit B:
Premises: Approximately 35,206 rentable square feet
385 Ravendale Avenue in Mountain View, CA
94043. The Premise is outlined in red on Exhibit B.1.
Permitted Use: General office use in compliance with all applicable laws and
ordinances of the City of Mountain View.
Parking Density: 3.3 spaces per 1,000 rentable square feet of the Premises
Scheduled Term Commencement Date: July 15, 2000 (contingent on executed termination with existing
tenant)
Scheduled Length of Term: Eighty-four and one-half (84 1/2) months
Scheduled Term Expiration Date: July 31, 2007
Rent:
Base Rent: $176,030.00 per month
(subject to adjustment as provided in Paragraph 39A. hereof)
Estimated First Year Operating Expenses: $13,681.00 per month
Security Deposit $2,112,360.00 (to be held fn the form of a Letter of Credit see
Paragraphs 19 and 39B)
Tenant's NAICS Code: 7372
Tenant's Proportionate Share:
Of Building: 100%
Of Project: 100%
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
LANDLORD: TENANT:
Spieker Properties, L.P., Interwoven, Inc.
a California limited partnership a Delaware corporation
By: Spieker Properties, Inc. By: /s/ David M. Allen
a Maryland corporation ----------------------
its General Partner David Allen
Its: Vice President & CFO
By: /s/ Eric T. Luhrs
-------------------------
Eric T. Luhrs
Vice President
TABLE OF CONTENTS
Page
Basic Lease Information .......................................................... 1
Table of Contents ................................................................ 2
1. Premises ......................................................................... 5
2. Possession and Lease Commencement ................................................ 5
3. Term ............................................................................ 5
4. Use .............................................................................. 5
5. Rules and Regulations ............................................................ 6
6. Rent ............................................................................. 6
7. Operating Expenses ............................................................... 6
8. Insurance and Indemnification .................................................... 8
9. Waiver of Subrogation ............................................................ 9
10. Landlord's Repairs and Maintenance ............................................... 9
11. Tenant's Repairs and Maintenance ................................................. 9
12. Alterations ...................................................................... 9
13. Signs ............................................................................ 10
14. Inspection/Posting Notices ....................................................... 10
15. Services and Utilities ........................................................... 10
16. Subordination .................................................................... 11
17. Financial Statements ............................................................. 11
18. Estoppel Certificate ............................................................. 11
19. Security Deposit ................................................................. 11
20. Limitation of Tenant's Remedies .................................................. 12
21. Assignment and Subletting ........................................................ 13
22. Authority of Tenant .............................................................. 13
23. Condemnation ..................................................................... 13
24. Casualty Damage .................................................................. 13
25. Holding Over ..................................................................... 14
26. Default .......................................................................... 14
27. Liens ............................................................................ 15
28. Substitution ..................................................................... 15
29. Transfers by Landlord ............................................................ 15
30. Right of Landlord to Perform Tenant's Covenants .................................. 16
31. Waiver ........................................................................... 16
32. Notices .......................................................................... 16
33. Attorney's Fees .................................................................. 16
34. Successors and Assigns ........................................................... 16
35. Force Majeure .................................................................... 16
36. Surrender of Premises ............................................................ 17
37. Hazardous Materials .............................................................. 17
38. Miscellaneous .................................................................... 17
39. Additional Provisions ............................................................ 18
40. Jury Trial Waiver ................................................................ 21
Signatures ....................................................................... 21
Exhibits:
Exhibit A ...................................................... Rules and Regulations
Exhibit B .................................................................. Site Plan
Exhibit C ................................................ Lease Improvement Agreement
Exhibit D .......................................... Hazardous Materials Questionnaire
Additional Exhibits as Required
LEASE
THIS LEASE is made as of the 24th day of, April, 2000, by and between
Spieker Properties, L.P., a California limited partnership (hereinafter called
"Landlord"), and Interwoven, Inc., a Delaware corporation (hereinafter called
"Tenant").
1. PREMISES.
Landlord leases to Tenant and Tenant leases from Landlord, upon the
terms and conditions hereinafter set forth, those premises (the "Premises")
outlined in red on Exhibit B and described in the Basic Lease Information. The
Premises shall be all or part of a building (the "Building") and of a project
(the "Project"), which may consist of more than one building and additional
facilities, as described in the Basic Lease Information. For purposes of this
Lease. "Premises," "Building" and "Project" shall all mean the same thing. The
Building and Project are outlined in blue and green respectively on Exhibit B.
Landlord and Tenant acknowledge that physical changes may occur from time to
time in the Premises, Building or Project, and that the number of buildings and
additional facilities which constitute the Project may change from time to time,
which may result in an adjustment in Tenant's Proportionate Share, as defined in
the Basic Lease Information; as provided in Paragraph 7.A.
2. POSSESSION AND LEASE COMMENCEMENT
Existing Improvements. If this Lease pertains to a Premises in which
the interior improvements have already been constructed ("Existing
Improvements"), the provisions of this Paragraph 2. shall apply and the term
commencement date ("Term Commencement Date") shall be the earlier of the date on
which: (1) Tenant takes possession of some or all of the Premises; or (2)
Landlord notifies Tenant that Tenant may occupy the Premises. If for any reason
Landlord cannot deliver possession of the Premises to Tenant on the scheduled
Term Commencement Date, Landlord shall not be subject to any liability therefor,
nor shall Landlord be in default hereunder nor shall such failure affect the
validity of this Lease, and Tenant agrees to accept possession of the Premises
at such time as Landlord is able to deliver the same, which date shall then be
deemed the Term Commencement Date. Tenant shall not be liable for any Rent
(defined below) for any period prior to the Term Commencement Date. Tenant
acknowledges that Tenant has inspected and accepts the Premises in their present
condition, broom clean, "as is," and as suitable for, the Permitted Use (as
defined below), and for Tenant's intended operations in the Premises. Tenant
agrees that the Premises and other improvements are in good and satisfactory
condition as of when possession was taken. Tenant further acknowledges that no
representations as to the condition or repair of the Premises nor promises to
alter, remodel or improve the Premises have been made by Landlord or any agents
of Landlord unless such are expressly set forth in this Lease. Upon Landlord's
request, Tenant shall promptly execute and return to Landlord a "Start-Up
Letter" in which Tenant shall agree, among other things, to acceptance of the
Premises and to the determination of the Term Commencement Date; in accordance
with the terms of this Lease, but Tenant's failure or refusal to do so shall not
negate Tenant's acceptance of the Premises or affect determination of the Term
Commencement Date.
3. TERM
The term of this Lease (the "Term") shall commence on the Term
Commencement Date and continue in full force and effect for the number of months
specified as the Length of Term in the Basic Lease Information or until this
Lease is terminated as otherwise provided herein. If the Term Commencement Date
is a date other than the first day of the calendar month, the Term shall be the
number of months of the Length of Term in addition to the remainder of the
calendar month following the Term Commencement Date.
4. USE
A. General. Tenant shall use the Premises for the permitted use specified in the
Basic Lease Information ("Permitted Use") and for no other use or purpose:
Tenant shall control Tenant's employees, agents, customers, visitors, invitees,
licensees, contractors, assignees and subtenants (collectively, "Tenant's
Parties") in such a manner that Tenant and Tenant's Parties cumulatively do not
exceed the parking density specified in the Basic Lease Information (the
"Parking Density") at any time. So long as Tenant is occupying the Premises,
Tenant and Tenant's Parties shall have the nonexclusive right to use, in common
with other parties occupying the Building or Project, the parking areas,
driveways and other common areas of the Building and Project, subject to the
terms of this Lease and such rules and regulations as Landlord may from time to
time prescribe. Landlord reserves the right, without notice or liability to
Tenant, and without the same constituting an actual or constructive eviction, to
alter or modify the common areas from time to time, including the location and
configuration thereof, and the amenities and facilities which Landlord may
determine to provide from time to time. Landlord will use reasonable efforts not
to interfere with Tenant's ongoing business.
B. Limitations. Tenant shall not permit any odors, smoke, dust, gas, substances,
noise or vibrations to emanate from the Premises or from any portion of the
common areas as a result of Tenant's or any Tenant's Party's use thereof, nor
take any action which would constitute a nuisance or would disturb, obstruct or
endanger any other tenants or occupants of the Building or Project or elsewhere,
or interfere with their use of their respective premises or common areas.
Storage outside the Premises of materials, vehicles or any other items is
prohibited. Tenant shall not use or allow the Premises to be used for any
immoral, improper or unlawful purpose, nor shall Tenant cause or maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer the commission of any waste in, on or about the Premises. Tenant shall
not allow any sale by auction upon the Premises, or place any loads upon the
floors, walls or ceilings which could endanger the structure, or place any
harmful substances in the drainage system of the Building or Project. No waste,
materials or refuse shall be dumped upon or permitted to remain outside the
Premises except in trash containers placed inside exterior enclosures designated
for that purpose by Landlord. Landlord shall not be responsible to Tenant for
the non-compliance by any other tenant or occupant of the Building or Project
with any of the above-referenced rules or any other terms or provisions of such
tenant's or occupant's lease or other contract.
C. Compliance with Regulations. By entering the Premises, Tenant accepts the
Premises in the condition existing as of the date of such entry. Tenant shall at
its sole cost and expense strictly comply with all existing or future applicable
municipal, state and federal and
other governmental statutes, rules, requirements, regulations, laws and
ordinances, including zoning ordinances and regulations, and covenants,
easements and restrictions of record governing and relating to the use,
occupancy or possession of the Premises, to Tenant's use of the common areas, or
to the use, storage, generation or disposal of Hazardous Materials (hereinafter
defined) (collectively "Regulations"). Tenant shall at its sole cost and expense
obtain any and all licenses or permits necessary for Tenant's use of the
Premises. Tenant shall at its sole cost and expense promptly comply with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted. Tenant shall not do or permit anything to be done in, on,
under or about the Project or bring or keep anything which will in any way
increase the rate of any insurance upon the Premises, Building or Project or
upon any contents therein or cause a cancellation of said insurance or otherwise
affect said insurance in any manner. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect and hold Landlord harmless from and
against any loss, cost, expense, damage, attorneys' fees or liability arising
out of the failure of Tenant to comply with any Regulation. Tenant's obligations
pursuant to the foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
5. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the building rules and
regulations attached hereto as Exhibit A and any other rules and regulations and
any modifications or additions thereto which Landlord may from time to time
prescribe in writing for the purpose of maintaining the proper care,
cleanliness, safety, traffic flow and general order of the Premises or the
Building or Project. Tenant shall cause Tenant's Parties to comply with such
rules and regulations. Landlord shall not be responsible to Tenant for the
non-compliance by any other tenant or occupant of the Building or Project with
any of such rules and regulations, any other tenant's or occupant's lease or any
Regulations.
6. RENT
A. Base Rent. Tenant shall pay to Landlord and Landlord shall receive,
without notice or demand throughout the Term, Base Rent as specified in the
Basic Lease Information, payable in monthly installments in advance on or before
the first day of each calendar month, in lawful money, of the United States,
without deduction or offset whatsoever, at the Remittance Address specified in
the Basic Lease Information or to such other place as Landlord may from time to
time designate in Writing. Base Rent for the first full month of the Term shall
be paid by Tenant upon Tenant's execution of this Lease. If the obligation for
payment of Base Rent commences on a day other than the first day of a month,
then Base Rent shall be prorated and the prorated installment shall be paid on
the first day of the calendar month next succeeding the Term Commencement Date.
The Base Rent payable by Tenant hereunder is subject to adjustment as provided
elsewhere in this Lease, as applicable. As used herein, the term "Base Rent"
shall mean the Base Rent specified in the Basic Lease Information as it may be
so adjusted front time to time.
B. Additional Rent. All monies other than Base Rent required to be paid by
Tenant hereunder, including, but not limited to, Tenant's Proportionate Share of
Operating Expenses, as specified in Paragraph 7 of this Lease, charges to be
paid by Tenant under Paragraph 15, the interest and late charge described in
Paragraphs 26.D. and E., and any monies spent by Landlord
pursuant to Paragraph 30, shall be considered additional rent ("Additional
Rent"). "Rent" shall mean Base Rent and Additional Rent.
7. OPERATING EXPENSES
A. Operating Expenses. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as Additional Rent, Tenant's Proportionate Share of
the Building and/or Project (as applicable), as defined in the Basic Lease
Information, of Operating Expenses (defined below) in the manner set forth
below. Tenant shall pay the applicable Tenant's Proportionate Share of each such
Operating Expenses. Landlord and Tenant acknowledge that if the number of
buildings which constitute the Project increases or decreases, or if physical
changes are made to the Premises, Building or Project or the configuration of
any thereof, Landlord may at its discretion reasonably adjust Tenant's
Proportionate Share of the Building or Project to reflect the change. Landlord's
determination of Tenant's Proportionate Share of the Building and of the Project
shall be conclusive so long as it is reasonably and consistently applied.
"Operating Expenses" shall mean all expenses and costs of every kind and nature
which Landlord shall pay or become obligated to pay, because of or in connection
with the ownership, management, maintenance, repair, preservation, replacement
and operation of the Building or Project and its supporting facilities and such
additional facilities now and in subsequent years as may be determined by
Landlord to be necessary or desirable to the Building and/or Project (as
determined in a reasonable manner) other than those expenses and costs which are
specifically attributable to Tenant or which are expressly made the financial
responsibility of Landlord or specific tenants of the Building or Project
pursuant to this Lease. Operating Expenses shall include, but are not limited
to, the following;
(1) Taxes. All real property taxes and assessments, possessory interest
taxes, sales taxes, personal property taxes, business or license taxes or fees,
gross receipts taxes, service payments in lieu of such taxes or fees, annual or
periodic license or use fees, excises, transit charges, and other impositions,
general and special, ordinary and extraordinary, unforeseen as well as foreseen,
of any kind (including fees "in-lieu" of any such tax or assessment) which are
now or hereafter assessed, levied, charged, confirmed, or imposed by any public
authority upon the Building or Project, its operations or the Rent (or any
portion or component thereof), or any tax, assessment or fee imposed in
substitution, partially or totally, of any of the above. Operating Expenses
shall also include any taxes, assessments, reassessments, or other fees or
impositions with respect to the development, leasing, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises, Building or
Project or any portion thereof, including, without limitation, by or for Tenant,
and all increases therein or reassessments thereof whether the increases or
reassessments result from increased rate and/or valuation (whether upon a
transfer of the Building or Project or any portion thereof or any interest
therein or for any other reason). Operating Expenses shall not include
inheritance or estate taxes imposed upon or assessed against the interest of any
person in the Project, or taxes computed upon the basis of the net income of any
owners of any interest in the Project. If it shall not be lawful for Tenant to
reimburse Landlord for all or any part of such taxes, the monthly rental payable
to Landlord under this Lease shall be revised to net Landlord the same net
rental after imposition of any such taxes by Landlord as would have been payable
to Landlord prior to the payment of any such taxes.
(2) Insurance. All insurance premiums and costs, including, but not limited
to, any deductible amounts, premiums and other costs of insurance incurred by
Landlord, including for the insurance coverage set forth in Paragraph 8.A.
herein.
(3) Common Area Maintenance.
(a) Repairs, replacements, and general maintenance of and for the
Building and Project and public and common areas and facilities of and
comprising the Building and Project, including, but not limited to, the roof and
roof membrane, elevators, mechanical rooms, alarm systems, pest extermination,
landscaped areas, parking and service areas, driveways, sidewalks, truck staging
areas, rail spur areas, fire sprinkler systems, sanitary and storm sewer lines,
utility services, heating/ventilation/air conditioning systems, electrical,
mechanical or other systems, telephone equipment end wiring servicing, plumbing,
lighting, and any other items or areas which affect the operation or appearance
of the Building or Project, which determination shall be at Landlord's
discretion, except for: those items to the extent paid for by the proceeds of
insurance; and those items attributable solely or jointly to specific tenants of
the Building or Project.
(b) Repairs, replacements, and general maintenance shall include the
cost of any improvements made to or assets acquired for the Project or Building
that in Landlord's discretion may reduce any other Operating Expenses, including
present or future repair work, are reasonably necessary for the health and
safety of the occupants of the Building or Project, or for the operation of the
Building systems, services and equipment, or are required to comply with any
Regulation, such costs or allocable portions thereof shall be amortized over the
useful life in accordance with General Accounting Principles as Landlord shall
determine, together with interest on the unamortized balance at the publicly
announced "prime rate" charged by Wells Fargo Bank, N.A. (San Francisco) or its
successor at the time such improvements or capital assets are constructed or
acquired, plus two (2) percentage points, or in the absence of such prime rate,
then at the U.S. Treasury six-month market note (or bond, if so designated) rate
as published by any national financial publication selected by Landlord, plus
four (4) percentage points, but in no event more than the maximum rate permitted
by law, plus reasonable financing charges.
(c) Payment under or for any easement, license, permit, operating
agreement, declaration, restrictive covenant or instrument relating to the
Building or Project.
(d) All allocated or proportional expenses and rental related to
services and costs of supplies, materials and equipment used in operating,
managing and maintaining the Premises, Building and Project, the equipment
therein and the adjacent sidewalks, driveways, parking and service areas,
including, without limitation, expenses related to service agreements regarding
security, fire and other alarm systems, janitorial services to the extent not
addressed in Paragraph 11 hereof, window cleaning, elevator maintenance,
Building exterior maintenance, landscaping and expenses related to the
administration, management and operation of the Project, including without
limitation salaries, wages and benefits and management office rent.
(e) The cost of supplying any services and utilities which benefit all
or a portion of the Premises, Building or Project to the extent not addressed in
Paragraph 15 hereof.
(f) Legal expenses and the cost of audits by certified public
accountants specifically related to the operation of the Premises; provided,
however, that legal expenses chargeable as Operating Expenses shall not include
the cost of negotiating leases, collecting rents, evicting tenants nor shall it
include costs incurred in legal proceedings with or against any tenant or to
enforce the provisions of any lease.
(g) A management and accounting cost recovery fee equal to two and
one-half percent (2.5%) of the sum of the Project's revenues.
If the rentable area of the Building and/or Project is not fully occupied during
any fiscal year of the Term as determined by Landlord, an adjustment shall be
made in Landlord's discretion in computing the Operating Expenses for such year
so that Tenant pays an equitable portion of all variable items (e.g., utilities,
janitorial services and other component, expenses that are affected by
variations in occupancy levels) of Operating Expenses; as reasonably determined
by Landlord; provided, however, that in no event shall Landlord be entitled to
collect in excess of one hundred percent (100%) of the total Operating Expenses
from all of the tenants in the Building or Project, as the case may be:
Operating Expenses shall not include the cost of providing tenant improvements
or other specific costs incurred for the account of, separately billed to and
paid by specific tenants of the Building or Project, the initial construction
cost of the Building, or debt service on any mortgage or deed of trust recorded
with respect to the Project other than pursuant to Paragraph 7.A.(3)(b) above or
commissions or other costs associated with the marketing of the Premises.
The above enumeration of services and facilities shall not be deemed to impose
an obligation on Landlord to make available or provide such services or
facilities except to the extent if any that Landlord has specifically agreed
elsewhere in this Lease to make the same available or provide the same. Without
limiting the generality of the foregoing, Tenant acknowledges and agrees that it
shall be responsible for providing adequate security for its use of the
Premises, the Building and the Project and that Landlord shall have no
obligation or liability with respect thereto, except to the extent if any that
Landlord has specifically agreed elsewhere in this Lease to provide the same.
B. Payment of Estimated Operating Expenses. "Estimated Operating Expenses"
for any particular year shall mean Landlord's estimate of the Operating Expenses
for such fiscal year made with respect to such fiscal year as hereinafter
provided. Landlord shall have the right from time to time to revise its fiscal
year and interim accounting periods so long as the periods as so revised are
reconciled with prior periods in a reasonable manner. During the last month of
each fiscal year during the Term, or as soon thereafter as practicable, Landlord
shall give Tenant written notice of the Estimated Operating Expenses for the
ensuing fiscal year. Tenant shall pay Tenant's Proportionate Share of the
Estimated Operating Expenses with installments of Base Rent for the fiscal year
to which the Estimated Operating Expenses applies in monthly installments on the
first day of each calendar month during such year, in advance. Such payment
shall be construed to be Additional Rent for all purposes hereunder. If at any
time during the course of the fiscal year, Landlord determines that Operating
Expenses are projected to vary from the then Estimated Operating Expenses by
more then five percent (5%), Landlord may, by written notice to Tenant, revise
the Estimated Operating Expenses for the balance of such fiscal
year, and Tenant's monthly installments for the remainder of such year
shall be adjusted so that by the end of such fiscal year Tenant has paid to
Landlord Tenant's Proportionate Share of the revised Estimated Operating
Expenses for such year, such revised installment amounts to be Additional Rent
for all purposes hereunder.
C. Computation of Operating Expense Adjustment. "Operating Expense
Adjustment" shall mean the difference between Estimated Operating Expenses and
actual Operating Expenses for any fiscal year determined as hereinafter
provided. Within one hundred twenty (120) days after the end of each fiscal
year, or as soon thereafter as practicable, Landlord shall deliver to Tenant a
statement of actual Operating Expenses for the fiscal year just ended,
accompanied by a computation of Operating Expense Adjustment. If such statement
shows that Tenant's payment based upon Estimated Operating Expenses is less than
Tenant's Proportionate Share of Operating Expenses, then Tenant shall pay to
Landlord the difference within twenty (20) days after receipt of such statement,
such payment to constitute Additional Rent for all purposes hereunder. If such
statement shows that Tenant's payments of Estimated Operating Expenses exceed
Tenant's Proportionate Share of Operating Expenses, then (provided that Tenant
is not in default under this Lease) Landlord shall pay to Tenant the difference
within twenty (20) days after delivery of such statement to Tenant. If this
Lease has been terminated or the Term hereof has expired prior to the date of
such statement, then the Operating Expense Adjustment shall be paid by the
appropriate party within twenty (20) days after the date of delivery of the
statement. Should this Lease commence or terminate at any time other than the
first day of the fiscal year, Tenant's Proportionate Share of the Operating
Expense Adjustment shall be prorated based on a month of 30 days and the number
of calendar months during such fiscal year that this Lease is in effect.
Notwithstanding anything to the contrary contained in Paragraph 7.A or 7.B,
Landlord's failure to provide any notices or statements within the time periods
specified in those paragraphs shall in no way excuse Tenant from its obligation
to pay Tenant's Proportionate Share of Operating Expenses.
D. Net Lease. This shall be a triple net Lease and Base Rent shall be paid
to Landlord absolutely net of all costs and expenses, except as specifically
provided to the contrary in this Lease. The provisions for payment of Operating
Expenses and the Operating Expense Adjustment are intended to pass on to Tenant
and reimburse Landlord for all costs and expenses of the nature described in
Paragraph 7.A. incurred in connection with the ownership, management,
maintenance, repair, preservation, replacement and operation of the Building
and/or Project and its supporting facilities and such additional facilities now
and in subsequent years as may be determined by Landlord to be necessary or
desirable to the Building and/or Project.
E. Tenant Audit. If Tenant shall dispute the amount set forth in any
statement provided by Landlord under Paragraph 7.B. or 7.C. above, Tenant shall
have the right, not later than twenty (20) days following receipt of such
statement and upon the condition that Tenant shall first deposit with Landlord
the full amount in dispute, to cause Landlord's books and records with respect
to Operating Expenses for such fiscal year to be audited by certified public
accountants selected by Tenant and subject to Landlord's reasonable right of
approval. The Operating Expense Adjustment shall be appropriately adjusted on
the basis of such audit: If such audit discloses a liability for a refund in
excess of ten percent (10%) of Tenant's Proportionate Share of the Operating
Expenses previously reported, the cost of such audit shall be borne by
Landlord; otherwise the cost of such audit shall be paid by Tenant. If Tenant
shall not request an audit in accordance with the provisions of this Paragraph
7.E. within twenty (20) days after receipt of Landlord's statement provided
pursuant to Paragraph 7.B. or 7.C., such statement shall be final and binding
for all purposes hereof. Tenant acknowledges and agrees that any information
revealed in the above described audit may contain proprietary end sensitive
information and that significant damage could result to Landlord if such
information were disclosed to any party other than Tenant's auditors. Tenant
shall not in any manner disclose, provide or make available any information
revealed by the audit to any person or entity without Landlord's prior written
consent, which consent may be withheld by Landlord in its sole and absolute
discretion. The information disclosed by the audit will be used by Tenant solely
for the purpose of evaluating Landlord's books and records in connection with
this Paragraph 7.E.
8. INSURANCE AND INDEMNIFICATION
A. Landlord's Insurance. All insurance maintained by Landlord shall be for
the sole benefit of Landlord and under Landlord's sole control:
(1) Property Insurance. Landlord agrees to maintain property insurance
insuring the Building against damage or destruction due to risk including fire,
vandalism, and malicious mischief in an amount not less than the replacement
cost thereof, in the form and with deductibles and endorsements as selected by
Landlord. At its election, Landlord may instead (but shall have no obligation
to) obtain "All Risk" coverage, and may also obtain earthquake, pollution,
and/or flood insurance in amounts selected by Landlord.
(2) Optional Insurance. Landlord, at Landlord's option, may also (but
shall have no obligation to) carry (i) insurance against loss of rent, in an
amount equal to the amount of Base Rent and Additional Rent that Landlord could
be required to abate to all Building tenants in the event of condemnation or
casualty damage for a period of twelve (12) months; and (ii) liability insurance
and such other insurance as Landlord may deem prudent or advisable, including,
without limitation, liability insurance in such amounts and on such terms as
Landlord shall determine. Landlord shall not be obligated to insure, and shall
have no responsibility whatsoever for any damage to, any furniture, machinery,
goods, inventory or supplies, or other personal property or fixtures which
Tenant may keep or maintain in the Premises, or any leasehold improvements,
additions or alterations within the Premises.
B. Tenant's Insurance. Tenant shall procure at Tenant's sole cost and
expense and keep in effect from the date of this Lease and at all times until
the end of the Term the following:
(1) Property Insurance. Insurance on all personal property and
fixtures of Tenant and all improvements, additions or alterations made by or for
Tenant to the Premises on an "All Risk" basis, insuring such property for the
full replacement value of such property.
(2) Liability Insurance. Commercial General Liability insurance
covering bodily injury and property damage liability occurring in or about the
Premises or arising out of the use and occupancy of the Premises and the
Project, and any part of either, and any areas adjacent thereto, and the
business operated by Tenant or by any other occupant of the Premises. Such
insurance shall include contractual liability coverage insuring all of tenant's
indemnity
obligations under this Lease. Such coverage shall have a minimum combined
single limit of liability of at least Two Million Dollars ($2,000,000.00), and a
minimum general aggregate limit of Three Million Dollars ($3,000,000.00), with
an "Additional Insured - Managers or Lessors of Premises Endorsement" and the
"Amendment of the Pollution Exclusion Endorsement." All such policies shall be
written to apply to all bodily injury (including death), property damage or
loss, personal and advertising injury and other covered loss, however
occasioned, occurring during the policy term, shall be endorsed to add Landlord
and any party holding an interest to which this Lease may be subordinated as an
additional insured, and shall provide that such coverage shall be "primary" and
noncontributing with any insurance maintained by Landlord, which shall be excess
insurance only. Such coverage shall also contain endorsements including
employees as additional insureds if not covered by Tenant's Commercial General
Liability Insurance. All such insurance shall provide for the Severability of
interests of insureds; and shall be written on an "occurrence" basis, which
shall afford coverage for all claims based on acts, omissions, injury and
damage, which occurred or arose (or the onset of which occurred or arose) in
whole or in part during the policy period.
(3) Workers' Compensation and Employers' Liability Insurance. Workers'
Compensation Insurance as required by any Regulation, and Employers' Liability
Insurance in amounts not less than One Million Dollars ($1,000,000) each
accident for bodily injury by accident; One Million Dollars ($1,000,000) policy
limit for bodily injury by disease; and One Million Dollars ($1,000,000) each
employee for bodily injury by disease.
(4) Commercial Auto Liability Insurance. Commercial auto liability
insurance with a combined limit of not less then One Million Dollars
($1,000,000) for bodily injury and property damage for each accident. Such
insurance shall cover liability relating to any auto (including owned, hired and
non-owned autos).
(5) Alterations Requirements. In the event Tenant shall desire to
perform any Alterations, Tenant shall deliver to Landlord, prior to commencing
such Alterations (i) evidence satisfactory to Landlord that Tenant carries
"Builder's Risk" insurance covering construction of such Alterations in an
amount and form approved by Landlord, (ii) such other insurance as Landlord
shall nondiscriminatorily require, and (iii) a lien and completion bond or other
security in form and amount satisfactory to Landlord.
(6) General Insurance Requirements. All coverages described in this
Paragraph 8.B shall be endorsed to (i) provide Landlord with thirty (30) days'
notice of cancellation or change in terms; and (ii) waive all rights of
subrogation by the insurance carrier against Landlord. If at anytime during the
Term the amount or coverage of insurance which Tenant is required to carry under
this Paragraph 8.B is, in Landlord's reasonable judgment, materially less than
the amount or type of insurance coverage typically carried by owners or tenants
of properties located in the general area in which the Premises are located
which are similar to and operated for similar purposes as the Premises or if
Tenant's use of the Premises should change with or without Landlord's consent,
Landlord shall have the right to require Tenant to increase the amount or change
the types of insurance coverage required under this Paragraph 8.B. All insurance
policies required to be carried by Tenant under this Lease shall be written by
companies rated A X or better in "Best's Insurance Guide" and authorized to do
business in the State of California. In any event deductible amounts under all
insurance policies
required to be carried by Tenant under this Lease shall not exceed Five
Thousand Dollars ($5,000.00) per occurrence. Tenant shall deliver to Landlord on
or before the Term Commencement Date, and thereafter at least thirty (30) days
before the expiration dates of the expired policies, certified copies of
Tenant's insurance policies, or a certificate evidencing the same issued by the
insurer thereunder; and, if Tenant shall fail to procure such insurance, or to
deliver such policies or certificates, Landlord may, at Landlord's option and in
addition to Landlord's other remedies in the event of a default by Tenant
hereunder, procure the same for the account of Tenant, and the cost thereof
shall be paid to Landlord as Additional Rent.
C. Indemnification. Tenant shall indemnity, defend by counsel reasonably
acceptable to Landlord, protect and hold Landlord, Spieker Properties, Inc., and
each of their respective directors, shareholders, partners, lenders, members,
managers, contractors, affiliates, and employees (collectively, "Landlord
Indemnities") harmless from and against any and all claims, liabilities, losses,
costs, loss of rents, liens, damages, injuries or expenses, including reasonable
attorneys' and consultants' fees and court costs, demands, causes of action, or
judgments, directly or indirectly arising out of or related to: (1) claims of
injury to or death of persons or damage to property or business loss occurring
or resulting directly or indirectly from the use or occupancy of the Premises,
Building or Project by `tenant or Tenant's Parties, or from activities or
failures to act of Tenant or Tenant's Parties; (2) claims arising from work or
labor performed, or for materials or supplies furnished to or at the request of
Tenant in connection with performance of any work done for the account of Tenant
within the Premises or Project; (3) claims arising from any breach or default on
the part of Tenant in the performance of any covenant contained in this Lease;
and (4) claims arising from the negligence or intentional acts or omissions of
Tenant or Tenant's Parties. The foregoing indemnity by Tenant shall not be
applicable to claims to the extent arising from the active negligence or willful
misconduct of Landlord. Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of or damage to
any person or property or business loss in or about the Premises, Building or
Project by or from any cause whatsoever (other than Landlord's gross negligence
or willful misconduct) and, without limiting the generality of the foregoing,
whether caused by water leakage of any character from the roof, walls, basement
or other portion of the Premises, Building or Project, or caused by gas, fire,
oil or electricity in, on or about the Premises, Building of Project, acts of
God or of third parties, or any matter outside of the reasonable control of
Landlord. The provisions of this Paragraph shall survive the expiration or
earlier termination of this Lease.
9. WAIVER OF SUBROGATION
Landlord and Tenant each waives any claim, loss or cost it might have
against the other for any injury to or death of any person or persons, or damage
to or theft, destruction, loss, or loss of use of any property (a "Loss"), to
the extent the same is insured against (or is required to be insured against
under the forms hereof) under any property damage insurance policy covering the
Building, the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements, or business, regardless of whether the negligence of the
other party caused such Loss.
10. LANDLORD'S REPAIRS AND MAINTENANCE
Landlord shall maintain in good repair, reasonable wear and tear
excepted, the structural soundness of the roof, foundations, and exterior, walls
of the Building. The term "exterior wells" as used herein shall not include
windows, glass or plate glass, doors, dock bumpers or dock plates, special store
fronts or office entries. Any damage caused by or repairs necessitated by any
negligence or act of Tenant or Tenant's Parties may be repaired by Landlord at
Landlord's option and Tenant's expense. Tenant shall immediately give Landlord
written notice of any defect or need of repairs in such components of the
Building for which Landlord is responsible, after which Landlord shall have a
reasonable opportunity and the right to enter the Premises at all reasonable
times to repair same. Landlord's liability with respect to any defects, repairs,
or maintenance for which Landlord is responsible under any of the provisions of
this Lease shall be limited to the cost of such repairs or maintenance, end
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising from the making of
repairs, alterations or improvements in or to any portion of the Premises, the
Building or the Project or to fixtures, appurtenances or equipment in the
Building, except as provided in Paragraph 24 by taking possession of the
Premises, Tenant accepts them "as is," as being in good order, condition and
repair and the condition in which Landlord is obligated to deliver them and
suitable for the Permitted Use and Tenant's intended operations in the Premises,
whether or not any notice of acceptance is given.
11. TENANT'S REPAIRS AND MAINTENANCE
Tenant shall at all times during the Term at Tenant's expense maintain
all parts of the Premises and such portions of the Building as are within the
exclusive control of Tenant in a first-class, good, clean and secure condition
and promptly make all necessary repairs and replacements, as reasonably
determined by Landlord, including but not limited to, all windows, glass, doors,
walls, including demising walls, and wall finishes, floors and floor covering,
heating, ventilating and air conditioning systems, ceiling insulation, track
doors, hardware, dock bumpers, dock plates and levelers, plumbing work and
fixtures, downspouts, entries, skylights, smoke hatches, roof vents, electrical
and lighting systems, and fire sprinklers, with materials and workmanship of the
same character, kind and quality as the original. Tenant shall at Tenant's
expense also perform regular removal of trash and debris. If Tenant uses rail
and if required by the railroad company, Tenant agrees to sign a joint
maintenance agreement governing the use of the rail spur, if any. Tenant shall,
at Tenant's own expense, enter into a regularly scheduled preventative
maintenance/service contract with a maintenance contractor for servicing all hot
water, heating and air conditioning systems and equipment within or serving the
Premises. The maintenance contractor and the contract must be approved by
Landlord. The service contract must include all services suggested by the
equipment manufacturer within the operation/maintenance manual and must become
effective and a copy thereof delivered to Landlord within thirty (30) days after
the Term Commencement Date. Landlord may, upon notice to Tenant, enter into such
a service contract on behalf of Tenant or perform the work and in either case
charge Tenant the cost thereof along with a reasonable amount for Landlord's
overhead. Notwithstanding anything to the contrary contained herein, Tenant
shall, at its expense, promptly repair any damage to the Premises or the
Building or Project resulting from or caused by any negligence or act of Tenant
or Tenant's Parties. Nothing herein shall expressly or by implication render
Tenant Landlord's agent or contractor to effect any repairs or maintenance
required of Tenant under this Paragraph 11, as to all of which Tenant shall be
solely responsible. Notwithstanding anything to the contrary in this Paragraph
11, shall Tenant be required to make repairs to the heating, ventilating and sit
conditioning systems, Landlord shall reimburse Tenant for such repairs, if any,
up to a maximum amount of ten thousand dollars ($10,000). Said repairs, if any,
shall be completed prior to August 31, 2000. Tenant shall deliver to Landlord
copies of any invoices along with a written request for reimbursement and
Landlord shall reimburse Tenant within thirty (30) days of Tenants written
request.
12. ALTERATIONS
A. Tenant shall not make, or allow to be made, any alterations, physical
additions, improvements or partitions, including without limitation the
attachment of any fixtures or equipment, in, about or to the Premises
("Alterations") without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to proposed Alterations
which: (a) comply with all applicable Regulations; (b) are, in Landlord's
opinion, compatible with the Building or the Project and its mechanical,
plumbing, electrical, heating/ventilation/air conditioning systems, and will not
cause the Building or Project or such systems to be required to be modified to
comply with any Regulations (including, without limitation, the Americans With
Disabilities Act); and (c) will not interfere with the use and occupancy of any
other portion of the Building or Project by any other tenant or its' invitees.
Specifically, but without limiting the generality of the foregoing, Landlord
shall have the right of written consent for all plans and specifications for the
proposed Alterations, construction means and methods, all appropriate permits
and licenses, any contractor or subcontractor to be employed on the work of
Alterations, and the time for performance of such work, and may impose rules and
regulations for contractors and subcontractors performing such work. Tenant
shall also supply to Landlord any documents and information reasonably requested
by Landlord in connection with Landlord's consideration of a request for
approval hereunder. Tenant shall cause all Alterations to be accomplished in a
first-class, good and workmanlike manner, and to comply with all applicable
Regulations end Paragraph 27 hereof. Tenant shall at Tenant's sole expense,
perform any additional work required under applicable Regulations due to the
Alterations hereunder. No review or consent by Landlord of or to any proposed
Alteration or additional work shall constitute a waiver of Tenant's obligations
under this Paragraph 12. Tenant shall reimburse Landlord for all costs which
Landlord may incur in connection with granting approval to Tenant for any such
Alterations, including any costs or expenses which Landlord may incur in
electing to have outside architects and engineers review said plans and
specifications; Landlord shall provide Tenant with a response and/or consent to
Alterations within ten (10) business days from receipt of the request from
Tenant provided that Tenant has delivered all documents and information
reasonably requested by Landlord. All such Alterations shall remain the property
of Tenant until the expiration or earlier termination of this Lease, at which
time they shall be and become the property of Landlord. In addition to and
wholly apart from Tenant's obligation to pay Tenant's Proportionate Share of
Operating Expenses, Tenant shall be responsible for and shall pay prior to
delinquency any taxes or governmental service fees, possessory interest taxes,
fees or charges in lieu of any such taxes, capital levies, or other charges
imposed upon, levied with respect to or assessed against its fixtures or
personal property, on the value of Alterations within the Premises, and on
Tenant's interest pursuant to this Lease, or any increase in any of the
foregoing based on such Alterations. To the extent that any such
taxes are not separately assessed or billed to Tenant, Tenant shall pay the
amount thereof as invoiced to Tenant by Landlord.
B. In compliance with Paragraph 27 hereof, at least ten (10) business days
before beginning construction of any Alteration, Tenant shall give Landlord
written notice of the expected commencement date of that construction to permit
Landlord to post and record a notice of non-responsibility. Upon substantial
completion of construction if the law so provides, Tenant shall cause a timely
notice of completion to be recorded, in the office of the recorder of the county
in which the Building is located.
C. Notwithstanding anything to the contrary contained in Paragraph 12.A, at
the time Landlord gives its consent for any Alterations Tenant shall also be
notified whether or not Landlord will require that such Alterations be removed
upon the expiration or earlier termination of this Lease. If Landlord fails to
so notified Tenant it shall be assumed that Landlord will require their removal.
All such removals and restoration shall be accomplished in a first-class and
good and workmanlike manner so as not to cause any damage to the Premises or
Protect whatsoever. If Tenant falls to remove such Alterations or Tenant's trade
fixtures or furniture or other Personal property, Landlord may keep and use them
or remove any of them and cause them to be stored or sold in accordance with
applicable law, at Tenant's sole expense.
13. SIGNS
Tenant shall not place, install, affix, paint or maintain any signs,
notices, graphics or, banners whatsoever or any window decor which is visible in
or from public view or corridors, the common areas or the exterior of the
Premises or the Building, in or on any exterior window or window fronting upon
any common areas or service area or upon any truck doors or man doors without
Landlord's prior written approval which Landlord shall have the right to
withhold in its absolute and sole discretion; provided that Tenant's name shall
be included in any Building-standard door and directory signage, if any, in
accordance with Landlord's Building signage program, including without
limitation, payment by Tenant of any fee charged by Landlord for maintaining
such signage, which fee shall constitute Additional Rent hereunder. Any
installation of signs, notices, graphics or banners on or about the Premises or
Project approved by Landlord shall be subject to any Regulations and to any
other requirements imposed by Landlord. Tenant shall remove all such signs or
graphics by the expiration or any earlier termination of this Lease. Such
installations and removals shall be made in such manner as to avoid injury to or
defacement of the Premises, Building or Project end any other improvements
contained therein, and Tenant shall repair any injury or defacement including
without limitation discoloration caused by such installation or removal.
14. INSPECTION/POSTING NOTICES
After reasonable notice, except in emergencies where no such notice
shall be required, Landlord and Landlord's agents and representatives, shall
have the right to enter the Premises to inspect the same, to clean, to perform
such work as may be permitted or required hereunder, to make repairs,
improvements or alterations to the Premises, Building or Project or to other
tenant spaces therein, to deal with emergencies, to post such notices as may be
permitted or, required by law to prevent the perfection of liens against
Landlord's interest in the Project or to exhibit the
Premises to prospective tenants purchasers encumbrancers or to others, or for
any other purpose as Landlord may deem necessary or desirable; provided,
however, that Landlord shall use reasonable efforts not to unreasonably
interfere with Tenant's business operations. Tenant shall not be entitled to any
abatement of Rent by reason of the exercise of any such right of entry. Tenant
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon and about
the Premises excluding Tenant's vaults and safes or special security areas
(designated in advance), and Landlord shall have the right to use any and all
means which Landlord may deem necessary or proper to open said doors in an
emergency, in order to obtain entry to any portion of the Premises, and any
entry to the Premises or portions thereof obtained by Landlord by any of said
means, or otherwise, shall not be construed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive, of
Tenant from the Premises or any portions thereof. At any time within six (6)
months prior to the expiration of the Term or following any earlier termination
of this Lease or agreement to terminate this Lease, Landlord shall have the
right to erect on the Premises, Building and/or Project a suitable sign
indicating that the Premises are available for lease.
15. SERVICES AND UTILITIES
A. Tenant shall (where practicable) contract for and pay directly when due,
for all water, gas, heat, air conditioning, light, power, telephone, sewer,
sprinkler charges cleaning, waste disposal and other utilities end services used
on or from the Premises, together with any taxes, penalties, surcharges or the
like pertaining thereto, and maintenance charges for utilities and shall furnish
all electric light bulbs, ballasts and tubes. If any such services are not
separately billed or metered to Tenant, Tenant shall pay an equitable
proportion, as determined in good faith by Landlord, of all charges billed or
metered with other premises. All sums payable under this Paragraph 15 shall
constitute Additional Rent hereunder.
B. Tenant acknowledges that Tenant has inspected and accepts the water,
electricity, heat and air conditioning and other utilities and services being
supplied or furnished to the Premises as of the date Tenant takes possession of
the Premises, if any, as being sufficient in their present condition, "as is,"
for the Permitted Use, and for Tenant's intended operations in the Premises.
Tenant agrees to keep and cause to be kept closed all window covering when
necessary because of the sun's position, and Tenant also agrees at all times to
cooperate fully with Landlord and to abide by all of the regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of electrical heating, ventilating and air conditioning systems.
Wherever heat-generating machines, excess lighting or equipment are used in the
Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof, including the cost of
installation and the cost of operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord.
C. Tenant shall not without written consent of Landlord use any apparatus,
equipment or device in the Premises, including without limitation, computers,
electronic data processing machines, copying machines, and other machines, using
excess lighting or using electric current, water, or any other resource in
excess of or which will in any way increase the
amount of electricity, water, or any other resource being furnished or supplied
for the use of the Premises for reasonable and normal office use, in each case
as of the date Tenant takes possession of the Premises and as determined by
Landlord, or which will require additions or alterations to or interfere with
the Building power distribution systems; nor connect with electric current,
except through existing electrical outlets in the Premises or water pipes, any
apparatus, equipment or device for the purpose of using electrical current,
water, or any other resource. If Tenant shall require water or electric current
or any other resource in excess of that being furnished or supplied for the use
of the Premises as of the date Tenant takes possession of the Premises, if any,
as determined by Landlord, Tenant shall first procure the written consent of
Landlord which Landlord may refuse, to the use thereof, and Landlord may cause a
special meter to be installed in the Premises so as to measure the amount of
water, electric current or other resource consumed for any such other use.
Tenant shall pay directly to Landlord upon demand as an addition to and separate
from payment of Operating Expenses the cost of all such additional resources,
energy, utility service and meters (and of installation, maintenance and repair
thereof and of any additional circuits or other equipment necessary to furnish
such additional resources, energy, utility or service). Landlord may add to the
separate or metered charge a recovery of additional expense incurred in keeping
account of the excess water, electric current or other resource so consumed.
Landlord shall in no case be liable for any damages directly or indirectly
resulting from nor shall the Rent or any monies owed Landlord under this Lease
herein reserved be abated by reason of: (a) the installation, use or
interruption of use of any equipment used in connection with the furnishing of
any such utilities or services, or any change is the character or means of
supplying or providing any such utilities or services or any supplier thereof;
(b) the failure to furnish or delay in furnishing any such utilities or services
when such failure or delay is caused by acts of God or the elements, labor
disturbances of any character, or otherwise, or because of any interruption of
service due to Tenant's use of water, electric current or other resource in
excess of that being supplied or furnished for the use of the Premises as of the
date Tenant takes possession of the Premises; or (c) the inadequacy, limitation,
curtailment, rationing or restriction on use of water, electricity, gas or any
other form of energy or any other service or utility whatsoever serving the
Premises or Project otherwise; or (d) the partial or total unavailability of any
such utilities or services to the Premises or the Building or the diminution in
the quality or quantity thereof, whether by Regulation or otherwise; or (e) any
interruption in Tenant's business operations as a result of any such occurrence;
nor shall any such occurrence constitute an actual or constructive eviction of
Tenant or a breach of an implied warranty by Landlord. Landlord shall further
have no obligation to protect or preserve any apparatus, equipment or device
installed by Tenant in the Premises, including without limitation by providing
additional or after-hours heating or air conditioning. Landlord shall be
entitled to cooperate voluntarily and in a reasonable manner with the efforts of
national, state or local governmental agencies or utility suppliers in reducing
energy or other resource consumption. The obligation to make services available
hereunder shall be subject to the limitations of any such voluntary, reasonable
program. In addition, Landlord reserves the right to change the supplier or
provider of any such utility or service from time to time. Landlord may, but
shall not be obligated to, upon notice to Tenant, contract with or otherwise
obtain any electrical or other such service for or with respect to the Premises
or Tenant's operations therein from any supplier or provider of any such
service. Tenant shall cooperate with Landlord and any supplier or provider of
such services designated by Landlord from time to time to facilitate the
delivery of such services to Tenant at the Premises and to the Building and
Project, including without
limitation allowing Landlord and Landlord's suppliers or providers, and
their respective agents and contractors, reasonable access to the Promises for
the purpose of installing, maintaining, repairing, replacing or upgrading such
service or any equipment or machinery associated therewith.
16. SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be and is
hereby declared to be subject and subordinate at all times to: (a) all ground
leases ;of underlying leases which may now exist or hereafter be executed
effecting the Premises and/or the land upon which the Premises, and Project are
situated, or both; and (b) any mortgage or deed of trust which may now exist or
be placed upon the Building, the Project and/or the land upon which the Premises
or the Project are situated, or said ground leases or underlying leases, or
Landlord's interest or estate in any of said items which is specified as
security. Notwithstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such ground leases or underlying
leases or any such liens to this Lease. If any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, tenant shall,
notwithstanding any subordination, attorn to and become the Tenant, of the
successor in interest to Landlord provided that Tenant shall not be disturbed in
its possession under this Lease by such successor in interest so long as Tenant
is not in default under this Lease, within ten (10) days after request by
Landlord, Tenant shall execute and deliver any additional documents evidencing
Tenant's attornment or the subordination of this Lease with respect to any such
ground leases or underlying leases or any such mortgage or deed of trust, in the
form requested by Landlord or by any ground landlord, mortgagee, or beneficiary
under a deed of trust, subject to such nondisturbance requirement. If requested
in writing by Tenant, Landlord shall use commercially reasonable efforts to
obtain a subordination, nondisturbance and attornment agreement for the benefit
of Tenant reflecting the foregoing from any ground landlord, mortgagee or
beneficiary, at Tenant's expense, subject to such other terms and conditions as
the ground landlord, mortgagee or beneficiary may require.
17. FINANCIAL STATEMENTS
At the request of Landlord from time to time, Tenant shall provide to
Landlord Tenant's and any guarantor's current financial statements or other
information discussing financial worth of Tenant and any guarantor, which
Landlord shall use solely for purposes of this Lease and in connection with the
ownership, management, financing and disposition of the Project.
18. ESTOPPEL CERTIFICATE
Tenant agrees from time to time, within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, that this Lease
has not been modified (or stating all modifications, written or oral, to this
Lease), the date to which Rent has been paid, the unexpired portion of this
Lease, that there are no current defaults by Landlord or Tenant under this Lease
(or specifying any such defaults), that the leasehold estate granted by this
Lease is the sole interest of Tenant in the Premises and/or the land at which
the Premises are situated, and such other matters pertaining to this Lease
as may be reasonably requested by Landlord or any mortgagee, beneficiary,
purchaser or prospective purchaser of the Building or Project or any interest
therein. Failure by Tenant to execute and deliver such certificate shall
constitute an acceptance of the Premises and acknowledgment by Tenant that the
statements included are true and correct without exception. Tenant agrees that
if Tenant fails to execute end deliver such certificate within such ten (10) day
period, Landlord may execute and deliver such certificate on Tenant's behalf and
that such certificate shall be binding no Tenant. Landlord and Tenant intend
that any statement delivered pursuant to this Paragraph may be relied upon by
any mortgagee, beneficiary, purchaser or prospective purchaser of the Building
or Project or any interest therein. The parties agree that Tenant's obligation
to furnish such estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of this Lease, and shall be an event of
default (without any cure period that might be provided under Paragraph 26.A(3)
of this Lease) if Tenant fails to fully comply or makes any material
misstatement in any such certificate.
19. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord upon execution of this Lease, a
security deposit as stated in the Basic Lease Information and in Paragraph 39.B
of the Lease (the "Security Deposit"), which sum shall be held and owned by
Landlord, without obligation to pay interest, as security for the performance of
Tenant's covenants end obligations under this Lease. Landlord is hereby granted
a security interest in the Security Deposit in accordance with applicable
provisions of the California Commercial Code. The Security Deposit is not an
advance rental deposit or a measure of damages incurred by Landlord in case of
Tenant's default. Upon the occurrence of any event of default by Tenant,
Landlord may from time to time, without prejudice to any other remedy provided
herein or by law, use such fund as a credit to the extent necessary to credit
against any arrears of Rent or other payments due to Landlord hereunder, and any
other damage, injury, expense or liability caused by such event of default, and
Tenant shall pay to Landlord, on demand, the amount so applied in order to
restore the Security Deposit to its original amount. Any remaining balance of
such deposit shall be returned by Landlord to Tenant at such time after
termination of this Lease that all of Tenant's obligations under this Lease have
been fulfilled, reduced by such amounts as may be required by Landlord to remedy
defaults on the part of Tenant in the payment of Rent or other obligations of
Tenant under this Lease, to repair damage to the Premises, Building or Project
caused by Tenant or any Tenant's Parties and to clean the Premises. Landlord may
use and commingle the Security Deposit with other Funds of Landlord. Tenant
hereby waives the provisions of Section 1950.7 of the California Civil Code, and
all other provisions of any Regulations, now or hereinafter in force, which
restricts the amount or types of claim that a landlord may make upon a security
deposit or imposes upon a landlord (or its successors) any obligation with
respect to the handling or return of security deposits.
20. LIMITATION OF TENANT'S REMEDIES
The obligations and liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease are not personal obligations of Landlord
or of the individual or other partners of Landlord or its or their partners,
directors; officers, or shareholders, and Tenant agrees to look solely to
Landlord's interest in the Project for the recovery of any amount from Landlord,
and shall not look to other assets of Landlord nor seek recourse against the
assets of the individual or
other partners of Landlord or its or their partners, directors, officers or
shareholders. Any lien obtained to enforce any such judgment and any levy of
execution thereon shall be subject and subordinate to any lien, mortgage or deed
of trust on the Project. Under no circumstances shall Tenant have the right to
offset against, or recoup Rent or other payments due and to become due to
Landlord hereunder except as expressly provided in this Lease, which Rent and
other payments shall be absolutely due and payable hereunder in accordance with
the terms hereof. In no case shall Landlord be liable to Tenant for any lost
profits, damage to business, or any form of special, indirect or consequential
damage on account of any breach of this Lease or otherwise, notwithstanding
anything to the contrary contained in this Lease.
21. ASSIGNMENT AND SUBLETTING
(1) General. This Lease has been negotiated to be and is granted as an
accommodation to Tenant. Accordingly, this Lease is personal to Tenant, and
Tenant's rights granted hereunder do not include the right to assign this Lease
or sublease the Premises, or to receive any excess, either in installments or
lump sum, over the Rent which is expressly reserved by Landlord as hereinafter
provided, except as otherwise expressly hereinafter provided. Tenant shall not
assign or pledge this Lease or sublet the Premises or any pert thereof, whether
voluntarily or by operation of law, or permit the use or occupancy of the
Premises or any pert thereof by anyone other than Tenant, or suffer or permit
any such assignment, pledge, subleasing or occupancy, without Landlord's prior
written consent except as provided herein, which shall not be unreasonably
withheld. If Tenant desires to assign this Lease or sublet any or all of the
Premises, Tenant shall give Landlord written notice (the "Transfer Notice") at
least forty-five (45) days' prior to the anticipated effective date of the
proposed assignment or sublease, which shall contain all of the information
reasonably requested by Landlord to address Landlord's decision criteria
specified hereinafter. Landlord shall then have a period of fifteen (15) days
following receipt of the Transfer Notice to notify Tenant in writing that
Landlord elects either; (i) to terminate this Lease as to the space so affected
as of the date so requested by Tenant; or (ii) to consent to the proposed
assignment or sublease, subject, however, to Landlord's prior written consent of
the proposed assignee or subtenant and of any related documents or agreements
associated with the assignment or sublease: If Landlord should fail to notify
Tenant in writing of such election within said period, Landlord shall be deemed
to have waived option (i) above but written consent by Landlord of the proposed
assignee or subtenant shall still be required. If Landlord does not exercise
option (i) above, Landlord's consent to a proposed assignment or sublease shall
not be unreasonably withheld. With respect to a proposed sublease. In the event
Landlord falls to respond to Tenant's written request for consent within .the
above described fifteen (15) day period; Tenant may provide to Landlord a second
written request for consent with respect to the same Proposed sublease
("Tenant's Second Consent Request"). If Landlord fails to respond to Tenant's
Second Consent Request within fifteen (15) business days following landlord's
receipt thereof, and the proposed sublease is for less than 50% of the Premises,
then Landlord's failure to respond shall be deemed to be Landlord's consent to
such subtenant or agent to any assignment or subletting shall not constitute
consent to any subsequent transaction to which this Paragraph 21 applies.
Notwithstanding anything to the contrary in this Lease, Landlord's right to
terminate pursuant to option (t) above shall not apply so long as Tenant is in
occupancy of at least 17,603 square feet of the Premises and is not in default
under this Lease.
(2) Conditions of Landlord's Consent. Without limiting the other instances
in which it may be reasonable for Landlord to withhold Landlord's consent to an
assignment or subletting, Landlord and Tenant acknowledge that it shall be
reasonable for Landlord to withhold Landlord's consent in the following
instances: if the proposed assignee does not agree to be bound by and assume the
obligations of Tenant under this Lease in form and substance satisfactory to
Landlord; the use of the Premises by such proposed assignee or subtenant would
not be a Permitted Use or would violate any exclusivity or other arrangement
which Landlord has with any other tenant or occupant or any Regulation or would
increase the Occupancy Density or Parking Density of the Building or Project, or
would otherwise result in an undesirable tenant mix for the Project as
determined by Landlord; the proposed assignee or subtenant is not of sound
financial condition as determined by Landlord in Landlord's sole discretion; the
proposed assignee or subtenant is a governmental agency; the proposed assignee
or subtenant does not have a good reputation as a tenant of property or a good
business reputation; the assignment or subletting would entail any Alterations
which would lessen the value of the leasehold improvements in the Premises, or
the use of any Hazardous Materials or other noxious use or use which may disturb
other tenants of the Project; or Tenant is in default of any obligation of
Tenant under this Lease, or Tenant has defaulted under this Lease on three (3)
or more occasions during any twelve (12) months preceding the date that Tenant
shall request consent. Failure by or refusal of Landlord to consent to a
proposed assignee or subtenant shall not cause a termination of this Lease. Upon
a termination under Paragraph 21.A.(I)(i), Landlord may lease the Premises to
any party, including parties with whom Tenant has negotiated an assignment or
sublease, without incurring any liability to Tenant. At the option of Landlord,
a surrender and termination of this Lease shall operate as an assignment to
Landlord of some or all subleases or subtenancies. Landlord shall exercise this
option by giving notice of that assignment to such subtenants on or before the
effective date of the surrender and termination. In connection with each request
for assignment or subletting, Tenant shall pay to Landlord Landlord's reasonable
standard fee, for approving such requests, as well as all costs incurred by
Landlord or any mortgagee or ground lessor in approving each such request and
effecting any such transfer, including, without limitation, reasonable
attorneys' fees.
(3) Permitted Transfers. An "Affiliate" means any entity that (i) controls
is controlled by, or is under common control with Tenant. (ii) results from the
transfer of all or substantially all of Tenant's assets or stock, or (iii)
results from the merger or consolidation of Tenant with another entity.
"Control" means the direct or indirect ownership of more than fifty percent
(50%) of the voting securities of an entity or possession of the right to vote
more than fifty percent (50%) of the voting interest in the ordinary direction
of the entity's affairs. Notwithstanding anything to the contrary contained in
this Lease. Landlord's consent is not required any assignment of this Lease or
sublease of all or a portion of the Premises to an Affiliate so long as the
following conditions are met: (a) at least ten (10) business days before any
such assignment or sublease, Landlord receives written notice of such assignment
or sublease (as well as any documents or information reasonably requested by
Landlord regarding the proposed intended transfer and the transferee): (b)
Tenant is not then and has not been in default under this Lease: (c) if the
transfer is an assignment or any other transfer to an Affiliate other than a
sublease, the intended assignee assumes in writing all of Tenant's obligations
under this Lease relating to the Premises In form satisfactory to Landlord or,
if the transfer is a sublease, the intended subleases accepts the sublease in
form satisfactory to Landlord, (d) the intended transferee has a tangible net
worth as evidenced by financial statements delivered to
Landlord and certified by an independent certified public accountant in
accordance with generally accepted accounting principles the are consistently
applied, at least equal to $2,000,000,000.00; (e) the Premises shall continue to
be operated solely for the use specified in the Basic Lease information and (f)
Tenant shall pay to all costs reasonably incurred by Landlord or any mortgagee
or ground lessor for such assignment or subletting, including, without
limitation reasonable attorneys' fees. No transfer to an Affiliate in accordance
with this subparagraph shall relieve Tenant named herein of any obligation under
this Lease or alter the primary liability of Tenant named herein for the payment
of Rent or fur the performance of mother obligation to be performed by Tenant,
including the obligations contained in Paragraph 25 with respect to any
Affiliate.
B. Bonus Rent. Any Rent or other consideration realized by Tenant under any
such sublease or assignment in excess of the Rent payable hereunder, after
amortization of a reasonable brokerage commission incurred by Tenant, shall be
divided and paid fifty percent (50%) to Tenant, fifty percent (50%) to Landlord.
In any subletting or assignment undertaken by Tenant, Tenant shall diligently
seek to obtain the maximum rental amount available in the marketplace for
comparable space available for primary leasing.
C. Corporation. If Tenant is a corporation, a transfer of corporate shares
by sale, assignment, bequest, inheritance, operation of law or other disposition
(including such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings) resulting in a change in the
present control of such corporation or any of its parent corporations by the
person or persons owning a majority of said corporate shares, shall constitute
an assignment for purposes of this Lease
Notwithstanding anything to the contrary in this Lease the transfer of
outstanding capital stock or other listed equity interests or the purchase of
outstanding capital stock or other listed equity interests, or the purchase of
equity interests issued in an initial public offering of stock, by persona or
parties other than "insiders" within the meaning of the Securities Exchange Act
of 1934 as amended, through the "over-the-counter" market or any recognized
national or international securities exchange shall not be included in
determining whether control has been transferred.
D. Unincorporated Entity. If Tenant is a partnership, joint venture,
unincorporated limited liability company or other unincorporated business form,
a transfer of the interest of persons, firms or entities responsible for
managerial control of Tenant by sale, assignment, bequest, inheritance,
operation of law or other disposition, so as to result in a change in the
present control of said entity and/or of the underlying beneficial interests of
said entity and/or a change in the identity of the persons responsible for the
general credit obligations of said entity shall constitute an assignment for all
purposes of this Lease.
E. Liability. No assignment or subletting by Tenant, permitted or
otherwise, shall relieve Tenant of any obligation under this Lease or any
guarantor of this Lease of any liability under its guaranty or alter the primary
liability of the Tenant named herein for the payment of Rent or for the
performance of any other obligations to be performed by Tenant, including
obligations contained in Paragraph 25 with respect to any assignee or subtenant.
Landlord may collect rent or other amounts or any portion thereof from any
assignee, subtenant, or other
occupant of the Premises, permitted or otherwise, and apply the net rent
collected to the Rent payable hereunder, but no such collection shall be deemed
to be a waiver of this Paragraph 21, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of the obligations of Tenant under this Lease or any
guarantor of this Lease of any liability under its guaranty. Any assignment or
subletting which conflicts with the provisions hereof shall be void.
22. AUTHORITY
Landlord represents and warrants that it has full right and authority to enter
into this Lease and to perform all of Landlord's obligations hereunder and that
all persons signing this Lease on its behalf are authorized to do. Tenant and
the person or persons, if any, signing on behalf of Tenant, jointly and
severally represent and warrant that Tenant has full right and authority to
enter into this Lease, and to perform all of Tenant's obligations hereunder, and
that all persons signing this Lease on its behalf are authorized to do so.
23. CONDEMNATION
A. Condemnation Resulting in Termination. If the whole or any substantial
part of the Premises should be taken or condemned for any public use under any
Regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the Permitted
Use of the Premises, either party shaft have the right to terminate this Lease
at its option. If any material portion of the Building or Project is taken or
condemned for any public use under any Regulation, or by right of eminent
domain, or by private purchase in lieu thereof, Landlord may terminate this
Lease at its option. In either of such events, the Rent shall be abated during
the unexpired portion of this Lease, effective when the physical taking of said
Premises shall have occurred.
B. Condemnation Not Resulting in Termination. If a portion of the Project
of which the Premises area part should betaken or condemned for any public use
under any Regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking prevents or materially interferes with the
Permitted Use of the Premises, and this Lease is not terminated as provided in
Paragraph 23.A. above, the Rent payable hereunder during the unexpired portion
of this Lease shall be reduced, beginning on the date when the physical taking
shall have occurred, to such amount as may be fair and reasonable under all of
the circumstances, but only after giving Landlord credit for all sums received
or to be received by Tenant by the condemning authority. Notwithstanding
anything to the contrary contained in this Paragraph, if the temporary use or
occupancy of any part of the Premises shall be taken or appropriated under power
of eminent domain during the Term, this Lease shall be and remain unaffected by
such taking or appropriation and Tenant shall continue to pay in full alt Rent
payable hereunder by Tenant during the Term; in the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that portion of any
award which represents compensation for the use of or occupancy of the Premises
during the Term.
C. Award. Landlord shall be entitled to (and Tenant shall assign to
Landlord) any and all payment, income, rent, award or any interest therein
whatsoever which may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against
Landlord or otherwise for any sums paid by virtue of such proceedings,
whether or not attributable to the value of any unexpired portion of this Lease,
except as expressly provided in this Lease. Notwithstanding the foregoing, any
compensation specifically, and separately awarded Tenant for Tenant's personal
property and moving costs, shall be and remain the property of Tenant.
D. Waiver of CCP Section 1265.130. Each party waives the provisions of
California Civil Code Procedure Section 1265.130 allowing either party to
petition the superior court to terminate this Lease as a result of a partial
taking.
24. CASUALTY DAMAGE
A. General. If the Premises or Building should be damaged or destroyed by
fire, tornado, or other casualty (collectively, "Casualty"), Tenant shall give
immediate written notice thereof to Landlord. Within thirty (30) days after
Landlord's receipt of such notice, Landlord shall notify Tenant whether in
Landlord's estimation material restoration of the Premises can reasonably be
made within one hundred eighty (180) days from the date of such notice and
receipt of required permits for such restoration. Landlord's determination shall
be binding on Tenant.
B. Within 180 Days. If the Premises or Building should be damaged by
Casualty to such extent that material restoration can in Landlord's estimation
be reasonably completed within one hundred eighty (l80) days after the date of
such notice and receipt of required permits for such restoration, this Lease
shall not terminate. Provided that insurance proceeds are received by Landlord
to fully repair the damage, Landlord shall proceed to rebuild and repair the
Premises diligently and in the manner determined by Landlord, except that
Landlord shall not be required to rebuild, repair or replace any part of any
Alterations which may have been placed on or about the Premises or paid for by
Tenant. If the Premises are untenantable in whole or in part following such
damage, the Rent payable hereunder during the period in which they are
untenantable shall be abated proportionately, but only to the extent of rental
abatement insurance proceeds received by Landlord during the time and to the
extent the Premises are unfit for occupancy.
C. Greater than 180 Days. If the Premises or Building should be damaged by
Casualty to such extent that rebuilding or repairs cannot in Landlord's
estimation be reasonably completed within one hundred eighty (180) days after
the date of such notice and receipt of required permits for such rebuilding or
repair, then Landlord shall have the option of either: (1) terminating this
Lease effective upon the date of the occurrence of such damage, in which event
the Rent shall be abated during the unexpired portion of this Lease; or (2)
electing to rebuild or repair the Premises diligently and in the manner
determined by Landlord: Landlord shall notify Tenant of its election within
thirty (30) days after Landlord's receipt of notice of the damage or
destruction. Notwithstanding the above, Landlord shall not be required to
rebuild, repair or replace any part of any Alterations which may have been
placed, on or about the Premises or paid for by Tenant. If the Premises ere
untenantable in whole or in pert following such damage, the Rent payable
hereunder during the period in which they are untenantable shall be abated
proportionately, but only to the extent of rental abatement insurance proceeds
received by Landlord during the time and to the extent the Premises are unfit
for occupancy.
D. Tenant's Fault. Notwithstanding anything herein to the contrary, if
the Premises or any other portion of the Building are damaged by Casualty
resulting from the fault, negligence, or breach of this Lease by Tenant or any
of Tenant's Parties, Base Rent and Additional Rent shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost and expense of the repair and restoration of the Building caused thereby to
the extent such cost and expense is not covered by insurance proceeds.
E. Insurance Proceeds. Notwithstanding anything herein to the contrary,
if the Premises or Building are damaged or destroyed and are not fully covered
by the insurance proceeds received by Landlord or if the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises
requires that the insurance proceeds be applied to such indebtedness, then in
either case Landlord shall have the right to terminate this Lease by delivering
written notice of termination to Tenant within thirty (30) days after the date
of notice to Landlord that said damage or destruction is not fully covered by
insurance or such requirement is made by any such holder, as the case may be,
whereupon this Lease shall terminate.
F. Waiver. This Paragraph 24 shall be Tenant's sole and exclusive
remedy in the event of damage or destruction to the Premises or the Building. As
a material inducement to Landlord entering into this Lease, Tenant hereby waives
any rights it may have under Sections 1932, 1933(4), 1941 or 1942 of the Civil
Code of California with respect to any destruction of the Premises, Landlord's
obligation for tenantability of the Premises and Tenant's right to make repairs
and deduct the expenses of such repairs, or under any similar law, statute or
ordinance now or hereafter in effect.
G. Tenant's Personal Property. In the event of any damage or
destruction of the Premises or the Building, under no circumstances shall
Landlord be required to repair any injury or damage to, or make any repairs to
or replacements of, Tenant's personal property.
25. HOLDING OVER
Unless Landlord expressly consents in writing to Tenant's holding over,
Tenant shall be unlawfully and illegally in possession of the Premises, whether
or not Landlord accepts any rent from Tenant or any other person while Tenant
remains in possession of the Premises without Landlord's written consent. If
Tenant shall retain possession of the Premises or any portion thereof without
Landlord's consent following the expiration of this Lease or sooner termination
for any reason, then Tenant shall pay to Landlord for each day of such retention
the amount-greater of one-hundred and fifty percent (150.0%) of the amount of
the daily rental as of the last month prior to the date of expiration or earlier
termination or one-hundred and fifty percent (150.0%) of the then current market
rent for comparable space in Mountain View. Tenant shall also indemnify, defend,
protect and hold Landlord harmless from any loss, liability or cost, including
consequential and incidental damages and reasonable attorneys' fees, incurred by
Landlord resulting from delay by Tenant in surrendering the Premises, including,
without limitation, any claims made by the succeeding tenant founded on such
delay. Acceptance of Rent by Landlord following expiration or earlier
termination of this Lease, or following demand by Landlord for possession of the
Premises, shall not constitute a renewal of this Lease, and nothing contained in
this Paragraph 25 shall waive Landlord's right of reentry or any other right.
Additionally, if upon expiration or earlier termination of this Lease, or
following demand by Landlord for possession of the Premises, Tenant has not
fulfilled its obligation with respect to repairs and cleanup of the Premises or
any other Tenant obligations as set forth in this Lease, then Landlord shall
have the right to perform any such obligations as it deems necessary at Tenant's
sole cost and expense, and any time required by Landlord to complete such
obligations shall be considered a period of holding over and the terms of this
Paragraph 25 shall apply. The provisions of this Paragraph 25 shall survive any
expiration or earlier termination of this Lease.
26. DEFAULT
A. Events of Default. The occurrence of any of the following shall
constitute en event of default on the part of Tenant:
(1) Abandonment. Abandonment or vacation of the Premises for a
continuous period in excess of five (5) days. Tenant waives any right to notice
Tenant may have under Section 1951.3 of the Civil Code of the State of
California, the terms of this Paragraph 26.A. being deemed such notice to Tenant
as required by said Section 1951.3.
(2) Nonpayment of Rent. Failure to pay any installment of Rent
or any other amount due and payable hereunder within three (3) days of the date
when said payment is due, as to which time is of the essence.
(3) Other Obligations. Failure to perform any obligation,
agreement or covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this Paragraph 26.A., and in Paragraphs 8, 16, 18
and 25, such failure continuing for thirty 30 days after written notice of such
failure, as to which time is of the essence.
(4) General Assignment. A general assignment by Tenant for the
benefit of creditors.
(5) Bankruptcy. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's
creditors, which involuntary petition remains undischarged for a period of
thirty (30) days. If under applicable law, the trustee in bankruptcy or Tenant
has the right to affirm this Lease and continue to perform the obligations of
Tenant hereunder, such trustee or Tenant shall, in such time period as may be
permitted by the bankruptcy court having jurisdiction, cure all defaults of
Tenant hereunder outstanding as of the date of the affirmance of this Lease and
provide to Landlord such adequate assurances as may be necessary to ensure
Landlord of the continued performance of Tenant's obligations under this Lease.
(6) Receivership. The employment of a receiver to take
possession of substantially all of Tenant's assets or the Premises, if such
appointment remains undismissed or undischarged for a period of fifteen (15)
days after the order therefor.
(7) Attachment. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or Tenant's leasehold of
the Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of fifteen (15) days after the levy thereof.
(8) Insolvency. The admission by Tenant in writing of its
inability to pay its debts as they become due.
B. Remedies Upon Default.
(1) Termination. In the event of the occurrence of any event
of default, Landlord shall have the right to give a written termination notice
to Tenant, and on the date specified in such notice, Tenant's right to
possession shall terminate, and this Lease shall terminate, unless on or before
such date all Rent in arrears and all costs and expenses incurred by or on
behalf of Landlord hereunder shall have been paid by Tenant and all other events
of default of this Lease by Tenant at the time existing shall have been fully
remedied to the satisfaction of Landlord. At any time after such termination,
Landlord may recover possession of the Premises or any part thereof and expel
and remove therefrom Tenant and any other person occupying the same, including
any subtenant or subtenants notwithstanding Landlord's consent to any sublease,
by any lawful means, and again repossess and enjoy the Premises without
prejudice to any of the remedies that Landlord may have under this Lease, or at
law or equity by any reason of Tenant's default or of such termination. Landlord
hereby reserves the right, but shall not have the obligation, to recognize the
continued possession of any subtenant. The delivery or surrender to Landlord by
or on behalf of Tenant of keys, entry codes, or other means to bypass security
at the Premises shall not terminate this Lease.
(2) Continuation After Default. Even though an event of
default may have occurred, this Lease shall continue in effect for so long as
Landlord does not terminate Tenant's right to possession under Paragraph
26.B.(1) hereof. Landlord shall have the remedy described in California Civil
Code Section 1951.4 ("Landlord may continue this Lease in effect after Tenant's
breach and abandonment and recover Rent as it becomes due,' if Tenant has the
right to sublet or assign, subject only to reasonable limitations"), or any
successor code section. Accordingly, if Landlord does not elect to terminate
this Lease on account of any event of default by Tenant, Landlord may enforce
all of Landlord's rights and remedies under this Lease, including the right to
recover Rent as it becomes due. Acts of maintenance, preservation or efforts to
lease the Premises or the appointment of a receiver under application of
Landlord to protect Landlord's interest under this Lease or other entry by
Landlord upon the Premises shall not constitute an election to terminate
Tenant's right to possession.
(3) Increased Security Deposit. If Tenant is in default under
Paragraph 26.A.(2) hereof and such default remains uncured for ten (10) days
after such occurrence or such default occurs more than three times in any twelve
(12) month period, Landlord may require that Tenant increase the Security
Deposit to the amount of three times the current month's Rent at the time of the
most recent default.
C. Damages After Default. Should Landlord terminate this lease pursuant
to the provisions of Paragraph 26.B.(I) hereof, Landlord shall have the rights
and remedies of a Landlord provided by Section 1951.2 of the Civil Code of the
State of California, or any successor code sections. Upon such termination, in
addition to any other rights and remedies to which Landlord may be entitled
under applicable law or at equity, Landlord shall be entitled to recover from
Tenant: (1) the worth at the time of award of the unpaid Rent and other amounts
which had been earned at the time of termination, (2) the worth at the time of
award of the
amount by which the unpaid Rent and other amounts that would have been earned
after the date of termination until the time of award exceeds the amount of such
Rent loss that Tenant proves could have been reasonably avoided; (3) the worth
at the time of award of the amount by which the unpaid Rent and other amounts
for the balance of the Term after the time of award exceeds the amount of such
Rent loss that the Tenant proves could be reasonably avoided; and (4) any other
amount and court costs necessary to compensate Landlord for all detriment
proximately caused by Tenant's failure to perform Tenant's obligations under
this Lease or which, in the ordinary course of things, would be likely to result
therefrom. The "worth at the time of award" as used in (1) and (2) above shall
be computed at the Applicable Interest Rate (defined below). The "worth at the
time of award" as used in (3) above shall be computed by discounting such amount
at the Federal Discount Rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%). If this Lease provides for any periods
during the Term during which Tenant is not required to pay Base Rent or if
Tenant otherwise receives a Rent concession, then upon the occurrence of en
event of default, Tenant shall owe to Landlord the full amount of such Base Rant
or value of such Rent concession, plus interest at the Applicable Interest Rate,
calculated from the date that such Base Rent or Rent concession would have been
payable.
D. Late Charge. In addition to its other remedies, Landlord shall have
the right without notice or demand to add to the amount of any payment required
to be made by Tenant hereunder, and which is not paid and received by Landlord
on or before the first day of each calendar month, an amount equal to five
percent (5%) of the delinquent amount or $150.00 whichever amount is greater,
for each month or portion thereof that the delinquency remains outstanding to
compensate Landlord for the loss of the use of the amount not paid and the
administrative costs caused by the delinquency, the parties agreeing that
Landlord's damage by virtue of such delinquencies would be extremely difficult
and impracticable to compute and the amount stated herein represents a
reasonable estimate thereof. Any waiver by Landlord of any late charges or
failure to claim the same shall not constitute a waiver of other late charges or
any other remedies available to Landlord.
E. Interest. Interest shall accrue on all sums not paid when due
hereunder at the lesser of eighteen percent (18%) per annum or the maximum
interest rate allowed by law ("Applicable Interest Rate") from the due date
until paid.
F. Remedies Cumulative. All of Landlord's rights, privileges and
elections or remedies are cumulative and not alternative, to the extent
permitted by law and except as otherwise provided herein.
G. Replacement of Statutory Notice Requirements. When-this Lease
requires service of a notice that notice shall replace rather than supplement
any equivalent or similar statutory notice, including any notice required by
California Code of Civil Procedure Section 1161 or any similar or successor
statute. When a statute requires service of a notice in a particular manner,
service of that notice (or a similar notice required by this Lease) in the
manner required by this Paragraph 26 shall replace and satisfy the statutory
service-of-notice procedures, including those required by California Code of
Civil Procedure Section 1162 or any similar or successor statute.
27. LIENS
Tenant shall at all times keep the Premises and the Project free from
liens wising out of or related to work or services performed, materials or
supplies furnished or obligations incurred by or on behalf of Tenant or in
connection with work made, suffered or done by or on behalf of Tenant in or on
the Premises or Project. If Tenant shall not, within ten (10) days following the
imposition of any such lien, cause the same to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein and by law, the right, but not the obligation, to cause
the same to be released by such means as Landlord shall deem proper, including
payment of the claim giving rise to such lien. All sums paid by Landlord on
behalf of Tenant and all expenses incurred by Landlord in connection therefor
shall be payable to Landlord by Tenant on demand with interest at the Applicable
Interest Rate as Additional Rent. Landlord shall have the right at all times to
post and keep posted on the Premises any notices permitted or required by law,
or which Landlord shall deem proper, for the protection of Landlord, the
Premises, the Project and any other party having an interest therein, from
mechanics' and materialmen's liens, and Tenant shall give Landlord not less than
ten (10) business days prior written notice of the commencement of any work in
the Premises or Project which could lawfully give rise to a claim for mechanics'
or materialmen's liens to permit Landlord to post and record a timely notice of
non-responsibility, as Landlord may elect to proceed or as the law may from time
to time provide, for which purpose, if Landlord shall so determine, Landlord may
enter the Premises. Tenant shall not remove any such notice posted by Landlord
without Landlord's consent, and in any event not before completion of the work
which could lawfully give rise to a claim for mechanics' or materialmen's liens.
28. SUBSTITUTION
29. TRANSFERS BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building or a
foreclosure by any creditor of Landlord, the same shall operate to release
Landlord from any liability upon any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, to the extent required to be
performed after the passing of title to Landlord's successor-in-interest. In
such event, Tenant agrees to look solely to the responsibility of the
successor-in-interest of Landlord under this Lease with respect to the
performance of the covenants and duties of "Landlord" to be performed after the
passing of title to Landlord's successor-in-interest. This Lease shall not be
affected by any such sale and Tenant agrees to attorn to the purchaser or
assignee. Landlord's successor(s)-in-interest shall not have liability to Tenant
with respect to the failure to perform any of the obligations of "Landlord," to
the extent required to be performed prior to the date such
successor(s)-in-interest became the owner of the Building.
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent. If Tenant shall fail to pay any sum
of money, other than Base Rent, required to be paid by Tenant hereunder or shall
fail to perform any other act on Tenant's part to be performed hereunder,
including Tenant's obligations under Paragraph 11 hereof, and such failure
shall continue for fifteen (15) days after notice thereof by Landlord, in
addition to the other rights and remedies of Landlord, Landlord may make any
such payment and perform any such act on Tenant's part. In the case of an
emergency, no prior notification by Landlord shall be required. Landlord may
take such actions without any obligation and without releasing Tenant from any
of Tenant's obligations. All sums so paid by Landlord and all incidental costs
incurred by Landlord and interest thereon at the Applicable Interest Rate, from
the date of payment by Landlord, shall be paid to Landlord on demand as
Additional Rent.
31. WAIVER
If either Landlord or Tenant waives the performance of any term,
covenant or condition contained in this Lease, such waiver shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein, or constitute a course of dealing contrary to the
expressed terms of this Lease. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach at the time Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for any length of time
shall not be deemed to waive or decrease the right of Landlord to insist
thereafter upon strict performance by Tenant. Waiver by Landlord of any term,
covenant or condition contained in this Lease may only be made by a written
document signed by Landlord, based upon full knowledge of the circumstances.
32. NOTICES
Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to sending,
mailing, or delivery of any notice or the making of any payment by Landlord or
Tenant to the other shall be deemed to be complied with when and if the
following steps are taken:
A. Rent. All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at Landlord's Remittance Address
set forth in the Basic Lease Information, or at such other address as Landlord
may specify from time to time by written notice delivered in accordance
herewith. Tenant's obligation to pay Rent and any other amounts to Landlord
under the terms of this Lease shall not be deemed satisfied until such Rent and
other amounts have been actually received by Landlord.
B. Other. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in writing
and either personally delivered, sent by commercial overnight courier, mailed,
certified or registered, postage prepaid or sent by facsimile with confirmed
receipt (and with an original sent by commercial overnight courier), and in each
case addressed to the party to be notified at the Notice Address for such party
as specified in the Basic Lease Information or to such other place as the party
to be notified may from time to time designate by at least fifteen (15) days
notice to the notifying party. Notices shall be deemed served upon receipt or
refusal to accept delivery. Tenant appoints as its agent to receive the service
of all default notices and notice of commencement of unlawful detainer
proceedings the person in charge of or apparently in charge of occupying the
Premises
at the time, and, if there is no such person, then such service may be made by
attaching the same on the main entrance of the Premises.
C. Required Notices. Tenant shall immediately notify Landlord in
writing of any notice of a violation or a potential or alleged violation of any
Regulation that relates to the Premises or the Project, or of any inquiry,
investigation, enforcement or other action that is instituted or threatened by
any governmental or regulatory agency against Tenant or any other occupant of
the Premises, or any claim that is instituted or threatened by any third party
that relates to the Premises or the Project.
33. ATTORNEYS' FEES
If Landlord places the enforcement of this Lease, or any part thereof,
or the collection of any Rent due, or to become due hereunder, or recovery of
possession of the Premises in the hands of en attorney, Tenant shall pay to
Landlord, upon demand, Landlord's reasonable attorneys' fees and court costs,
whether incurred at trial, appeal or review. In any action which Landlord or
Tenant brings to enforce its respective rights hereunder, the unsuccessful party
shall pay all costs incurred by the prevailing party including reasonable
attorneys' fees, to be fixed by the court, and said costs and attorneys' fees
shall be a part of the judgment in said action.
34. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of Landlord,
its successors and assigns, and shall be binding upon and inure to the benefit
of Tenant, its successors, and to the extent assignment is approved by Landlord
as provided hereunder, Tenant's assigns,
35. FORCE MAJEURE
If performance by a party of any portion of this Lease is made
impossible by any prevention, delay, or stoppage caused by strikes, lockouts,
labor disputes, acts of God, inability to obtain services, labor, or materials
or reasonable substitutes for those items, government actions, civil commotions,
fire or other casualty, or other causes beyond the reasonable control of the
party obligated to perform, performance by that party for a period equal to the
period of that prevention, delay, or stoppage is excused. Tenant's obligation to
pay Rent, however, is not excused by this Paragraph 35.
36. SURRENDER OF PREMISES
Tenant shall, upon expiration or sooner termination of this Lease,
surrender the Premises to Landlord in the same condition as existed on the date
Tenant originally took possession thereof, except for normal wear and tear
including, but not limited to, all interior walls cleaned, all interior painted
surfaces repainted in the original color, all holes in walls repaired, all
carpets shampooed and cleaned, all HVAC equipment in operating order and in good
repair; and all floors cleaned, waxed, and free of any Tenant-introduced marking
or painting, all to the reasonable satisfaction of Landlord. Tenant short remove
all of its debris from the Project. At or before the time of surrender, Tenant
shall comply with the terms of Paragraph 12.A, hereof with respect to
Alterations to the Premises and all other matters addressed in such Paragraph.
If the Premises are not so surrendered at the expiration or sooner termination
of this Lease, the
provisions of Paragraph 23 hereof shall apply. All keys to the Premises or any
part thereof shall be surrendered to Landlord upon expiration or sooner
termination of the Term. Tenant shall give written notice to Landlord at least
thirty (30) days prior to vacating the Premises and shall meet with Landlord for
a joint inspection of the Premises at the time of vacating, but nothing
contained herein shall be construed as an extension of the Term or as a consent
by Landlord to any holding over by Tenant. In the event of Tenant's failure to
give such notice or participate in such joint inspection, Landlord's inspection
at or after Tenant's vacating the Premises shall conclusively be deemed correct
for purposes of determining Tenant's responsibility for repairs and restoration.
Any delay caused by Tenant's failure to carry out its obligations under this
Paragraph 36 beyond the term hereof, shall constitute unlawful and illegal
possession of Premises under Paragraph 23 hereof.
37. HAZARDOUS MATERIALS
A. General Restrictions. Tenant shall conduct its business and shall
cause each Tenant Party to act in such a manner as to (a) not release or permit
the release of any Hazardous Material in, under, on or about the Premises or
Project, or (b) not use, stare, generate, treat, discharge, disperse, handle,
manufacture, transport or dispose of (collectively, "Handle") any hazardous
Materials (other than incidental amounts of customary cleaning and office
supplies) in or about the Premises or Project without the prior written consent
of Landlord, which consent Landlord may withhold in its sole and, absolute
discretion ("Hazardous Materials Consent Requirements"). "Hazardous Material"
means any hazardous, explosive, radioactive or toxic substance, material or
waste which is or becomes regulated by any local, state or federal governmental
authority or agency, including, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste," "extremely hazardous
waste," "restricted hazardous waste," "hazardous substance," "hazardous
material," "pollutant" or "contaminant" under any Regulation, (ii) petroleum or
petroleum derivative, (iii) a flammable. explosive, (iv) a radioactive material
or waste, (v) a polychlorinated biphenyl, (vi) asbestos or asbestos containing
material, (vii) infectious waste, or (viii) a carcinogen.
B. Required Disclosures. Prior to Tenant (end at least five (5) days
prior to any assignee or any subtenant of Tenant) taking possession of any part
of the Premises, and on each anniversary of the Term Commencement Date (each
such date is hereinafter referred to as a "Disclosure Date"), until and
including the first Disclosure Date occurring after the expiration or sooner
termination of this Lease, Tenant shall disclose to Landlord in writing the
names and amounts of all Hazardous Materials, or any combination thereof, which
were Handled on, in, under or about the Premises or Project for the twelve (12)
month period prior to such Disclosure Date, or which Tenant intends to Handle
on, under or about the Premises during the twelve (l2) month period following
the Disclosure Date by executing and delivering to Landlord a "Hazardous
Materials Questionnaire", in the form attached hereto as Exhibit D (as updated
and modified by Landlord, from time to time). Tenant's disclosure obligations
under this Paragraph 37.B shall include a requirement that, to the extent any
information contained in a Hazardous Materials Questionnaire previously
delivered by Tenant shall become inaccurate in any material respect, Tenant
shall immediately deliver to Landlord a new updated Hazardous Materials
Questionnaire.
C. Additional Obligations. If any Hazardous Materials shall be released
into the environment comprising or surrounding the Project in connection with
the acts, omissions or operations of Tenant or any Tenant Party, Tenant shall at
its sole expense promptly prepare a remediation plan therefor consistent with
applicable Regulations and recommended industry practices (and approved by
Landlord and all governmental agencies having jurisdiction) to fully remediate
such release, and thereafter shall prosecute the remediation plan so approved to
completion with all reasonable diligence and to the satisfaction of Landlord and
applicable governmental agencies. If any hazardous Materials are Handled in,
under, on or about the Premises during the Term, or if Landlord determines in
good faith that any release of any Hazardous Materiel or violation of Hazardous
Materials Regulations may have occurred in, on, under or about the Premises
during the Term, Landlord may require Tenant to at Tenant's sole expense, (i)
retain a qualified environmental consultant reasonably satisfactory to Landlord
to conduct a reasonable investigation (an "Environmental Assessment") of a
nature and scope reasonably approved in writing in advance by Landlord with
respect to the existence of any Hazardous Materials in, on, under or about the
Premises and providing a review of all Hazardous Materials activities of Tenant
and the Tenant Parties, and (ii) provide to Landlord a reasonably detailed,
written report, prepared in accordance with the institutional real estate
standards, of the Environmental Assessment.
D. Indemnity. Tenant shall indemnify, defend (by counsel reasonably
acceptable to Landlord), protect and hold Landlord harmless from and against any
and all claims, liabilities, losses, costs, loss of rents, liens, damages,
injuries or expenses (including attorneys' and consultants' fees and court
costs), demands, causes of action, or judgments directly or indirectly arising
out of or related to the use, generation, storage, release, or disposal of
Hazardous Materials by Tenant or any of Tenant's Parties in, on, under or about
the Premises, the Building or the Project or surrounding land or environment,
which indemnity shall include, without limitation, damages for personal or
bodily injury, property damage, damage to the environment or natural resources
occurring on or off the Premises, losses attributable to diminution in value or
adverse effects on marketability, the cost of any investigation, monitoring,
government oversight, repair, removal, remediation, restoration, abatement, and
disposal, and the preparation of any closure or other required plans, whether
such action is required or necessary prior to or following the expiration or
earlier termination of this Lease. Neither the consent by Landlord to the use,
generation, storage, release or disposal of Hazardous Materials nor the strict
compliance by Tenant with all laws pertaining to Hazardous Materials shall
excuse Tenant from Tenant's obligation of indemnification pursuant to this
Paragraph 37.D. Tenant's obligations pursuant to the foregoing indemnity shall
survive the expiration or earlier termination of this Lease.
38. MISCELLANEOUS
A. General. The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and their respective successors,
executors, administrators and permitted assigns, according to the context
hereof.
B. Time. Time is of the essence regarding this Lease and all of its
provisions.
C. Choice of Law. This Lease shall in all respects be governed by the
laws of the State of California.
D. Entire Agreement. This Lease, together with its Exhibits, addenda
and attachments and the Basic Lease Information, contains all the agreements of
the parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other then those set forth in this Lease and its Exhibits, addenda and
attachments and the Basic Lease Information.
E. Modification. This Lease may not be modified except by a written
instrument signed by the parties hereto. Tenant accepts the area of the Premises
as specified in the Basic Lease Information as the approximate area of the
Premises for all purposes under this Lease, and acknowledges and agrees that no
other definition of the area (rentable, usable or otherwise) of the Premises
shall apply. Tenant shall in no event be entitled to a recalculation of the
square footage of the Premises, rentable, usable or otherwise, and no
recalculation, if made, irrespective of its purpose, shall reduce Tenant's
obligations under this Lease in any manner, including without limitation the
amount of Base Rent payable by Tenant or Tenant's Proportionate Share of the
Building and of the Project.
F. Severability. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the other provisions shall
be and remain in full force and effect:
G. Recordation. Tenant shall not record this Lease or a short form
memorandum hereof.
H. Examination of Lease. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective otherwise
until execution and delivery by both Landlord and Tenant.
I. Accord and Satisfaction. No payment by Tenant of a lesser amount
than the total Rent due nor any endorsement on any check or letter accompanying
any check or payment of Rent shall be deemed an accord and satisfaction of full
payment of Rent, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue other
remedies. All offers by or on behalf of Tenant of accord and satisfaction are
hereby rejected in advance.
J. Easements. Landlord may grant easements on the Project and dedicate
for public use portions of the Project without Tenant's consent; provided that
no such grantor dedication shall materially interfere with Tenant's Permitted
Use of the Premises. Upon Landlord's request, Tenant shall execute, acknowledge
and deliver to Landlord documents, instruments, maps and plats necessary to
effectuate Tenant's covenants hereunder.
K. Drafting and Determination Presumption. The parties acknowledge that
this Lease has been agreed to by both the parties, that both Landlord and Tenant
have consulted with attorneys with respect to the terms of this Lease and that
no presumption shall be created against Landlord because Landlord drafted this
Lease. Except as otherwise specifically set forth in this Lease, with respect to
any consent, determination or estimation of Landlord required or allowed
in this Lease or requested of Landlord, Landlord's consent, determination or
estimation shall be given or made solely by Landlord in Landlord's good faith
opinion, whether or not objectively reasonable. If Landlord fails to respond to
any request for its consent within the time period, if any, specified in this
Lease, Landlord shall be deemed to have disapproved such request.
L. Exhibits. The Basic Lease Information, and the Exhibits, addenda and
attachments attached hereto are hereby incorporated herein by this reference and
made a part of this Lease as though fully set forth herein.
M. No Light, Air or View Easement. Any diminution or shutting off of
light, air or view by any structure which may be erected on lands adjacent to or
in the vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. No Third Party Benefit. This Lease is a contract between Landlord
and Tenant and nothing herein is intended to create any third party benefit.
O. Quiet Enjoyment. Upon payment by Tenant of the Rent, and upon the
observance and performance of all of the other covenants terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under Landlord, subject, nevertheless, to all of the
other terms and conditions of this Lease. Landlord shall not be liable for any
hindrance, interruption, interference or disturbance by other tenants or third
persons, nor shall Tenant be released from any obligations under this Lease
because of such hindrance, interruption, interference or disturbance.
P. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original.
Q. Multiple Parties. If more than one person or entity is named herein
as Tenant, such multiple parties shall have joint and several responsibility to
comply with the terms of this Lease.
R. Prorations. Any Rent or other amounts payable to Landlord by Tenant
hereunder for any fractional month shall be prorated based on a month of 30
days. As used herein, the term "fiscal year" shall mean the calendar year or
such other fiscal year as Landlord may deem appropriate.
39. ADDITIONAL PROVISIONS
A. Addendum 1: Paragraph 6 Base Rent. Base Rent net of Estimated
Operating Expenses Per Paragraph 7 of this Lease, for the Premises at 385
Ravendale Drive in Mountain View, California shall be as follows:
Months 1-12: Base Rent shall be $176,030.00 per month. In addition to Base Rent
Tenant shall also pay Tenant's proportionate share of Estimated
Operative Expenses as set forth in Paragraph 7 of the Lease
Agreement. Operative Expenses are initially estimated to be
$13,681.00 per month. Operating Expenses are estimated a year in
advance and collected on a monthly basis. Any adjustments (up or
down) will be made at the end of the calendar year.
Months 13-24: Base Rent shall be $183.071.00 per month. In addition to Base
Rent, Tenant shall also pay Tenant's proportionate share of
Estimated Operative Expenses as set forth in Paragraph 7 of the
Lease Agreement.
Months 25-36: Base Rent shall be $190,394.00 per month. In addition to Base
Rent, Tenant shall also pay Tenant's proportionate share of
Estimated Operative Expenses as set forth in Paragraph 7 of the
Lease Agreement.
Months 37-08: Base Rent shall be $198,010.00 per month. In addition to Base
Rent, Tenant shall also Pay Tenant's proportionate share of
Estimated Operative Expenses as set forth in Paragraph 7 of the
Lease Agreement.
Months 49-60: Base Rent shall be $205,930.00 per month. In addition to Base
Rent, Tenant shall also pay Tenant's proportionate share of
Estimated Operative Expenses as set forth in Paragraph 7 of the
Lease Agreement.
Months 61-72: Base Rent shall be $214,167.00 per month. In addition to Base
Rent, Tenant shall also pay Tenant's proportionate share of
Estimated Operative Expenses as set forth in Paragraph 7 of the
Lease Agreement.
Months 73-84: Base Rent shall be $222,734.00 per month. In addition to Base
Rent, Tenant shall also pay Tenant's proportionate share of
Estimated Operative Expenses as set forth in Paragraph 7 of the
Lease Agreement.
B. Letter of Credit
(1) Delivery of Letter of Credit. In lieu of depositing a cash
security deposit with Landlord. Tenant shall, on execution of this Lease deliver
to Landlord and cause to be in effect during the Lease Term an unconditional
irrevocable letter of credit ("LOC") in the amount specified for the Security
Deposit in the Basic Lease Information, as it may be increased as provided in
this Lease (the "LOC Amount") for an initial term of one (1) year end thereafter
shall renew automatically from year to year through 30 days beyond the
expiration date of this Lease or any extension thereto. The LOC shall be in a
form acceptable to Landlord and shall be issued by an LOC bank selected by
Tenant and acceptable to Landlord An LOC bank is a bank that accepts deposits,
maintains accounts has a local office that will negotiate a letter of credit and
the deposits of which are insured by the Federal Deposit Insurance Corporation
Tenant shall pay all expenses points, or fees incurred by Tenant in obtaining
the LOC. The LOC shall not be mortgaged, assigned or encumbered in any manner
whatsoever Tenant without the prior written consent of Landlord. Tenant
acknowledges that Landlord has the right to transfer or mortgage Its Interest in
the Protect, the Building and in this Lease and Tenant agrees that in the event
of any such transfer or mortgage, Landlord shall have the right to transfer or
assign the LOC and/or the LOC Security Deposit (as defined below) to the
transferee or mortgagee and in the event of such transfer Tenant shall look
solely to such transferee or mortgagee for the return of the LOC and/or the LOC
Security Deposit. Tenant shall, within ten (10) business days of request by
Landlord execute such further instruments or assurances as Landlord may
reasonably deem necessary to
evidence or confirm Landlord's transfer or assignment of the LOC Security
Deposit and/or the LOC to such transferee or mortgagee.
(2) Replacement of Letter of Credit. Tenant may, from time to
time, replace any existing LOC with a new LOC if the new LOC (a) becomes
effective at least thirty (30) days before expiration of the LOC that it
replaces is in the required LOC amounts (c) is issued by an LOC bank acceptable
to Landlord; and (d) otherwise compiles with the requirements of this Paragraph
39 B. Tenant agrees that Silicon Valley Bank is not an acceptable LOC bank.
Notwithstanding the foregoing sentence concurrent with the execution of this
Lease Landlord will accept an LOC from Silicon Valley Bank, which LOC must
comply in all respects with the terms and conditions of this Paragraph 39.B
under the expressed condition that Tenant shall use its best efforts to replace
the LOC by a new LOC from an LOC bank acceptable to Landlord as soon as possible
but in no event later than July 31, 2001. Failure to deliver the replacement LOC
prior to July 31, 2001 shall constitute a default of the Lease without the
benefit of any notice or cure period, notwithstanding anything to the contrary
contained in this Lease.
(3) Landlord's Right to Draw on Letter of Credit. The LOC
shall be held by Landlord as security for the faithful performance by Tenant of
all the terms, covenants, and conditions of this Lease to be kept and performed
by Tenant during the Lease Term. The LOC shall not be mortgaged, assigned or
encumbered in any manner whatsoever by Tenant without the prior written consent
of Landlord If, after notice and failure to cure within any applicable period
provided in this Lease. Tenant defaults on any provision of this Lease. Landlord
may, without prejudice to all or any other remedy it has, draw on that portion
of the LOC necessary to (a) pay Rent or other sum in default: (b) pay or
reimburse Landlord for any amount that Landlord may spend or become obligated to
spend in exercising Landlord's rights under Paragraph 30 (Right of Landlord to
Perform Tenant's Covenant): and/or (c) compensate Landlord for any expense,
loss, or damage that Landlord may suffer because of Tenant's default. The use,
application or retention of the LOC, or any portion thereof, by Landlord shall
not prevent Landlord from exercising any other right or remedy provided by this
Lease or by law, it being intended that Landlord shall not first be required to
proceed against the LOC and shall not operate as a limitation on any recovery to
which Landlord may otherwise be entitled. If Tenant falls to renew or replace
the LOC at least thirty (30) days before its expiration. Landlord may, without
prejudice to any other remedy it has, draw on the entire amount of the LOC.
(4) LOC Security Deposit. Any amount of the LOC that is drawn
on by Landlord but not applied by Landlord shall be held by Landlord as a
security deposit (the "LOC Security Deposit") in accordance with Paragraph 19 of
this Lease.
(5) Restoration of Letter of Credit and LOC Security Deposit.
If Landlord draws on any portion of the LOC and/or applies all or any portion o
such draw. Tenant shall, within ten (10) business days after demand by Landlord,
either (a) deposit cash with Landlord in an amount that, when added to the
amount remaining under the LOC and the amount of any LOC Security Deposit, shall
equal the LOC Amount then required under this Paragraph 39.B: or (b) reinstate
the LOC to the full LOC Amount, and Tenant's failure to do so shall be a default
under this Lease
(6) Reduction of Letter of Credit. The LOC Amount may be
reduced at the times and to the corresponding amounts specified in this
Paragraph 39.B(6) if each of the following conditions is satisfied to Landlord's
satisfaction in each case: (i) Tenant is not and has not been in material
default under the terms of this Lease beyond any applicable cure period. (ii)
Tenant provides to Landlord ten (10) days prior written notice of any such
reduction; (iii) the LOC provides that the issuing bank shall notify Landlord in
writing at least five (5) business days prior to any such reduction, and (iv)
each of the conditions precedent described in clauses 1. through 6., inclusive,
is satisfied to Landlord's satisfaction.
At any time after the end of the forty-eighth (48) month following the Term
Commencement Date, the LOC Amount may be reduced to an amount equal to One
million six hundred fifty thousand and No/100 Dollars ($1,650,000) if the
following conditions precedent are satisfied to Landlord's satisfaction: (i)
Tenant has a tangible net worth in excess of Two Hundred twenty million and
No/100 Dollars ($200,000,000), which amount shall be determined by Landlord to
its satisfaction prior to any reduction in the LOC Amount, and in connection
with such determination. "Tangible net worth" shall mean assets less intangible
assets and total liabilities, with intangible assets including nonmaterial
benefits such as goodwill, patents, copyrights, and trademarks. Tenant shall
deliver to Landlord for review Tenant's financial statements prepared in
accordance with generally accepted accounting principles and audited by a
nationally recognized public accounting firm acceptable to Landlord and any
other financial information requested by Landlord ("Tenant's Financial
Information"): and (ii) Tenant's Financial Information reflects four (4)
consecutive calendar quarters of profitability, as determined by Landlord during
the time period immediately preceding Tenant's request for reduction in the LOC
Amount.
At any time after the end of the sixtieth (60th) month following the Term
Commencement Date, the LOC Amount may be reduced to an amount equal to One
million two hundred thousand and No/100 Dollars ($1,200,000) if the following
conditions precedent are satisfied to Landlord's satisfaction: (i) Tenant has a
tangible net worth in excess of Two Hundred million and No/100 Dollars
($200,000,000) as reflected in Tenant's Financial Information, which amount
shall be determined by Landlord to its satisfaction prior to any reduction in
the LOC Amount: and (ii) Tenant's Financial Information reflects four (4)
consecutive calendar quarters of Profitability, as determined by Landlord during
the time period immediately preceding Tenant's request for reduction in the LOC
Amount.
At any time after the end of the Seventy second ("72") month following the Term
Commencement Date the LOC Amount may be reduced to an amount equal to Seven
Hundred Fifty thousand and No/100 Dollars ($750 000) if the following conditions
precedent are satisfied to Landlord's satisfaction: (i) Tenant has a tangible
net worth in excess of Two Hundred million and No/100 Dollars ($200,000,000) as
reflected in Tenant's Financial Information which amount shall be determined by
Landlord to its satisfaction prior to any reduction in the LOC Amount; and (ii)
Tenant's Financial Information reflects four (4) consecutive calendar quarters
of profitability, as determined by Landlord, during the time period immediately
preceding Tenant's request for reduction in the LOC Amount.
In the event that any of the above described reductions to the LOC Is made and,
subsequently Tenant fails to meet the corresponding profitability and Tangible
Net Worth condition precedent far a period of thirty (30) days following
delivery by Landlord of written notice of any such
failure Tenant shall within forty-eight (48) hours, increase the face amount of
the LOC to an amount equal to the original LOC Amount if Tenant fails to
increase the LOC Amount as provided above, such failure shall constitute a
default hereunder (which default shall not be subject to any cure rights
afforded anywhere in this Lease) and Landlord shall be entitled to draw on the
LOC for the full LOC Amount and hold such LOC Amount as a Security Deposit in
accordance with the terms of this Lease.
C. Early Occupancy. Upon full execution of this Lease, Tenant shall
have the right to occupy the Premises on July 1, 2000, for purposes of
installing cabling, fixtures and furniture, with all terms and conditions of
this Lease in full force and effect except that Tenant shall not be required to
pay Rent for the period July 1. 2000 through July 14. 2000.
40. JURY TRIAL WAIVER
EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL
REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY, TRIAL, HEREBY WAIVES TRIAL BY
JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH
THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE
COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS
LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 40. THE
PROVISIONS OF THIS PARAGRAPH 40 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and the year first above written.
LANDLORD: TENANT:
Spieker Properties, L.P., Interwoven, Inc.
a California limited partnership a Delaware corporation
By: Spieker Properties, Inc. By: /s/ David M. Allen
a Maryland corporation ______________________________
its General Partner David Allen
Its: Vice President & CFO
By: /s/ Eric T. Luhrs 5/4/00
______________________________
Eric T. Luhrs
Vice President
5/4/00
EXHIBIT A
Industrial Lease
Rules and Regulations
1. Driveways, sidewalks, halls, passages, exits, entrances elevators escalators
and stairways shall not be obstructed by tenants or used by tenants for any
purpose other than for ingress to and egress from their respective premises The
driveways sidewalks, halls, passages, exits, entrances, elevators and stairways
are not for the use of the general public and Landlord shall in all cases retain
the right to control and prevent access thereto by all persons whose presence in
the judgment of Landlord shall be prejudicial to the safety, character,
reputation and interests of the Building, the Protect and its tenants provided
that nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities. No
tenant and no employees or invitees of any tenant shall be upon the roof of any
Building except as authorized by Landlord.
2. No sign placard, banner, picture, name, advertisement or notice visible from
the exterior of the Premises or the Building or the common areas of the Building
shall be inscribed painted, affixed, installed or otherwise displayed by Tenant
either on its Premises or any part of the Building or Protect without the prior
written consent of Landlord in Landlord's sole and absolute discretion. Landlord
shall have the right to remove any such sign placard banner, picture name
advertisement or notice without notice to and at the expense of Tenant, which
were installed or displayed in violation of this rule. If Landlord shall have
given such consent to Tenant at any time, whether before or after the execution
of Tenant's Lease such consent shall in no, way, operate as a waiver or release
of any of the provisions hereof or of the Lease and shall be deemed to relate
only to the particular sign, placard, banner, picture, name, advertisement or
notice so consented to by Landlord and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Landlord with respect
to any other such sign, placard, banner, picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed painted
affixed or inscribed at the expense of Tenant by a person or vendor approved by
Landlord and shall be removed by Tenant at the time of vacancy et Tenant's
expense.
3. The directory of the Building or Project will be provided exclusively for the
display of the name and location of tenants only and Landlord reserves the right
to charge for the use thereof and to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other coverings,
awnings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with, any window or door on the Premises without the prior
written consent of Landlord. In any event with the prior written consent of
Landlord, all such items shall 6e installed inboard of Landlord's standard
window covering and shall in no way be visible from the exterior of the
Building: All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent or of a quality, type, design, and
bulb color approved by Landlord. No articles shall be placed or kept on the
windowsills so as to be visible from the exterior of the Building. No articles
shall be placed against glass partitions or doors which Landlord considers
unsightly from outside Tenant's Premises.
5. Each tenant shall be responsible for all persons for whom it allows to enter
the Building or the Protect and shall be liable to Landlord for all acts of such
persons.
Landlord and its agents shall not be liable for damages for any error concerning
the admission to, or exclusion from, the Building or the Protect of any person.
During the continuance of any invasion, mob, riot, public excitement or other
circumstance rendering such action advisable in Landlord's opinion. Landlord
reserves the right (but shall not be obligated) to prevent access to the
Building and the Protect during the contingence of that event by any means it
considers appropriate far the safety of tenants and protection of the Building,
property in the Building and the Protect.
6. Tenant shall not alter any lock or access device or install a new or
additional lock or access device or bolt on any door of its Premises, without
the prior written consent of Landlord. If Landlord shall give its consent.
Tenant shall in each case furnish Landlord with a key for any such lack. Tenant,
upon the termination of its tenancy, shall deliver to Landlord the keys for all
doors which have been furnished to Tenant, and in the event of loss of any keys
so furnished shall pay Landlord therefor.
7. The restrooms, toilets, urinals, wash bowls and other apparatus shall not be
used or any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown into them. The expense
of any breakage, stoppage, or damage resulting from violation of this rule shall
be borne by the tenant who, or whose employees or invitees, shall have caused
the breakage, stoppage, or damage.
8. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or material
except in strict accordance with the terms of the Lease.
9. Tenant shall not use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance. Tenant shall not allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought or kept in or about the Premises, the
Building, or the Project.
10. Except with the prior written consent of Landlord. Tenant shall not sell, or
permit the sale, at retail, of newspapers, magazines. periodicals, theater
tickets or any other goods or merchandise in or on the Premises, nor shall
Tenant carry on, or permit or allow any employee or other person to carry on,
the business of stenography, typewriting or any similar business in or from the
Premises for the service or accommodation of occupants of any other portion of
the Building, or the business of a public barber shop, beauty parlor, nor shall
the Premises be used for any illegal, improper, immoral or objectionable
purpose, or any business or activity other than that specifically provided for
in such Tenant's Lease. Tenant shall not accept hairstyling, barbering shoeshine
nail, massage or similar services in the Premises or common areas extent as
authorized by Landlord.
11. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services It shall first obtain and comply
with Landlord's Instructions in their
installation The cost of purchasing, installation and maintenance of such
services shall be borne solely by Tenant.
12. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or cutting for
wires will be allowed without the prior written consent of Landlord. The
location of bugler alarms, telephones call boxes and other office equipment
affixed to the Premises shall be subject to the prior written approval of
Landlord.
13. Tenant shall not install any radio or television antenna, satellite dish
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Building the Protect or
elsewhere.
14. Tenant shall not mark or drive nails, screws or drill into the partitions
woodwork or drywall or in any way deface the Premises or any Port thereof.
Tenant shall not lay linoleum tile carpet pr another floor covering so that the
same shall be affixed to the floor of its Premises in any manner except as
approved in writing by Landlord. The expense of repairing any damage resulting
from a violation of this rule or the removal of any floor covering shall be
borne by the tenant by whom or by whose contractors, employees or invitees the
damage shall have been caused.
15 Tenant shall not place a load upon any floor of its Premises which exceeds
the load per square foot which such floor was designed to carry or which is
allowed by law.
Business machines and mechanical equipment belonging to Tenant which cause noise
or vibration that may be transmitted to the structure of the Building or to any
space therein to such a decree as to be objectionable to Landlord or to any
tenants in the Building shall be placed and maintained by Tenant, at Tenant's
expense on vibration eliminators or other devices sufficient to eliminate noise
or vibration. The persons employed to move such equipment in or out of the
Building must be acceptable to Landlord.
16. Each tenant shall store all its trash and garbage within the interior of the
Premises or as otherwise directed by Landlord from time to time Tenant shall not
place in the trash boxes or receptacles any personal trash or any material that
may not or cannot be disposed of In the ordinary and customary manner of
removing and disposing of trash and garbage in the city without violation of any
law or ordinance governing such disposal.
17. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Protect are prohibited and each
tenant shall cooperate to prevent the same. No tenant shall make room-to-room
solicitation of business from other tenants in the Building or the Protect,
without the written consent of Landlord.
18. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building and the
Protect.
19. Landlord reserves the right to exclude or expel from the Protect any person
who, in Landlord's judgment, is under the influence of alcohol or drugs or who
commits any act in violation of any of these Rules and Regulations.
20. Without the prior written consent of Landlord, Tenant shall not use the name
of the Building or the Protect or any photograph or other likeness of the
Building or the Protect in connection with, or in promoting or advertising,
Tenant's business except that Tenant may include the Building's or Project's
name in Tenant's address.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
22. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and Pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
23. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's Guests shall park between designated parking
lines only, and shall not occupy two parking spaces with one car. No trucks,
truck tractors, trailers or fifth wheel are allowed to be parked anywhere at any
time within the Protect other than In Tenant's own truck dock well. Vehicles in
violation of the above shall be subject to tow-away, at vehicle owner's expense.
Vehicles parked on the Protect overnight without prior written consent of the
Landlord shall be deemed abandoned and shall be subject to tow-away at vehicle
owner's expense. No tenant of the Building shall park in visitor or reserved
parking areas or loading areas. Any tenant found parking in such designated
visitor or reserved parking areas or loading areas or unauthorized areas shall
be subject to tow-away at vehicle owner's expense. The Parking areas shall not
be used to provide car wash, oil changes, detail, automotive repair or other
services unless otherwise approved or furnished by Landlord. Tenant will from
time to time, upon the request of Landlord, supply Landlord with a list of
license plate numbers of vehicles owned or operated by its employees or agents.
24. No Tenant is allowed to unload, unpack, pack or in any way manipulate any
products, materials or goods in the common areas of the Project including the
parking and driveway areas of the Project. All products, goods and materials
must be manipulated, handled, kept, and stored within the Tenant's Premises and
not in any exterior groan, including, but not limited to, exterior dock
platforms, against the exterior of the Building, parking areas and driveway
areas of the Project. Tenant also agrees to keep the exterior of the Premises
clean and free of nails, wood, pallets, packing materials, barrels' and any
other debris produced from their operation. All products, materials and goods
are to enter and exit the Premises by being loaded or unloaded through dock high
doors into trucks and or trailers, over dock high loading platforms into trucks
and or trailers or loaded or unloaded into trucks and or trailers within the
Premises through grade level door access.
25. Tenant shall be responsible for the observance of all of the foregoing Rules
and Regulations by Tenant's employees, agents, clients, customers, invitees and
guests.
26. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms, covenants,
agreements and conditions of any leave of any premises in the Protect.
27. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all tenants of the Building.
Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and the Project and for the
preservation of good order therein Tenant agrees to abide by all such Rules and
Regulations herein stated and any additional rules and regulations which are
adopted.
EXHIBIT B
SITE PLAN
[INSERT SITE PLAN HERE]
[Graphic shows the site plan of Ravendale Drive, which includes the location of
Buidlings 1 and 2 and the parking areas.]
EXHIBIT B.1
SITE PLAN
[INSERT SECOND SITE PLAN HERE]
[Graphic shows the site plan of Spieker Properties (385 Ravendale) which
includes the location of the lobby, labs, training room, cafe, conference room,
restrooms and offices.]
EXHIBIT C
LEASE IMPROVEMENT AGREEMENT
NONE
EXHIBIT D
---------
HAZARDOUS MATERIALS QUESTIONNAIRE
---------------------------------
This questionnaire is designed to solicit information regarding Tenant's
proposed use, generation, treatment, storage, transfer or disposal of hazardous
or toxic materials, substances or wastes. If this Questionnaire is attached to
or provided in connection with a lease, the reference herein to any such items
shall include all items defined as "Hazardous Materials," "Hazardous
Substances," "Hazardous Wastes," "Toxic Materials," "Toxic Substances," "Toxic
Wastes," or such similar definitions contained in the lease. Please complete the
questionnaire and return it to Landlord for evaluation. If your use of materials
or substances, or generation of wastes is considered to be significant, further
information may be requested regarding your plans for hazardous and toxic
materials management. Your cooperation in this matter is appreciated. If you
have any questions, do not hesitate to cell us for assistance.
1. PROPOSED TENANT
Name (Corporation, Individual, Corporate or Individual DBA, or Public
Agency): INTERWOVEN. INC.
--------------------------------------------------------------------------
Standard Industrial Classification Code (SIC):
---------------------------
Street Address: 119 W. Fremont Ave.
------------------------------------------------------
City, State, Zip Code: Sunnyvale, CA 94087
-----------------------------------------------
Contact Person & Title:
------------------------------------------------
Telephone Number: ( ) Facsimile Number:
----------------- -----------
2. LOCATION AND ADDRESS OF PROPOSED LEASE
Street Address: 385 Ravendale Drive
------------------------------------------------------
City, State, Zip Code: Mountain View, CA
------------------------------------------------
Bordering Streets:
------------------------------------------------
Streets to which Premises has Access:
-------------------------------------
3. DESCRIPTION OF PREMISES
Floor Area:
------------------------------------------------------
Number of Parking Spaces:
-----------------------------------------------
Date of Original Construction:
-------------------------------------------
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Past Uses of Premises:
------------------------------------------------
Dates and Descriptions of Significant Additions, Alterations or Improvements:
- --------------------------------------------------------------------------------
Proposed Additions, Alterations or Improvements, if any:
-----------------------
- --------------------------------------------------------------------------------
4. DESCRIPTION OF PROPOSED PREMISES USE
Describe proposed use and operation of Premises including (i) services
to be performed, (ii) nature and types of manufacturing or assembly
processes, if any, and (iii) the materials or products to be stored at
the Premises.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Will the operation of your business at the Premises involve the use,
generation, treatment, storage, transfer or disposal of hazardous
wastes or materials? Do they now? Yes No X If the answer is
--- ---
"yes," or if your SIC code number is between 2000 to 4000, please
complete Section V.
5. PERMIT DISCLOSURE
Does or will the operation of any facet of your business at the
Premises require any permits, licenses or plan approvals from
any of the following agencies?
U.S. Environmental Protection Agency Yes No X
--------------------------
City or County Sanitation District Yes No X
--------------------------
State Department of Health Services Yes No X
--------------------------
U.S. Nuclear Regulatory Commission Yes No X
--------------------------
Air Quality Management District Yes No X
--------------------------
Bureau of Alcohol, Firearms and Tobacco Yes No X
--------------------------
City or County Fire Department Yes No X
--------------------------
Regional Water Quality Control Board Yes No X
--------------------------
Other Governmental Agencies (if yes, Yes No X
--------------------------
identify: )
If the answer to any of the above is "yes," please indicate permit or
license numbers, issuing agency and expiration date or renewal
date, if applicable.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
If your answer to any of the above is "yes," please complete Sections
VI and VII.
6. HAZARDOUS MATERIALS DISCLOSURE
Will any hazardous or toxic materials or substances be stored on the
Premises?
Yes No X If the answer is "yes," please describe the
materials or substances to be stored, the quantities thereof
and the proposed method of storage of the same (i.e., drums,
aboveground or underground storage tanks, cylinders, other),
and whether the material is a Solid (S), Liquid (L) or Gas
(G):
Material Quantity to be Amount to be Maximum
Substance Stored on Stored on a Period of
--------- Premises Storage Method Monthly Basis Premises Storage
-------- -------------- ------------- ----------------
----------- ------------ --------------- -------------- ---------------
----------- ------------ --------------- -------------- ---------------
----------- ------------ --------------- -------------- ---------------
Attach additional sheets if necessary.
Is any modification of the Premises improvements required or planned to
mitigate the release of toxic or hazardous materials substance
or wastes into the environment?
Yes No X
-------------------
If the answer is "yes," please describe the proposed Premises
modifications:
7. HAZARDOUS WASTE DISCLOSURE
Will any hazardous waste, including recyclable waste, be generated by
the operation of your business at the Premises? Yes No X
If the answer -------------
is "yes," please list the hazardous waste which is expected to be
generated (or potentially will be generated) at the Premises, its
hazard class and volume/frequency of generation on a monthly basis.
Maximum Period
Waste Name Hazard Class Volume/Month of Premises Storage
---------- ------------ ------------ -------------------
----------------- ----------------- ------------------ ----------------------
----------------- ----------------- ------------------ ----------------------
Attach additional sheets if necessary.
If the answer is "yes," please also indicate if any such wastes are to
be stored within the Premises and the proposed method of
storage (i.e., dorms, aboveground or underground storage
tanks, cylinders, other).
Waste Name Storage Method
---------- --------------
----------------- -----------------
----------------- -----------------
Attach additional sheets if necessary.
If the answer is "yes;" please also describe the methods) of disposal
for each waste. Indicate where disposal will take place including the
methods, equipment and companies to be used to transport the waste:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Is any treatment or processing of hazardous wastes to be conducted at
the Premises?
Yes No X If the answer is "yes," please describe proposed
------------
treatment/processing methods:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Which agencies are responsible for monitoring and evaluating compliance
with respect to the storage and disposal of hazardous
materials or wastes at or from the Premises? (Please list all
agencies):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Have there been any agency enforcement actions regarding Tenant (or any
affiliate thereof, or any existing Tenant's (or any
affiliate's) facilities, or any past, pending or outstanding
administrative orders or consent decrees with respect to
Tenant or any affiliate thereof? Yes- No-yes No X If the
answer is "yes," have there been any continuing compliance
obligations imposed on Tenant or its affiliates as a result of
the decrees or orders? Yes _ No- If the answer is "yes,"
please describe:
Has Tenant or any of its affiliates been the recipient of requests for
information, notice and demand letters, cleanup and abatement
orders, or cease and desist orders or other administrative
inquiries? Yes No X If the answer is "yes," please describe:
--------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Are there any pending citizen lawsuits, or have any notices of
violations been provided to Tenant or its affiliates or with
respect to any existing facilities pursuant to the citizens
salt provisions of any statute? Yes No X If the answer is
"yes," please describe: --------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Have there been any previous lawsuits against the company regarding
environmental concerns?
Yes No X If the answer is "yes," please describe how these
-------------- lawsuits were resolved:
----------------------------------------------------------------------
----------------------------------------------------------------------
---------------------------------------------------------------------
Has an environmental audit ever been conducted at any of your company's
existing facilities?
Yes No X If the answer is "yes," please describe:
-----------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Does your company carry environmental impairment insurance?
Yes No X If the answer is "yes," what is the name of the
------------ carrier and what are the effective periods and monetary
limits of such coverage?
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
8. EQUIPMENT LOCATED OR TO BE LOCATED AT THE PREMISES
Is (or will there be) any electrical transformer or other equipment
containing polychlorinated biphenyls located at the Premises?
Yes No X If the answer is "yes;" please specify the size,
--------
number and location (or proposed location):
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Is (or will there be) any tank for storage of a petroleum product
located at the Premises? Yes No X If the answer is "yes,"
--------
please specify capacity and contents of tank; permits,
licenses and/or approvals received or to be received therefor
and any spill prevention control or conformance plan to he
taken in connection therewith:
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
9. ONGOING ACTIVITIES (APPLICABLE TO TENANTS IN POSSESSION)
Has any hazardous material, substance or waste spilled, leaked,
discharged, leached, escaped or otherwise been released into
the environment at the Premises? Yes No If the
----- ------
answer is "yes," please describe including (i) the date and
duration of each such release, (ii) the material, substance or
waste released, (iii) the extent of the spread of such release
into or onto the air, soil and/or water, (iv) any action to
clean up the release, (v) any reports or notifications made of
filed with any federal, state, or local agency, or any
quasi-governmental agency (please provide copies of such
reports or notifications) and (vi) describe any legal,
administrative or other action taken by any of the foregoing
agencies or by any other person as a result of the release:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
This Hazardous Materials Questionnaire is certified as being true and
accurate and has been completed by the party whose signature
appears below on behalf of Tenant as of the date set forth
below.
DATED: 5/4/00
-----------
Signature /s/ David M. Allen
---------------------------------
Print Name David M. Allen
--------------------------------
Title VP & CFO
-------------------------------------
EXHIBIT F
---------
WELLS FARGO BANK, N.A.
TRADE SERVICES DIVISION, NORTHERN CALIFORNIA
525 MARKET STREET, 25TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
Contact Phone: 1-800-798-2815 (Option No. 1)
IRREVOCABLE LETTER OF CREDIT
Ariba, Inc. Letter of Credit No. _________
807 Eleventh Avenue Date: June __, 2001
Sunnyvale, CA 94089
Attention: Real Estate Manager
Ladies and Gentlemen:
At the request and for the account of Interwoven, Inc., whose address is
1195 West Fremont Avenue, Sunnyvale, CA 94087, we hereby establish our
Irrevocable Letter of Credit in favor of Ariba, Inc., as Beneficiary, in the
amount of Eight Million Five Hundred Thousand United States Dollars
(US$8,500,000.00), available with us at our above-specified office by payment of
your draft(s) drawn on us at sight, substantially in the form of Exhibit A
(which forms an integral part of this Irrevocable Letter of Credit) attached
hereto.
Each draft must be accompanied by (1) the original of this Letter of Credit
for our endorsement on this Letter of Credit of our payment of such draft, and
(2) a document substantially as described in Paragraph I or substantially as
described in Paragraph II:
I. A statement signed by an officer of Beneficiary stating:
"I am an authorized officer of Ariba, Inc. Interwoven, Inc.,
as the Subtenant, and Ariba, Inc., as the Sublandlord, are
parties to that certain Sublease dated June ___, 2001, with
respect to those certain Premises located in the City of
Sunnyvale, California, as more particularly described in the
Sublease. As security for Interwoven's performance under the
Sublease, Interwoven obtained from Wells Fargo Bank that
certain Irrevocable Letter of Credit Number _______, dated
_______________. I hereby certify that Interwoven has failed
to timely perform or observe an obligation under the
Sublease, pursuant to which Ariba is now entitled to draw on
said Letter of Credit."
II. A statement signed by an officer of Beneficiary stating:
"I am an authorized officer of Ariba, Inc. Interwoven, Inc., as the
Subtenant, and Ariba, Inc., as the Sublandlord, are parties to that certain
Sublease dated June ___, 2001, with respect to those certain Premises
located in the City of Sunnyvale, California, as more particularly
described in the Sublease. As security for Interwoven's performance under
the Sublease, Interwoven obtained from Wells Fargo Bank that certain
Irrevocable Letter of Credit Number _______, dated _______________. I
hereby certify that less than forty-five (45) days remains prior to the
expiration of said Letter of Credit, and Interwoven has not provided Ariba
with evidence of renewal of the Letter of Credit or we have received a
non-renewal notice under Wells Fargo Bank, N.A. Letter of Credit _____, nor
has Interwoven provided Ariba with a substitute letter of credit or cash as
permitted for a replacement of the Letter of Credit as provided for in the
Sublease."
.
With respect to Statements I and II above, we certify that we will not
inquire as to the accuracy of such statements, nor shall we consider any
disputes by Interwoven, Inc. regarding the content of such statements.
Partial and multiple drawings are permitted under this Letter of Credit.
Each draft must be marked "Drawn under Wells Fargo Bank, N.A. Letter of
Credit No. ______."
Except as stated in this Letter of Credit, our undertaking in this Letter
of Credit is not subject to any condition or qualification. Our obligation under
this Letter of Credit will be our individual obligation in no way contingent
upon reimbursement with respect thereto.
If any instructions accompanying a drawing under this Letter of Credit
request that payment is to be made by transfer to an account with us or at
another bank, we and/or such other bank may rely on an account number specified
in such instructions even if the number identifies a person or entity different
from the intended payee.
This Letter of Credit is transferable one or more times, but in each
instance to a single transferee and only in the full amount available to be
drawn under the Letter of Credit at the time of such transfer. Any such transfer
may be effected only through ourselves and only upon presentation to us at our
above-specified office of a duly executed instrument of transfer substantially
in the format attached hereto as Exhibit B (which forms an integral part of this
Irrevocable Letter of Credit), together with the original of this Letter of
Credit and signed document as described above. Any transfer of this Letter of
Credit may not change the place of expiration of this Letter of Credit from our
above-specified office. Each transfer shall be evidenced by our endorsement on
the reverse of the original of this Letter of Credit, and we shall deliver the
original of this Letter of Credit so endorsed to the transferee. All charges in
connection with any transfer shall be for the account of Interwoven, Inc.
This Letter of Credit expires at our above office on June 30, 2002, but
shall be automatically extended, without written amendment, to June 30 in each
succeeding calendar year (the "Annual Renewal Date") (provided that the final
expiration date shall not extend beyond February 23, 2012), unless we have sent
written notice to you at your address above by registered mail or express
courier that we elect not to renew this letter of credit beyond the date
specified in such notice which date will be June 30, 2002, or any subsequent
June 30 occurring before February 23, 2012. Any such notice of nonrenewal shall
be sent at least forty-five (45) calendar days prior to the Annual Renewal Date.
This Letter of Credit is subject to the Uniform Customs and Practice For
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and engages us in accordance therewith.
Very truly yours
WELLS FARGO BANK, N.A.
BY: _____________________________
(AUTHORIZED SIGNATURE)
Exhibit A
Wells Fargo Bank, N.A.
Letter of Credit No. _________
================================================================================
_____________________, CALIFORNIA [insert date]
-------------------------------------------
AT SIGHT PAY TO THE ORDER OF [insert Beneficiary name]__US$ [insert amount in
numbers]
[insert amount in words] U.S. DOLLARS
- -------------------------------------------------------
DRAWN UNDER WELLS FARGO BANK, N.A. LETTER OF CREDIT NO. _______________
THIS SIGHT DRAFT IS ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND WRITTEN
CERTIFICATION OF AN OFFICER OF BENEFICIARY AS REQUIRED BY THE LETTER OF CREDIT.
TO: WELLS FARGO BANK, N.A. [insert Beneficiary name]
(p) ADDRESS: ---------------------------
[insert signature]
------------------------------
AUTHORIZED SIGNATURE
================================================================================
[insert Beneficiary name and insert signature on the back of the draft as an
endorsement]
Exhibit B
Wells Fargo Bank, N.A.
Letter of Credit No. _________
================================================================================
Date: _______________
Wells Fargo Bank, N.A.
Trade Services Division, Northern California
525 Market Street, 25th Floor
San Francisco, California 94105
Subject: Your Letter of Credit No. _________
Ladies and Gentlemen:
For value received, we hereby irrevocably assign and transfer all our
rights under the above-captioned Letter of Credit, as heretofore and hereafter
amended, extended or increased, to:
-------------------------
[insert name of transferee]
-------------------------
-------------------------
[insert address]
By this transfer, all of our rights in the Letter of Credit are transferred
to the transferee, and the transferee shall have sole rights as beneficiary
under the Letter of Credit, including sole rights relating to any amendments,
whether increases or extensions or other amendments, and whether now existing or
hereafter made. You are hereby irrevocably instructed to advise future
amendment(s) of the Letter of Credit to the transferee without our consent or
notice to us.
Enclosed are the original Letter of Credit and the original of all
amendments to this date. Please notify the transferee of this transfer and of
the terms and conditions of the Letter of Credit as transferred. This transfer
will not become effective until the transferee is so notified.
Very truly yours,
[insert name of transferor]
By: ______________________________
Name: __________________________
Title: __________________________
Signature of Transferor Authenticated
[insert name of bank]
By: ______________________________
Name: __________________________
Title: __________________________
EXHIBIT G
---------
CONSENT TO SUBLEASE
CONSENT TO SUBLEASE
-------------------
This Consent to Sublease (this "Sublease Consent") is made and entered into
as of August 3, 2001, by and among Moffett Park Drive LLC, a California limited
liability company ("Moffett"), Ariba, Inc., a Delaware corporation ("Ariba"),
and Interwoven, Inc., a Delaware corporation ("Interwoven").
RECITALS
--------
A. Moffett and Ariba entered into the Technology Corners Triple Net
Multiple Building Lease Between Moffett Park Drive LLC, a California limited
liability company as Lessor and Ariba, Inc., a Delaware corporation as Lessee
for Premises at 1111 Lockheed Martin Way, Sunnyvale, California 94089, pursuant
to which Moffett leased to Ariba certain premises consisting of the buildings
commonly known as Buildings 1, 2, 3 and 4 at 1111 Lockheed Martin Way,
Sunnyvale, California with individual addresses for those buildings on Eleventh
Avenue in Sunnyvale, California (the "Premises"). The initial lease has been
amended by a letter agreement dated September 11, 2000, and a First Amendment to
Lease dated January 12, 2001, which, together with the initial lease, are
collectively referred to herein as the "Master Lease." All capitalized terms
used in this Sublease Consent and not defined herein have the same meaning as in
the Master Lease.
B. Ariba desires to sublease to Interwoven a portion of the Premises (such
portion herein called the "Sublease Premises") pursuant to an Amended and
Restated Sublease Agreement dated June 28, 2001 (the "Sublease"). The Sublease
Premises consist of approximately 263,823 rentable square feet of space
consisting of an entire building commonly known as 803 Eleventh Avenue and a
portion of a building commonly known as 809 Eleventh Avenue, Sunnyvale,
California. Moffett is willing to consent to the Sublease, subject to the terms
and conditions of this Sublease Consent.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Moffett, Ariba and Interwoven agree as follows:
1. Consent to Sublease.
-------------------
(a) Subject to the terms and conditions of this Sublease Consent,
Moffett hereby consents to the execution and delivery of the Sublease by Ariba
and Interwoven for the Sublease Premises. Nothing in this Sublease Consent or in
the Sublease shall be deemed a waiver by Moffett or Ariba of any right that it
may have to terminate or amend the Master Lease pursuant to the terms thereof or
as otherwise may be agreed upon by Moffett and Ariba. As between Ariba and
Interwoven, the preceding sentence shall not be deemed to amend or modify the
restrictions on Ariba's right to terminate or amend the Master Lease as
specified in the Sublease.
(b) The foregoing consent shall not operate as approval or
ratification by Moffett of any provisions of the Sublease and Moffett shall not
be bound by or estopped in any way by the provisions of the Sublease.
2. Sublease Subordinate. The Sublease is and shall be at all times subject
--------------------
and subordinate to the Master Lease. Except as expressly provided in
subparagraphs 3(a), (d), (e), (f), (g), (h), (i), (j), (l) and (m) and
Paragraphs 7, 8, 9, 10, 11, 12 and 13 below, nothing in this Sublease Consent
shall be construed to modify, waive or affect any of the provisions, covenants
or conditions in the Master Lease, Ariba's obligations under the Master Lease,
or any rights or remedies of Moffett under the Master Lease, or to enlarge or
increase Moffett's obligations or Ariba's obligations under the Master Lease.
Interwoven shall have no right, and there shall not be vested in Interwoven any
right, to exercise rights of first refusal, options, or other similar
preferential rights, if any, given to Ariba as the Lessee under the Master
Lease.
3. Additional Consents and Agreements.
----------------------------------
(a) Moffett agrees that any sub-sublease, assignment or other transfer
of any interest in the Sublease Premises by Interwoven shall be exempted from,
and shall not invoke, Moffet's right to recapture as set forth in Section 11.06
of the Master Lease "Lessor's Recapture Rights," including any relocated
Sublease Premises to which Moffett has consented. Any sub-sublease, assignment
or other transfer shall require the prior written consent of Moffett, which
shall not be unreasonably withheld or delayed subject to all other terms and
conditions of the Master Lease.
(b) Moffett and Ariba each acknowledges and agrees that Interwoven
shall not at any time or to any extent whatsoever be liable, responsible or in
any way accountable for any loss or liability which may at any time be suffered
or sustained by Moffett arising from or in any way related to, directly or
indirectly, the failure of Ariba to pay Excess Rent (as that term is used in
Section 11.04 of the Master Lease).
(c) Moffett consents to that certain Option to Extend Term granted to
Interwoven pursuant to the Sublease for approximately sixty-four (64) months and
twenty-four (24) days commencing August 1, 2007 and ending December 24, 2012,
unless earlier terminated.
(d) Moffett consents to Interwoven's use of any ordinary and customary
Hazardous Materials reasonably required to be used in the normal course of the
Agreed Use (as defined in the Sublease), so long as such use (i) is in
compliance with all Applicable Requirements (as defined in the Sublease), (ii)
is not a Reportable Use (as defined in the Sublease), (iii) does not expose the
Sublease Premises, the Premises or neighboring property to any meaningful risk
of contamination or damage, and (iv) is in compliance with the last two
sentences of Section 17.22(c) and all of Section 17.22(d), (f) and (g) of the
Master Lease.
(e) Moffett consents to the removal, prior to the expiration or sooner
termination of the Master Lease, of the generator Interwoven intends to install
at the Project after obtaining Moffett's prior written consent, subject to all
terms and conditions concerning alterations and surrender under the Master
Lease. Moffett will require, among other things, that an appropriate enclosure
be installed by Interwoven pursuant to plans and specifications approved by
Moffett. Notwithstanding the foregoing, Moffett acknowledges and agrees that
neither Interwoven nor Ariba shall be required to remove the subpanels, related
feeder lines, and items constituting the structure upon which the generator is
to be located. Moffett waives its
rights under Section 6.03 of the Master Lease (or otherwise) to require that the
generator be removed or be left in place upon expiration or termination of the
Sublease or the Master Lease.
(f) Ariba and Interwoven have agreed to negotiate in good faith to
create and execute formal agreements for access to the fitness center and
cafeteria, which agreements shall be subject to Moffett's consent, which consent
Moffett agrees not to unreasonably withhold or delay.
(g) Moffett consents to storage and use of 660 gallons of diesel fuel,
even though such amount is a reportable quantity, so long as such use (i) is in
compliance with all Applicable Requirements (as defined in the Sublease) and
Interwoven complies with all reporting requirements related thereto, (ii) does
not expose the Sublease Premises, the Premises or neighboring property to any
meaningful risk of contamination or damage, and (iii) complies with the last two
sentences of Section 17.22(c) and all of Section 17.22 (d), (f) and (g) of the
Master Lease.
(h) For purposes of Section 3.01(d) of the Master Lease, Interwoven
and Ariba shall be deemed to satisfy the occupancy requirement so long as
Interwoven commences its fixturing and/or construction of the Subtenant
Improvements (as defined in the Work Letter Agreement attached as Exhibit I to
the Sublease (the "Work Letter") within thirty (30) days following the date of
full execution of this Consent to Sublease.
(i) Moffett and Ariba hereby approve the conceptual plans for the
Building Improvements (as defined in the Work Letter) portion of the Subtenant
Improvements, which are comprised of the following: (a) a two page document, the
first of which is a schematic drawing of Building One, Floor One ("B1F1"), and
the second page of which contains programming information for B1F1; and (b) a
nine page document that contains a portion of the finish specifications for B1F1
(collectively, the "Building Conceptual Plans") a copy of which is attached
hereto as Exhibit A. Moffett agrees not to unreasonably withhold or delay
approval of construction drawings and specifications (including detailed finish
standards that are identical to those set forth in the Building Conceptual Plans
or to the finishes, hardware, doors and other tenant improvement items that were
installed or constructed on floors 2, 3 and 4 of Building 1) that are logical
evolutions of the Building Conceptual Plans (subject to any other applicable
requirements of the Master Lease). Further, at the expiration or sooner
termination of the Sublease or the Master Lease, Moffett shall not require
Interwoven or Ariba to remove any of the improvements shown in the Building
Conceptual Plans and constructed pursuant to construction drawings and
specifications approved by Moffett or to restore the Sublease Premises to its
prior condition.
(j) Moffett and Ariba hereby approve the conceptual plans for the
Exterior Improvements (as defined in the Work Letter) portion of the Subtenant
Improvements consisting of (i) a two page document prepared by DES that is a
schematic rendering of (1) proposed exterior shipping & receiving area and (2)
proposed generator enclosure to be adjacent to parking garage; and (ii) a two
page document prepared by Walters & Wolf that is a schematic rending of a
proposed door installation into the B1 exterior skin (the "Exterior Conceptual
Plans"), a copy of which is attached hereto as Exhibit B. Moffett agrees not to
unreasonably withhold or delay
approval of construction drawings and specifications that are logical evolutions
of the Exterior Conceptual Plans (subject to any other applicable requirements
of the Master Lease including, without limitation, consistency of specifications
with existing exterior elements at the Premises). Further, at the expiration or
sooner termination of the Sublease or the Master Lease, Moffett shall not
require Interwoven or Ariba to remove any of the improvements shown in the
Exterior Conceptual Plans and constructed pursuant to construction drawings and
specifications approved by Moffett, or to restore the Project exteriors to its
prior condition.
(k) Moffett hereby approves (i) SC Builders as Interwoven's general
contractor to construct the Subtenant Improvements, (ii) DES as Interwoven's
architect for preparation of the plans and specifications for the Exterior
Improvements, (iii) Arc-Tec as Interwoven's architect for preparation of the
plans and specifications for the Building Improvements, and (iv) Walters & Wolf
as Interwoven's subcontractor for the modification, fabrication and installation
work regarding preparation of plans and specifications for the exterior door
portion of the Subtenant Improvements.
(l) Provided that Interwoven's exterior building signage substantially
complies with the permit application (including the method of installation to
the exterior of the building) to be submitted by Ariba to the City of Sunnyvale
(a copy of which is attached as Exhibit O to the Sublease), Moffett shall not
withhold or delay its approval of such exterior building signage.
(m) Notwithstanding the amount of Base Rent provided for under the
Sublease, Moffett and Ariba agree that for purposes of calculating the Excess
Rent under Section 11.04 of the Master Lease, Ariba shall be entitled to first
deduct the following amounts ("Excluded Base Rent") from the amount received
from Interwoven under the Sublease:
- ------------------------------------------------ ----------------------------
Period - Initial Term Excluded Base Rent
(Monthly)
- ------------------------------------------------ ----------------------------
August 1, 2001-September 30, 2001 66,255.75
- ------------------------------------------------ ----------------------------
October 1, 2001-July 31, 2002 68,281.98
- ------------------------------------------------ ----------------------------
August 1, 2002-July 31, 2003 70,032.80
- ------------------------------------------------ ----------------------------
August 1, 2003-July 31, 2004 71,232.21
- ------------------------------------------------ ----------------------------
August 1, 2004-July 31, 2005 73,870.44
- ------------------------------------------------ ----------------------------
August 1, 2005-July 31, 2006 76,508.67
- ------------------------------------------------ ----------------------------
August 1, 2006-July 31, 2007 79,146.90
- ------------------------------------------------ ----------------------------
Period - Option Term
- ------------------------------------------------ ----------------------------
8/1/07 to 7/31/08 65,955.78
- ------------------------------------------------ ----------------------------
8/1/08 to 7/31/09 65,955.92
- ------------------------------------------------ ----------------------------
8/1/09 to 7/31/10 65,955.52
- ------------------------------------------------ ----------------------------
8/1/10 to 7/31/11 65,956.12
- ------------------------------------------------ ----------------------------
8/1/11 to 7/31/12 65,895.72
- ------------------------------------------------ ----------------------------
8/1/12 to 12/24/12 65,955.78
- ------------------------------------------------ ----------------------------
4. No Release of Ariba. Except as expressly provided in Paragraphs 3 and 10
-------------------
of this Sublease Consent, Moffett's consents hereunder shall not release Ariba
as the Lessee under the Master Lease of any of its obligations under the Master
Lease, or release or alter the liability of Ariba to pay rent and all other sums
due under the Master Lease and to perform, oversee and comply with all other
obligations of Lessee under the Master Lease, and Ariba's agreements hereunder
shall not release Moffett as the Lessor under the Master Lease of any of its
obligations under the Master Lease.
5. Sublease Consent to Govern. In the case of any conflict between the
--------------------------
express terms of this Sublease Consent and the provisions of the Sublease or the
Master Lease, the provisions of this Sublease Consent shall prevail.
Notwithstanding anything to the contrary contained in the Sublease, Moffett
shall have no obligation (i) to Ariba in connection with the Premises other than
those obligations expressly set forth in the Master Lease, this Sublease Consent
and/or the Recognition Agreement, the existing Ariba Subordination,
Non-Disturbance and Attornment Agreements from Moffett's lenders, the Interwoven
Subordination, Non-Disturbance and Attornment Agreements from Moffett's lenders
and the Tri-Party Agreement between Moffett, Ariba and Moffett's lenders, or
(ii) to Interwoven under the Sublease.
6. Moffett Not Party to Sublease. Moffett shall not by reason of this
-----------------------------
Sublease Consent (a) be bound by or become a party to the Sublease, (b) be
deemed to have accepted the attornment of Interwoven, or (c) be deemed liable to
Interwoven (x) for any failure of Ariba to perform and comply with Ariba's
obligations under the Sublease or (y) in connection with the Sublease Premises,
for obligations other than those obligations expressly set forth in this
Sublease Consent, the Recognition Agreement and/or the Interwoven Subordination,
Non-Disturbance and Attornment Agreements.
7. Recognition Agreement. Simultaneously with the execution hereof Moffett,
---------------------
Ariba and Interwoven have executed a Recognition Agreement of even date
herewith.
8. Indemnity.
---------
(a) Except to the extent any Claim which results from the gross
negligence or willful misconduct of Moffett or results from a breach by Ariba
under the Master Lease or the Sublease, which is not also a breach by Interwoven
under the Sublease, Interwoven hereby indemnifies and agrees to defend, protect
and hold harmless Moffett and the employees, representatives, directors,
officers, agents and lenders of Moffett, against and from any and all losses,
claims, liabilities, judgments, costs, demands, causes of action, and expenses
(including, without limitation, reasonable attorneys' fees and consultants'
fees) (collectively "Claims") to the extent arising from or related to the death
or injury of any person, including Interwoven's Agents (as defined below), or by
damage to or destruction of any property, including any property owned by
Interwoven or Interwoven's Agents, caused by or allegedly caused as a result of
(i) Interwoven's use of the Sublease Premises or from any activity done,
permitted or suffered by Interwoven in, on, or about the Sublease Premises; (ii)
any breach, default, or other act or omission by Interwoven its employees,
representatives, directors, officers, sublessees, assignees,
agents or invitees (collectively "Interwoven's Agents") in connection with or
related to the Master Lease and/or the Sublease, or the Sublease Premises, (iv)
any action or proceeding brought on account of any matter referred to in items
(i) or (ii) of this Paragraph 8(a). If any action or proceeding is brought
against Moffett by reason of any such Claims, upon notice from Moffett,
Interwoven shall defend the same at Interwoven's sole expense. The obligations
of Interwoven under this Paragraph 8(a) shall survive any termination of the
Sublease or the Master Lease.
(b) Except to the extent any Claim results from the gross negligence
or willful misconduct of Moffett, Ariba hereby indemnifies and holds harmless
Moffett and the employees, representatives, directors, officers, agents and
lenders of Moffett from any and all Claims to the extent arising from or related
to the death or injury of any person, including Ariba's Agents (as defined
below), or by damage to or destruction of any property, including any property
owned by Ariba or Ariba's Agents, caused by or allegedly caused as a result of
(i) Ariba's or Interwoven's use of the Sublease Premises or from any activity
done, permitted or suffered by Ariba or Interwoven in, on, or about the Sublease
Premises; (ii) any breach, default, or other act or omission by Ariba its
employees, representatives, directors, officers, agents, sublessees, assignees,
or invitees (collectively "Ariba's Agents") in connection with or related to the
Master Lease or the Sublease, or the Sublease Premises, (iii) any action or
proceeding brought on account of any matter referred to in items (i) or (ii), of
thisParagraph 8(b). If any action or proceeding is brought against Moffett by
reason of any such Claims, upon notice from Moffett, Ariba shall defend the same
at Ariba's sole expense. The obligations of Ariba under this Paragraph 8(b)
shall survive any termination of the Sublease or the Master Lease and are in
addition to, and cumulative with, Ariba's indemnity obligations under the Master
Lease.
(c) Except to the extent any Claim results from the gross negligence
or willful misconduct of Ariba or Ariba's Agents, or Ariba's material default of
the provisions of the Sublease beyond any applicable cure period, Interwoven
hereby indemnifies and agrees to defend, protect and hold harmless Ariba and the
employees, representatives, directors, officers, agents and lenders of Ariba,
against and from any and all Claims to the extent arising from or related to the
death or injury of any person, including Interwoven's Agents, or by damage to or
destruction of any property, including any property owned by Interwoven or
Interwoven's Agents, caused by or allegedly caused as a result of (i)
Interwoven's use of the Sublease Premises or from any activity done, permitted
or suffered by Interwoven in, on, or about the Sublease Premises; (ii) any
breach, default or other act or omission by Interwoven or Interwoven's Agents in
connection with or related to the Master Lease or the Sublease, or the Sublease
Premises; (iii) any action or proceeding brought on account of any matter
referred to in items (i) or (ii) of this Paragraph 8(c). If any action or
proceeding is brought against Ariba by reason of any such Claims, upon notice
from Ariba, Interwoven shall defend the same at Interwoven's sole expense. The
obligations of Interwoven under this Paragraph 8(c) shall survive any
termination of the Sublease and are in addition to, and cumulative with,
Interwoven indemnity obligations under the Sublease.
9. Assignment of Net Rent and Default.
----------------------------------
(a) Assignment of Net Rent. Ariba hereby assigns and transfers to
----------------------
Moffett all
of Ariba's interest in the "Net Rent" payable by Interwoven under the Sublease,
subject however, to terms of section 9(b) below and subject to the rights of
Moffett's lenders pursuant to this Sublease Consent and any subordination,
non-disturbance and attornment agreement to which Ariba, Interwoven and Moffett
are parties. For purposes of this Sublease Consent, the term "Net Rent" shall
mean that portion of the total amount of rent payable by Interwoven under the
Sublease during a given time period equal to the total rent payable with respect
to the Sublease Premises by Ariba under the Master Lease during the same time
period, including Moffett's portion of Excess Rent for such period of time. By
defining Net Rent in this manner, the intent of the parties is to exclude from
the assignment to Moffett Ariba's portion of the Excess Rent, and the
reimbursement by Interwoven of its portion of expenses incurred by Ariba to
which Moffett has no rights, and the "Excluded Base Rent" as defined in
subparagraph 3(m) above.
(b) License to Collect Sublease Rents. Moffett, by executing this
---------------------------------
Sublease Consent, agrees that during any period of time when there is no
outstanding uncured default in the payment of any sum or in the performance of
any obligations of Ariba under the Master Lease, Ariba may receive, collect and
enjoy the rents accruing under the Sublease. However, if Ariba shall default in
the payment of any sum or in the performance of its obligations to Moffett, then
Moffett may, at its option and in addition to all other rights and remedies
available under the Master Lease, at law or in equity, receive and collect,
directly from Interwoven, all Net Rent owing and to be owed under the Sublease
for the period of time that there exists an uncured default by Ariba. Moffett
shall not be deemed liable to Interwoven for any failure of Ariba to perform and
comply with Ariba's obligations to Interwoven by reason of this assignment of
Net Rent nor by reason of the collection of Net Rents or other sums from
Interwoven. Moffett shall notify Ariba of all amounts received under this
subparagraph (b) within five (5) business days after receipt and how such
amounts have been applied as a credit to amounts otherwise due from Ariba. All
amounts received and collected by Moffett from Interwoven or otherwise shall be
applied against Ariba's obligations under the Master Lease.
(c) Authorization to Direct Sublease Payments. Ariba hereby
-----------------------------------------
irrevocably authorizes and directs Interwoven to pay to Moffett the Net Rents as
identified in any written notice from Moffett ("Net Rent Notice") identifying
the amount of Net Rent and stating that either (i) a default exists (after
notice and the expiration of the applicable cure period in the Master Lease) in
the performance of Ariba's obligations under the Master Lease, or (ii) Ariba has
failed to timely perform or observe an obligation under the Master Lease and
Moffett is legally prevented from issuing a notice of default. Ariba agrees that
Interwoven shall have the right to rely upon any such Net Rent Notice from
Moffett, and that Interwoven shall pay the specified amount of Net Rent to
Moffett without any obligation or right to inquire as to whether such default
exists and notwithstanding any notice or claim from Ariba to the contrary. Ariba
shall have no right or claim against Interwoven for any such Net Rent so paid by
Interwoven. Moffett agrees to apply any such payments to Ariba's obligations
under the Master Lease.
(d) Additional Provisions. Except as provided in subparagraphs 9(b)
---------------------
and (c) above with respect to the payment of Net Rent to be paid as it falls due
under the Sublease, Interwoven shall not pay (before they are due under the
Master Lease) any amounts owing by Ariba without the express written consent of
Ariba. Interwoven shall provide to Ariba
concurrently with any payment to Moffett reasonable evidence of such payment.
Any sums paid directly by Interwoven to Moffett in accordance with this
paragraph 9 shall be credited toward the amounts payable by Interwoven to Ariba
under the Sublease. Moffett shall not, by reason of the foregoing (i) be bound
by or become a party to the Sublease, (ii) be deemed to have accepted the
attornment of Interwoven, or (iii) be deemed liable to Interwoven for any
failure of Ariba to perform and comply with Ariba's obligations under the
Sublease.
10. Insurance; Waiver of Subrogation.
--------------------------------
(a) Interwoven shall name each of Moffett and Ariba and each of their
respective lenders as an "additional insured" on all liability policies carried
by Interwoven with respect to the Sublease Premises.
(b) Moffett, Ariba and Interwoven (each, a "Waiving Party") hereby
release and relieve the others (each, a "Released Party"), and each Waiving
Party hereby waives its entire right of recovery against each Released Party,
for loss or damage to property arising out of or incident to the perils insured
against which perils occur, on or about the Premises, whether due to the
negligence of any of them, or their respective agents, employees contractors
and/or invitees to the extent (and only to the extent) of the insurance proceeds
received by the Waiving Party. To the extent required under the insurance
policies carried by a Waiving Party, such Waiving Party shall, give notice to
the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Sublease Consent and shall obtain from their
respective insurance carriers a waiver of the rights of subrogation.
11. Brokerage Commissions. Each party hereto represents and warrants to the
---------------------
other parties hereto, and shall indemnify and hold harmless the other parties
from any claim or liability arising out of a contrary assertion by any agent or
broker, that it has engaged no real estate brokers or finders in connection with
the transactions contemplated by the Sublease, except that (a) Ariba represents
and warrants to Moffett and to Interwoven that Ariba has agreed to pay Cushman &
Wakefield ("Ariba's Broker") a commission pursuant to a separate agreement
between Ariba and Ariba's Broker, payment of which shall be Ariba's sole
responsibility, and (b) Interwoven represents and warrants to Moffett and to
Ariba that Interwoven has retained CB Richard Ellis ("Interwoven's Broker"), and
(c) both Ariba and Interwoven represent and warrant that it is their
understanding that Interwoven's Broker shall be compensated pursuant to a
separate agreement between Ariba's Broker and Interwoven's Broker (the "Sharing
Agreement"), a copy of which is attached as an Exhibit to the Sublease. Ariba
represents and warrants to Moffett that the total aggregate compensation payable
by Airba with respect to the Sublease is Two Million Six Hundred Thirty Eight
Thousand, Two Hundred Thirty Dollars and No Cents ($2,638,230.00) (the "Total
Brokerage Commissions"). All parties agree that Moffett has and will have no
responsibility or liability with respect to Ariba's Broker or Interwoven's
Broker (for the Total Brokerage Commission or otherwise) as a result of
executing this Sublease Consent and the Recognition Agreement or with respect to
the transactions contemplated by either instrument.
12. Financial Statements, Estoppel Certificates and SNDAs. As part of the
-----------------------------------------------------
consideration for Moffett's consent hereunder, Interwoven agrees that the
provisions set forth in Sublease paragraphs 16, 29, 41 and 44 are incorporated
herein by this reference as obligations
owed to Moffett by Interwoven with references to "Sublandlord" being deemed
references to Moffett (and owed to Ariba as an obligation under the Sublease),
and Interwoven agrees to deliver the (i) Estoppel Certificate, (ii) financial
statements, (iii) writings (including Subordination, Non-Disturbance and
Attornment agreements) described in paragraph 29.3, (iv) documents described in
paragraph 41, or (v) modifications described in paragraph 44 within ten (10)
days after Moffett requests same, with copies to Ariba. Each of Interwoven's
obligations under this Paragraph 12 shall be considered an obligation under the
Sublease and, if Interwoven fails to sign and return any documents within said
ten (10) day period, Moffett shall give Interwoven a second notice. If
Interwoven fails to sign and return any such documents within ten (10) days
following receipt of the second notice, Interwoven shall be in Breach under
Subsection 13.1 (c) of the Sublease. Ariba agrees, as an obligation and covenant
under the Master Lease, to use commercially reasonable efforts to enforce
Interwoven's obligations under this Paragraph 12 and the failure to perform same
shall constitute a material default and breach of the Master Lease if not cured
within the time allowed under Subsection 12.01(d) of the Master Lease.
13. Notice From Ariba. Ariba shall provide written notice to Moffett within
-----------------
five (5) business days after the occurrence of any of the following: (a) the
exercise of the extension option under the Sublease; (b) the occurrence of any
holding over by Interwoven after the expiration or prior termination of the
Sublease; (c) the termination of the Sublease. Ariba shall also provide to
Moffett a copy of any default notice given to Interwoven at the time it is
served.
14. Notice From Interwoven. Interwoven shall provide written notice to
----------------------
Moffett within five (5) business days after the occurrence of any of the
following: (a) the exercise of the extension option under the Sublease; or (b)
any request by Interwoven to make alterations or additions or to make other
improvements to the Sublease Premises together with copies of all notices, plans
or other documents provided to Ariba or its representatives in connection
therewith. Interwoven shall also provide to Moffett a copy of any default notice
given to Ariba at the time it is served.
15. Notice From Moffett. Moffett will provide to Interwoven a copy of any
-------------------
default notice given to Ariba at the time it is served.
16. Attorneys' Fees. In the event that any legal action or proceeding,
---------------
including, without limitation, arbitration and declaratory relief, is commenced
for the purpose of enforcing or seeking a declaration of any rights or remedies
pursuant to this Sublease Consent, the prevailing party or parties shall be
entitled to recover from the non-prevailing party or parties reasonable
attorneys' fees, as well as costs of suit, in such action or proceeding, whether
or not such action is prosecuted to final judgment.
17. Miscellaneous Provisions.
------------------------
(a) Ariba and Interwoven agree not to amend, modify, supplement, or
otherwise change in any respect the Sublease ("Amendment") without the prior
written consent of Moffett which shall not be unreasonably withheld; provided,
however, that with respect to any proposed Amendment, which could not by its own
terms terminate upon a Recognition Event, Moffett's determination, in its sole
discretion, that the proposed Amendment would not be in its
best economic interest shall constitute reasonable grounds for withholding its
consent. Any amendment, modification, supplement, or change to the Sublease not
in accordance with this subparagraph shall be void.
(b) This Sublease Consent, together with the provisions of the
Sublease, the Master Lease and the Recognition Agreement, contains the entire
agreement among the parties hereto regarding the matters which are the subject
of this Sublease Consent. The terms, covenants and conditions of this Sublease
Consent shall apply to and bind the permitted heirs, successors, assigns,
executors and administrators of all the parties hereto. The parties hereto
acknowledge and agree that no rule of construction, to the effect that any
ambiguities are to be resolved against the drafting party, shall be employed in
the interpretation of this Sublease Consent. If any provision of this Sublease
Consent is determined to be illegal or unenforceable, such determination shall
not affect any other provisions of this Sublease Consent and all such other
provisions shall remain in full force and effect.
(c) Moffett, Ariba and Interwoven each for itself certifies that no
voluntary or involuntary petition under the Bankruptcy Code (11 U.S.C. (S)(S)
101 et seq.) has been filed by or against it and that it is not presently
entitled to relief under the Bankruptcy Code.
(d) By signing this Sublease Consent, each of the persons signing this
Sublease Consent on behalf of the parties certifies that he or she is authorized
to execute this Sublease Consent and to bind his or her respective party to the
terms of this Sublease Consent, and that all corporate action necessary to
authorize the execution of this Sublease Consent by each respective party has
been taken and is presently in force and effect.
(e) This Sublease Consent may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken together
they shall constitute one and the same Sublease Consent.
(f) Ariba waives any requirement under California unlawful detainer
statutes or otherwise that Moffett name or serve Interwoven with any default
notice given under the Master Lease or to name or make Interwoven a party to any
eviction proceedings. Moffett may seek and recover possession of the Premises
from Ariba pursuant to the terms of the Master Lease (including the Sublease
Premises) without recovering possession from Interwoven. Conversely, to the
extent Moffett deems it necessary or appropriate to name and/or serve Interwoven
with notice and/or to make Interwoven a party to such proceedings, the same
shall not be deemed a violation of any duty owed by Moffett to Interwoven and
upon forfeiture of the Master Lease pursuant to such proceedings, the terms and
conditions of the Recognition Agreement shall apply.
(g) Except as provided in subparagraph 3(a) above with respect to a
waiver or recapture rights, nothing in this Sublease Consent shall be deemed a
consent by Moffett to any change of any nature in the size or location of the
Sublease Premises (whether increase, decrease, different Building(s) or floors
or otherwise) notwithstanding anything in the Sublease. Any such change shall
require the prior written consent of Moffett, which will not be unreasonably
withheld.
18. Notices. All notices required, authorized or permitted by this Consent
-------
to Sublease or applicable law shall be in writing and may be delivered in person
(by hand or courier) or may be sent by regular, certified or registered mail or
U.S. Postal Service Express Mail or other nationally-recognized overnight
courier, with postage prepaid and shall be deemed given on the date delivered
or, if refused, on the first date delivery was attempted or refused. Any party
hereto may by written notice to the other specify a different address for
notice.
Master Landlord:
Moffett Park Drive LLC
c/o Jay Paul Company
350 California Street, Suite 1905
San Francisco, CA 94111
With copy to:
Thomas G. Perkins, Esq.
99 Almaden Blvd., 8th Floor
San Jose, CA 95113
Sublandlord:
Ariba, Inc.
Attn: General Counsel
807 Eleventh Avenue
Sunnyvale, CA 94089
With copy to:
Ariba, Inc.
Attn: Real Estate Manager
807 Eleventh Avenue
Sunnyvale, CA 94089
Subtenant:
Interwoven, Inc.
1195 West Fremont Avenue
Sunnyvale, CA 94087
Attn: Tom Smith
With copy to
Silicon Valley Law Group
Attn: Lucy Lofrumento, Esq.
152 North Third Street, Ste. 900
San Jose, CA 95112
19. Separate Leases.
---------------
(a) The parties understand that Moffett has recorded CC&Rs and a
parcel map to divide the Project into five separate parcels, one for each office
building and one for a Common Area encompassing the balance of the Project
(including the fitness center) and will record amended CC&Rs.
(b) Ariba and Moffett agree to restate the Master Lease as four
separate Leases (the "Restatement"), one for each office building with the right
to use the Common Area, using commercially reasonable efforts to do so within
ninety (90) days following full execution of this Consent to Sublease, subject
to the following condition precedent: The Restatement contains the same rights,
privileges and obligations as in the current Master Lease, except for any
changes to which Ariba has consented which are reasonably necessary or
appropriate to convert the present multi-building Ariba Lease into four separate
single building leases including reasonable property restrictions placed in
connection with the reparcelization; Ariba agrees not to unreasonably delay,
condition or withhold such consent.
(c) Interwoven agrees to enter into new subleases ("New Subleases")
within ninety (90) days after the full execution of this Consent to Sublease,
one for each office building in which the Sublease Premises are located, on
substantially the same terms as the Sublease provided that the provisions of the
Restatement and the New Subleases do not materially and adversely affect
Interwoven's material rights and obligations under the Sublease but with
reasonable property restrictions placed in connection with the reparcelization.
(d) Ariba and Moffett agree to subordinate the Master Lease and
Sublease (and the Restatement and New Subleases) to existing and amended CC&Rs
recorded against the Project in connection with the reparcelization, using
commercially reasonable efforts to do so within ninety (90) days following full
execution of this Consent to Sublease, subject to the following condition
precedent: The subordination to the CC&Rs shall not affect the rights,
privileges and obligations of Ariba under the current Master Lease and Sublease
(and the Restatement and New Subleases), except for any provisions to which
Ariba has consented which are reasonably necessary or appropriate to accommodate
the reparcelization; Ariba agrees not to unreasonably delay, condition or
withhold such consent.
(e) Moffett and Interwoven also agree to do what is required or
reasonably appropriate to subordinate the Sublease (and the New Subleases) to
the amended CC&Rs within ninety (90) days after the full execution of this
Consent to Sublease, provided that the provisions of the amended CC&Rs do not
materially and adversely affect Interwoven's rights and obligations under the
Sublease (and the New Subleases) but with reasonable property restrictions
placed in connection with the reparcelization.
(f) The parties' obligations under this paragraph 19 shall be
specifically enforceable.
20. Ratification of Lease. By signing this Sublease Consent, Ariba and
---------------------
Moffett each acknowledge that, except to the extent modified by this Sublease
Consent, and any subordination non-disturbance and attornment agreements, as so
modified, hereby confirm and ratify the Master Lease as being in full force and
affect.
IN WITNESS WHEREOF, Moffett, Ariba and Interwoven have executed this
Sublease Consent as of the day and year first hereinabove written.
"MOFFETT" "ARIBA"
Moffett Park Drive LLC Ariba, Inc
By: By:
-------------------------------------- ---------------------------------
-------------------------------------- ---------------------------------
(type or print name) (type or print name
Its: Its:
------------------------------------- ---------------------------------
"INTERWOVEN"
Interwoven, Inc.
By:
--------------------------------------
--------------------------------------
(type or print name)
Its:
---------------------------------------
EXHIBIT A
---------
COPY OF MASTER LEASE
EXHIBIT B
---------
COPY OF SUBLEASE
RECOGNITION AGREEMENT
---------------------
This Recognition Agreement ("Recognition Agreement") is made and entered
into as of August 3, 2001, by and among Moffett Park Drive LLC, a California
limited liability company ("Moffett"), Ariba, Inc., a Delaware corporation
("Ariba"), and Interwoven, Inc., a Delaware corporation ("Interwoven").
RECITALS
--------
A. Moffett and Ariba entered into the Technology Corners Triple Net
Multiple Building Lease Between Moffett Park Drive LLC, a California limited
liability company as Lessor and Ariba, Inc., a Delaware corporation as Lessee
for Premises at 1111 Lockheed Martin Way, Sunnyvale, California 94089, pursuant
to which Moffett leased to Ariba certain premises consisting of the buildings
commonly known as Buildings 1, 2, 3 and 4 at 1111 Lockheed Martin Way,
Sunnyvale, California with individual addresses for those buildings on Eleventh
Avenue in Sunnyvale, California (the "Premises"). The initial lease has been
amended by a letter agreement dated September 11, 2000, and a First Amendment to
Lease dated January 12, 2001, which, together with the initial lease, are
attached hereto as Exhibit A and referred to herein as the "Master Lease." All
capitalized terms used in this Recognition Agreement and not defined herein have
the same meaning as in the Master Lease.
B. Ariba subleased to Interwoven a portion of the Premises (such portion
herein called the "Sublease Premises") pursuant to an Amended and Restated
Sublease Agreement dated June 28, 2001, a copy of which is attached hereto as
Exhibit B (the "Sublease"). The Sublease Premises consist of a portion of the
- ---------
Premises of approximately 263,823 rentable square feet of space consisting of an
entire building commonly known as 803 Eleventh Avenue and a portion of a
building commonly known as 809 Eleventh Avenue, Sunnyvale, California. Moffett
consents to the Sublease pursuant to a written Sublease Consent of even date
("Sublease Consent").
C. Moffett, Ariba and Interwoven now enter into this Recognition Agreement
to facilitate the Sublease becoming a direct lease between them subject to the
terms and conditions of this Recognition Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Moffett, Ariba and Interwoven agree as follows:
1. Attornment and Non-disturbance. In the event of the termination of the
------------------------------
Master Lease, other than pursuant to (a) Article 8 of the Master Lease ("DAMAGE
OR DESTRUCTION") or (b) Article 13 of the Master Lease ("CONDEMNATION OF THE
PREMISES"), or in the event of a rejection by Ariba of the Master Lease which is
approved, consented to or authorized by a bankruptcy court in a bankruptcy
proceeding ("Recognition Event"), (i) Interwoven shall attorn to Moffett and
perform all of Interwoven's obligations under the Sublease directly to Moffett
as if Moffett were the sublessor under the Sublease, and (ii) provided that at
the time of termination or rejection of the Master Lease Interwoven is not in
default under the terms of the Sublease beyond any applicable cure period,
Moffett shall continue to recognize the estate of Interwoven created under the
Sublease and the Sublease shall continue with the same force and effect as if
Moffett and Interwoven had entered into a sublease on the same provisions as
those contained in the Sublease (as modified by this Recognition Agreement and
the Sublease Consent), except to the extent not permitted by the continued
possession of Ariba or restricted by court order or other legal constraint. The
provisions of this paragraph shall be self-executing upon the occurrence of a
Recognition Event, provided, however, either Moffett or Interwoven shall execute
and deliver at the other's request an instrument confirming Interwoven's
attornment and other obligations pursuant to this Recognition Agreement and
Moffett's agreement to be bound by the terms of the Sublease as modified
pursuant to this Recognition Agreement and the Sublease Consent and/or enter
into a new lease containing all of the terms and provisions of the Sublease as
modified by this Recognition Agreement and the Sublease Consent. Notwithstanding
the foregoing, the rejection by Moffett of the Master Lease in a bankruptcy
proceeding (whether or not deemed a termination of the Master Lease) shall not
constitute a Recognition Event.
2. Limited Effect of Agreement. Except as expressly modified by this
---------------------------
Recognition Agreement, (i) nothing in this Recognition Agreement shall be deemed
to change in any manner the provisions of the Master Lease as between Moffett
and Ariba or to waive any right that either Moffett or Ariba may now have
or later acquire against the other by reason of the Master Lease, and (ii)
nothing in this Recognition Agreement shall be deemed to change in any manner
the provisions of the Sublease as between Ariba and Interwoven or to waive any
right that Ariba or Interwoven may now have or later acquire against the other
by reason of the Sublease. Without limiting the foregoing, except as expressly
provided in this Recognition Agreement at Paragraph 3 following a Recognition
Event (x) Moffett and Ariba shall have no obligations to one another under the
Master Lease except with respect to those provisions of the Master Lease which
survive termination, including, without limitation, all Ariba indemnity
obligations and all rights and remedies to which either party is entitled under
the Master Lease, at law or in equity with respect to such termination and any
default which preceded it, and (y) Ariba and Interwoven shall have no continuing
obligations to one another under the Sublease except with respect to those
provisions of the Sublease which survive termination and all rights and remedies
to which either party is entitled under the Sublease at law or in equity with
respect to such termination and any default which preceded it, including,
without limitation, rights of Ariba under California Civil Code Section 1951.2
or under the United States Bankruptcy Code, or otherwise to recover damages for
lost rent and other damages, (it being expressly understood and agreed that the
Sublease between Ariba and Interwoven shall not otherwise continue following the
termination of the Master Lease).
3. Security Deposit. Notwithstanding any provision of the Sublease to the
----------------
contrary, upon the occurrence of a Recognition Event, Ariba shall promptly
deliver to Moffett any cash security deposit and letter of credit deposited by
Interwoven with Ariba under the Sublease, less any sums Ariba is entitled to
retain under Article 4 of the Sublease and Paragraph 4 (h) of the Work Letter
Agreement (which agreement is attached as Exhibit I to the Sublease), and Ariba
shall have no further obligation with respect to any cash security deposit or
letter of credit delivered to Moffett. Moffett shall hold any cash security
deposit and letter of credit pursuant to the provisions of the Sublease;
provided, however, Moffett shall not be responsible to Interwoven for any cash
security deposit or letter of credit not received by Moffett. If Ariba fails to
deliver any portion of the security deposits deposited by Interwoven under the
Sublease within five (5) days after a Recognition Event, Interwoven shall
deliver to Moffett a letter of credit in the form described in the Master Lease
(with a bank satisfactory to Moffett) and in the security deposit amount
required under the Sublease, provided that as to any letter of credit held by
Ariba which Ariba fails to so deliver to Moffett, Interwoven's delivery
obligation shall be postponed until the date which is ten (10) days after the
expiration of such letter of credit. Moreover, the failure of Ariba to transfer
the
Interwoven security deposit to Moffett within thirty (30) days after a
Recognition Event shall constitute a default under the Master Lease entitling
Moffett, among other rights and remedies to draw on the letter of credit held by
Moffett as Ariba's security deposit under the Master Lease.
4. Conditions of Recognition and Attornment. Moffett and Interwoven, from
----------------------------------------
the date of a Recognition Event, shall have the same rights that can be enforced
against each other as Ariba and Interwoven have that can be enforced against
each other under the Sublease. Moffett shall not be liable for any event,
occurrence or condition that proceeded the Recognition Event, any act or
omission of Ariba and its authorized representatives, shall not be subject to
any offsets or defenses that Interwoven has against Ariba, and shall not be
bound by any prepaid rent, security deposit, or other prepaid sum that
Interwoven has paid in advance to Ariba unless and to the extent the same is
delivered to Moffett except that Moffett shall recognize and be bound by
Interwoven's prepayment of last months rent in the amount of $1,123,885.98,
without regard to whether Moffett receives same from Ariba.
5. Modification of Sublease. Upon a Recognition Event, the Sublease shall
------------------------
be deemed modified such that all references to "Subtenant" shall be deemed to be
"Tenant" (i.e., Interwoven) and all references to "Ariba" or "Sublandlord" shall
be deemed to be "Landlord" (i.e., Moffett) and in addition (notwithstanding any
express or implied provision of the Sublease to the contrary):
(a) Fitness Center Supplemental Rent. For so long as Moffett shall
--------------------------------
provide access to and use of the fitness center for up to 700 of Interwoven's
employees (and while prevented from doing so by acts of God or Nature, damage or
destruction, work stoppage or other causes beyond its reasonable control),
Interwoven shall pay $24,500.00 to Moffett as monthly "Supplemental Rent," due
and payable in advance each month in the same manner and under the same terms
and conditions as Base Rent provided, that, if the fitness center is damaged or
destroyed, (i) Interwoven shall be entitled to a credit for its pro rata share
of any rent insurance proceeds Moffett receives for the loss of Supplemental
Rent (or would have received but for its failure to maintain for the fitness
center the insurance required under Section 7.01 of the Master Lease) and (ii)
if the fitness center is damaged or destroyed by any cause, Moffett shall notify
Interwoven within sixty (60) days after such damage or destruction whether it
will repair the same within twelve (12) months (subject to force majeure) from
the date of such notice and if Moffett states that it will not repair within
said twelve (12) months (subject to force majeure) the parties obligations with
respect to the fitness center
shall terminate ten (10) business days after Moffett gives its notice. In the
event Moffett elects to repair, Moffett shall commence repairs within a
reasonable time and diligently proceed to complete such repairs, in each
instance subject to force majeure delays Moffett may elect at any time to
terminate such access. Moffett agrees that at all times it provides such access
it shall cause the fitness center to be managed in a first class manner. If
Interwoven wishes to increase the number of its employees using the fitness
center, it may do so by paying increased Supplemental Rent of $35.00 per such
employee, provided that Moffett determines in its good faith discretion that
such increased number of employees will not over-tax the fitness center. The
Supplemental Rent amount shall never decrease, notwithstanding how many of the
authorized personnel actually use the fitness center;
(b) Cafeteria. The use by Interwoven of any cafeteria outside the
---------
Sublease Premises shall automatically terminate and Moffett shall have no
obligation to Interwoven with respect to cafeteria access or cafeteria use or
under any cafeteria access agreement between Ariba and Interwoven;
(c) Sublease Provisions Which Shall Not Apply. The following
-----------------------------------------
provisions of the Sublease shall not apply between Moffett and Interwoven: 1.3
and 1.8;
(d) Address for Notices of Payment of Rent. Basic Lease Provision 16
--------------------------------------
and paragraph 3.4 of the Sublease is modified to provide that the addresses for
notices and payee for payment of rent and all moneys due thereunder shall be:
Jay Paul Company, Attn: Jay Paul, 350 California Street, Suite 1905, San
Francisco, CA 94111;
(e) Brokerage Fees. Interwoven, Ariba and Moffett each represents and
--------------
warrants to each other that it has no obligation to any broker or agent with
respect to the Recognition Agreement and the transaction contemplated hereunder
and each shall indemnify and hold the other harmless as to any claim or
liability based upon a contrary claim;
(f) Notices.
-------
(1) Written Notice. Any notice required or permitted to be given
--------------
hereunder shall be in writing and shall be given by a method described in
paragraph (2) below and shall be addressed at the addresses noted below. Any
party hereto may by notice to the other parties specify a different address for
notice purposes.
(2) Methods of Delivery:
-------------------
(i) When personally delivered to the recipient, notice is
effective on delivery. Delivery to the person apparently designated to receive
deliveries at the subject address is personally delivered if made during
business hours (e.g. receptionist).
(ii) When mailed by certified mail with return receipt
requested, notice is effective on receipt if delivery is confirmed by a return
receipt.
(iii) When delivery by overnight delivery Federal
Express/Airborne/United Parcel Service/DHL WorldWide Express with charges
prepaid or charged to the sender's account, notice is effective on delivery if
delivery is confirmed by the delivery service.
(3) Refused, Unclaimed or Undeliverable Notices. Any correctly
-------------------------------------------
addressed notice that is refused, unclaimed, or undeliverable because of an act
or omission of the party to be notified shall be considered to be effective as
of the first date that the notice was refused, unclaimed, or considered
undeliverable by the postal authorities, messenger, or overnight delivery
service.
(4) Addresses.
---------
Master Landlord:
Moffett Park Drive LLC
c/o Jay Paul Company
350 California Street, Suite 1905
San Francisco, CA 94111
With copy to:
Thomas G. Perkins, Esq.
99 Almaden Blvd., 8th Floor
San Jose, CA 95113
Sublandlord:
Ariba, Inc.
Attn: General Counsel
807 Eleventh Avenue
Sunnyvale, CA 94089
With copy to:
Ariba, Inc.
Attn: Real Estate Manager
807 Eleventh Avenue
Sunnyvale, CA 94089
Subtenant:
Interwoven, Inc.
1195 West Fremont Avenue
Sunnyvale, CA 94087
Attn: Tom Smith
With copy to:
Silicon Valley Law Group
Attn: Lucy Lofrumento, Esq.
152 North Third Street, Ste. 900
San Jose, CA 95112
(g) Modifications Required by Moffett's Lenders. If any lender of
-------------------------------------------
Moffett requires a modification of the Sublease (as modified by the Sublease
Consent and this Recognition Agreement) that will not increase Interwoven's cost
or expense or materially and adversely change Interwoven's rights and
obligations, the Sublease shall be so modified and Interwoven shall execute
whatever documents are required by such lender and deliver them to Moffett
within ten (10) days after the request;
(h) Furniture. Moffett shall have no obligation under the Sublease to
---------
provide any of the Furniture described therein and Interwoven shall have no
rights or remedies against Moffett with respect to loss or impairment of, or
interference with Interwoven's right to use, possess or control the Furniture
caused directly or indirectly by Ariba or anyone claiming through Ariba. Moffett
agrees
to cooperate with Interwoven in such manner as is reasonably necessary to assist
Interwoven in asserting its rights against Ariba or third parties claiming
through Ariba with respect to such loss, impairment or interference, provided
that Interwoven reimburses Moffett for all of its out of pocket costs and
attorneys' fees incurred in connection with providing such cooperation; and
(i) Utilities and Services. Moffett's obligations as Sublandlord under
----------------------
Paragraphs 7.1 through 7.6 shall apply only with respect to that portion of the
Sublease Premises located in multi-tenant building(s). In no event shall Moffett
be obligated to provide janitorial services for the Sublease Premises. Moffett
may require that Interwoven contract directly for the described utilities and
services.
6. Master Lease Conflicts. It is the intention of Interwoven and Moffett
----------------------
that although the Master Lease terminates upon a Recognition Event, all
references to the Master Lease within the Sublease document shall survive and be
binding upon the two of them and the obligations of Interwoven and Moffett under
the Sublease shall be interpreted as though the Master Lease (as modified by the
Consent to Sublease) were still in effect. To the extent any conflicting Master
Lease provision limits the rights and benefits of Interwoven under the Sublease
prior to the Recognition Event, it shall continue to do so after the Recognition
Event and the parties agree that upon the demand of Moffett, the parties shall
execute an amendment to the Sublease to clarify the control of such Master Lease
provision(s) over the subject matter addressed.
7. Termination by Moffett. As part of the consideration for Moffett's
----------------------
consent hereunder, Interwoven agrees that the provisions set forth in Sublease
paragraphs 16, 29, 41 and 44 are incorporated herein by this reference as
obligations owed to Moffett by Interwoven with references to "Sublandlord" being
deemed references to Moffett and Interwoven agrees to deliver the (i) Estoppel
Certificate, (ii) financial statements, (iii) writings (including Subordination,
Non-Disturbance and Attornment agreements) described in paragraph 29.3, (iv)
documents described in paragraph 41, or (v) modifications described in paragraph
44 within ten (10) days after Moffett requests same. Each of Interwoven's
obligations under this Paragraph 7 shall be considered an obligation under the
Sublease and, if Interwoven fails to sign and return any documents within said
ten (10) day period, Moffett shall give Interwoven a second notice. If
Interwoven fails to sign and return any such documents within ten (10) days
following receipt of the second notice, Interwoven shall be in Breach under
Subsection 13.1(c) of the
Sublease and Moffett may terminate this Recognition Agreement by giving notice
of its election to do so to Interwoven.
8. Miscellaneous Provisions.
------------------------
(a) This Recognition Agreement, together with the provisions of the
Sublease, Sublease Consent, the Master Lease, the existing Ariba Subordination,
Non-Disturbance and Attornment Agreements from Moffett's lenders, the Interwoven
Subordination, Non-Disturbance and Attornment Agreements from Moffett's lenders
and the Tri-Party Agreement between Moffett, Ariba and Moffett's lenders,
contains the entire agreement among the parties hereto regarding the matters
which are the subject of this Recognition Agreement. The terms, covenants and
conditions of this Recognition Agreement shall apply to and bind the permitted
heirs, successors, assigns, executors and administrators of all the parties
hereto. The parties hereto acknowledge and agree that no rule of construction,
to the effect that any ambiguities are to be resolved against the drafting
party, shall be employed in the interpretation of this Recognition Agreement. If
any provision of this Recognition Agreement is determined to be illegal or
unenforceable, such determination shall not affect any other provisions of this
Recognition Agreement and all such other provisions shall remain in full force
and effect.
(b) Each of the persons signing this Recognition Agreement on behalf
of the parties certifies that he or she is authorized to execute this
Recognition Agreement and to bind his or her respective party to the terms of
this Recognition Agreement, and that all corporate action necessary to authorize
the execution of this Recognition Agreement by each respective party has been
taken and is presently in force and effect.
(c) This Recognition Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken together
they shall constitute one and the same Recognition Agreement.
"MOFFETT" "INTERWOVEN"
Moffett Park Drive LLC, Interwoven, Inc.,
a California limited liability company a Delaware corporation
By: By:
--------------------------------- ----------------------------
--------------------------------- ----------------------------
(type or print name) (type or print name
Its: Its:
--------------------------------- ----------------------------
"ARIBA"
Ariba, Inc.,
a Delaware corporation
By:
--------------------------------------------
--------------------------------------------
(type or print name)
Its:
--------------------------------------------
EXHIBIT H
---------
ESTOPPEL CERTIFICATE(1)
TO: _______________________
RE: Sublease ("Sublease") dated ___________________, by and between ___________
_______________________________________________________________________________,
as Sublandlord, and __________________________________________________________
as Subtenant, concerning the real property known as: __________________________
________________________________________________________________________________
________________________________________________________________________________
("Premises"), which Sublease was amended _______________________________________
(it will be presumed no amendments exist unless they are specified above).
Subtenant/[Sublandlord] hereby certifies as follows:
1. True copies of the above-referenced Sublease as amended are
attached hereto marked Exhibit "1" (Attach a copy of Sublease and all
amendments.)
2. The Sublease term commenced on __________________________ and
expires on __________________.
3. The current monthly Base Rent and most recent monthly Subtenant's
Share of Operating Expense and Master Lease Expenses are as follows:
Amount Day of Month Due Paid Up Through
Base Rent $_______________ ____________________ ____________________
Operating
Expenses $_______________ ____________________ ____________________
Master Lease
Expenses $_______________ ____________________ ____________________
No Base Rent, Operating Expenses or Master Lease Expenses have been prepaid
except as reflected in the Sublease.
4. The current amount of security deposit held by Sublandlord is
$_________________.
5. The Sublease has not been modified, orally or in writing, since its
execution, except as hereinabove identified. The Sublease is in full force and
effect and contains the entire agreement between Sublandlord and Subtenant,
except (if there are no exceptions, write "NONE"): _____________________________
________________________________________________________________________________
________________________________________________________________________________
6. The improvements and space required to be provided by Sublandlord
have been furnished and completed in all respects [to the satisfaction of
Subtenant], and all promises of an inducement nature by Sublandlord have been
fulfilled except (if there are no exceptions, write "NONE"): ___________________
________________________________________________________________________________
___________________________________
(1) For Subtenant or Sublandlord; differences noted in brackets.
--
7. Subtenant [Sublandlord] has no knowledge of any uncured defaults by
Sublandlord or Subtenant under the Sublease, except (if there are no exceptions,
write "NONE"): _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. There are no disputes between Sublandlord and Subtenant concerning
the Sublease, the Premises or the improvements therein or thereon, except (if
there are no exceptions, write "NONE"): ________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. [To the best of Sublandlord's knowledge,] Subtenant is in full and
complete possession of the Premises and has not assigned or sublet any portion
of the Premises, except (if there are no exceptions, write "NONE"): ____________
________________________________________________________________________________
________________________________________________________________________________
9. Subtenant has no knowledge of any prior sale, transfer, assignment
or encumbrance of the Sublandlord's interest in the Sublease, except (if there
are no exceptions, write "NONE"): ______________________________________________
________________________________________________________________________________
________________________________________________________________________________
10. [To the best of Sublandlord's knowledge,] Subtenant has made no
alterations or additions to the Premises, except (if there are no exceptions,
write "NONE"): _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
If alterations or additions have been made by Subtenant, Subtenant [Sublandlord]
represents that to its knowledge, all such alterations and additions were done
in accordance with the terms of the Sublease and in compliance with all
applicable laws, rules and regulations, except (if there are no exceptions,
write "NONE"): _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
11. Subtenant [Sublandlord] is not currently the subject of a
bankruptcy proceeding and to its knowledge Sublandlord [Subtenant] is not
involved in such a proceeding, except (if there are no exceptions, write
"NONE"): _______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
12. Subtenant [Sublandlord] is aware that buyers, lenders and others
will rely upon the statements made in this Estoppel Certificate, and has
therefore adjusted the language hereof as necessary to make it an accurate
statement of the current facts concerning the Sublease. If no such adjustments
have been made, said parties may rely upon the statements in this form as
printed.
13. Additional items (if there are no additional items, write "NONE"):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DATE: _________________________
(Fill in date of execution)
_________________________________________
_________________________________________
By: _____________________________________
Name Printed: ___________________________
Title: __________________________________
Exhibit "1"
To Estoppel Certificate
(Attach a copy of Sublease and any amendments.)
EXHIBIT I
---------
WORK LETTER agreement
This Work Letter Agreement ("Agreement") is made pursuant to and as a part of
that certain Sublease ("Sublease") dated as of June 28, 2001, by and between
Ariba, Inc., a Delaware corporation ("Sublandlord") and Interwoven, Inc., a
Delaware corporation ("Subtenant") covering the Premises. Capitalized terms used
herein without definition shall have the same meaning as in the Sublease. The
provisions of this Work Letter Agreement shall supercede any directly
conflicting provisions of the Sublease; otherwise, the terms and conditions of
the Sublease shall apply. In consideration of the mutual covenants contained in
this Agreement and in the Sublease, Sublandlord and Subtenant hereby agree as
follows:
1. Construction of Subtenant Improvements. At Subtenant's sole cost and
--------------------------------------
expense, including payment on demand of (i) all related out-of-pocket costs
incurred by Sublandlord and (ii) all related costs to which Master Landlord is
entitled under the Master Lease, Subtenant shall construct, no later than
December 31, 2001 (with an extension of one day for each day of delay caused by
force majeure), certain interior improvements on Floor One of Building One
(which floor is defined as "B1F1") and the work necessary to create increased
cooling capacity from the roof of Building One to supply the data center to be
constructed on B1F1 ("Building Improvements") and certain exterior improvements
outside of Building One (a shipping and receiving area, including a load leveler
and a roll-up door, and a backup generator, the "Exterior Improvements")
(collectively the Building Improvements and the Exterior Improvements are
referred to as the "Subtenant Improvements") in conformance with the Approved
Plans described below and subject to all the terms and conditions of the Master
Lease, the Sublease, and this Agreement. Sublandlord shall not charge any
oversight fees or supervisory fees pertaining to the Subtenant Improvements.
The Subtenant Improvements and the construction thereof shall comply in all
respects with the terms and conditions of the Sublease, except to the extent
directly contradicted by this Agreement. Nothing in this Agreement shall be
construed to in any way to limit the rights of Master Landlord under the Master
Lease and the requirement that the Subtenant Improvements and the construction
thereof shall comply in all respects with the terms and conditions of the Master
Lease. By way of example only, all approvals of Sublandlord described in or
pursuant to this Agreement are expressly conditioned on Master Landlord's
explicit, unconditional approval of the matter approved by Sublandlord.
2. Preparation of Preliminary and Final Plans.
------------------------------------------
(a) Preliminary Plans. Subtenant has prepared and delivered to
-----------------
Sublandlord conceptual plans for the Subtenant Improvements (a copy of which is
attached hereto as Attachment 1, the "Conceptual Plans"), which have been
approved by Sublandlord. Based on the Conceptual Plans and in conformance
therewith, Subtenant shall prepare preliminary design drawings and
specifications for the Subtenant Improvements ("Preliminary Plans"), and shall
deliver such Preliminary Plans to Sublandlord for approval. Sublandlord
acknowledges and approves Subtenant's use of DES to prepare the Preliminary
Plans for the Exterior Improvements, and Arc-Tec to prepare the Preliminary
Plans for the Building Improvements. All specifications for the Subtenant
Improvements shall be in accordance with the Interior Specification Standards
attached to the "Work Letter" (Exhibit C to the Master Lease) as Schedule One,
except as otherwise approved, upon request of Subtenant, by Sublandlord and
Master Landlord in their sole discretion.
(b) Revision of Preliminary Plans. Within three (3) business days
-----------------------------
after the actual receipt of the Preliminary Plans to Sublandlord, Sublandlord
shall approve, in writing, the Preliminary Plans or inform Subtenant in writing
of Sublandlord's specific objections to such Preliminary Plans, which objections
must be reasonable. Provided that such Preliminary Plans conform to the
Conceptual Plans, Sublandlord shall not withhold its approval of the Final
Plans. If Sublandlord does not provide such a writing within three (3) business
days after actual receipt of Subtenant's Preliminary Plans, then the Preliminary
Plans shall be deemed to be approved by Sublandlord. In the event that
Sublandlord has specific objections, the parties shall reach agreement as to
what revisions should be made as soon as reasonably practicable.
(c) Final Plans. Once an agreement has been reached regarding
-----------
revisions to the Preliminary Plans, Subtenant shall prepare final plans and
specifications and working drawings ("Final Plans") for the Subtenant
Improvements. The Final Plans will address only the work that is in excess of
the "B1F1 Shell Work" (a detailed description of the B1F1 Shell Work is attached
hereto as Attachment 2). Within three (3) business days after the actual receipt
of the Final Plans to Sublandlord, Sublandlord shall approve, in writing, the
Final Plans or inform Subtenant in writing of Sublandlord's specific objections
to such Final Plans, which objections must be reasonable. Provided that such
Final Plans conform to the Preliminary Plans, Sublandlord shall not withhold its
approval of the Final Plans. If Sublandlord does not provide such a writing
within three (3) business days after actual receipt of Subtenant's Final Plans,
then the Final Plans shall be deemed to be approved by Sublandlord. In the event
that Sublandlord has specific objections, the parties shall reach agreement
regarding changes to the Final Plans as soon as is reasonably practicable.
(d) Sublandlord's Approval. Sublandlord's approval of the Preliminary
----------------------
Plans and/or the Final Plans shall in no way be deemed to imply that the
Subtenant Improvements comply with applicable laws, ordinances or codes, or any
implied warranty of the adequacy or sufficiency of the design or quality of any
items shown therein. Sublandlord makes no representation or warranty whatsoever
with regard to the probability of approval of the Subtenant Improvements by
Master Landlord or any other applicable authority. Sublandlord shall reasonably
cooperate with Subtenant to obtain Master Landlord's approval and shall sign any
documents required to enable Subtenant to obtain a building permit and whatever
authorizations are reasonably required to proceed with the Subtenant
Improvements when requested by Subtenant. Sublandlord shall not be deemed to
have waived its right to approve or disapprove the Final Plans if Sublandlord
has not approved the Final Plans at the time it signs such documents.
(e) Cost Statement. Sublandlord acknowledges and approves Subtenant's
--------------
use of SC Builders for completing construction of the Subtenant Improvements.
Subtenant shall request and obtain from SC Builders a written commitment for
completing construction of the Subtenant Improvements in accordance with the
Final Plans. SC Builders will bid out each of the subcontractors. Sublandlord's
approval of SC Builders as the general contractor for construction of the
Subtenant Improvements is conditioned on SC Builders status as a union
contractor, which Subtenant hereby represents is true and correct. All
subcontractors, laborers, materialmen, and suppliers shall conduct their
activities in and around the Premises, Buildings and Project in a harmonious
relationship with all other subcontractors, laborers, materialmen and suppliers
at the Premises, Buildings and Project, and, if necessary, union labor shall be
employed to achieve such harmonious relations.
(f) Governmental Approvals. Subtenant, its architect or its contractor
-----------------------
shall submit the Final Plans to the appropriate governmental authorities for
approval. If the governmental authorities require any changes, Sublandlord and
Subtenant shall reasonably cooperate to incorporate such changes into the Final
Plans, and neither party shall unreasonably withhold or delay its approval of
such changes. Once
all required approvals of the Final Plans have been obtained from Sublandlord,
Master Landlord and all appropriate governmental authorities, the Final Plans
shall be deemed the "Approved Plans".
(g) Designation by Sublandlord regarding Removal of Subtenant
---------------------------------------------------------
Improvements. Unless required by Master Landlord, Sublandlord shall not require
- ------------
any of the Subtenant Improvements to be removed prior to the end of the Sublease
Term (or extension thereof) or sooner termination. If Master Landlord requires
such removal and restoration, such costs shall be at Subtenant's sole cost and
expense. Subject to the provisions of the Master Lease and Master Landlord's
rights thereunder, Sublandlord acknowledges and agrees that the back up
generator to be installed as part of the Exterior Improvements shall be deemed a
Trade Fixture, remain the property of Subtenant upon the expiration, or sooner
termination of the Sublease, and removal of such shall be subject to the
restoration obligations set forth in Paragraph 8.4 (c) of the Sublease.
(h) Insurance.
---------
i. General Coverages. Subtenant's General Contractor (defined
below) shall carry worker's compensation insurance covering all of their
respective employees, and shall also carry commercial general liability
insurance, including property damage, all with limits, in form and with
companies as are required to be carried by Subtenant as set forth in Paragraph 9
of the Sublease.
ii. Special Coverages. Subtenant shall carry "Builder's All Risk"
insurance in an amount approved by Sublandlord covering the construction of the
Subtenant Improvements, and such other insurance as Sublandlord may require, it
being understood and agreed that the Subtenant Improvements shall be insured by
Subtenant pursuant to Paragraph 9 of the Sublease immediately upon completion
thereof. Such insurance shall be in amounts and shall include such extended
coverage endorsements as may be reasonably required by Sublandlord. including,
but not limited to, the requirement that Subtenant's General Contractor shall
carry excess liability and Products and Completed Operation Coverage insurance,
each in amounts not less than $1,000,000 per incident, $2,000,000 in aggregate,
and in form and with companies as are required to be carried by Subtenant as set
forth in Paragraph 9 of the Sublease.
iii. General Terms. Certificates for all insurance carried
pursuant to this Section 2(h) shall be delivered to Sublandlord before the
commencement of construction of the Subtenant Improvements and before any
contractor's equipment is moved onto the site. All such policies of insurance
must contain a provision that the company writing said policy will give
Sublandlord thirty (30) days' prior written notice of any cancellation or lapse
of the effective date or any reduction in the amounts of such insurance. In the
event that the Subtenant Improvements are damaged by any cause during the course
of the construction thereof, Subtenant shall immediately repair the same at
Subtenant's sole cost and expense. Subtenant's General Contractor shall maintain
all of the foregoing insurance coverage in force until the Subtenant
Improvements are fully completed and accepted by Sublandlord, except for any
Products and Completed Operation Coverage insurance required by Sublandlord,
which is to be maintained for ten (10) years following completion of the work
and acceptance by Sublandlord and Subtenant. All policies carried under this
Section 2(h) shall insure Master Landlord, Sublandlord and Subtenant, as their
interests may appear, as well as Subtenant's General Contractor. All insurance,
except Workers' Compensation, maintained by Subtenant's General Contractor shall
preclude subrogation claims by the insurer against anyone insured thereunder.
Such insurance shall provide that it is primary insurance with respect to the
Sublandlord and that any other insurance maintained by Sublandlord is excess and
noncontributing with the insurance required hereunder. The requirements for the
foregoing insurance shall not derogate from the
provisions for indemnification of Sublandlord by Subtenant under the Sublease or
Section 4(g) of this Agreement.
3. Change Orders. No material changes, modifications or alterations in
-------------
the Approved Plans or in the Subtenant Improvement work pursuant thereto
(collectively referred to as "Change Orders") shall be made by Subtenant without
the prior written consent of Sublandlord, which consent shall not be
unreasonably withheld or delayed. Sublandlord will respond to Subtenant's
submission of all requests for Change Orders for Sublandlord approval within
three (3) business days from Sublandlord's actual receipt. All requests for
Change Orders shall be made in writing. Once approved in writing, such Change
Orders shall become a part of the Approved Plans. Without limiting the
foregoing, a Change Order shall be automatically deemed "material" if such
Change Order exceeds Ten Thousand Dollars ($10,000) in cost.
4. Miscellaneous.
-------------
(a) Assumption of the Risk. Subtenant accepts, assumes and shall be
----------------------
solely responsible for all risks for the construction and installation of the
Subtenant Improvements other than for risks resulting from the gross negligence
or willful misconduct of Sublandlord or Sublandlord's employees, agents,
contractors or subcontractors.
(b) Time of the Essence. Time is of the essence in each and every
-------------------
provision of this Agreement.
(c) As Built Plans. Within 60 days following the substantial
--------------
completion of the Subtenant Improvements, Subtenant shall provide Sublandlord
and Master Landlord with a set of "as built" plans, drawings and specifications
for the Subtenant Improvements.
(d) No Partnership. Nothing in this Agreement shall cause Sublandlord
--------------
and Subtenant to be partners or joint venturers.
(e) Early Access. As soon a reasonably practical but no later than
------------
August 1, 2001, Sublandlord shall deliver B1F1 to Subtenant with the B1F1 Shell
Work completed, to Subtenant, in accordance with the terms of Paragraph 6.1(a)
of the Sublease, subject to the completion of all items set forth on a written
punchlist (prepared by Master Landlord and Sublandlord with the participation of
Subtenant as described below). The terms of Paragraph 6.1(a) of the Sublease
shall apply to B1F1, including the parties' respective obligations described
therein. Sublandlord acknowledges and agrees that Subtenant shall be notified at
least 48 hours prior to Sublandlord's walk through of B1F1 with Master
Landlord's representative (during which walk through the parties intend to
prepare the punchlist of open items remaining to complete the B1F1 Shell Work,
which Master Landlord is constructing pursuant to the Master Lease) and
Subtenant and Subtenant's architect(s) shall have the right to participate in
such walk through and shall be entitled to review and comment on the punchlist
prior to its submission to Master Landlord. Master Landlord and its
representatives shall be provided reasonable access to complete any B1F1 Shell
Work and Subtenant shall cause its contractors and others working on the
Subtenant Improvements to reasonably accommodate such completion of the B1F1
Shell Work.
Subtenant's early access granted under this Agreement shall be (i) for
the sole and exclusive purpose of construction of the Subtenant Improvements and
for installing Subtenant's furniture, communications system, equipment and
furnishings and (ii) subject to all of the terms, covenants and conditions of
this Sublease (including, but not limited to, all of Subtenant's obligations
regarding indemnity and insurance); provided, however, that Subtenant shall have
no obligation to pay Base Rent
on B1F1 for the period prior to October 1, 2001, and Subtenant's obligation to
pay Sublease Expenses for B1F1 shall be abated (i.e., the calculation of
Subtenant's Share for Sublease Expenses purposes shall not include the rentable
area of B1F1) for the period prior to January 1, 2002. The early access granted
under this Agreement shall not advance the Sublease Commencement Date or the
Expiration Date (or any extension thereof) or Option Term expiration date.
Notwithstanding the foregoing and the contents of Attachment 2, the carpeting
described in Attachment 2 will not be installed as part of the B1F1 Shell Work
delivered by Sublandlord to Subtenant; instead, the carpeting will be provided
free of charge to Subtenant and Subtenant shall be required to install said
carpeting as part of the Subtenant Improvements and at its sole cost and
expense. Sublandlord will also provide ceiling tiles free of charge to Subtenant
and Subtenant shall be required to install said ceiling tiles as part of the
Subtenant Improvements and at its sole cost and expense.
Prior to the commencement of any Subtenant Improvement work on B1F1, Sublandlord
shall erect barriers and take other appropriate measures to completely segregate
and secure the areas of B1F1 in which construction of the Subtenant Improvements
will take place ("Construction Zone") from the remainder of B1F1, leaving access
routes to and from Building entrances and emergency exits to enable access to
and exit from the upper floors of Building One ("Access Routes"). Subtenant
shall prevent entry into the Construction Zone by all persons other than
persons, such as construction workers and inspectors, who require access. During
the period from the delivery of B1F1 by Sublandlord as described in this
Agreement until completion of construction of the Subtenant Improvements and
issuance of a certificate of occupancy ("Construction Period"), Subtenant shall
keep in place the construction barriers and other Construction Zone segregation
measures and shall cause all employees, independent contractors, agents,
invitees and guests to use, exclusively, the Access Route, for ingress and
egress to the other floors of Building One for which Subtenant has access
rights. Subtenant shall be fully and solely responsible for the safety of
persons using the Access Route and their property and all other persons and
property on B1F1 during the Construction Period. Subtenant's access to and entry
on B1F1 during the Construction Period shall be entirely at Subtenant's own
risk. Subtenant shall not occupy any portion of B1F1 until the end of the
Construction Period. Subtenant's obligations under the Sublease and this
Agreement, including but not limited to Subtenant's obligation to pay all Base
Rent attributable to B1F1 for the period beginning October 1, 2001, shall in no
way be reduced or limited by virtue of any delay or any other problem in
connection with the construction of the Subtenant Improvements, for any reason
whatsoever.
At a mutually agreeable time during the Construction Period, Subtenant
shall be provided limited access to the roof other necessary areas of Building
One for the sole and exclusive purpose of engineering analysis and construction
of the portion of the Subtenant Improvements requiring such access, i.e.
creation of increased cooling capacity from the roof of Building One to supply
the data center to be constructed on B1F1. Such access shall be subject to all
of the terms, covenants and conditions of this Sublease (including, but not
limited to, all of Subtenant's obligations regarding indemnity and insurance and
all restrictions and requirements of the Department of the Air Force and/or
Onizuka Air Station pertaining to use of and access to the roofs of the
Buildings).
(f) Representatives. Subtenant has designated Tom Smith and Rudy
---------------
Randez as its sole representative(s) with respect to the matters set forth in
this Agreement, who, until further notice to Sublandlord, shall have full
authority and responsibility to act on behalf of Subtenant as required in this
Agreement. Sublandlord has designated Darren Wilford and Steve Payne as its sole
representative(s) with respect to the matters set forth in this Agreement, who,
until further notice to Subtenant, shall have full authority and responsibility
to act on behalf of Sublandlord as required in this Agreement.
(g) Indemnity. Subtenant's indemnity as set forth in Paragraph 10 of
---------
the Sublease (including any limitations or restrictions set forth therein) shall
apply with respect to any and all costs, losses, damages, injuries and
liabilities related in any way to any act or omission of Subtenant or
Subtenant's contractors, subcontractors, laborers, materialmen, suppliers and
design professionals and other hirees, or anyone directly or indirectly employed
by any of them, or in connection with Subtenant's non-payment of any amount
arising out of the Subtenant Improvements and/or Subtenant's disapproval of all
or any portion of any request for payment. Such indemnity by Subtenant, as set
forth in Paragraph 10 of the Sublease, shall also apply with respect to any and
all costs, losses, damages, injuries and liabilities related in any way to
Sublandlord's and Master Landlord's performance of any ministerial acts
reasonably necessary (i) to permit Subtenant to complete the Subtenant
Improvements, and (ii) to enable Subtenant to obtain any building permit or
certificate of occupancy for the Premises.
(h) Security Deposit. Prior to the commencement of construction of the
----------------
Subtenant Improvements, Subtenant shall deposit with Sublandlord irrevocable,
unconditional, standby letter of credit in a form substantially similar to the
form attached to the Sublease as Exhibit F in the amount of one million dollars
($1,000,000), with Sublandlord as beneficiary ("Construction Security Deposit").
The letter of credit shall be issued by an Issuer (as defined in the Sublease).
The final form of the letter of credit, the identity of the Issuer, and the form
of any replacement letter of credit shall be acceptable to Sublandlord in its
sole discretion. Sublandlord may draw down on the letter of credit in whole or
in part and in such amounts as it deems appropriate in its sole discretion if
Subtenant fails to comply with any of its obligations under this Agreement or
the Sublease relating to the Subtenant Improvements (including, without
limitation, full and timely payments of amounts due under Subtenant's
construction contracts) and such failure continues for a period of ten (10)
business days after Sublandlord delivers written notice to Subtenant specifying
such failure. Sublandlord shall return the aforesaid letter of credit upon the
lien free completion of the Subtenant Improvements, payment of all amounts due
to the general contractor for the Subtenant Improvements, and acceptance of same
by Sublandlord, provided that if those events have not occurred prior to
expiration of the letter of credit, Sublandlord shall be entitled to draw on
said letter of credit in an amount equal to any amount then outstanding with
respect to the construction of the Subtenant Improvements or for any other
amount then due or unpaid under this Sublease.
(i) Requirements of Subtenant's General Contractor. Subtenant shall
----------------------------------------------
cause SC Builders (or any replacement general contractor) ("Subtenant's General
Contractor") to provide an express written warranty that the portion of the
Subtenant Improvements for which it is responsible shall be free from any
defects in workmanship and materials for a period of not less than one (1) year
from the date of completion thereof, such that SC Builders (or any replacement
general contractor) is responsible for the replacement or repair, without
additional charge, of all work done or furnished in accordance with its contract
that shall become defective within one (1) year after completion of the work
performed by such contractor. The correction of such work shall include, without
additional charge, all additional expenses and damages incurred in connection
with such removal or replacement of all or any part of the Subtenant
Improvements, and/or the Building and/or Common Areas that may be damaged or
disturbed thereby Subtenant covenants to enforce any contractor guarantees for
the benefit of Sublandlord where Sublandlord's interests may appear and, if
necessary to give Sublandlord the full benefit of such protection, shall give to
Sublandlord any assignment or other assurances which may be necessary to effect
a right of direct enforcement.
SUBLANDLORD: SUBTENANT:
ARIBA, INC., INTERWOVEN, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Robert M. Calderoni By: /s/ David M. Allen
------------------------------- ------------------------------
Robert M. Calderoni David M. Allen
Title: Chief Financial Officer Title: Chief Financial Officer
----------------------------- ----------------------------
Date: 6/28/01 Date: 6/28/01
---------------------------- -----------------------------
ATTACHMENT 1
Conceptual Plans
[INSERT GRAPHIC OF CONCEPTUAL PLANS - PAGE 1 OF 2 GRAPHIC HERE.]
Conceptual Plans - Page 1 of 2
[Graphic shows a lay out of the floor plan indicating locations of areas
including cubicles, class rooms, break areas, restrooms, electrical rooms,
server room, storage areas, etc.]
[INSERT CONCEPTUAL PLANS - PAGE 2 OF 2 GRAPHIC HERE.]
Conceptual Plans Exhibit - Page 2 of 2
[Graphic shows Building 1 (including shipping and receiving areas), parking
areas and a parking structure.]
ATTACHMENT 2
B1F1 Shell Work
SUPPLEMENTAL INSTRUCTIONS
Owner [X] Moffet Park Drive LLC
Contractor [X] Rudolph & Sletten
Architect [X] DES Architects + Engineers
- --------------------------------------------------------------------------------
PROJECT: Moffet Park - Ariba SUPPLEMENTAL N
Tenant Improvements INSTRUCTION
Sunnyvale, CA
OWNER: Moffet Park Drive, LLC DATE OF 4/13/01
150 California Street, Suite 1905 ISSUANCE:
San Francisco, CA 94111
TO: Rudolph & Sletten ISSUED BY: Michael Aymerich, AIA
989 E. Hillsdale Blvd. Project Manager
Hillsdale, CA 94089
CONTRACT Tenant Improvement DES PROJECT NO: 9019.05
FOR:
- --------------------------------------------------------------------------------
The Work shall be carried out in accordance with the following supplemental
instructions issued in accordance with the Contract Documents without change in
Contract Sum or Contract Time. Proceeding with the Work in accordance with these
instructions indicates your acknowledgment that there will be no change in the
Contract Sum or Contract Time. If a change in Contract Sum or Contract Time is
believed to be involved, issue a proposed change order for approval.
ARCHITECTURAL
Item 1 TA0. Title Sheet (attached)
---------------------------
A - Revise Drawing Index
Item 2 TA0.2 Legend and Notes (attached)
---------------------------------
A - Reflected Ceiling Plan Key Notes; Add note 26
B - Finish Key Notes - Revise 14 and 15
C - Interior Signage note added: Coordinate the interior signage with
the latest changes on the floor plans as;
Offices: they have the 2-1/2" clear plastic bottom
Conference Rooms: they have a 3-1/2" clear plastic bottom
Item 3 TA2.1-1 First Floor Plan - Building 1 (attached)
------------------------------------------------
A - General revisions
Item 4 TA5.1d First Floor Door Schedule - Building 1 (attached)
--------------------------------------------------------
A - General revisions
Item 5 TA5.3 Interior Elevations (attached)
------------------------------------
A - Revise elevation 9
Item 6 TA6.1-1 First Floor Reflected Ceiling Plan - Building 1 (attached)
------------------------------------------------------------------
A - General revisions
Item 7 TA9.4 Details (attached)
------------------------
A - Add detail 25
SUPPLEMENTAL INSTRUCTIONS
Moffet Park - Ariba
Tenant Improvements
Supplemental Instructions N
Page 2
Item 8 TA 10.1-1 First Floor Finish Plan - Building 1 (attached)
---------------------------------------------------------
A - General revisions
MECHANICAL
Item 1 TM1.2 Schedules (attached)
--------------------------
A - Refer to the Air Handling Unit Schedule; Delete AH113 as
shown.
B - Refer to the Exhaust Fan Schedule; Delete EF1-3 as shown.
Item 2 TM1.3 Building 1 Terminal Unit Schedules (attached)
---------------------------------------------------
A - Refer to the Terminal Unit Schedule; Revise all of the
---
first floor terminal units as shown.
Item 3 TM2.1-1 Building 1 - 1st Floor Mechanical Plan (attached)
---------------------------------------------------------
A - Revise the entire mechanical plan as shown. All of the
meeting rooms and kitchen areas have been removed. Entire area
is now open office as shown.
Item 4 TM2.5-1 Building 1 - Mechanical Roof Plan (attached)
----------------------------------------------------
A - Delete exhaust fan EF1-3 as shown.
Item 5 TM6.1 Building 1 Mechanical Title 24 (Attached)
-----------------------------------------------
A - Revise the MECH-3 sheet for the first floor as shown.
PLUMBING
Item 1 TP2.1-1 Building 1 - First Floor Plumbing Plan (attached)
---------------------------------------------------------
A - Delete the above slab plumbing for the toilet room and
janitor's closet located near column 7.4 and E.
Item 2 TP3.3 Building 1 & 4 Enlarged Plumbing Plans (attached)
-------------------------------------------------------
A - Refer to Enlarged Kitchen Plan #4; Delete all above slab
plumbing as shown. Remove floor sinks and trough drain and cap
all waste lines below slab. Cap all vent risers below slab.
ELECTRICAL
Item 1 TE0.2 Title 24 Calculations - Building 1 & 2
--------------------------------------------
A - Revise the Title 24 Lighting Calculations for Building 1
as shown.
[LOGO APPEARS HERE]
SUPPLEMENTAL INSTRUCTIONS
Moffet Park - Ariba
Tenant Improvements
Supplemental Instructions
Page 3
Item 2 TE2.1P-1 First Floor Power & Signal Plan - Building 1
-----------------------------------------------------
A - Revise entire electrical plan as shown. All of the meeting
rooms and kitchen areas have been removed. Entire area is now
open office as shown.
Item 3 TE2.1L-1 First Floor Lighting Plan - Building 1
-----------------------------------------------
A - Revise entire lighting plan as shown. All of the meeting
rooms and kitchen areas have been removed. Entire area is now
open office as shown.
END OF SUPPLEMENTAL INSTRUCTION
[LOGO APPEARS HERE]
[INSERT GRAPHICS HERE.]
Ariba, Inc.
Building 1 1st Floor Only
Moffett Park
1111 Lockheed Martin Way
Sunnyvale, California
Addendum 5 Revised
April 13, 2001
[A series of graphics are included in Addendum 5 Revised, which were
prepared by DES Architects/Engineers and approved on June 18, 2001 by Timothy F.
Hennessy, Vice President of Jay Paul Company.
Sheet TAO.1 Title Sheet (includes graphic legend, abbreviations,
general notes, sheet index, project data, energy conservation,
handicapped accessibility, location map, owner, general
contractor and project team)
Sheet TAO.2 Legend & Notes (includes finish legend, interior signage, finish
keynotes, finish notes, finish notes, Bldg. 4 only, floor
plan general notes, floor plan key notes, wall legend, reflected
ceiling plan legend and reflected ceiling plan key/notes)
Sheet TA2.1-1 First Floor Plan Bldg. 1 (diagram of the floor plan of the first
floor of building 1)
Sheet TA5.1d 1st Floor Bldg. 1 & 4 Door Schedule (includes details of door
location, type, size, frame door schedule for doors on floor 1 of
buildings 1 & 4)
Sheet TA5.3 Interior Elevation (floor plan of the lobby elevations and
feature walls for buildings 1, 2, 3 and 4)
Sheet TA6.1-1 First Floor Reflected Ceiling Plan, Building 1 (diagram of the
reflected ceiling in building 1, first floor)
Sheet TA9.4 Doors & Windows Details (includes construction details of pocket
doors, shaft enclosure, aluminum frame details, etc.)
Sheet TA10.1-1 1st Floor Finish Plan Bldg. 1 (diagram of the finished floor plan
of floor 1 of building 1)
Sheet TM1.2 Schedules (includes schedules of materials to be used for the air
distribution, expansion tank, boiler, pump, sound trap, exhaust
fan, air cooled chiller, head pump, A/C unit, computer room and
air handling unit)
Sheet TM1.3 Building 1 Terminal Unit Schedules (includes schedules of
materials to be used for terminal unit for building 1)
Sheet TM2.1-1 Building 1, 1st Floor Mechanical Plan (diagram of the mechanical
plan for building 1, floor 1)
Sheet TM2.5-1 Building 1 Mechanical Roof Plan (a diagram of the mechanical roof
plan for building 1)
Sheet TM6.1 Building 1 Mechanical Title 24 (includes details of mechanical
ventilation, mechanical sizing and fan power, mechanical
equipment summary, mechanical ventilation and certificate of
compliance)
Sheet TP2.1-1 Building 1 1st Floor Plumbing Plan (a diagram of the plumbing for
building 1, 1st floor)
Sheet TP3.3 Building 1 & 4 Enlarged Plumbing Plans (enlarged diagrams of the
kitchen plumbing plan, the waste & vent plumbing plans and the
piping plan for buildings 1 & 4)
Sheet TE0.2 Title 24 Calculation Building 1 & 2 (includes Title 24 lighting
mandatory measures and the lighting compliance summary and
certificate of compliance for buildings 1 & 2)
Sheet TE2.1P-1 First Floor Power Plan - Building 1 (diagram of the power plan of
building 1, 1st floor)
EXHIBIT J
---------
CAFETERIA ACCESS AGREEMENT
Memorandum of Understanding (MOU)
Pursuant to Section 1.3 of the Sublease, the parties agree to negotiate in good
faith, and try to finalize as soon as reasonably practicable, the terms and
conditions of a Cafeteria Access Agreement regarding the proposed cafeteria
within the Project. Such negotiations will be based on the basic business
provisions set forth below. If, despite using good faith efforts, the parties do
not mutually execute a definitive written Cafeteria Access Agreement within six
(6) months after the Effective Date of the Sublease, then all obligations to
negotiate shall cease.
This MOU is intended to set forth and summarize the current mutual
understandings of the parties with respect to anticipated commitments and
agreement as set forth below. Neither party intends for this MOU to create any
legally binding or enforceable right or obligation for either party. The parties
agree to proceed at their own risk and expense regarding the subject matter of
this MOU until execution of separate written agreements or termination of
negotiations, whichever is earlier.
The basic business provisions for the proposed Cafeteria Access Agreement are as
follows:
o Subtenant shall pay Subtenant's Share (as calculated from time to time
in accordance with the Sublease) of the Sublease Expenses allocable to
the space occupied by the cafeteria (approximately 21, 000 square
feet) commencing as of the date the cafeteria becomes operational.
o Subtenant shall also pay Subtenant's pro rata share (or 36.85% of the
Project) of any loss incurred as a result of operating and/or managing
the cafeteria as a business unit (excluding any costs for Sublease
Expenses otherwise paid as described above) commencing as of the date
cafeteria becomes operational.
o Subtenant shall not be responsible, directly or indirectly, for any
Base Rent or equivalent amounts for the space occupied by the
cafeteria.
o Sublandlord shall consult with Subtenant in the vendor selection
process for the operation of the cafeteria, but the ultimate selection
will be made by Sublandlord.
EXHIBIT K
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FITNESS CENTER ACCESS AGREEMENT
Memorandum of Understanding
Pursuant to Section 1.3 of the Sublease, the parties agree to negotiate in good
faith, and try to finalize as soon as reasonably practicable, the terms and
conditions of a fitness center Agreement regarding the proposed fitness center
within the Project. Such negotiations will be based on the basic business
provisions set forth below. If, despite using good faith efforts, the parties do
not mutually execute a definitive written Fitness Center Access Agreement within
six (6) months after the Effective Date of the Sublease, then all obligations to
negotiate shall cease.
This MOU is intended to set forth and summarize the current mutual
understandings of the parties with respect to anticipated commitments and
agreement as set forth below. Neither party intends for this MOU to create any
legally binding or enforceable right or obligation for either party. The parties
agree to proceed at their own risk and expense regarding the subject matter of
this MOU until execution of separate written agreements or termination of
negotiations, whichever is earlier.
The basic business provisions for the proposed Fitness Center Access Agreement
are as follows:
o Subtenant shall pay for a share of the fitness center usage, which is
targeted to become operational during the month of October 2001 based
on seven hundred memberships at $35/each/month ($24,500) for the
specific use of the fitness center.
o Subtenant shall not be responsible, directly or indirectly, for any
base rent or equivalent amounts for the space occupied by the fitness
center
o The Sublandlord shall require the fitness center provider to ensure
efficient usage of the facility for all members.
o The number of memberships shall be limited to appropriate usage once
the selection and installation of equipment is decided upon in October
2001.
EXHIBIT L
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JANITORIAL SERVICES DESCRIPTION
Janitorial Specifications
-------------------------
Hours: Monday -Thursday 6:00PM to 2:00AM
Sunday 8:00AM to 5:00PM
General Office Space
Daily
o Replace and straighten chairs in conference rooms
o Vacuum carpeted floor areas
o Sweep or vacuum (as appropriate) non-carpeted floor areas
o Empty trash receptacles (including recycling bins)
o Remove loose ground trash
o Dust blinds
o Clean/dust general use areas (please note - items on desk are not to
be moved)
o Wipe off scuff marks and stains on walls
o Clean whiteboards and whiteboard trays as per request
o Empty recycling containers
o Spot clean glass partitions and doors
o Turn off all lights
o Straighten chairs
o Detailed dusting (including cube walls and signage)
o Office doors to be left as found (locked or unlocked)
o Spot clean interior windows
o Keep external Trash dumpster areas clean & clear of debris
o Recycle program to include glass, aluminum, paper & cardboard
Weekly
o Clean interior windows
As needed
o Clean floors and walls as stains appear
o Detail cleaning of work surfaces, shelving during company shut downs
Bathrooms
Daily
o Clean and disinfect toilets, urinals and sinks
o Replenish toilet paper, toilet seat sanitary covers, paper towels,
sanitary napkins and soap
o Dispose of used sanitary napkins
o Mop bathroom floors & sanitize
o Clean mirrors
o Wipe down and sanitize partition walls
o Clean and disinfect showers
Weekly
o Dust and wipe down lockers
o Report locked lockers (as needed)
Biweekly
o Buff tile floors
Floor Service
o Perform terrazzo floor maintenance as follows:
o Apply Super Stripper manufactured by SurTec to strip floor of wax
o Apply Buff distributed by Guardian Janitorial Supply and machine
buff at low rpm
Reception Lobby Area
Daily
o Dust/polish the front desk
o Spot mop floor
o Spot clean glass
o Straighten furniture
o Spot clean furniture
Weekly
o Wipe down leather chairs
Bathrooms
Daily
o Clean countertops
o Replenish all supplies
o Basic cleaning
Customer Cafe
Daily
o Spot mop floors
o Wipe down tables
o Spot clean windows
o Wipe down refrigerator interior
o Spot clean chairs
Weekly
o Wipe down refrigerator interior
o Wipe down chairs
Conference Rooms
Daily
o Clean Whiteboards
o Clean/polish tables
o Straighten chairs
o Empty trash/recycle bins
EXHIBIT M
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ADDITIONAL ENVIRONMENTAL REPORT AND MATERIALS
3. Letter from Major Ronald E. Thompson, Jr., Department of the Air
Force, dated February 11, 2000 to the Major Ronald E. Thompson, Jr.,
Onizuka Air Station, and the Department of Community Development re:
Moffett Park Drive APN 110-02-067, with the 738 EIS Engineering
Report, dated 13-17 January 2000, prepared by Air Force Materiel
Command and identified as 738 EIS-EMC-00-02.
4. Letter from Mr. Peter Polson, Ph.D. Consultant, dated January 12, 2000
to Mr. Tim Hennessey of Jay Paul Company re: Moffett Park Development
5. Memorandum from Jeff Lawson, Esq., Silicon Valley Law Group, dated
June 28, 2001 to Tom Smith, Interwoven re: Interwoven/Ariba Sublease,
Technology Corners, Radiation Hazard Issue
6. Letter from Phillip L. Fitzwater, R.G., R.E.A., Iris Environmental
dated May 18, 2000 to Mr. Steve Morse of the California Regional Water
Quality Control Board re: RWQCB Closure Concurrence for Two Soil
Areas, Former Lockheed Martin Building 104, Sunnyvale, CA (See, Items
9, 10 and 11 for attachments to letter)
7. Letter from Lawrence P. Kolb, California Regional Water Quality
Control Board, dated May 24, 2000 to Mr. Phillip L. Fitzwater, R.G.,
R.E.A. of Iris Environmental re: Review and Concurrence with "Addendum
to Post-Closure Report (April 7, 2000), Lockheed Martin Space Systems
Company, Building 104, Sunnyvale, CA"
8. Letter from Stewart McGee, Hazardous Materials Inspector, Fire &
Environmental Services, Bureau of Special Operations, Department of
Public Safety for the City of Sunnyvale, California dated March 21,
2000 to Mr. Allen Lund of Lockheed Martin Corporation, Missiles and
Space re: Remedial Measures for Impacted Soils at Former Building 104
Facility, dated March 17, 2000
9. Letter from Stewart McGee, Hazardous Materials Inspector, Fire &
Environmental Services, Bureau of Special Operations, Department of
Public Safety for the City of Sunnyvale, California dated April 11,
2000 to Mr. Allen Lund of Lockheed Martin Corporation, Missiles and
Space re: McLaren/Hart "Addendum to Post-Closure Report of Lockheed
Martin Space Systems Company, Building 104, Sunnyvale, CA" dated April
7, 2000
10. Addendum to Post-Closure Report of Lockheed Martin Space Systems
Company Building 104, Sunnyvale, California dated April 7, 2000;
prepared by McLaren/Hart, Inc. located at 1320 Harbor Bay Parkway,
Suite 100, Alameda, California 94502
The above mentioned items have been provided in a separate binder hereto titled
"Ariba Plaza Exhibit I to the Master Lease and Exhibit M to the Sublease".
EXHIBIT N
---------
BROKERS' LETTER
June 20, 2001
Mr. Brian L. Frank, Associate General Counsel
Ms. Miriam Rivera, Corporate Counsel.
Ariba, Inc.
807 Eleventh Avenue
Sunnyvale, CA 94089
RE: Cushman & Wakefield/CB Richard Ellis Commission for Interwoven Sublease
at Ariba Plaza, Sunnyvale California
Dear Brian and Miriam:
This letter is to confirm the Commission amount and Commission splits between
Cushman Wakefield ("C&W") and CB Richard Ellis ("CB") regarding the sublease of
Interwoven at 803 and 809 Eleventh Avenue, Sunnyvale, California.
Per C&W's Listing Agreement with Ariba, Inc., the amount of $10/sf of space
leased shall be paid in full by Ariba upon execution of the sublease. Both C&W
and CB shall split the commission as follows:
CB Richard Ellis - $6.35/sf
Cushman & Wakefield - $3.65/sf
The undersigned parties hereby warrant that there are no other brokers or agents
in connection with this sublease.
Sincerely,
CUSHMAN & WAKEFIELD CB RICHARD ELLIS
OF CALIFORNIA, INC.
/s/ Hernan Santos /s/ Scott G. Mathisen
Hernan Santos Scott G. Mathisen
Director Senior Vice President
6/20/01
CC P. Nally
EXHIBIT O
---------
SITE SIGNAGE PLAN
[INSERT MOFFETT PLAZA SUITE SIGNAGE PLAN GRAPHIC HERE.]
MOFFETT PLAZA SITE SIGNAGE PLAN
[Graphic shows a map of Moffett Plaza with indicators as to where various signs
will be placed. Signage includes the various building numbers, shipping and
receiving, shuttle bus stop, etc.]
[INSERT MOFFETT PLAZA SUITE SIGNAGE DETAILS - PAGE 1 OF 2 GRAPHIC HERE.]
MOFFETT PLAZA SITE SIGNAGE DETAILS - PAGE 1 OF 2
[Graphic, prepared by Garcia + Francica Architecture/Design for Ariba, shows
various diagrams of sign dimensions.]
(GRAPHIC)
MOFFETT PLAZA SITE SIGNAGE DETAILS - PAGE 2 OF 2
Graphic, prepared by Garcia + Francica Architecture/Design for Ariba, shows
various diagrams of sign dimensions.
FURNITURE RENTAL AGREEMENT
This FURNITURE RENTAL AGREEMENT (the "Agreement") is made and entered into
this 28th day of June, 2001, by and between Ariba, Inc., a Delaware corporation
("Ariba") and Interwoven, Inc., a Delaware corporation ("Interwoven" or
"Renter"), with reference to the following facts:
RECITALS
A. Ariba, as sublessor, and Interwoven, as sublessee, are parties to that
certain Sublease dated June 28, 2001, a copy of which is attached hereto
(excluding exhibits) as Exhibit A and incorporated herein (the "Sublease") under
---------
which Ariba subleases to Interwoven approximately two hundred sixty-three
thousand eight hundred and twenty-three (263,823) square feet of rentable space
located at the Project in Building One and Building Four (as defined in the
Sublease) at 1111 Lockheed Martin Way, Sunnyvale, California 94089 and referred
to in the Sublease as the "Premises", approximately two hundred twenty thousand
eight hundred and three square feet (220,803) on five (5) of six (6) floors
which shall be furnished (not including Building One, first floor).
B. In connection with the Sublease, Interwoven now desires to lease from
Ariba and Ariba desires to lease to Interwoven, its Personal Property in the
form of the furniture located on the Premises and more particularly described on
Exhibit B attached hereto and incorporated herein (the "Furniture").
- ---------
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows.
1. Rental of Furniture. Ariba hereby leases to Renter, and Renter hereby
leases from Ariba, the Furniture on the terms and conditions contained herein.
2. Term. The term of this Agreement (the "Term") shall commence on the
Sublease Commencement Date (i.e., August 1, 2001). Subject to any earlier
termination in accordance with Section 17 of this Agreement, this Agreement
shall terminate on the Expiration Date or any earlier termination of the
Sublease.
3. Furniture Rent. In consideration for the rental of the Furniture, Renter
shall pay to Ariba the amount of One Hundred Ten Thousand Four Hundred and One
Dollars and Fifty Cents ($110,401.50) per month and One Million Three Hundred
Twenty-Four Thousand Eight Hundred and Eighteen Dollars ($1,324,818) per year
increasing at the rate of 4% for the Original Term of the Sublease and reverting
to a fixed sum of One Hundred Ten Thousand Four Hundred and One Dollars and
Fifty Cents ($110,401.50) per month and One Million Three Hundred Twenty-Four
Thousand Eight Hundred and Eighteen Dollars ($1,324,818) per year if the
Sublease Option to extend is
exercised (the "Furniture Rent"). Notwithstanding the foregoing, if Ariba,
sublets floors three and four of Building Four pursuant to Section 2.2(b) of the
Sublease, Renter shall not be obligated to pay Furniture Rent on the Furniture
located on such floors to the extent that such sublessee(s) are obligated to pay
Furniture Rent on said furniture under a furniture rental agreement
substantially similar to this Agreement. Nothing herein shall be construed to
require Ariba to reduce Renter's furniture rent in the event that sublessee(s)'
furniture rent rates are higher than Renter's Furniture Rent. Ariba shall use
commercially reasonable and good faith efforts to rent the Furniture on said
floors to sublessees and to rent it at the highest rental rates to such
sublessee(s). Furniture Rent shall be payable concurrently with Rent for the
Premises in monthly installments in advance on the first day of each calendar
month of the Term at the address set forth for Ariba in Section 20.1.
Notwithstanding the foregoing, Furniture Rent for the first full calendar month
of the Term is due at the time of payment of the First Month's Prepaid Rent
under the Sublease. Furniture Rent for any partial month during the Term shall
be prorated based on the actual number of days in such partial calendar month.
Renter's covenant to pay Furniture Rent shall be independent of every other
covenant in this Agreement. If Furniture Rent is not paid when due, Renter shall
pay, relative to the delinquent payment, an amount equal to the sum which would
be payable by Renter to Ariba for a default of Rent under the Sublease.
4. Security Deposit. Upon the execution of this Agreement and the Sublease,
Renter shall deliver to Ariba cash or irrevocable standby letter of credit
subject to the terms of Paragraph 4 of the Sublease, but Ariba and Renter hereby
agree that the reduction described therein shall not apply for the Term and
Option Term, for Five Hundred Thousand ($500,000) as security for the prompt and
complete performance by Renter of all of the obligations and terms of this
Agreement to be performed by Renter, and not as prepayment of Furniture Rent
(the "Security Deposit). Upon the occurrence of an event of default by Renter
under the terms of this Agreement, Ariba may deduct and apply the above Security
Deposit, as is reasonably necessary, towards the following: (i) to remedy any
default by Renter in the payment of Furniture Rent under this Agreement; (ii) to
clean, restore and repair the Furniture following its surrender to Ariba, if not
surrendered in the condition required pursuant to this Agreement, and (iii) to
remedy any other default of Renter hereunder. Ariba shall limit the amounts
deducted from the Security Deposit to the amounts it reasonably deems necessary
to cure defaults hereunder by Renter. In the event any portion of the Security
Deposit is drawn upon by Ariba, Renter shall, within five (5) days after demand
by Ariba shall deposit cash with Ariba in an amount that, when added to the
amount of Security Deposit remaining, shall equal the original amount of the
Security Deposit. Ariba shall not be deemed a trustee of the Security Deposit.
Ariba may use the Security Deposit in Ariba's ordinary business and shall not be
required to segregate it from Ariba's general accounts. Renter shall not be
entitled to any interest on the Security Deposit. The Security Deposit, less any
portion thereof which Ariba is entitled to retain, shall be returned to Renter
(or at Ariba's option to the last assignee, if any, of Renter's interest
hereunder) within sixty (60) days after the later of the expiration of the Term
hereof or the date on which Renter vacates the Premises.
5. "AS IS" Condition; No Warranties; No Liability. Ariba shall deliver the
Furniture to Renter AS IS and Renter agrees that it takes possession of the
Furniture without relying on any representation or warranty by Ariba as to the
condition of the Furniture. Renter conclusively agrees that for purposes of this
Furniture Agreement, the total number of cubicle systems provided to Renter is
as described in Exhibit B hereto. Within thirty (30) days of the Sublease
Commencement Date, Renter shall be given an opportunity to verify inventory as
compared to Exhibit B. Renter acknowledges that neither Ariba nor its agents
have made any representations or warranties, express or implied, as to the
suitability or fitness of the Furniture for the conduct of Renter's business or
for any other purpose. In no event shall Ariba have any liability, nor shall
Renter have any remedy against Ariba, for any liability, claim, loss, damage or
expense caused directly or indirectly by the Furniture or any deficiency or
defect thereof or the maintenance or repair thereof.
6. No Ownership; Right of Inspection. This Agreement constitutes a lease or
bailment of the Furniture described herein and not a sale or the creation of a
security interest. Renter shall not have, or at any time acquire, any right,
title or interest in the Furniture except the right to possession and use as
provided for in this Agreement. Ariba shall at all times be the sole owner of
the Furniture. Ariba shall have the right to place and maintain on the exterior
or interior of each item of Furniture an inscription identifying Ariba's
ownership of the Furniture. Renter shall not remove, obscure, deface or
obliterate the inscription or permit any other person to do so. Renter hereby
grants Ariba the right to enter the Premises at all reasonable times, but no
less than once every six (6) months for the purpose of inspecting, maintaining,
and/or making repairs, replacements, alterations, or additions to the Furniture
or for the purposes of posting notices of non-responsibility for alterations,
additions, or repairs, or for the purpose of showing the Furniture to
prospective purchasers or lessees without any liability to Renter for any loss
of occupation or quiet enjoyment of the Furniture or Premises. This Section in
no way affects the maintenance obligations of the parties hereto. Ariba
represents and warrants that it has beneficial title to the Furniture. To the
extent that there are any encumbrances or liens on the Furniture caused by
Ariba, Ariba shall pay all costs arising from such encumbrances or liens. Renter
shall execute and deliver to Ariba for filing any UCC financing statements or
similar documents Ariba may reasonably request.
7. Renter's Rights and Obligations.
7.1 Renter's Rights. Renter shall be entitled to the absolute right to
the use, possession and control of the Furniture during the term of this
Agreement, provided Renter is not in default of any provision of this Agreement
or the Sublease (beyond applicable notice and cure periods), and subject to any
security interest Ariba may have given or may give to any third party during the
term of this Agreement (provided such third party has agreed to a reasonably
acceptable non-disturbance provision protecting Renter's use of the Furniture
during the term). However, Ariba shall not give any security interest in any
Furniture located in Building One during the term of this Agreement. Renter
shall employ and have absolute control, supervision and responsibility over all
users of the Furniture.
7.2 Renter's Obligations. Renter shall use the Furniture in a
reasonably careful and proper manner and shall not permit any Furniture to be
used in violation of any applicable federal, state, or local statute, law,
ordinance, rule, or regulation relating to the possession, use or maintenance of
the Furniture. Renter shall use only authorized Herman Miller (furniture
manufacturer) service providers to reconfigure, reassemble, disassemble, repair
and maintain Furniture. Renter agrees to reimburse Ariba for all damage to the
Furniture arising from misuse or negligent acts by Renter, its employees and its
agents. If any Furniture covered by this Agreement is damaged, lost, stolen or
destroyed, or if any Furniture is damaged as a result of its use, maintenance or
possession, Renter shall promptly notify Ariba of the occurrence and shall file
all necessary reports, including those required by law and those required by
insurers of the Furniture. Renter represents and warrants that the Furniture
will be used for business purposes consistent with all use requirements and
restrictions under the Sublease.
8. Ordinary Expenses; Maintenance. Renter shall be responsible for all
ordinary expenses in connection with the use of the Furniture during the term of
this Agreement. Renter, at its sole cost and expense, shall keep the Furniture
in good condition and repair, ordinary wear and tear excepted. Furniture Rent
shall not be prorated or abated while any item of Furniture is being serviced or
repaired. Ariba shall not be under any liability or obligation in any manner to
provide service, maintenance, repairs or parts for the Furniture. At the
reasonable request of Ariba, Renter shall furnish all proof of maintenance.
9. Alteration; Modifications; Parts. Other than in conformity with the
manufacturer's warranty and/or functional improvements, Renter may alter or
modify the Furniture only with the prior written consent of Ariba. Any part
installed in connection with warranty or maintenance service or which cannot be
removed without damaging the Furniture shall become the property of Ariba.
10. Quiet Enjoyment. Ariba represents that it has full power and authority
to enter into and perform this Agreement. So long as Renter is not in default in
the performance of its covenants and agreements in this Agreement, Renter's
quiet and peaceable enjoyment of the Furniture shall not be disturbed or
interfered with by Ariba, or by any person claiming by, through, or under Ariba.
11. Assignment.
11.1 Assignment by Renter. Renter shall not, without the prior written
consent of Ariba, (a) assign, transfer, pledge, or otherwise dispose of this
Agreement or any interest therein or (b) sublease or lend any Furniture or
permit it to be used by anyone other than Renter and its employees. Provided
that Renter is not then in default under the Sublease or this Agreement, Renter
may assign this Agreement in connection with an assignment and/or sublease
permitted under the Sublease. No permitted assignment or subletting shall
relieve Renter from Renter's obligations and agreements hereunder and
Renter shall continue to be liable as a principal and not as a guarantor or
surety to the same extent as though no assignment or subletting had been made.
11.2 Assignment by Ariba. Except with respect to the Furniture located
in Building One, Ariba may assign its interest or grant a security interest in
this Agreement and the Furniture individually or together, in whole or in part.
If Renter is given written notice of any such assignment, it shall immediately
make all payments of Furniture Rent and other amounts due under this Agreement
directly to such assignee. Each such assignee shall have all of the rights of
Ariba under this Agreement. Renter shall not assert against any such assignee
any set-off, defense, or counterclaim that Renter may have against Ariba or any
other person.
12. Casualty Insurance; Loss or Damage. Renter shall maintain, at its own
expense, property damage insurance relating to the Furniture, insuring against
such risks as are customarily insured against on the type of furniture leased
hereunder by businesses in which Renter is engaged in such amount, in such form,
and with insurers satisfactory to Ariba; provided, however, that the amount of
insurance against damage or loss shall not be less than the full replacement
value of the Furniture. The property damage policy shall name Ariba as sole loss
payee and shall contain a clause requiring the insurer to give Ariba at least
thirty (30) days' prior written notice of any alteration in the terms or
cancellation of the policy. Renter shall furnish to Ariba an insurance
certificate (and, if requested by Ariba, a copy of the applicable policy) or
other evidence reasonably satisfactory to Ariba that the required insurance is
in effect; provided, however, that Ariba shall have no duty to ascertain the
existence of or to examine the insurance policy to advise Renter if the
insurance coverage does not comply with the requirements of this Section. If
Renter fails to insure the Furniture as required, Ariba shall have the right but
not the obligation to obtain such insurance, and the cost of such insurance
shall be for the account of Renter due as part of the next due Furniture Rent.
Renter consents to Ariba's release, upon its failure to obtain appropriate
insurance coverage, of any and all information necessary to obtain insurance
with respect to the Furniture or Ariba's interest therein.
Until the Furniture is returned to and received by Ariba as provided in
this Section, Renter shall bear the entire risk of theft or destruction of, or
damage to, the Furniture including, without limitation, any condemnation,
seizure, or requisition of title or use ("Casualty Loss"). No Casualty Loss
shall relieve Renter from its obligations to pay Furniture Rent except as
provided in clause (b) and to the extent set forth in this Section. When any
Casualty Loss occurs, Renter shall promptly notify Ariba and, at the option of
Renter, shall promptly (a) place such Furniture in good repair and working order
or replace such Furniture; or (b) pay Ariba an amount equal to the full
replacement value of such Furniture and all other amounts (including Furniture
Rent payable through the date of payment of the full replacement value but
excluding Furniture Rent payable thereafter) payable by Renter hereunder,
together with a late charge on such amounts at a rate per annum as reasonably
determined by Ariba from the due date of any unpaid installments of Furniture
Rent through the date of payment of such amounts, whereupon Ariba shall transfer
to Renter, without recourse or warranty (express or implied), all of
Ariba's interest, if any, in and to such Furniture on an "AS IS WHERE IS" basis.
The proceeds of any insurance payable with respect to the Furniture shall be
applied, at the option of Ariba, either towards (i) repair or replacement of the
Furniture or (ii) payment of any of Renter's obligations hereunder. Renter
hereby appoints Ariba as Renter's attorney-in-fact to make claim for, receive
payment of, and execute and endorse all documents, checks or drafts issued with
respect to any Casualty Loss under any insurance policy relating to the
Furniture.
13. Encumbrances or Liens; Notice. Renter shall not pledge, encumber,
create a security interest in, or permit any lien to become effective on any
Furniture throughout the Term of this Agreement. Renter shall promptly notify
Ariba of any liens, charges, or other encumbrances with respect to the Furniture
of which Renter has knowledge. Renter shall promptly pay or satisfy any
obligation from which any lien or encumbrance arises caused by Renter, and shall
otherwise keep the Furniture and all right, title, and interest free and clear
of all liens, charges, and encumbrances caused by Renter.
14. Indemnification. Renter shall indemnify Ariba and its successors and
assigns against, and hold Ariba and its successors and assigns harmless from,
any and all claims, actions, damages, obligations, liabilities, reasonable legal
fees and all costs and expenses arising out of this Agreement including, without
limitation, the loss of or damage to the Furniture for any cause, the delivery,
lease, possession, maintenance, repair, condition, use or surrender of the
Furniture, or arising by operation of law, except that Renter shall not be
liable for any claims, actions, damages, obligations, and costs and expenses
arising out of or resulting from the negligence or willful misconduct of Ariba
or its successors or assigns.
15. Surrender. Upon the termination of this Agreement, whether caused by
the expiration or termination of the Sublease or this Agreement, Renter shall at
once surrender and deliver up the Furniture to Ariba, except for Furniture that
has suffered a Casualty Loss (as defined in Section 12) and is not required to
be repaired pursuant to Section 12. At the time of such return to Ariba, the
Furniture shall be in good condition and repair, ordinary wear and tear
excepted. If Renter fails to surrender the Furniture when required, the terms
and conditions of this Agreement shall continue to be applicable and for each
day that Renter shall fail to surrender any item of Furniture, Renter shall pay
an amount equal to one hundred fifty percent (150%) of the Furniture Rent until
the Furniture is surrendered as specified by Ariba and set forth herein.
16. Defaults. Renter agrees that any one or more of the following events
shall be considered Events of Default under this Agreement:
(a) Renter shall default in any payment of Furniture Rent required to
be made by Renter hereunder when due as herein provided and such default shall
continue for five (5) days after notice thereof in writing to Renter;
(b) Renter shall default in securing insurance or in providing
evidence of insurance as set forth in Section 12 of this Agreement and such
default shall continue for five (5) days after notice thereof in writing to
Renter; or
(c) Renter shall default in any of the other covenants and agreements
herein contained to be kept, observed and performed by Renter, and such default
shall continue for thirty (30) days after notice thereof in writing to Renter or
such additional period as may be reasonably required to cure such default.
The parties further agree that any Event of Default under this Agreement
shall be deemed an Event of Default under the Sublease.
17. Remedies. Upon the occurrence of any one or more Events of Default,
Ariba shall have the right, in its sole discretion, to exercise any one or more
of the following remedies:
(a) Terminate this Agreement;
(b) Terminate the Sublease;
(c) In compliance with applicable law take possession of any or
all items of Furniture, wherever located, without demand, notice, court order,
or other process of law, and without liability for entry to the Premises, for
damage to Renter's property, or otherwise except for liability or damages caused
by Ariba's gross negligence or willful misconduct;
(d) Demand that Renter immediately surrender any or all Furniture
to Ariba in accordance with Section 15 and, for each day that Renter shall fail
to surrender any item of Furniture, Ariba may demand an amount equal to one
hundred fifty percent (150%) of the Furniture Rent payable for such Furniture;
(e) Lease, sell, or otherwise dispose of the Furniture in a
commercially reasonable manner, with or without notice and on public or private
bid;
(f) Exercise any other right or remedy to recover damages or
enforce the term of the Agreement.
Upon the occurrence and continuance of an Event of Default, Ariba shall
have the right, whether or not Ariba has made any demand or the obligations of
Renter hereunder have matured, to appropriate and apply to the payment of the
obligations of Renter hereunder all security deposits and other deposits
(general or special, time or demand, provisional or final) now or hereafter held
by and other indebtedness or property now or hereafter owing by Ariba to Renter.
Ariba may pursue any other rights or remedies available at law or in equity,
including, without limitation, rights or remedies seeking damages, specific
performance, and injunctive relief. Any failure of Ariba to require strict
performance by Renter, or any waiver by Ariba of any provision hereunder or in
the
Sublease, shall not be construed as a consent or waiver of any other breach
of the same or any other provision. Any amendment or waiver of any provision
hereof or consent to any departure by Renter herefrom or therefrom shall be in
writing and signed by Ariba. No right or remedy is exclusive of any other
provided herein or permitted by law or equity. All such rights and remedies
shall be cumulative and may be enforced concurrently or individually from time
to time.
18. Warranty Assignment. Ariba shall assign to Renter all manufacturer,
dealer, or supplier warranties applicable to the Furniture to enable Renter to
obtain any warranty service available for the Furniture. Ariba appoints Renter
as Ariba's attorney-in-fact for the purpose of enforcing any warranty. Any
enforcement by Renter shall be at the expense of Renter and shall in no way
render Ariba responsible to Renter for the performance of any of the warranties.
19. Waivers. To the extent permitted by applicable law, Renter hereby
waives any and all rights and remedies conferred upon a lessee by Section 10508
through 10522 of the California Commercial Code. To the extent permitted by
applicable law, Renter also hereby waives any rights now or hereafter conferred
by statute or otherwise which may require Ariba to sell, lease, or otherwise use
any Furniture in mitigation of Renter's damages as set forth in Section 17 or
which may otherwise limit or modify any of Ariba's rights or remedies under
Section 17. Any action by Renter against Ariba for any default by Ariba under
this Agreement shall be commenced within one year after any such cause of action
accrues.
20. Miscellaneous.
20.1 Notices and Consents. All notices and other communications
authorized or required hereunder shall be given in writing by personal delivery,
or by facsimile (with copy of such notice sent on the same day by mail or
overnight private courier in accordance with the provisions herein) or by
overnight mail or overnight private courier. Personally delivered notices shall
be deemed received on the date of delivery. Facsimile notices shall be deemed
received on the day sent if sent prior to 5:00 p.m. P.S.T. or if sent after 5:00
p.m. P.S.T., then deemed received on the next business day. Overnight mail or
couriered notices shall be deemed received the business day following deposit
into the U.S. mail or delivery to the private courier. Mailed or couriered
notices shall be addressed as set forth below, but either party may change its
address by giving written notice thereof to the other in accordance with the
provisions of this Section.
If to Ariba: Ariba, Inc.
807 11th Avenue
Sunnyvale, CA 94089
Attn: Real Estate Manager
Fax: (650) 390-1325
With a copy to: Attn: General Counsel
Fax: (650) 930-8193
And a copy to: Thomas B. Jacob, Esq.
Thoits, Love, Hershberger & McLean
245 Lytton Avenue, Suite 300
Palo Alto, California 94301
Fax: (650) 325-5572
If to Renter: Interwoven, Inc.
803 11th Avenue
Sunnyvale, CA 94089
Attn: Director of Real Estate
Fax: (650) ______________
20.2 Incorporation of Prior Agreements. This Agreement is a complete
integration and incorporates all agreements of Ariba and Renter with respect to
the rental of the Furniture, and completely integrates and supersedes all prior
agreements and understandings of the parties, whether oral or written,
pertaining to the subject matter hereof.
20.3 Modifications. This Agreement may be modified or amended only by
an instrument in writing executed by Ariba and Renter, stating that such
instrument is an amendment to this Agreement.
20.4 Severability. This Agreement shall be governed by and construed
in accordance with the laws of the State of California. If any term or provision
of this Agreement is found by a court of competent jurisdiction to be void or
unenforceable, such term or provision shall be deemed severed from the remainder
of the terms and provisions of this Agreement, and said remainder shall remain
in full force and effect, according to its terms and provisions, to the extent
permitted by law.
20.5 Attorneys' Fees. In the event of any action at law or in equity
(including but not limited to specific performance) between Ariba and Renter
arising out of this Agreement or to enforce any of the provisions or rights
hereunder, the unsuccessful party to such litigation covenants and agrees to pay
to the successful party all costs, including investigation costs and similar
expenses and including attorneys' fees, incurred therein by such successful
party, and if such successful party shall recover judgment in any such action or
proceeding, such costs, expenses and attorneys' fees shall be included in and as
part of such judgment. If either party to this Agreement becomes a party to any
litigation concerning this Agreement or the Furniture by reason of any act or
omission of the other party or its authorized representatives, and not by any
act or omission of the party that becomes a party to that litigation or any act
or omission of its authorized representatives, the party whose act or omission
causes the other party to become involved in the litigation shall be liable to
that party for reasonable attorneys' fees and court costs incurred by it in the
litigation.
20.6 Successors and Assigns. The terms, covenants and conditions
contained in this Agreement shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators and assigns of the parties to
this Agreement.
20.7 Further Assurances. Renter, upon the request of Ariba, will
execute, acknowledge, record, or file, as the case may be, such further
documents and do such further acts as may be reasonably necessary, desirable or
proper to carry out more effectively the purposes of this Agreement.
20.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
ARIBA:
ARIBA, INC., a Delaware corporation
By: /s/ Robert M. Calderoni
---------------------------------
Name: Robert M. Calderoni
---------------------------------
Its: CEO
---------------------------------
Renter:
INTERWOVEN INC., a Delaware corporation
By: /s/ David M. Allen
---------------------------------
Name: David M. Allen
---------------------------------
Its: CEO
---------------------------------
EXHBIT A
THE SUBLEASE
EXHIBIT B
SEE ATTACHED
(EXHIBIT - Page 1 of 2)
Furniture
---------
[Exhibit includes descriptions and quantities of the furniture rented under the
furniture rental agreement, including various chairs, tables, credenzas and
keyboard trays.]
(EXHIBIT - Page 2 of 2)
Furniture
---------
[Exhibit includes descriptions and quantities of the furniture rented under the
furniture rental agreement, including various chairs, tables, credenzas and
keyboard trays.]