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EXHIBIT 10.5
NET PREMISES LEASE
3030 CORVIN DRIVE
SANTA CLARA, CALIFORNIA
By and Between
LANDLORD
RAINBOW PROPERTY MANAGEMENT, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
and
TENANT
COLOCONNECTION, INC.,
A FLORIDA CORPORATION
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ARTICLE 1 TERM OF LEASE .....................................................1
1.1 Fixed Term ..................................................1
1.2 Early Occupancy .............................................2
1.3 Holdover Rent ...............................................2
1.4 Option to Extend Term of Lease ..............................2
ARTICLE 2 RENT AND TAXES ....................................................3
2.1 Rent ........................................................3
2.2 Minimum Monthly Rent ........................................3
2.3 Additional Rent .............................................4
2.4 Reimbursement of Certain Expenses ...........................4
2.5 Tenant's Personal Property Taxes ............................6
2.6 Security Deposit ............................................7
2.7 Minimum Monthly Rent During Option Period ...................8
ARTICLE 3 USE OF LEASED PREMISES, PARKING, LICENSE, AND
PUBLIC TRANSPORTATION ............................................10
3.1 Permitted Use; Compliance with Insurance; Law ..............10
3.2 Waste; Nuisance ............................................10
3.3 Toxic Materials ............................................11
3.4 Quiet Enjoyment ............................................14
3.5 Parking ....................................................15
3.6 Access .....................................................15
ARTICLE 4 MAINTENANCE AND REPAIR ...........................................15
4.1 Condition of Premises ......................................15
4.2 Tenant Maintenance and Repair Obligations ..................15
4.3 Landlord Maintenance and Repair Obligations ................15
ARTICLE 5 ALTERATIONS, FIXTURES, AND SIGNS .................................16
5.1 Initial Tenant Improvements ................................16
5.2 Subsequent Alterations to the Leased Premises by Tenant ....17
5.3 Alterations to the Leased Premises Requiring Landlord's
Consent ....................................................18
5.4 All Alterations to the Leased Premises .....................18
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5.5 Mechanics' Liens ..........................................19
5.6 Signs .....................................................20
ARTICLE 6 UTILITIES AND SERVICES ...........................................20
6.1 Utilities and Services to Leased Premises .................20
6.2 Interruption of Services ..................................20
ARTICLE 7 INDEMNITY AND EXCULPATION; INSURANCE .............................20
7.1 Indemnification and Waiver ................................20
7.2 Tenant's Insurance ........................................21
ARTICLE 8 DESTRUCTION ......................................................23
8.1 Repair of Damage to Premises by Landlord ..................23
8.2 Elections to Terminate ....................................24
8.3 Waiver of Statutory Provisions ............................24
ARTICLE 9 EMINENT DOMAIN ...................................................25
9.1 Parties' Rights and Obligations To Be Governed by Lease ...25
ARTICLE 10 ASSIGNMENT, SUBLETTING, AND ENCUMBRANCE ..........................25
10.1 Prohibitions in General ...................................25
10.2 Consent Not Unreasonably Withheld to Assignment or
Subleasing ................................................26
10.3 Change in Ownership Interest ..............................26
10.4 Assumption Agreement ......................................27
10.5 Monthly Bonus Value .......................................27
10.6 Landlord's Right to Recapture Space .......................27
10.7 Permitted Transfers .......................................28
10.8 Merger/Consolidation/Reorganization .......................28
ARTICLE 11 DEFAULT ..........................................................29
11.1 Default Described .........................................29
11.2 Landlord's Remedies .......................................29
11.3 Tenant's Right to Possession Not Terminated ...............29
11.4 Termination of Tenant's Right to Possession ...............30
11.5 Landlord's Right to Cure Tenant's Default .................30
11.6 Waiver of Redemption ......................................31
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11.7 All Sums Due and Payable as Rent ..........................31
11.8 Landlord Default ..........................................31
ARTICLE 12 LANDLORD'S ENTRY ON PREMISES .....................................31
12.1 Right of Entry ............................................31
12.2 Exculpation ...............................................31
ARTICLE 13 SUBORDINATION; ESTOPPEL ..........................................32
13.1 Subordination .............................................32
13.2 Prior Lien ................................................32
13.3 Documentation .............................................32
13.4 Attornment ................................................32
13.5 Estoppel Certificates .....................................32
13.6 Non-Disturbance From Landlord's Current Lender ............33
ARTICLE 14 NOTICE ...........................................................33
ARTICLE 15 WAIVER ...........................................................33
15.1 Delay or Omission .........................................33
ARTICLE 16 ENFORCEMENT ......................................................34
16.1 Choice of Law and Venue ...................................34
16.2 Waiver of Trial by Jury ...................................34
16.3 Attorneys' Fees ...........................................34
ARTICLE 17 SURRENDER OF POSSESSION ..........................................34
17.1 Surrender of Possession ...................................34
17.2 Failure to Surrender Possession ...........................35
17.3 Free of Liens .............................................35
ARTICLE 18 GENERAL CONDITIONS ...............................................35
18.1 Time of Essence ...........................................35
18.2 Corporate Authority .......................................35
18.3 Successors ................................................35
18.4 Landlord Liability ........................................35
18.5 Landlord ..................................................36
18.6 Force Majeure .............................................36
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18.7 Security Measures .........................................36
18.8 Miscellaneous .............................................36
18.9 Effect of Delivery of this Lease ..........................37
18.10 Brokers ...................................................37
18.11 Guarantee .................................................37
18.12 Right of First Offer ......................................37
18.13 Leasehold Mortgage ........................................38
18.14 Recordation Of Memorandum of Lease ........................38
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NET PREMISES LEASE
3030 CORVIN DRIVE
SANTA CLARA, CALIFORNIA
By this Net Building Lease (the "Lease"), which is dated for reference
purposes only on September 13, 2000 (the "Reference Date"), Rainbow Property
Management, LLC, a California limited liability company, whose address is 18070
China Grade, Boulder Creek, California, 95006 ("Landlord") hereby leases to
Coloconnection, Inc., a Florida corporation, whose address is 3030 Corvin Drive,
Santa Clara, CA 95051 ("Tenant"), and Tenant hereby leases from Landlord, that
certain real property located in Santa Clara County, California, at 3030 Corvin
Drive, Santa Clara, California, 95051 (A.P.N. 216-33-025), and more particularly
described in Exhibit "A", which is attached hereto and incorporated herein by
reference (the "Land"), together with the appurtenances, buildings and
improvements erected or to be erected upon the Land in accordance with the terms
of this Lease, including a one story industrial building containing
approximately forty thousand four hundred ninety-one (40,491) gross interior
square feet (the "Building"). (The Land and the Building are sometimes
collectively referred to herein as the "Leased Premises.") The Leased Premises
shall also include all right, title and interest of Landlord, if any, in and to
any land lying in the bed of any street, road or avenue, open or proposed, in
front of or adjoining the Land and in and to the easements, franchises, rights,
appendages and appurtenances belonging or appertaining to such real property.
Tenant shall lease the Leased Premises from Landlord on the terns and conditions
set forth herein including the Rules and Regulations, as they may be amended by
Landlord from time to time by Landlord, and subject to any superior liens or
encumbrances, and to all covenants, conditions, and restrictions of record with
respect thereto, and subject to all of the covenants, terms, and conditions of
this Lease. A current copy of said Rules and Regulations is attached hereto as
Exhibit "B" and incorporated herein by reference (the "Rules and Regulations").
Landlord shall not be liable in any way for failure of any party to comply with
and observe these rules and regulations. Landlord reserves the right, at any
time, to renumber and/or redesignate the street address, suite number or unit
number of all or any portion of the Leased Premises if required by law or by the
decree of the U.S. postal service or other governmental or quasi-governmental
organization.
ARTICLE 1
TERM OF LEASE
1.1 Fixed Term. The term of this Lease shall be for a period of
approximately two hundred forty (240) months commencing upon October 1, 2000
(the "Commencement Date") and expiring on September 30, 2020 (the "Expiration
Date"), unless sooner terminated or extended as herein provided. Notwithstanding
the foregoing, if there shall be any Contingent Free Rent Period (as defined in
Section 2.2.1 below), the term of this Lease shall be extended (and the
Expiration Date postponed) an equal number of days as shall have comprised such
Contingent Free Rent Period, whereupon all references in this Lease to the
Expiration Date shall mean and refer to the final date of the extended term.
Notwithstanding any other provision in
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this Lease, if Landlord does not deliver possession of the Premises to Tenant by
January 5, 2001 (the "Trigger Date"), then within five (5) days of the Trigger
Date, Tenant may give Landlord written notice of Tenant's intent to terminate
this Lease.
1.2 Early Occupancy. If Landlord shall deliver possession of the Leased
Premises to Tenant at any time prior to the Commencement Date, Tenant shall
accept delivery thereof and shall hold possession of the Leased Premises until
the Commencement Date subject to all of the terms and conditions of this Lease,
except that Tenant's obligation to pay Minimum Monthly Rent shall not commence
until the Commencement Date.
1.3 Holdover Rent. If Tenant should hold over and continue in possession of
the Leased Premises after termination of the term of this Lease or any renewal
or extension of the term of this Lease, Tenant's continued occupancy of the
Leased Premises shall be deemed merely a tenancy from month to month at a
Minimum Monthly Rent (as defined in Section 2.1 of this Lease below) equal to
one hundred fifty percent (150%) of the final rental amount due under this Lease
for the first two (2) calendar months that Tenant fails to vacate the Leased
Premises and two hundred percent (200%) of the final rental amount due under
this Lease for every calendar month thereafter that Tenant fails to vacate the
Leased Premises (the "Holdover Rent"), subject to all the terms and conditions
of this Lease, including provisions for payment of Additional Rent. If Tenant
shall holdover and fail to surrender the Leased Premises upon the termination of
this Lease without Landlord's consent, in addition to any other liabilities to
Landlord arising therefrom, Tenant shall and does hereby agree to indemnify,
defend, and hold Landlord harmless from loss or liability resulting from such
failure including, but not limited to, claims made by any succeeding tenant
founded on such failure.
1.4 Option to Extend Term of Lease. Provided that the original Tenant
executing this Lease (and not any assignee, sublessee or other transferee of
such original Tenant or of such original Tenant's interest in the Lease) has
occupied not less than fifty percent (50%) of the floor area of the Building at
all times during the term of this Lease, and, provided further that original
Tenant is not in default of the terms and obligations in this Lease and that
this Lease has not been terminated, Tenant shall have two (2) consecutive
options to extend the term of this Lease for additional periods of sixty (60)
months each by giving Landlord written notice of Tenant's exercise of such
options (the "Extension Option Notice(s)") at a time no earlier than twelve (12)
months prior to the initial Expiration Date of the Lease and no later than nine
(9) months prior to the initial Expiration Date hereof or no earlier than twelve
(12) months prior to the expiration date of the First Option Period (as defined
below) and no later than nine (9) months prior to the expiration date of the
First Option Period. It shall be an absolute condition precedent to the exercise
of the second option that the first option be timely and properly exercised.
Upon exercise of the first option, the term of this Lease shall be extended for
an additional period of sixty (60) months from the initial Expiration Date (the
"First Option Period"), and upon the exercise of the second option the term of
this Lease shall be extended for an additional period of sixty (60) months from
the expiration of the First Option Period (the "Second Option Period") upon the
same terms and conditions as set forth in this Lease, except for the Minimum
Monthly Rent, which shall be determined, upon the exercise of each option,
pursuant to terns of Section 2.7 below. Except as otherwise provided for in
Section 10.8 of this Lease, the option rights set forth in this section are
personal to the original Tenant executing the Lease and may be exercised
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only by such original Tenant (and not by any assignee, sublessee or other
transferee of such original Tenant or of such original Tenant's interest in the
Lease).
ARTICLE 2
RENT AND TAXES
2.1 Rent. Commencing on the Commencement Date (the "Initial Rental
Date"), each month during the term of this Lease, Tenant shall pay to Landlord
minimum monthly rent (the "Minimum Monthly Rent") and additional rent (the
"Additional Rent") for the use and occupancy of the Leased Premises, determined
and adjusted in accordance with the provisions of this Lease, payable monthly in
lawful money of the United States, without any abatement, deduction or offset
whatsoever, and without any prior demand therefor. Rent shall be paid to
Landlord at the address specified in introductory paragraph of this Lease, or at
such other place or places as Landlord may from time to time designate by
written notice to Tenant. Payment of Minimum Monthly Rent for the first month of
the term of this Lease shall be due and payable upon execution of this Lease,
thereafter rent shall be due and payable in advance on the first day of each and
every calendar month during the term of this Lease. If Tenant's obligation to
pay rent should commence upon a day other than the first day of a calendar month
or terminate on other than the last day of a calendar month, all rentals shall
be prorated on the basis of a thirty (30) day month. Tenant agrees that Landlord
will incur additional expenses, including bookkeeping charges and processing
fees in the event that any payments required under this Lease are not timely
made. Tenant admits that the exact nature and amount of these expenses are
difficult or impossible to ascertain at this time. Therefore, Tenant agrees
that, as reasonable damages to Landlord, and not as a penalty, any payment
required under this Lease, which is not made within five (5) days following the
due date for such payment, shall be subject to a late charge in the amount of
six percent (6%) per annum of the amount of such delinquent payment, which late
charge shall be assessed as "Additional Rent". All past due rent, including, any
unpaid Additional Rent, shall, unless otherwise prohibited by law, accrue
interest at an interest rate equal to the lesser of the twelve percent (12%) per
annum or the maximum rate permitted by law. Unless restricted by law, payments
shall be applied first to accrued late charges, then to interest, then to
past-due rent (including, but not limited to all assessed Additional Rent, fees
and costs), and lastly to prospective rent.
2.2 Minimum Monthly Rent. During the initial term of this Lease, commencing
on the Initial Rental Date, Tenant shall pay Minimum Monthly Rent to Landlord as
set forth in the Minimum Monthly Rent Schedule below:
MINIMUM MONTHLY RENT SCHEDULE
MONTH OF LEASE TERM MINIMUM MONTHLY RENT
Initial Rental Date through last day of 2nd $ 55,675.13;
consecutive full calendar month following
Initial Rental Date:
Months 3 through 12 $111,350.25
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Months 13 through 24: $114,690.76;
Months 25 through 36: $118,131.48;
Months 37 through 48: $121,675.42;
Months 49 through 60: $125,325.69;
Months 61 through 72: $129,085.46;
Months 73 through 84: $132,958.02;
Months 85 through 96: $136,946.76;
Months 97 through 108: $141,055.17;
Months 109 through 120: $145,286.82;
Months 121 through 132: $149,645.43;
Months 133 through 144: $154,134.79;
Months 145 through 156: $158,758.83;
Months 157 through 168: $163,521.60;
Months 169 through 180: $168,427.24;
Months 181 through 192: $173,480.06;
Months 193 through 204: $178,684.46;
Months 205 through 216: $184,045.00;
Months 217 through 228: $189,566.35; and
Months 229 through Expiration Date: $195,253.34.
2.2.1 The Contingent Free Rent Period. Notwithstanding the Minimum
Monthly Rent set forth in Section 2.2 above, if, for any reason other than
Tenant's default, Landlord shall not have delivered possession of the Leased
Premises to Tenant on or before the Commencement Date, as Tenant's sole and only
remedy in connection therewith, Tenant shall not be obligated to pay Minimum
Monthly Rent during the period, if any, commencing on October 1, 2000 and
continuing until the date that Landlord shall have delivered possession of the
Leased Premises to Tenant (the "Contingent Free Rent Period").
2.3 Additional Rent. Commencing on the Commencement Date, Tenant shall pay
to Landlord Additional Rent as and when required by the terms of this Lease,
including, as appropriate; without limitation: (i) items of Reimbursable Expense
(as defined in Section 2.4 below); (ii) the Monthly Bonus Value (Section
10.5)(if any); and (iii) any other sums due and payable under the terms of this
Lease. If Tenant shall fail to timely pay to Landlord any Additional Rent as
when due hereunder, Landlord shall have the same remedies with respect thereto
as would be available for non-payment of Minimum Monthly Rent.
2.4 Reimbursement of Certain Expenses. This Lease is a net lease and the
Minimum Monthly Rent shall be absolutely net to Landlord, so that this Lease
shall yield, net, to Landlord,
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the Minimum Monthly Rent during the Term, and, except as otherwise provided for
in this Lease, shall pay as Additional Rent to Landlord all costs, expenses and
obligations of every kind and nature, whatsoever relating to the Leased Premises
which may arise and be attributable to the ownership, use or occupancy of the
Leased Premises during the Term, including, without limitation: (i) the cost of
the premiums and other charges incurred by Landlord with respect to fire, other
casualty, rent, earthquake, flood and liability insurance and any other
insurance as is deemed necessary or advisable in the reasonable judgment of
Landlord, or any other insurance required by Landlord's lender, if any, and
reasonable deductibles under such insurance in the event a claim is made
thereunder; (ii) Tax Expenses (as defined below) (collectively, "Reimbursable
Expense"). Except for items of Tax Expense (which shall be payable as provided
in Section 2.4.2 below), Tenant shall pay to Landlord as Additional Rent
hereunder within thirty (30) days following Tenant's receipt of Landlord's
invoice therefor, all items of Reimbursable Expense incurred by Landlord through
the date of the invoice. Each such invoice shall describe the nature and amount
of the item of Reimbursable Expense for which Landlord seeks payment. Upon
written request by Tenant, Landlord shall provide Tenant with copies of the
bills, invoices or other back-up materials evidencing the Reimbursable Expense
described in the invoice.
2.4.1 As used herein, "Tax Expenses" shall mean all federal, state,
county, or local governmental or municipal taxes, fees, charges or other
impositions of every kind and nature, whether general, special, ordinary or
extraordinary, payable by Landlord (including, without limitation, real estate
taxes, general and special assessments, transit taxes, leasehold taxes or taxes
based upon the receipt of rent, including gross receipts or sales taxes
applicable to the receipt of rent, unless required to be paid directly by
Tenant, personal property taxes imposed upon the fixtures, machinery, equipment,
apparatus, systems and equipment, appurtenances, furniture and other personal
property located on the Premise), because of the ownership, leasing and
operation of the Premises, or any portion thereof, during the term of this Lease
and any extension thereof. Tax Expenses shall include, without limitation: (i)
Any tax on the rent, right to rent or other income from the Premises or any
portion thereof or as against the business of leasing the Premises or any
portion thereof; (ii) Any assessment, tax, fee, levy or charge in addition to,
or in substitution, partially or totally, of any assessment, tax, fee, levy or
charge previously included within the definition of real property tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
voters of the State of California in the June 1978 election ("Proposition 13")
and that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, libraries, transit
programs, street, sidewalk and road maintenance, refuse removal and for other
governmental services formerly provided without charge to property owners or
occupants, and, in further recognition of the decrease in the level and quality
of governmental services and amenities as a result of Proposition 13; (iii) any
governmental assessments of the Premises' contribution towards a governmental
cost-sharing agreement for the purpose of augmenting or improving the quality of
services and amenities normally provided by governmental agencies; (iv) Any
assessment, tax, fee, levy, or charge allocable to or measured by the area of
the Premises or rent payable hereunder, including, without limitation, any
business or gross income tax or excise tax with respect to the receipt of such
rent, or upon or with respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; (v) Any assessment, tax, fee, levy or charge upon this
transaction or any document to which Tenant is a party creating or transferring
an interest or an
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estate in the Premises; and (vi) any real estate taxes and assessments imposed
upon or with respect to the on the land and improvements comprising the
Premises. Any costs and expenses (including, without limitation, reasonable
attorneys' and consultants' fees) incurred in attempting to protest, reduce or
minimize Tax Expenses shall be included in Tax Expenses in the year such
expenses are incurred. If Tax Expenses for any period during the term of this
Lease or any extension thereof are increased after payment thereof for any
reason, including, without limitation, error or reassessment by applicable
governmental or municipal authorities; Tenant shall pay to Landlord within
thirty (30) days after written notice to Tenant (containing evidence of such
increase) of such an increase in Tax Expenses and such increase shall be
included by Landlord as a Tax Expenses pursuant to the terms of this Lease.
Notwithstanding anything to the contrary herein, there shall be excluded from
Tax Expenses (a) all Tax Expenses relating to any period not within the term
(and any exercised extension term) of this Lease; and (b) all excess profits
taxes, franchise taxes, gift taxes, capital stock taxes, inheritance taxes,
estate taxes, federal and state income taxes.
2.4.2 Landlord shall periodically (but not more often than twice a
fiscal real property tax year) invoice to Tenant (which shall include a copy of
the real property tax bill on which the invoice is based), and Tenant shall pay
to Landlord as Additional Rent within thirty (30) days following receipt of such
invoice, the Tax Expenses owed for the period of the term identified in such
invoice.
2.4.3 Tenant shall have the right to contest the amount or validity of
any Tax Expense paid by Tenant pursuant to the terms of this Lease by
appropriate proceedings. If Tenant determines not to so contest any such Tax
Expense, Landlord shall have the right so to do. If Tenant shall contest the
amount or validity of any such Tax Expense, Tenant shall nevertheless promptly
pay the Tax Expense in accordance with the terms and provisions of this Lease,
and nothing herein shall imply any right on the part of Tenant to postpone or
defer such payment for any such purpose. Upon the termination of such
proceedings, Tenant shall pay the amount of the Tax Expense, or part thereof, as
finally determined to be due in such proceedings, the payment of which may have
been deferred during the prosecution of such proceedings, together with any
costs, fees, interest, penalties or other liabilities in connection therewith.
Landlord shall not be required to join in any such proceedings, Landlord shall
not unreasonably withhold its consent to joining in any such proceedings, or
permitting the same to be brought in its name, and shall execute any and all
documents reasonably required in connection therewith, provided the same shall
be approved as to both form and substance by Landlord's counsel, which approval
Landlord agrees shall not be unreasonably withheld, or delayed. Landlord shall
not be subjected to any liability for the payment of any costs or expenses in
connection with any such proceeding, including, but not limited to, Landlord's
reasonable counsel fees, and Tenant shall indemnify and save harmless Landlord
from any such costs or expenses. Tenant shall be entitled to any refund of the
Tax Expense relating to Tax Expenses paid by Tenant pursuant to the terms of
this Lease and penalties or interest thereon which shall have been paid by
Tenant, or, if paid by Landlord, for which Landlord shall have been fully
reimbursed by Tenant.
2.5 Tenant's Personal Property Taxes. Tenant shall pay before delinquency
all taxes, assessments, license fees, and other charges ("taxes") that are
levied and assessed against Tenant's personal property installed or located in
or on the Premises, and that become payable
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during the term. On demand by Landlord, Tenant shall furnish Landlord with
satisfactory evidence of these payments. If any taxes on Tenant's personal
property are levied against Landlord or Landlord's property, or if the assessed
value of the Premises is increased by the inclusion of a value placed on
Tenant's personal property, and if Landlord pays the taxes on any of these items
or on taxes based on the increased assessment of these items, Tenant, within
thirty (30) days after written demand on Tenant (containing proof of such
taxes), shall, as Additional Rent, reimburse Landlord for such amounts. Landlord
shall have the right to pay these taxes regardless of the validity of the levy.
Failure to make such reimbursement shall, at the sole discretion of Landlord,
constitute a event of default.
2.6 Security Deposit. Upon the execution of this Lease by Tenant, Tenant
shall deposit with Landlord a security deposit in the aggregate amount of nine
hundred forty-five thousand two hundred fifty dollars and no cents ($945,250.00)
to secure the faithful performance by Tenant of each term, covenant and
condition to be performed or observed by Tenant under this Lease. The Security
Deposit shall be delivered to Landlord partially in the form of cash in the
amount of one hundred ninety-five thousand two hundred fifty dollars and no
cents ($195,250.00) (the "Cash Security Deposit") and partially in the form of
an irrevocable Letter of Credit in the face amount of seven hundred fifty
thousand dollars and no cents ($750,000.00) (the "LC Security Deposit"), as
more particularly described in Section 2.6.1 below. (The Cash Security Deposit
and the LC Security Deposit are sometimes collectively referred to herein as the
"Security Deposit".) If Tenant shall at any time fail to timely make any payment
due or fail to timely perform or observe any term, covenant and condition on its
part to be performed or observed under this Lease, Landlord may, without waiving
or releasing Tenant from any obligation under this Lease and without waiving its
right to treat such failure as a default hereof, use, apply or retain the whole
or any part of the Security Deposit reasonably necessary to remedy such failure
of Tenant and to compensate Landlord for damage it suffers thereby. In such
event, Tenant shall, within five (5) days after written demand by Landlord,
remit to Landlord sufficient funds to restore the Security Deposit to its
original sum; Tenant's failure to do so being a material breach of this Lease.
Landlord is not a trustee of the Security Deposit and may commingle it, use it
in ordinary business, transfer or assign it, or use it in any combination of
those ways. Tenant shall not be entitled to any interest on the Security
Deposit. Should Tenant comply with all of said terms, covenants and conditions,
and at the end of the term of this Lease leave the Leased Premises in the
condition required by the terms of this Lease, then said Security Deposit shall
be returned to Tenant within the statutorily prescribed period following the
expiration or termination of this Lease and surrender of the Leased Premises by
Tenant.
2.6.1 The LC Security Deposit. The LC Security Deposit shall: (i) be
in a form reasonably acceptable to Landlord and similar in form to the Form
Letter of Credit, attached hereto as Exhibit "G" and incorporated by reference
herein, (ii) provide that it shall not terminate or expire until ninety (90)
days after the last to occur of the following: (a) the expiration or earlier
termination of this Lease, or (b) surrender of possession of the Leased Premises
by Tenant in accordance with this Lease (the "Expiry Date"); (iii) be confirmed
by a bank authorized to do business in the State of California, which (x) is a
member of the Federal Reserve banking system, (y) has a teller window for
receiving cash deposits located within the County of Santa Clara, California,
and (z) is otherwise reasonably acceptable to Landlord; and (iv) be freely
assignable by Landlord without charge; and (v) permit partial draws. In
addition,
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the LC Security Deposit shall state on its face that is payable to Landlord, or
to Landlord's assignee, upon the presentation by Landlord and/or Landlord's
assignee to the confirming bank that Beneficiary is entitled to make the
requested draw pursuant to the terms of this Lease. From time to time throughout
the term of this Lease, Tenant may replace and/or renew the Letter of Credit
then acting as the LC Security Deposit pursuant to this section, with
Immediately Available Funds and/or a replacement Letter of Credit, provided
that: (i) such replacement LC Security Deposit or renewal shall be delivered to
Landlord on or before the thirtieth (30th) day prior to the expiration of the
Letter of Credit then held by Landlord as the LC Security Deposit under this
section; and (ii) such replacement LC Security Deposit or renewal shall
otherwise comply with all terms and conditions of this paragraph pertaining to
the original LC Security Deposit. Failure to deliver such a replacement LC
Security Deposit and/or renewal on or before thirty (30) days prior to the
expiration of the Letter of Credit then held as the LC Security Deposit (except
after the Expiry Date) shall allow Landlord to draw on the entire Letter of
Credit. If an event of default by Tenant occurs during the term of this Lease or
any extension thereof, Landlord may (but shall not be required to) draw on and
use or apply all or such lesser part of the Letter of Credit as Landlord deems
necessary or such lesser part of the Letter of Credit as is necessary to remedy
such default and compensate Landlord for any loss, damage, costs, or expenses
which Landlord may have suffered by reason of such an event of default. Tenant
shall then, within five (5) days of written demand of Landlord, reinstate the
Letter of Credit or obtain a replacement Letter of Credit, in each case in the
full amount of the Letter of Credit as it existed before the draw, or Tenant
will be in default of this Lease. Within sixty (60) days after the expiration or
sooner termination of this Lease, Landlord shall return the Letter of Credit
then held by it to Tenant or so much of the proceeds thereof as have not been
applied by Landlord to remedy an event of default by Tenant or to compensate
Landlord for any loss or damage which Landlord may have suffered by reason of an
event of default by Tenant. The rights of Landlord with respect to the Letter of
Credit shall be in addition to any other rights or remedies which Landlord may
possess under this Lease.
2.7 Minimum Monthly Rent During Option Period. In the event that Tenant
shall timely and properly exercise its option to extend the term of this Lease,
the Minimum Monthly Rent during the First Option Period and the Second Option
Period shall be determined as follows:
2.7.1 Minimum Monthly Rent During Option Period. During the initial
twelve (12) months of the First Option Period and the initial twelve (12) months
of the Second Option Period, Tenant shall pay to Landlord Minimum Monthly Rent
in an amount equal to ninety-five percent (95%) of the fair market rental value
for premises of similar type, design and quality and in the immediate vicinity
of the Leased Premises, but in no event less than one hundred three percent
(103%) of the Minimum Monthly Rent payable by Tenant during the period
immediately prior to the First Option Period or Second Option Period, as
applicable (the "Initial Option Year Minimum Monthly Rent"). The Initial Option
Year Minimum Monthly Rent shall be determined by agreement of Landlord and
Tenant, or by appraisal, as set forth below. During the succeeding forty-eight
(48) months of the First Option Period and the succeeding forty-eight (48)
months of the Second Option Period, as applicable, Tenant shall pay to Landlord
Minimum Monthly Rent in an amount determined by adjusting the Initial Option
Year Minimum Monthly Rent for such option period in accordance with the
provisions of Section 2.7.5 of this Lease below.
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2.7.2 Determination of Initial Option Year Minimum Monthly Rent by
Agreement. The parties shall have thirty (30) days after Landlord receives the
Extension Option Notice for each option period in which to agree upon the
Initial Option Year Minimum Monthly Rent for such option period. If the parties
agree on the Initial Option Year Minimum Monthly Rent during said thirty (30)
day period, Landlord and Tenant shall immediately execute an amendment to this
Lease stating the agreed upon Minimum Monthly Rent for the initial twelve (12)
months of the First Option Period or the Second Option Period, as applicable.
2.7.3 Determination of Initial Option Year Minimum Monthly Rent by
Appraisal. If Landlord and Tenant are unable to agree upon the Initial Option
Year Minimum Monthly Rent within the above referenced thirty (30) day period,
then the Initial Option Year Minimum Monthly Rent shall be determined by
appraisal as set forth in this section. Within ten (10) days after the
expiration of the above referenced thirty (30) day period, Landlord and Tenant
shall each, at their own cost and expense, appoint one real estate appraiser
with at least five (5) years full time commercial real estate appraisal
experience in the county wherein the Leased Premises are located, to appraise
the Fair Market Rental Value of the Leased Premises for the initial twelve (12)
months of the First Option Period or the Second Option Period, as applicable,
and shall give notice of such selection to the other party. The appraisers
chosen by Landlord and Tenant, respectively, shall promptly meet and attempt to
determine the Fair Market Rental Value of the Leased Premises for the initial
twelve (12) months of the First Option Period or the Second Option Period, as
applicable. If, within thirty (30) days, the two appraisers are unable to agree
upon the Fair Market Rental Value of the Leased Premises for the initial twelve
(12) months of the First Option Period or the Second Option Period, as
applicable, but the higher of the two appraisals is not more than ten percent
(10%) greater than the lower of the two appraisals, then the average of the two
appraisals shall be conclusively established as the Fair Market Rental Value,
and the Initial Option Year Minimum Monthly Rent shall be established
accordingly. If the two appraisers are unable to agree on the Initial Option
Year Minimum Monthly Rent within said thirty (30) day period, the two appraisers
shall appoint a third appraiser who shall be a real estate appraiser with at
least ten (10) years full time commercial real estate appraisal experience in
the county wherein the Leased Premises are located. If the parties are unable to
agree on a third appraiser, then either party shall have the power to apply to
the Superior Court of California in and for the County of Santa Clara to have
said Court appoint a third appraiser who meets the qualifications stated in this
section. Each of the parties shall bear one-half (1/2) of the cost of appointing
the third appraiser and of paying the third appraiser's fee. Within thirty (30)
days after the selection of the third appraiser, such third appraiser shall
appraise the fair market rental value of the Leased Premises for the initial
twelve (12) months of the First Option Period or the Second Option Period, as
applicable, and the three appraisals shall be added together and their total
divided by three (3), the resulting quotient shall be the Initial Option Year
Minimum Monthly Rent, provided, however, that, except as set forth in the next
sentence, the Initial Option Year Minimum Monthly Rent shall not be: (i) lesser
than the lower of the two original appraisals; or (ii) greater than the higher
of the two original appraisals. Notwithstanding the foregoing, in no event shall
the Initial Option Year Minimum Monthly Rent be less than one hundred three
percent (103%) of the Minimum Monthly Rent payable by Tenant under the Lease for
the period immediately prior to the initial twelve (12) months of the First
Option Period or the Second Option Period, as applicable. In determining the
fair market rental
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value, each appraiser shall consider the highest and best use for the Leased
Premises, subject to the restrictions on use as set forth in Section 3.1 of the
Lease.
2.7.4 Interim Minimum Monthly Rent Payable Pending Determination of
Initial Option Year Minimum Monthly Rent. If the Initial Option Year Minimum
Monthly Rent has not been determined prior to commencement of either the First
Option Period or the Second Option Period, as applicable, the rent payable by
Tenant until such determination shall be the applicable Holdover Rent determined
in accordance with Section 1.3 of this Lease above.
2.7.5 Adjustments to Minimum Monthly Rent During Option Period. The
Minimum Monthly Rent payable during the First Option Period or the Second Option
Period, as applicable, shall be adjusted annually pursuant to this section on
each anniversary of the 1st day of the First Option Period or the Second Option
Period, as applicable (the "Adjustment Date(s)"). As of each Adjustment Date,
the Minimum Monthly Rent shall be increased to a sum equal to one hundred three
percent (103%) of the Minimum Monthly Rent or the Minimum Monthly Rent, as
adjusted, as the case may be, payable for the period immediately prior to the
applicable Adjustment Date. Landlord shall provide Tenant with written notice of
each such adjustment in the Minimum Monthly Rent following Landlord's
determination thereof; provided, however, that any failure or delay on the part
of Landlord in delivering such notice shall not relieve Tenant from the
obligation to pay Minimum Monthly Rent, during all periods commencing on the
relevant Adjustment Date. In the event that Landlord shall not have delivered an
adjustment notice on or before a given Adjustment Date Tenant shall continue to
pay the Minimum Monthly Rent due for the period prior to the relevant Adjustment
Date, until Landlord shall deliver to Tenant the notice of adjustment. Within
ten (10) days following receipt of the relevant adjustment notice, Tenant shall
pay to Landlord any accrued unpaid rent for the period commencing on the
relevant Adjustment Date.
ARTICLE 3
USE OF LEASED PREMISES, PARKING, LICENSE,
AND PUBLIC TRANSPORTATION
3.1 Permitted Use; Compliance with Insurance, Law. Tenant shall: (i) use
the Leased Premises for a data center for colocation, general office, research
and development, marketing, sales, storage and other legal uses and for no other
purpose; (ii) not do, bring, keep or allow anything in or about the Leased
Premises that may cause a cancellation of any insurance covering the Leased
Premises; (iii) comply with any and all requirements of any insurer of the
Leased Premises; and (iv) comply at its sole cost with all laws insofar as they
relate to the condition, use, or occupancy of the Leased Premises, and any
certificate of occupancy, certificate of compliance, permit, easement,
condition, covenant or restriction covering or affecting the condition, use or
occupancy of the Leased Premises, including without limitation, and subject to
Article 5 hereof, the obligation to take curative action, whether substantial or
insubstantial, to alter or maintain the Leased Premises in compliance and
conformity with all such laws.
3.2 Waste; Nuisance. Tenant shall not use or occupy the Leased Premises in
any manner that may constitute, nor shall Tenant suffer or permit the existence,
maintenance, or
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commission of, any act, omission, or condition that may constitute at the Leased
Premises waste, nuisance, or unlawful acts. Tenant shall not do anything on the
Leased Premises that will cause damage to the Leased Premises or threaten or
impair the structural strength of the Building.
3.3 Toxic Materials. Tenant shall not create, generate, use, store, bring,
permit, emit, dispose of, or allow to be present, in, on, under, or about, the
Leased Premises any toxic or hazardous gaseous, liquid, or solid material or
waste ("Toxic Materials"), except upon Landlord's specific prior written
consent, which consent may be withheld by Landlord with or without cause, in its
sole and absolute determination, and in compliance with all applicable laws, as
more particularly set forth in this Section 3.3.
3.3.1 For purposes of this section, "Toxic Materials", include,
without limitation, any material or substance: (i) having characteristics of
radioactivity, ignitability, corrosivity, reactivity, or extraction procedure
toxicity; (ii) which is listed on any of the Environmental Protection Agency's
lists of hazardous wastes or which are identified in Sections 66680 through
66685 of Title 22 of the California Administrative Code as the same may be
amended from time to time; (iii) which has been determined by any state, federal
or local governmental or public authority or agency to be capable of posing a
risk of injury to health, safety or property; (iv) which are designated as
hazardous or toxic by the city and/or county in which the Leased Premises are
located, the United States Environmental Protection Agency, the United States
Consumer Product Safety Commission, the United States Food and Drug
Administration, the California Water Resources Control Board, the Regional Water
Quality Control Board, San Francisco Bay Region, the California Air Resources
Board, CAL/OSHA Standards Board, Division of Occupational Safety and Health, the
California Department of Food and Agriculture, the California Department of
Health Services, and any federal, state, county, and/or municipal agencies that
have overlapping jurisdiction with such federal, state, county, and municipal
agencies, or any other governmental agency now or hereafter authorized to
regulate materials and substances in the environment; and/or (v) which require
remediation under federal, state, county, or municipal statutes, ordinances,
regulations or policies.
3.3.2 Tenant shall indemnify, defend, and hold Landlord harmless from
any and all claims, liabilities, costs or expenses incurred or suffered by
Landlord arising from the creation, generation, use, storage, bringing,
permitting, emission, disposal of, or allowance to be present, of Toxic
Materials in, on, under, or about the Leased Premises, and whether or not
consent to the same has been granted by Landlord, unless caused by Landlord's
gross negligence or willful misconduct. Tenant's indemnification, defense, and
hold harmless obligations include, without limitation: (i) any and all claims,
liabilities, costs and/or expenses resulting from or based upon administrative,
judicial (civil or criminal) or other action, whether legal or equitable,
brought by any private or public person or entity under common law or any
federal, state, county, municipal law, statute, ordinance, or regulation,
including, without limitation, any subsequent tenant or owner of the Leased
Premises or adjacent property; (ii) any and all claims, liabilities, costs or
expenses pertaining to the cleanup or containment of Toxic Materials in, on,
under, or about the Leased Premises, the identification of the pollutants in the
Toxic Materials, the identification of the scope of any such environmental
contamination, the removal of pollutants from soils, riverbeds or aquifers, the
provision of an alternative public drinking water source, or the long term
monitoring of ground water and surface waters; (iii) any and all costs
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and fees incurred, including, without limitation, attorneys' fees and costs, in
defending such claims; and (iv) any and all costs or losses suffered by Landlord
as the result of any delay or inability to sell or lease the Leased Premises
after the expiration of the Lease, including, without limitation, compensation
for any diminution in the market value of the Leased Premises resulting from the
presence of Toxic Materials thereon. Tenant shall comply at its sole cost and
expense with all laws pertaining to such Toxic Materials. Tenant's hold
harmless, defense, and indemnity obligations hereunder shall survive the
expiration or termination of this Lease. Landlord shall indemnify, defend, and
hold Tenant harmless from any injury, loss or damage, including reasonable
attorneys' fees and costs of suit arising out of a release of Toxic Materials
which Tenant proves occurred prior to the Commencement Date, unless such
contamination results solely from the gross negligence or intentional acts of
Tenant.
3.3.3 Tenant shall immediately notify Landlord of any inquiry, test,
investigation or enforcement proceeding initiated by any applicable governmental
authority or other person or entity against Tenant, Landlord, or the Leased
Premises concerning the presence (or suspected presence) of any Toxic Materials
in, on, under, or about the Leased Premises. Tenant acknowledges that Landlord,
as the owner of the Leased Premises, must approve in writing any settlement
agreement negotiated by Tenant in connection with any such investigation,
proceeding, or enforcement action. Landlord shall not unreasonably withhold any
such approval.
3.3.4 Notwithstanding any other right of entry granted to Landlord
under this Lease, Landlord shall have the right to enter the Leased Premises or
to have consultants enter the Leased Premises throughout the term of this Lease
for the purpose of determining: (i) whether or not the Leased Premises are in
conformity with federal, state, county, and municipal statutes, regulations,
ordinances, and policies including those pertaining to the environmental
condition of the Leased Premises; (ii) whether or not Tenant is in compliance
with the provisions of this Section 3.3; and/or (iii) any or all corrective
measures required of Tenant in order to ensure the safe use, storage, and
disposal of Toxic Materials, and/or the removal thereof (except to the extent
used, stored, or disposed of by Tenant or its agents, employees, contractors, or
invitees in compliance with applicable law). Provided Landlord has reasonable
cause to believe that Toxic Materials are present in, on, or under the Leased
Premises, such inspections may include, but are not limited to, entering the
Leased Premises or adjacent property with drill rigs or other machinery for the
purpose of obtaining laboratory samples. Landlord shall not undertake such
inspections more than once a calendar year unless Landlord has reasonable cause
to believe that Toxic Materials are present in, on or under the Leased Premises
in violation of applicable laws or the terms of this Lease. To the extent such
inspections discover the presence, handling, storage, release, or disposal of
any Toxic Material contrary to provisions of this Lease by Tenant or its agents,
employees, contractors, or invitees, Tenant shall reimburse Landlord for the
cost of such inspections within ten (10) days after receipt of a written
statement thereof. Landlord shall use reasonable good faith efforts to conduct
such inspections in a manner that minimizes any interference with Tenant's use
of the Leased Premises. If such consultants determine that the Leased Premises
or any portion thereof (including, without limitation, sewers and storm drains)
are contaminated with Toxic Materials used, stored, disposed, or released by
Tenant or any of its agents, employees, contractors, or invitees, Tenant shall,
in a timely manner, at Tenant's sole cost and expense, remove such Toxic
Materials or otherwise comply with the recommendations of
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such consultants to the reasonable satisfaction of Landlord and any applicable
governmental authorities. The rights granted to Landlord herein to inspect the
Leased Premises shall not create a duty on Landlord's part to inspect the Leased
Premises, or liability of Landlord for Tenant's use, storage, or disposal of
Toxic Materials, it being understood that Tenant shall be solely responsible for
all liability in connection therewith.
3.3.5 Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease tree from any Toxic Materials,
debris, and waste that Tenant is responsible for pursuant to the terms of this
Section 3.3, including without limitation, any Toxic Materials that may have
been created; generated, used, stored, disposed of, brought upon, or introduced
on the Premises by Tenant or its agents, employees, contractors, or invitees
during Tenant's prior occupancy of the Premises pursuant to this Lease. In no
event shall detectable levels of such Toxic Materials (if any) which would
operate as a threshold for actions prescribed by law or regulation or would
diminish the fair market value of the Leased Premises were it not for the
presence of such Toxic Materials be acceptable. Tenant's obligations under this
section shall survive the expiration or earlier termination of this Lease.
3.3.6 Prior to introducing any Toxic Materials in, on, under, or about
the Leased Premises, Tenant shall provide Landlord with copies of any and all
permits and applications submitted by Tenant and/or issued by any governmental
agency concerning Tenant's use or generation of such Toxic Materials, in, on,
under, or about the Leased Premises. At Tenant's sole cost and expense, Tenant
shall implement any conditions imposed by such governmental agency(ies) in
connection with such permits and applications, as well as any governmentally
required compliance programs, and any reasonable compliance program requested by
Landlord, and Tenant shall regularly provide Landlord and Landlord's agents with
all information they may request pertaining to any such Toxic Materials or
compliance program, and Landlord shall be free to make such inspections of the
Leased Premises as it deems necessary or desirable in order to evaluate such
conditions.
3.3.7 If Landlord grants Tenant permission in writing in advance to so
bring, allow, use, store, permit, generate, or create, emit or dispose of Toxic
Materials in, on, under, or about the Leased Premises, Tenant shall provide to
Landlord on an annual basis a report from a person who, to Landlord's
satisfaction, is appropriately qualified or licensed as an expert in the field
of toxic materials compliance laws, which certifies that Tenant is complying
with all applicable governmental statutes and regulations concerning Toxic
Materials, and that there have been no spills or contaminations by Tenant at
the Leased Premises that have not been fully corrected and cleaned up.
3.3.8 In the event of contamination by Toxic Materials at, from, of or
around the Leased Premises, the cleanup of which is the responsibility of
Tenant, Landlord may require within fifteen (15) days after written notification
from Landlord, that Tenant post a bond or other adequate security to the benefit
of Landlord, in an amount equal to Landlord's estimate of costs for cleaning up
the contamination. The posting of the bond does not relieve Tenant from
fulfilling its responsibility to clean up the contamination. After the
contamination has been cleaned up and certified, as set forth above, the bond or
other adequate security shall be returned to Tenant.
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3.3.9 Within ten (10) days after the expiration of the term of this
Lease, at Landlord's election, Landlord and Tenant shall reasonably agree upon
and engage a third party to test for Toxic Materials contamination in, on,
under, and about the Leased Premises, at a cost to be borne by Tenant. If the
parties cannot agree upon a third party to conduct such tests, Landlord shall
name a qualified environmental testing firm with at least five (5) years
experience to conduct such investigation. The results of such tests shall be
conclusively presumed to establish the presence or absence of any such Toxic
Materials contamination.
3.3.10 Tenant acknowledges that Tenant has been informed that the
property adjacent to the Leased Property, located at 2790-3000 Corvin Drive,
Santa Clara, CA, has recently been the subject of an environmental clean-up and
that one or more test wells are located on the Premises in connection with such
clean-up.
3.3.11 Landlord represents that as of the Commencement Date, Landlord
has not received notice that any Toxic Materials are present at or in the Leased
Premises the nature, concentration or condition of which violates any applicable
federal, state, or local, rule, regulation, ordinance, or statute. To the best
of Landlord's knowledge without inquiry, as of the date of execution of this
Lease: (i) no Toxic Materials from such adjacent property as described above in
Section 3.3.10 have migrated in, on, or under the Leased Premises; and (ii) the
Leased Premises, the Building and the Land are free from all Toxic Materials.
3.3.12 Notwithstanding any other provision in this Lease, nothing in
this Lease shall obligate Tenant to remove, remediate or otherwise respond to,
or to indemnify, defend or hold harmless Landlord (or any other person) as a
result of or in connection with, or to pay to Landlord (or any other person) as
Additional Rent any costs or expenses arising out of, any Toxic Materials that
were present on or under the Premises at any time prior to the Commencement
Date.
3.3.13 The parties acknowledge that, per Tenant's request, and
pursuant to the terms of that letter agreement dated August 23, 2000, a copy of
which is attached hereto as Exhibit "F" and incorporated by reference herein,
Lowney Associates have been contracted to evaluate the Leased Premises' existing
subsurface conditions to establish a "base line" environmental condition of the
Leased Premises. The costs of such work shall be shared equally by Tenant and
Landlord; provided, however, that Landlord shall not be obligated to pay in
excess of five thousand dollars and no cents ($5,000.00) towards the cost of
such work and all costs in excess of such amount shall be the sole obligation of
Tenant. Upon the completion of the work, Tenant shall provide Landlord with a
copy of any report arising from such work, if any.
3.4 Quiet Enjoyment. Provided Tenant timely complies with and performs each
and every covenant, agreement, term, provision, and condition contained in this
Lease on the part of Tenant to be complied with or performed, Tenant shall have
the quiet use and enjoyment of the Leased Premises without disturbance by
Landlord, its successors and assigns, or anyone claiming by, through, or under
Landlord, subject to the covenants, agreements, terms, provisions, and
conditions of this Lease. This covenant of Landlord is in lieu of any covenant
of quiet enjoyment implied by law.
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3.5 Parking. Subject to all applicable laws, throughout the term of this
Lease, Tenant shall have the use and enjoyment of all parking areas located upon
the Land for the purpose of parking passenger automobiles used by the employees,
customers, contractors, and guests of Tenant (the "Parking License").
3.6 Access. During the term of the Lease, Tenant shall have twenty-four
(24) hour access to the Leased Premises, seven days a week.
ARTICLE 4
MAINTENANCE AND REPAIR
4.1 Condition of Premises. Tenant: (i) has examined the Leased Premises, is
aware of their condition and acknowledges that, except as expressly provided
herein, Landlord has made no warranty or representation with respect to same,
(ii) accepts the Leased Premises and improvements thereon "as-is" in their
present condition, including, without limitation, with respect to any
non-compliance of all or any portion of the Leased Premises with local
ordinances or building codes, or with the Americans With Disabilities Act, (iii)
agrees that the Leased Premises and improvements, and facilities appurtenant
thereto are in good, clean, safe and tenantable condition as of the date of this
Lease and that this provision shall be conclusively binding on the parties
hereto, and (iv) acknowledges that Landlord is relying on such acceptance and
agreement as consideration for entering into this Lease. Notwithstanding the
foregoing, on the Commencement Date, Landlord shall deliver possession of the
Leased Premises with all existing plumbing; air-conditioning; heating, and other
existing operating systems in good working condition.
4.2 Tenant Maintenance and Repair Obligations. Tenant, at its sole cost and
expense, shall, at all times during the term of this Lease, keep and maintain
all the Leased Premises, and all portions thereof, including, without
limitation, all Property, appurtenances, equipment, and systems, in, on, under,
and about, the Leased Premises, in good order, condition and repair (which shall
include replacement), including, without limitation, all improvements,
alterations, fixtures, and all wall, window, and floor coverings located
therein, as well as all telephonic, electrical, and computer systems and
cabling. The necessity for and adequacy of repairs to and maintenance of such
maintenance and repair shall be measured by the standard which is appropriate
for industrial office buildings of similar type design, size, and quality in
Santa Clara or Alameda County. Except as otherwise provided in Article 8 of this
Lease (Destruction of the Leased Premises), Tenant, at Tenant's sole cost and
expense shall repair and/or replace any portion of the Leased Premises, or the
Building, which is damaged or injured as the result of any negligent or
intentional act or failure to act on the part of Tenant, or Tenant's agents,
servants, employees, contractors, visitors, invitees, or licensees, or as the
result of any breach of Tenant's obligations under this Lease.
4.3 Landlord Maintenance and Repair Obligations. Landlord shall have no
obligation to repair or maintain all or any portion of the Leased Premises.
Tenant hereby waives all rights under the provisions of Sections 1932, 1933,
1941 and 1942 of the Civil Code of the State of California and all rights under
any law in existence during the term of this lease authorizing a
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tenant to make repairs at the expense of a landlord or to terminate a lease upon
the complete or partial destruction of the Leased Premises, or any portion
thereof. In no event shall Landlord be responsible for any consequential damages
arising or alleged to have arisen from any of the foregoing matters.
ARTICLE 5
ALTERATIONS, FIXTURES, AND SIGNS
5.1 Initial Tenant Improvements. Subject to the requirements of this
Section 5.1, immediately following receipt of possession of the Leased Premises,
Tenant shall proceed with all due diligence, at Tenant's sole expense, to
install and configure the Leased Premises in accordance with the tenant
improvement plans and/or descriptions set forth in the Tenant Work Letter
attached hereto as Exhibit "C" and incorporated herein by reference, to install
its trade fixtures, and to perform such additional work as it may deem necessary
for the conduct of its business within the Leased Premises (collectively
referred to as "Tenant's Work"). Tenant shall construct the Tenant's Work in
four phases, each phase is more particularly described in the Work Letter as
"Phase One", "Phase Two", "Phase Three" and "Phase Four" respectively.
Construction of Tenant's Work during each phase shall comply with all the terms
of the Tenant Work Letter and the Lease, as applicable.
5.1.1 Tenant Improvement Allowance. In connection with Phase One,
Landlord shall give to Tenant a Tenant Improvement Allowance (the "Allowance")
in an amount not to exceed seven hundred fifty thousand dollars and no cents
($750,000.00), subject to the following terms and conditions:
5.1.1.1 The proceeds of the Allowance shall be used solely to
pay the costs of Tenant's construction of Tenant's Work in Phase One ("Tenant's
Initial Work");
5.1.1.2 Landlord shall disburse funds from the Allowance to
Tenant, or for Tenant's account, in the manner described below, provided that
all of the following conditions have been satisfied:
5.1.1.2.1 Landlord receives a copy of Tenant's budget
for construction of the Tenant's Initial Work within thirty (30) days after
execution of this Lease for the proposed construction of Tenant's Initial Work,
and Landlord approves of said budget (Landlord's approval shall not be
unreasonably withheld);
5.1.1 2.2 Tenant delivers to Landlord copies of each of
the following:
(a) a use permit (if required);
(b) all required building permits;
(c) all other permits, licenses, and other approvals
required by law to complete Tenant's construction of Tenant's Initial Work on
the Leased Premises; and
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(d) a complete list of the names, addresses, telephone
numbers and contract amounts for all contractor(s), subcontractors, vendors
and/or suppliers providing materials and/or labor for the construction of
Tenant's Initial Work; and
5.1.1 2.3 Within thirty (30) days after each of the
foregoing conditions specified have been satisfied by Tenant, Tenant shall
deliver to Landlord a written request for disbursement from the Allowance,
together with: (i) copies of all invoices from Tenant's contractor(s),
subcontractors, vendors and/or suppliers providing materials and/or labor for
the construction of Tenant's Initial Work; (ii) a conditional mechanic's lien
release or other lien release, in a form reasonably acceptable to Landlord, for
all work for which Tenant seeks a disbursement request; and (iii) an
unconditional mechanics' lien release or other lien release for all of the
Initial Tenant Work that has been performed thus far, if any, in a form
reasonably acceptable to Landlord. Within thirty (30) days after Landlord's
receipt of such written request for distribution, Landlord shall disburse to
Tenant the amount of such invoices, unless, within said thirty (30) day period,
Landlord shall notify Tenant of Landlord's reasonable objection(s) thereto.
Notwithstanding the foregoing, Landlord, in Landlord's sole determination, shall
have the right to deposit all or some portion of the Allowance into Tenant's
Escrow Account or into a separate construction escrow account established by
Landlord in order to facilitate payment of the construction costs upon
submission of Tenant invoices. In connection with the foregoing, prior to
commencing any Tenant's Work in any of the phases, Tenant shall purchase and
deliver to Landlord a payment and a performance bond issued by a surety
authorized to do business within the State of California in a principal amount
sufficient to ensure completion of such Tenant's Work. Tenant shall bear all
costs of construction of Tenant's Work in excess of the Allowance.
5.1.2 Tenant shall not have access to any of the Allowance until
after the Commencement Date of the Lease. During the first thirty days after
the Commencement Date, Landlord shall make available to Tenant a maximum of two
hundred thousand dollars and no cents ($200,000.00) of the Allowance, subject to
the terms in this Section 5.1. After the initial thirty-day period, the balance
of the Allowance shall be made available to Tenant, payable to Tenant pursuant
to the terms in this Section 5.1.
5.2 Subsequent Alterations to the Leased Premises by Tenant. Except as
provided in this section, Tenant shall not make any further alterations,
improvements, or modifications to the Leased Premises, or to the Building,
without Landlord's express prior written consent, which consent shall not be
unreasonably withheld or delayed. Tenant, at its cost, shall have the right to
make, without Landlord's consent, such nonstructural alterations to the interior
of the Leased Premises, as Tenant requires in order to conduct its business
within the Leased Premises, provided such non-structural alterations
collectively do not exceed a total cost to Tenant in excess of the amount of
fifty thousand dollars and no cents ($50,000.00) in any three calendar year
period; and provided, however, that Tenant shall not begin any such alterations,
modifications, or improvements, until five (5) business days after Tenant has
notified Landlord of the date the alterations will commence, so that Landlord
can post appropriate notices of non-responsibility.
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5.3 Alterations to the Leased Premises Requiring Landlord's Consent. When
making any alterations, improvements, or modifications to the Leased Premises or
the building thereon, which require Landlord's prior written consent, not less
than thirty (30) days prior to the date upon which Tenant intends to commence
construction of such alterations, improvements, or modifications, Tenant shall
submit to Landlord for approval reasonably detailed final plans and working
drawings of the proposed alterations, improvements, or modifications. Landlord
may impose as a condition of its consent to such alterations, improvements, or
modifications, such requirements as Landlord may deem reasonable and desirable,
including but not limited to, the requirement that Tenant, and/or Tenant's
contractor(s), post a payment and/or a completion bond, or deposit sufficient
funds to complete the project into a construction escrow account reasonably
acceptable to Landlord ("Tenant's Escrow Account"), in order to guarantee the
performance of Tenant's construction obligations hereunder. Landlord also
reserves the right to disapprove of any proposed alterations, improvements, or
modifications, which, in Landlord's sole determination, would not maintain a
consistency of design within the Building. Landlord agrees to consent to said
proposed alterations, improvements, or modifications, or to advise Tenant in
reasonable detail of its reasonable objections thereto, within twenty-one (21)
days after receipt of the proposed final drawings and plans, in order to permit
Tenant time to make any appropriate revisions to its plans. If Landlord fails to
affirmatively approve or disapprove of the proposed alterations, improvements,
or modifications within said time period, the proposed alterations,
improvements, or modifications shall be deemed disapproved. Once said plans are
approved by Landlord in writing, Tenant shall configure and construct the Leased
Premises in strict accordance with such plans and shall make no changes without
Landlord's consent.
5.4 All Alterations to the Leased Premises. In making any alterations,
improvements, or modifications to the Leased Premises, or to the Building,
including, without limitation, the construction of Tenant's Work during any of
the phases, and whether or not Landlord's prior consent is required pursuant to
this Lease, Tenant shall comply with each of the following terms and
conditions, unless specifically stated otherwise in the Lease or the Work
Letter:
5.4.1 Tenant shall utilize only such contractor(s), materials,
mechanics and materialmen in connection with the alteration, improvement, or
modification of the Leased Premises, as shall have been approved by Landlord in
Landlord's reasonable determination.
5.4.2 Tenant shall pay all costs and expenses relating to the
alteration, improvement, or modification to the Leased Premises undertaken by
Tenant.
5.4.3 Tenant shall provide working drawings of any proposed
alterations, improvements, and/or modifications to Landlord prior to commencing
such alterations or modifications.
5.4.4 All alterations, improvements, and/or modifications shall be
approved by all appropriate government agencies, and all applicable permits and
authorizations shall be obtained prior to commencement of construction of the
alterations.
5.4.5 All alterations, improvements, and/or modifications shall be
completed by Tenant with due diligence in strict compliance with all laws and
regulations relating to the
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project, including, but not limited to, the Americans With Disabilities Act of
1990, Pub. Law 101-336, 104 Stat. 1327, as amended, and all related Federal,
State and Local statutes and regulations (collectively referred to as "ADA"),
and in strict accordance with the plans and specifications and working drawings.
5.4.6 Prior to commencing construction, Tenant will obtain, and/or
cause its architects and contractors to obtain, and verify to Landlord that
Tenant, and/or its architects and contractor(s), have obtained, such additional
insurance as shall be reasonably required by Landlord, including, but not
limited to errors and omissions coverage for all design work, workers
compensation insurance as required by law, all physical loss builders risk
insurance, including operations completed coverage, and standard endorsement CG
2010, comprehensive automobile liability insurance, and comprehensive general
liability insurance. All liability policies, except for workers compensation
insurance, shall have policy limits of not less than two million dollars and no
cents ($2,000,000.00), or such additional amount as Landlord may reasonably
require, and shall name Landlord and Landlord's employees, agents, architects,
and contractors as additional insureds. All casualty policies shall have policy
limits of not less than full replacement value, with deductibles not greater
than one thousand dollars and no cents ($1,000.00) per occurrence. The policy of
workers compensation insurance shall be in such coverage amount as is required
by law, and shall contain an endorsement waiving all rights of subrogation
against Landlord, and Landlord's employees, agents, architects, and contractors.
5.4.7 All alterations, improvements, modifications, and fixtures shall
utilize building standard materials.
5.4.8 All work shall be performed in a manner that will not materially
interfere with the quiet enjoyment of occupants of adjacent properties.
5.4.9 All improvements, modifications, alterations, and/or fixtures
installed as part of the construction, shall at Landlord's election, become the
property of Landlord upon the expiration or other earlier termination of this
Lease; provided, however, that Landlord shall have the right to require Tenant
to remove the fixtures at Tenant's cost on termination of this Lease. If Tenant
is required by Landlord to remove the fixtures on termination of this Lease,
Tenant shall repair and restore any damages to the Leased Premises caused by
such removal.
5.5 Mechanics' Liens. Tenant shall pay for all construction by it or caused
to be done by it on the Leased Premises as permitted by this Lease. Tenant shall
keep the Leased Premises, and the building thereon, and any other improvements
owned by Landlord, free and clear of all mechanics' and materialmen's liens
resulting from construction done by or for Tenant. Tenant shall have the right
to contest the correctness or the validity of any such lien if, immediately upon
demand by Landlord, Tenant procures and records a lien release bond issued by a
corporation authorized to issue surety bonds in the State of California in an
amount equal to one and one-half (1 1/2) times the amount of the claim of lien.
The bond shall provide for the payment of any sum that the claimant may recover
on the claim (together with costs of suit if it recovers in the action). Failure
to obtain such a lien release bond within ten (10) days after notice thereof
shall, in the sole discretion of Landlord, constitute an event of default under
this Lease. If Tenant fails to obtain such a lien release bond within said ten
(10) day period, Landlord may take
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whatever actions Landlord deems necessary in order to obtain the release, and
Tenant shall indemnify Landlord for all costs incurred by Landlord in obtaining
such release, including, but not limited to, any attorneys' fees and costs
incurred by Landlord and/or the lien claimant.
5.6 Signs. Tenant, at Tenant's sole cost, may install any signage upon the
Leased Premises that is permitted by applicable law, including without
limitation, any federal, state, local, or quasi-governmental rule, regulation,
ordinance, statute, or case law, and is not inconsistent with any Covenants,
Conditions, and Restrictions (or similar type agreement) in effect concerning
the Property. Landlord makes no representation with respect to Tenant's ability
to obtain such approval and/or to install such signage. Tenant shall remove such
signage at the Expiration Date or sooner termination of this Lease and repair
any damage to the Leased Premises caused by such removal.
ARTICLE 6
UTILITIES AND SERVICES
6.1 Utilities and Services to Leased Premises. Tenant shall contract with
and pay directly the providers of all utilities and services furnished to the
Leased Premises, including, without limitation, the following: gas, electrical,
H.V.A.C., telephone, waste removal, janitorial, sewage, and other utilities,
telecommunications and cleaning services provided to the Leased Premises.
6.2 Interruption of Services. Landlord shall not be liable to Tenant for
any interruption or failure of any utilities or services to the Leased Premises,
or any portion thereof, nor shall such constitute a constructive eviction or
give rise to a right of rent offset or abatement or effect the obligations of
Tenant under this Lease in any other way whatsoever where the failure or
interruption is caused by accident, breakage, repairs, strikes, lockouts or
labor disputes of any nature, Acts of God or Nature, the utility supplier or by
any other cause, similar or dissimilar, beyond the reasonable control of
Landlord or where Landlord diligently and in good faith acts to remedy same,
unless such interruption or failure was caused by Landlord's gross negligence or
willful misconduct, but Tenant shall be subrogated to any rights Landlord may
have against any supplier of services or utilities in such event.
ARTICLE 7
INDEMNITY AND EXCULPATION; INSURANCE
7.1 Indemnification and Waiver. Except when due to the gross negligence or
willful misconduct of the Landlord Parties (as defined below) and as otherwise
provided for in this Lease, Tenant hereby assumes all risk of damage to property
or injury to persons in, upon or about the Leased Premises from any cause
whatsoever (including, but not limited to, any personal injuries resulting from
a slip and fall in, upon or about the Leased Premises) and agrees that Landlord,
its partners, subpartners and their respective officers, agents, servants,
employees, and independent contractors (collectively, "Landlord Parties") shall
not be liable for, and are hereby released from any responsibility for, any
damage either to person or property or resulting
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from the loss of use thereof, which damage is sustained by Tenant or by other
persons claiming through Tenant. Tenant shall indemnify, defend, protect, and
hold harmless the Landlord Parties from any and all loss, cost, damage, expense
and liability (including without limitation court costs and reasonable
attorneys' fees) incurred in connection with or arising from any cause in, on or
about the Leased Premises (including, but not limited to, a slip and fall), any
acts, omissions or negligence of Tenant of any person claiming by, through or
under Tenant, or of the contractors, agents, servants, employees, invitees,
guests or licensees of Tenant or any such person, in, on or about the Leased
Premises, or any portion thereof, or any breach of the terms of this Lease,
either prior to, during, or after the expiration of the term of this Lease,
provided that the terms of the foregoing indemnity shall not apply to the gross
negligence or willful misconduct of the Landlord Parties. Should Landlord be
named as a defendant in any suit brought against Tenant in connection with or
arising out of Tenant's occupancy of the Leased Premises, Tenant shall pay to
Landlord its costs and expenses incurred in such suit, including without
limitation, its actual professional fees such as reasonable appraisers',
accountants' and attorneys' fees; provided, however, that if Tenant's and/or
Landlord's insurance carrier has acknowledged coverage for the claim, and the
available insurance proceeds are reasonably adequate to cover all of Landlord's
losses, Tenant shall not be obligated to pay any amounts in excess of the
available coverage. The provisions of this section shall survive the expiration
or sooner termination of this Lease with respect to any claims or liability
arising in connection with any event occurring prior to such expiration or
termination.
7.2 Tenant's Insurance. Tenant shall maintain the following coverages in
the following amounts.
7.2.1 Commercial General Liability Insurance. Covering the insured
against claims of bodily injury, personal injury and property damage (including
loss of use thereof) arising out of Tenant's operations, and contractual
liabilities (covering the performance by Tenant of its indemnity agreements)
including a Broad Form endorsement covering the insuring provisions of this
Lease and the performance by Tenant of the indemnity agreements set forth in
Section 7.1 above, for limits of liability not less than:
Bodily Injury and
Property Damage $3,000,000 each occurrence
Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's participation
7.2.2 Physical Damage Insurance. Covering the Leased Premises, and all
portions thereof, including without limitation, (i) all office furniture,
business and trade fixtures, office equipment, free-standing cabinet work,
movable partitions, merchandise and all other items of Tenant's property within
the Leased Premises; (ii) the Building structure and improvements; (iii)
Tenant's Work; (iv) any other improvements which exist in the Leased Premises,
and (v) all other improvements, alterations and additions to the Leased
Premises.
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Such insurance shall be written on an "all risks" of physical loss or damage
basis, for the full replacement cost value (subject to reasonable deductible
amounts) new without deduction for depreciation of the covered items and in
amounts that meet any co-insurance clauses of the policies of insurance and
shall include coverage for damage or other loss caused by fire or other peril
including, but not limited to, vandalism and malicious mischief, theft, water
damage of any type, including sprinkler leakage, bursting or stoppage of pipes,
and explosion, and providing business interruption coverage for a period of one
year.
7.2.3 Worker's Compensation and Employer's Liability. Tenant at
Tenant's sole cost shall maintain Worker's Compensation insurance in the amounts
and as required by the State of California and Employer's Liability insurance,
or other similar insurance reasonably satisfactory to Landlord, in amounts
reasonably satisfactory to Landlord, or as otherwise required by applicable
state and local statutes and regulations.
7.2.4 Form of Policies. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Each policy of insurance required to be carried by
Tenant under this Lease (including, without limitation, all insurance required
pursuant to Section 5.4.6 above) shall (i) name Landlord, and any other party
the Landlord so specifies, as an additional insured, including Landlord's
managing agent, if any; (ii) be issued by an insurance company having a rating
of not less than A-X in Best's Insurance Guide or which is otherwise acceptable
to Landlord and licensed to do business in the State of California; (iii) be
primary insurance as to all claims thereunder and provide that any insurance
carried by Landlord is excess and is non-contributing with any insurance
requirement of Tenant; (iv) be in form and content reasonably acceptable to
Landlord; and (v) provide that said insurance shall not be canceled or coverage
changed unless thirty (30) days' prior written notice shall have been given to
Landlord and any mortgagee of Landlord. Tenant shall deliver said policy or
policies or certificates thereof to Landlord on or before the Commencement Date
and at least thirty (30) days before the expiration dates thereof. In the event
Tenant shall fail to procure such insurance, or to deliver such policies or
certificate, Landlord may, at its option, procure such policies for the account
of Tenant, and the cost thereof shall be paid to Landlord within five (5) days
after delivery to Tenant of bills therefor.
7.2.5 Subrogation. Landlord and Tenant intend that their respective
property loss risks shall be borne by reasonable insurance carriers to the
extent above provided, and Landlord and Tenant hereby agree to look solely to,
and seek recovery only from, their respective insurance carriers in the event of
a property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the
insured to recover thereunder. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of subrogation
shall not affect the right of the insured to recover thereunder, so long as no
material additional premium is charged therefor.
7.2.6 Additional Insurance Obligations. Tenant shall carry and
maintain during the entire Lease Term, at Tenant's sole cost and expense,
increased amounts of the insurance required to be carried by Tenant pursuant to
this section and such other reasonable types of
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insurance coverage and in such reasonable amounts covering the Leased Premises
and Tenant's operations therein, as may be reasonably requested by Landlord.
ARTICLE 8
DESTRUCTION
8.1 Repair of Damage to Premises by Landlord. Except as otherwise set forth
in Section 8.2 below, in the event that all or any portion of the Leased
Premises shall be damaged by fire or other casualty, this Lease shall not
terminate, and Tenant shall reconstruct the Leased Premises on the terms and
conditions set forth herein. If any such casualty shall occur, Tenant shall
promptly notify Landlord of such damage, subject to the provisions of Article 5
of this Lease, Tenant shall promptly and diligently, subject to reasonable
delays for insurance adjustment or other matters beyond Tenant's reasonable
control, and subject to all other terms of this article, restore the Leased
Premises to substantially the condition prior to the casualty, except for
modifications required by zoning and building codes and other laws or by the
holder of a mortgage on the Building and/or the Leased Premises or any other
modifications requested by Landlord, which are consistent with the character of
the Building; provided, however that Landlord shall contribute to the costs of
such reconstruction ("Landlord's Insurance Contribution") out of any insurance
proceeds actually received by Landlord as the result of such damage to the
Leased Premises (other than insurance proceeds, or any portion thereof, received
by Landlord as compensation for loss or damage to personal property or fixtures
belonging to Landlord) in an amount equal to the difference between Tenant's
total costs of reconstruction and the greater of the following ("Tenant's
Insurance Proceeds"): (a) the total amount of insurance required to be carried
by Tenant under this Lease with respect to such event of damage or destruction;
or (b) the total amount of insurance proceeds actually received by Tenant as the
result of such damage or destruction. In no event shall Landlord's Insurance
Contribution exceed the amount of insurance proceeds actually received by
Landlord as the result of such damage to the Leased Premises (other than
insurance proceeds received by Landlord as compensation for loss or damage to
personal property or fixtures belonging to Landlord). Prior to the commencement
of construction, Tenant shall submit to Landlord, for Landlord's review and
approval, all plans, specifications and working drawings relating thereto, and
Landlord shall select the contractors to perform such improvement work. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or its
visitors, or injury to Tenant's business resulting in any way from such damage
or the repair thereof; provided however, that if such fire or other casualty
shall have damaged portions of the Building necessary to Tenant's occupancy
thereof, and the Building is not occupied by Tenant as a result of such
casualty, then during the time and to the extent the Building is unfit for
occupancy, the Minimum Monthly Rent shall be abated, to the extent compensated
by the proceeds of rental interruption insurance payments received by Landlord,
in proportion to the ratio that the amount of rentable square feet of the
Building which are unfit for occupancy for the purposes permitted under this
Lease bears to the total rentable square feet of the Building; provided,
however, that Tenant's right to a rent abatement pursuant to the preceding
sentence shall terminate as of the date which is reasonably determined by
Landlord to be the date Tenant should have completed repairs to the Leased
Premises assuming Tenant used reasonable due diligence in connection therewith.
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8.2 Elections to Terminate. In the event of damage or destruction to the
Leased Premises and/or the Building, Landlord or Tenant may terminate this Lease
only on the terms and conditions set forth in this section:
8.2.1 Landlord's Election to Terminate. Notwithstanding any other
provision of this Lease, Landlord may elect not to require Tenant to rebuild
and/or restore the Leased Premises, and to instead terminate this Lease, by
notifying Tenant in writing of such termination within sixty (60) days after the
date of discovery of the damage, such notice to include a termination date
giving Tenant ninety (90) days to vacate the Leased Premises, but Landlord may
so elect only if the Building shall be damaged by fire or other casualty or
cause, whether or not the Leased Premises are affected, and one or more of the
following conditions is present: (i) in Landlord's reasonable judgment, repairs
cannot reasonably be completed within two hundred seventy (270) days after the
date of discovery of the damage (when such repairs are made promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, and subject to all other terms of
this article, without the payment of overtime or other premiums); (ii) the
holder of any mortgage on the Building or the Entire Property or ground lessor
with respect to the Building or the Entire Property shall require that the
insurance proceeds or any portion thereof be used to retire the mortgage debt,
or shall terminate the ground lease, as the case may be; (iii) the damage is not
fully covered by Landlord's insurance policies; (iv) the damage occurs during
the last twelve (12) months of the Lease Term.
8.2.2 Tenant's Election to Terminate. Tenant may terminate this Lease
by providing written notice thereof to Landlord within sixty (60) days after the
date of discovery of the damage, such notice to include a termination date
giving Tenant not more than sixty (60) days following such notice in which to
vacate the Leased Premises, only if all of the following are true: (i) the
damage was not caused by the negligence or intentional act of Tenant or any
related persons or entities, and their respective officers, agents, servants,
employees, and independent contractors; (ii) Tenant is not then in default under
this Lease beyond applicable cure periods; (iii) as a result of the damage,
Tenant cannot reasonably conduct business from the Leased Premises; and (iv) in
Landlord's reasonable judgment, repairs cannot reasonably be completed within
three hundred sixty-five (365) consecutive calendar days after the date of
discovery of the damage (when such repairs are made promptly and diligently,
subject to reasonable delays for insurance adjustment or other matters beyond
Landlord's reasonable control, and subject to all other terms of this article,
without the payment of overtime or other premiums).
8.3 Waiver of Statutory Provisions. The provisions of this Lease, including
this article, constitute an express agreement between Landlord and Tenant with
respect to any and all damage to, or destruction of, all or any portion of the
Leased Premises, the Building, and/or the Entire Property, and any statute or
regulation of the State of California, including, without limitation, Sections
1932(2) and 1933(4) of the California Civil Code, with respect to any rights or
obligations concerning damage or destruction in the absence of an express
agreement between the parties, and any other statute or regulation, now or
hereafter in effect, shall have no application to this Lease or any damage or
destruction to all or any part of the Leased Premises, the Building, and/or the
Entire Property.
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ARTICLE 9
EMINENT DOMAIN
9.1 Parties' Rights and Obligations To Be Governed by Lease. In case all of
the Leased Premises, or such part thereof as shall substantially interfere with
Tenant's use and occupancy thereof, shall be taken for any public or
quasi-public purpose by any lawful power or authority by exercise of the right
of appropriation, condemnation or eminent domain, or sold to prevent such
taking, either party shall have the right to terminate this Lease effective as
of the date possession is required to be surrendered to said authority. Tenant
shall not assert any claim against Landlord or the taking authority for any
compensation because of such taking, and Landlord shall be entitled to receive
the entire amount of any award without deduction for any estate or interest of
Tenant. In the event the portion of the Leased Premises or the type of estate
taken shall not substantially interfere with the conduct of Tenant's business,
Landlord shall be entitled to the entire amount of the award without deduction
for any estate or interest of Tenant, Landlord shall accomplish all necessary
repair occasioned thereby, and a proportionate allowance shall be made to Tenant
for the rent corresponding to the time during which, and to the part of the
Leased Premises of which, Tenant shall be so deprived on account of such taking
and repair. Nothing contained in this section shall be construed to give
Landlord an interest in any award made to Tenant for the taking of personal
property and trade fixtures belonging to Tenant, and during the initial term of
this Lease only, Tenant shall retain a claim against an award in eminent domain
for an amount equal to Tenant's unamortized cost of the Tenant's Work over the
remaining initial Lease term on a straight line basis without interest. Each
party waives any statutory right in conflict with the provisions hereof,
including, without limitation, rights under California Code of Civil Procedure
Section 1265.130. For purposes of this section, leasehold improvements paid for
by Tenant shall be amortized on a straight line basis, without interest, over
the entire term of this Lease. Notwithstanding anything to the contrary
contained in this section, in the event of a temporary taking of all or any
portion of the Leased Premises for a period of one hundred and eighty (180) days
or less, then this Lease shall not terminate but the Minimum Monthly Rent and
the Additional Rent shall be abated for the period of such taking in proportion
to the ratio that the amount of rentable square feet of the Building taken bears
to the total rentable square feet of the Building.
ARTICLE 10
ASSIGNMENT, SUBLETTING, AND ENCUMBRANCE
10.1 Prohibitions in General. Tenant shall not (whether voluntarily,
involuntarily, or by operation of law) (i) assign, transfer, hypothecate, pledge
or encumber Tenant's interest in this Lease or in the Leased Premises, (ii)
allow all or any part of the Leased Premises to be sublet, occupied, or used by
any person other than Tenant, (iii) transfer any right appurtenant to this Lease
or the Leased Premises, (iv) mortgage or encumber the Lease (or otherwise use
the Lease as a security device) in any manner, or (v) permit any person to
assume or succeed to any interest whatsoever in this Lease without Landlord's
prior written consent in each instance, which consent may not be unreasonably
withheld. Landlord's consent to any such assignment, sublease, hypothecation,
encumbrance, or transfer (collectively "Transfer") shall be evidenced
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by Landlord's signature on the Assumption Agreement provided for below. Unless
otherwise permitted under this Article 10, any Transfer without Landlord's
consent shall, at the election of Landlord, constitute an event of default by
Tenant under this Lease and shall be voidable at Landlord's option. Landlord's
consent to any one such Transfer shall not constitute a waiver of the provisions
of this section with respect to any subsequent Transfer or a consent to any
subsequent Transfer. Landlord's consent to any one Transfer shall not release
Tenant from Tenant's obligations under this Lease. The provisions of this
section expressly apply to all heirs, successors, subtenants, assigns and
transferees of Tenant. All Transfers and proposed Transfers are subject to the
provisions of this section.
10.2 Consent Not Unreasonably Withheld to Assignment or Subleasing.
Notwithstanding the foregoing, it shall be reasonable for Landlord to withhold
its consent to any proposed assignment or sublease of this Lease, any right or
interest in this Lease, or any right or interest in the Leased Premises or any
improvements that may now or hereafter be constructed or installed in the Leased
Premises, on any of the following grounds:
10.2.1 The inability of the Tenant's proposed assignee, subtenant,
encumbrancer, hypothecator, or transferee (collectively referred to as the
"Transferee") to fulfill the terms of the Lease;
10.2.2 The financial unsuitability of the Transferee. A Transferee may
be presumed to be financially unsuitable if, either: (a) at the time of the
proposed transfer, either (i) the net worth of the Transferee shall be less than
fifty million dollars ($50,000,000.00); and/or (ii) the difference between the
current assets and current liabilities of the Transferee shall be less than five
million dollars and no cents ($5,000,000.00); or (b) in the sole determination
of Landlord, the Transferee is less financially stable than Tenant.
10.2.3 The non-suitability of the Leased Premises for the intended use
by the Transferee;
10.2.4 Any intended unlawful or undesirable use of the Leased
Premises;
10.2.5 The need for alteration of the Leased Premises; and
10.2.6 The need to modify this Lease.
10.3 Change in Ownership Interest. If Tenant is a corporation, limited
liability company, partnership (whether general or limited), unincorporated
association, or other form of legal entity, whose ownership interests (whether
as shareholder, member, partner, or other) are not publicly traded on a
nationally recognized securities exchange, any sale, transfer, assignment,
hypothecation, gift, or other change, which, whether directly or indirectly,
results in a different person or entity: (i) possessing in excess of twenty-five
percent (25%) of the legal or beneficial ownership of Tenant; (ii) gaining
voting and/or management control of Tenant; and/or (iii) owning, possessing,
and/or claiming a security interest in, all or substantially all of the assets
of Tenant; as well as any merger, consolidation, or reorganization involving
Tenant (collectively "Change in Ownership Interest"), shall be deemed an
assignment within the meaning of this
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section. As a condition to Landlord granting its consent to any proposed Change
of Ownership Interest relating to Tenant, Landlord shall have the right, but not
the obligation, in Landlord's sole and absolute determination, by providing
written notice thereof to Tenant, to adjust the Minimum Monthly Rent payable
under this Lease to the then applicable fair market rent for the Leased
Premises. In determining fair market rent. Landlord shall consider the highest
and best use for the Leased Premises, without regard to any limitation upon the
use of the Leased Premises specified in this Lease.
10.4 Assumption Agreement. As a condition to Landlord's consent to any
Transfer of Tenant's interest in this Lease or the Leased Premises, Tenant and
the Transferee, shall each execute a written Assumption Agreement, in a form
approved by Landlord, which Assumption Agreement shall include a provision under
which the Transferee expressly assumes all of the obligations of Tenant under
this Lease, and that the Transferee shall be, and remain, jointly and severally
liable with Tenant for the performance of all conditions, covenants, and
obligations under this Lease commencing on the effective date of the Transfer of
Tenant's interest in this Lease. Landlord shall be entitled to recover its
reasonable costs, including, without limitation, attorneys' fees in processing
any such request for consent to transfer. Upon the occurrence of an event of
default under this Lease, Landlord shall have the right, but not the obligation,
to collect and enjoy all rents and other sums of money payable under any
sublease of any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord, which assignment may
be exercised upon and after (but not before) the occurrence of an event of
default.
10.5 Monthly Bonus Value. It is the intention of the parties hereto that
this Lease shall confer upon Tenant only the right to use and occupy the Leased
Premises, and to exercise such other rights as are conferred upon Tenant by this
Lease. The parties agree that this Lease is not intended to have a "Bonus
Value", as defined below, nor is this Lease intended to serve as a vehicle
whereby Tenant may profit by a future Transfer of this Lease, or from the right
to use or occupy the Leased Premises as a result of any favorable terms
contained herein or any future changes in the market for leased space in the
geographical region wherein the Leased Premises are located. Each month
following any such Transfer, Tenant shall pay to Landlord, as Additional Rent,
an amount equal to fifty percent (50%) of any Bonus Value that may attach to
this Lease during such month (the "Monthly Bonus Value"). For purposes of this
Lease, "Bonus Value" shall mean and refer to any and all amounts and/or other
consideration received by Tenant, however denominated, in excess of the rental
paid or payable by Tenant hereunder for the use and occupancy of the Leased
Premises, or any portion thereof, after amortizing the costs of subleasing on a
straight line basis, without interest, over the then remaining term of this
Lease. As used herein, "costs of subleasing" shall mean the actual amount paid
by Tenant in connection with any assignment or subletting for the following: (1)
brokerage and marketing fees; (2) legal fees; and (3) cost of sublease
improvements paid for by Tenant. The amount of any Bonus Value shall be
determined on a dollars per square foot basis, by aggregating all subrents
received by Tenant and dividing such amount by the total number of square feet
of subleased space and subtracting from such amount the rent per square foot
payable by Tenant for such space.
10.6 Landlord's Right to Recapture Space. Notwithstanding anything to the
contrary set forth in this Lease, Landlord shall have the option, by giving
written notice thereof to Tenant
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within sixty (60) days after Landlord's receipt of written notice from Tenant of
Tenant's intention to assign or sublease all or any portion of Tenant's interest
in the Leased Premises and/or this Lease, to recapture all or any portion of the
Leased Premises subject to such proposed assignment or sublease. Such recapture
shall cancel and terminate this Lease with respect to the portion of the Leased
Premises so recaptured until the last day of the term of the proposed assignment
or sublease. If this Lease shall be canceled with respect to less than the
entire Premises as the result of a recapture of such space on the part of
Landlord in accordance with this section, during the period of such recapture,
the Minimum Monthly Rent payable under this Lease shall be proportionally
reduced by an amount which shall be determined by multiplying the then
applicable Minimum Monthly Rent otherwise payable under this Lease for the use
and occupancy of the Premises by a ratio, the numerator of which is the number
of rentable square feet recaptured by Landlord in accordance with this section
and the denominator of which is the number of rentable square feet comprising
the Premises prior to such recapture. Except for the rent reduction set forth in
the previous sentence, this Lease shall thereafter continue in full force and
effect with respect to the reduced area of the Premises, and upon request of
either party, the parties shall execute an amendment to this Lease providing
written confirmation of the same.
10.7 Permitted Transfers. Notwithstanding the foregoing, the consent of
Landlord shall not be required and Landlord shall have no right to recapture or
retake possession of the Premises in connection with any proposed assignment or
sublease, in which either of the following is true (the "Permitted Transfers"):
(i) after giving effect to such transfer, the original Tenant herein, in the
aggregate, shall be in occupancy of not less than fifty percent (50%) of the
floor area within the Building; or (ii) the proposed transfer is a true
colocation agreement, pursuant to which Tenant provides facilities and
telecommunications equipment to internet service providers and telecommunication
providers for the provision of telecommunication services to end users, provided
such internet service providers and telecommunication providers do not regularly
have personnel within the Leased Premises that is inconsistent with that which
is commercially reasonable within the colocation industry ("Colocation
Agreement"): provided that each of the following is also true: (a) Tenant is not
in default under this Lease beyond applicable cure periods; (b) the transferee
operates its business in the Leased Premises for the uses described in this
Lease and no other purpose; and (c) in no event shall any such transfer release
or relieve Tenant from any of its obligations under this Lease. Except for a
Colocation Agreements as defined above, Tenant shall provide Landlord with
written notice of any Permitted Transfer. Notwithstanding any other provision in
this section, Landlord shall not be entitled to any Bonus Value or other
consideration received by Tenant arising out of any Colocation Agreement.
10.8 Merger/Consolidation/Reorganization. Notwithstanding anything to the
contrary contained in this Lease: (i) Tenant shall not be obligated to pay to
Landlord any Bonus Value or other consideration received by Tenant; (ii)
Landlord shall have no right to recapture or retake possession of the Leased
Premises; (iii) no "option" (including the option to extend the term of this
Lease as set forth in Section 1.4 above) or other right of original Tenant
hereunder shall terminate or otherwise be affected; and (iv) the consent of
Landlord shall not be required, with respect to any proposed assignment or
sublease of all or any portion of the Leased Premises or this Lease to any
successor of Tenant by merger, consolidation or reorganization; provided: (a)
Tenant is not in default under this Lease beyond applicable cure periods; (b)
the continuing or
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surviving entity shall own all or substantially all of the assets of Tenant and
shall have a net worth which is at least equal to the Tenant's net worth at the
date of the Transfer; (c) such proposed transferee operates the business in the
Leased Premises for the use described in this Lease and no other purpose; and
(d) in no event shall any Transfer release or relieve Tenant from any of its
obligations under this Lease. Tenant shall give Landlord written notice of any
such transfer. For the purpose of this Lease, sale of Tenant's capital stock
through any public exchange or issuances for purposes of raising financing shall
not be deemed an assignment, subletting, or any other transfer of the Lease or
the Leased Premises.
ARTICLE 11
DEFAULT
11.1 Default Described. The occurrence of any of the following shall
constitute a material breach of this Lease and a default by Tenant: (i) Tenant
fails to pay Minimum Monthly Rent, Additional Rent or any other sums as and when
due hereunder, where such failure continues for three (3) days after written
notice thereof by Landlord to Tenant; provided, however, that any such notice
shall be in lieu of, and not in addition to, any notice required under Section
1161, et. seq. of the California Code of Civil Procedure or any successor
statute thereto or similar statute hereinafter enacted; (ii) abandonment of the
Leased Premises; (iii) assignment, encumbrance or subletting in violation of the
provisions hereof, or waste or nuisance or an act, omission or condition
prohibited hereunder at the Leased Premises or use of the Leased Premises for an
unlawful purpose or failure to perform any provision of this Lease which cannot,
after such failure, be performed; (iv) Tenant's failure to vacate and deliver
possession of the Leased Premises upon the expiration or termination of this
Lease as provided for herein; (v) any change in the use of the Leased Premises
by Tenant; (vi) failure to purchase and maintain policies of insurance required
to be carried by Tenant; or (vii) Tenant's failure to perform timely any other
provision of this Lease, which performance shall be deemed timely, where no time
period has been specified elsewhere in this Lease, if completed within thirty
(30) days, provided that if such default cannot reasonably be cured within
thirty (30) days, Tenant shall be excused from its default of this Lease if
Tenant commences to cure the default immediately upon receipt of written notice
from Landlord to do so and continuously, diligently, and in good faith
accomplishes such cure within a reasonable time thereafter.
11.2 Landlord's Remedies. Landlord shall have the remedies set forth in
this Lease upon any event of default by Tenant hereunder. These remedies are not
exclusive; they are cumulative in addition to any remedies now or later allowed
by law including but not limited to the unlawful detainer proceedings authorized
by Code of Civil Procedure Sections 1161, et seq., equity or agreement of the
parties.
11.3 Tenant's Right to Possession Not Terminated. Landlord has the remedy
described in California Civil Code Section 1951.4 (lessor may continue lease in
effect after lessee's breach and abandonment and recover rent as it becomes due,
if lessee has right to sublet or assign, subject only to reasonable
limitations). In connection with the foregoing, Landlord may elect to continue
this Lease in full force and effect, in which case Landlord shall have the right
to collect rent and other sums when due. During the period Tenant is in default,
Landlord may enter the
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Leased Premises and relet them, or any part of them, to third parties for
Tenant's account and alter or install locks and other security devices at the
Leased Premises. Tenant shall be liable immediately to Landlord for all
reasonable costs Landlord incurs in reletting the Leased Premises. Reletting may
be for a period equal to, shorter or longer than the remaining term of this
Lease and rent received by Landlord shall be applied to (i) first, any
indebtedness from Tenant to Landlord other than rent due from Tenant; (ii)
second, all reasonable costs incurred by Landlord in reletting; (iii) third,
rent due and unpaid under this Lease. After deducting the payments referred to
in this section, any sum remaining from the rent Landlord receives from
reletting shall be held by Landlord and applied in payment of future rent and
other amounts as rent and such amounts become due under this Lease. In no event
shall Tenant be entitled to any excess rent received by Landlord.
11.4 Termination of Tenant's Right to Possession. Landlord can terminate
Tenant's right to possession of the Leased Premises or this Lease or both at any
time after a default by Tenant by giving notice to Tenant of Landlord's election
to do so and such termination shall be effective on the date set forth in such
notice. Acts of maintenance, efforts to relet the Leased Premises, or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right
to possession. No act by Landlord other than giving notice to Tenant shall
terminate this Lease. On termination of this Lease, Landlord has the right to
recover from Tenant: (i) the worth, at the time of the award, of the unpaid rent
that had been earned at the time of termination of this Lease; (ii) the worth,
at the time of the award, of the amount by which the unpaid rent that would have
been earned after the date of termination of this Lease until the time of award
exceeds the amount of the loss of rent that Tenant proves could have been
reasonably avoided; (iii) the worth, at the time of the award, of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of the loss of rent that Tenant proves could have been
reasonably avoided; (iv) any other amount, and court costs, reasonably necessary
to compensate Landlord for all detriment proximately caused by Tenant's default,
or which in the ordinary course of things would be likely to result therefrom,
including, without limitation, the unamortized portion of brokers' fees or
commissions and reasonable attorneys' fees incurred by Landlord in connection
with the negotiation and execution of the Lease with Tenant; and (v) "the worth,
at the time of the award," as used in (i) and (ii) above, is to be computed by
allowing interest at the Default Interest Rate. "The worth, at the time of the
award," as referred to in (iii), is to be computed by discounting the amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
the award, plus one percent (1%).
11.5 Landlord's Right to Cure Tenant's Default. If Tenant fails to
immediately commence and diligently and continuously prosecute to completion
performance of any of its obligations hereunder after notice by Landlord or any
governmental authority that it do so, and after expiration of the applicable
cure period, then Landlord, in addition to all other remedies available
hereunder or by law and equity, and without waiving any alternative remedies,
including the right to declare Tenant in breach and default of this Lease, may
perform the same, and in that event, Tenant shall reimburse Landlord, upon
demand, as Additional Rent, for all reasonable costs Landlord incurs in taking
steps to perform such obligations regardless of which party actually completes
the same, together with interest from the date Landlord incurs the cost until
paid at the Default Interest Rate.
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11.6 Waiver of Redemption. Tenant hereby expressly waives any and all
rights to recover or regain possession of the Leased Premises or to reinstate or
redeem this Lease to which it may be entitled by or under any present or future
law or decisions including without limitation, Sections 1174 and 1179 of the
California Code of Civil Procedure.
11.7 All Sums Due and Payable as Rent. Tenant shall also pay as Additional
Rent all sums, impositions, costs, expenses, and other payments which Tenant in
any of the provisions of this Lease assumes or agrees to pay, and, in case of
any nonpayment thereof, Landlord shall have, in addition to all other rights and
remedies, all the rights and remedies provided for in this Lease or by law in
the case of nonpayment of Minimum Monthly Rent.
11.8 Landlord Default. For purposes of this Lease, Landlord shall not be
deemed in default hereunder unless and until Tenant shall first deliver to
Landlord thirty (30) days' prior written notice, and Landlord shall fail to cure
said default within said thirty (30) day period, or in the event Landlord shall
reasonably require in excess of thirty (30) days to cure said default, shall
fail to commence said cure with said thirty (30) day period, and thereafter
diligently to prosecute the same to completion. In the event that Landlord fails
to perform any of its obligations within the period described in the preceding
sentence, Tenant, upon written notice to Landlord, may perform any such
obligation of Landlord's, and Landlord shall be obligated to reimburse Tenant
for its reasonable cost of so doing, promptly upon demand from Tenant for same.
ARTICLE 12
LANDLORD'S ENTRY ON PREMISES
12.1 Right of Entry. Landlord and its authorized representatives, (to the
extent Tenant reasonably requests, Landlord and its authorized representatives
shall not enter the Leased Premises unless accompanied by an employee or
representative of Tenant) shall have the right and Tenant shall permit them to
enter the Leased Premises at all reasonable times and (with respect to (ii),
(iii), and (iv) below only) upon reasonable notice of at least twenty-four (24)
hours (i) to determine whether the Leased Premises are in good condition and
whether Tenant is complying with its obligations under this Lease, (ii) to
perform any services (including, if applicable, janitorial services), do any
necessary or appropriate maintenance, or make any restoration to the Leased
Premises and/or the Building that Landlord has under the Lease the right or
obligation to perform, (iii) to serve, post, or keep posted any notices required
or allowed under the provisions of this Lease, (iv) to show the Leased Premises
to prospective brokers, agents, buyers, tenants, or persons interested in an
exchange, at any time during the term, provided that, notwithstanding the
foregoing, Landlord may enter the Leased Premises at any time, unaccompanied, in
an emergency to take action to preserve the Leased Premises or the occupants of
same.
12.2 Exculpation. Except to the extent of the gross negligence or willful
misconduct of Landlord or Landlord's authorized representatives, Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance, or other damage arising out of Landlord's entry on the
Leased Premises as provided in this article, nor shall any such entry
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constitute a constructive eviction or in any way affect Tenant's obligations
under this Lease or entitle Tenant to an abatement or reduction of rent.
Landlord shall use reasonable efforts in the exercise of its right of entry
pursuant to this article in such a manner as to minimize interference with the
conduct of Tenant's business.
ARTICLE 13
SUBORDINATION; ESTOPPEL
13.1 Subordination. This Lease, at Landlord's option, shall be subordinate
to any ground lease, mortgage, deed of trust, or any other hypothecation for
security hereafter placed upon the Leased Premises and to any and all advances
made upon the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. Notwithstanding such
subordination, Tenant's right to quiet possession of the Leased Premises shall
not be disturbed so long as Tenant is not in default hereunder.
13.2 Prior Lien. If any mortgagee, trustee or ground lessor shall elect to
have this Lease prior to the lien of its mortgage, deed of trust or ground
lease, and shall give written notice thereof to Tenant, this Lease shall be
deemed prior to such mortgage, deed of trust or ground lease, whether this Lease
is dated prior or subsequent to the date of said mortgage, deed of trust or
ground lease on the date of recording thereof.
13.3 Documentation. Tenant agrees to execute any documents required to
effectuate any such subordination or make this Lease prior to the lien of any
such mortgage, deed of trust or ground lease, as the case may be, and failing to
do so within 10 days after written demand, does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney in fact and in Tenant's name,
place and stead to do so.
13.4 Attornment. Tenant shall attorn to any purchaser at any foreclosure
sale, or to any grantee or transferee designated in any deed given in lieu of
foreclosure. Tenant shall execute the written agreement and any other documents
reasonably required by such purchaser, grantee or transferee to accomplish the
purposes of this article.
13.5 Estoppel Certificates. Tenant or Landlord, within five (5) business
days of each request by the other to do so, shall:
13.5.1 Execute and deliver to the other estoppel certificate(s), (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect and the date to which the
rent and other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to its knowledge, any uncured defaults on the part of the other
party hereunder, or stating the nature of defaults if such exist, and (iii)
evidencing the status of the Lease, as may be required either by a prospective
or actual lender making a loan to Landlord or Tenant or a purchaser of the
Leased Premises from Landlord or successor Landlord with respect to some other
interest in the Leased Premises or Lease;
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13.5.2 (Tenant only): Deliver to Landlord its most currently available
financial statements with an opinion of a certified public accountant, including
a balance sheet and a profit and loss statement for the most recent prior year
all prepared in accordance with generally accepted accounting principles
consistently applied.
13.5.3 Either party's failure to perform timely each of its
obligations under this section shall constitute a material breach of this Lease,
entitling the other party to exercise all of its remedies for same.
13.6 Non-Disturbance From Landlord's Current Lender. Landlord shall use its
commercially reasonable efforts to obtain a non-disturbance agreement for Tenant
from the holder of any mortgage or deed of trust that existed prior the
Commencement Date. Tenant shall pay for all costs arising out of such
non-disturbance agreement within ten (10) days of written demand by Landlord.
Tenant acknowledges and accepts that Landlord has no control over any required
processing fees arising out of such a request or the mortgagee's or holder of
the deed of trust's failure to respond to such a request, and Tenant
acknowledges that such fees may be subject to change at any time without notice
to Landlord or Tenant. In connection with the foregoing, Landlord shall not be
liable to Tenant for any costs, damages or liability arising out of any
mortgagee's or holder of the deed of trust's refusal to grant a non-disturbance
agreement.
ARTICLE 14
NOTICE
Except as otherwise required by law, and as provided in the Work Letter,
any and all notices or other communications required or permitted by this Lease
or by law to be served on or given to either party hereto by the other party
hereto shall be in writing and shall be deemed duly served and given when
personally delivered to the party to whom it is directed or to any managing
employee or officer of such party, or, in lieu of such personal service, when
sent by Certified United States Mail, Return Receipt Requested, with all postage
charges thereon fully prepaid, addressed to Tenant at the Leased Premises, or to
Landlord at the address set forth in the introductory paragraph of this Lease.
Use of the mail shall extend the time in which action must be taken by five (5)
days. Either party, may change its address for purposes of this section by
giving written notice of such change to the other party in the manner provided
in this section.
ARTICLE 15
WAIVER
15.1 Delay or Omission. No delay or omission in the exercise of any right
or remedy of either party hereto on any default shall impair such a right or
remedy or be construed as a waiver of any such default or of any subsequent
default. The receipt and acceptance by Landlord of rent shall not constitute a
waiver of any default known or unknown to Landlord; no payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent or other sum due
hereunder, nor any endorsement or statement on any check or any letter
accompanying any check or payment as rent or other sum due hereunder shall be
deemed an accord and satisfaction,
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and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or other sum or pursue any other
remedy provided for in this Lease or otherwise. No act or conduct of Landlord,
including, without limitation, the acceptance of the keys to the Leased
Premises, shall constitute an acceptance by Landlord of the surrender of the
Leased Premises by Tenant before the expiration of the Term. Landlord's consent
to or approval of any act by Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render unnecessary Landlord's consent to or
approval of any subsequent act by Tenant.
ARTICLE 16
ENFORCEMENT
16.1 Choice of Law and Venue. This Lease shall be construed and interpreted
in accordance with the laws of the State of California. Any dispute or
litigation brought to enforce or interpret the provisions of this Lease shall be
commenced in a court or other appropriate forum for the resolution of such
disputes located within the County of Santa Clara of the State of California.
16.2 Waiver of Trial by Jury. In the interest of saving time and expense,
Landlord and Tenant do each hereby consent to trial without a jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other or their successors in respect of any matter arising out of or
in connection with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Leased Premises, and/or any claim for injury or damage,
or any emergency or statutory remedy. If, as the result of a default on the part
of Tenant under this Lease, Landlord commences an action in unlawful detainer or
other summary proceeding or action to gain possession or restitution of the
Leased Premises, Tenant shall not interpose any counterclaim of any nature or
description (unless such counterclaim shall be mandatory) in any such proceeding
or action, but shall be relegated to an independent action at law.
16.3 Attorneys' Fees. In the event any action or proceeding in law or
equity or any arbitration proceeding be instituted by either party hereto for
damages or possession of the Leased Premises or both, for an alleged breach of
any obligation under this Lease to recover rent, to terminate the tenancy of
Tenant at the Leased Premises, or to enforce, protect, or establish any right or
remedy, the prevailing party (by judgment, award or settlement) in such action
or proceeding shall be entitled to recover as part of such action or proceeding
such reasonable attorneys' fees, expert witness fees, and court and/or
arbitration costs as may be fixed by the court, jury or arbitrator(s).
ARTICLE 17
SURRENDER OF POSSESSION
17.1 Surrender of Possession. Immediately upon the Expiration Date or
earlier termination of this Lease, Tenant, except as set forth in the next
sentence, shall: (i) vacate, surrender, and deliver to Landlord possession of
the Leased Premises, broom clean, with all improvements, fixtures, and equipment
therein, in good working order and in the same condition
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as they were in on the Commencement Date or when installed, if later (reasonable
wear and tear and casualty damage excepted), free from all of Tenant's personal
property, and free from any toxic, hazardous, or waste materials of any nature
whatsoever; and (ii) repair all damage caused by and perform all restoration
made necessary by the removal of any alterations or Tenant's personal property.
Notwithstanding the foregoing, Landlord shall have the right to require Tenant,
at Tenant's sole cost and expense, to restore the Leased Premises to their
condition on the Commencement Date, reasonable wear and tear excepted, by
providing written notice thereof to Tenant not later than thirty (30) days after
the Expiration Date or earlier termination of this Lease.
17.2 Failure to Surrender Possession. If Tenant fails to surrender
possession of the Leased Premises to Landlord on expiration or earlier
termination of this Lease, Tenant shall indemnify, defend, and hold Landlord
harmless from all claims, liabilities and damages resulting from Tenant's
failure to vacate and deliver possession of the Leased Premises, including,
without limitation, claims made by a succeeding tenant resulting from Tenant's
failure to vacate and deliver possession of the Leased Premises and rental loss
which Landlord suffers.
17.3 Free of Liens. Tenant shall vacate and deliver possession of the
Leased Premises free and clear of all liens, charges, or encumbrances thereon
resulting from any act or omission on Tenant's part and free and clear of all
violations of applicable laws of any federal, state, municipal, or other agency
or authority, and shall indemnify, defend, and hold Landlord harmless against
any and all claims, loss, liability, expense, damage, costs, and attorney's fees
arising out of Tenant's failure to do so.
ARTICLE 18
GENERAL CONDITIONS
18.1 Time of Essence. Time is of the essence of each provision of this
Lease.
18.2 Corporate Authority. On or prior to the date on which Tenant executes
this Lease, Tenant shall deliver to Landlord a corporate resolution and/or an
incumbency certificate in form and substance reasonably satisfactory to Landlord
authorizing Tenant to enter into this Lease and evidencing the signatory's
authority to execute this Lease on behalf of Tenant.
18.3 Successors. This Lease shall be binding on and inure to the benefit of
the parties and their successors, except as specifically provided in Article 10.
18.4 Landlord Liability. Tenant agrees that if Landlord shall fail to
perform any covenant or obligation on its part to be performed, and as a
consequence thereof, or if on any other claim by Tenant concerning the Leased
Premises or this Lease, Tenant shall recover a money judgment against Landlord,
then such judgment shall be satisfied only out of Landlord's estate in the
Leased Premises, and Landlord shall have no personal or further liability
whatsoever with respect to any such default or judgment.
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18.5 Landlord. The term "Landlord" as used in this Lease, so far as the
covenants or obligations on the part of Landlord are concerned, shall be limited
to mean and include only the owner of the fee title of the Leased Premises at
the time in question, and in the event of any transfer or transfers of the title
of such fee, the Landlord herein named (and in case of any subsequent transfers
or conveyances, the then grantor) shall after the date of such transfer or
conveyance be automatically freed and relieved of all liability with respect to
performance of any covenants or obligations on the part of the Landlord
contained in this Lease thereafter to be performed, provided, (i) that the new
owner expressly assumes such obligations in writing, and (ii) that this section
shall not apply to covenants or obligations with respect to any funds in the
hands of Landlord or the then grantor at the time of such transfer, in which
Tenant has an interest, unless the same shall be turned over or credited to the
grantee.
18.6 Force Majeure. Any prevention, delay, or stoppage due to strikes,
lockouts, labor disputes, acts of God or Nature, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, judicial orders, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of the party obligated to perform, shall
excuse the performance by such party for a period equal to any such prevention,
delay or stoppage, except the obligations imposed on Tenant with regard to the
obligation to pay Minimum Monthly Rent, Additional Rent, and any other charges,
and the restrictions upon use set forth in Article 3.
18.7 Security Measures. Tenant hereby acknowledges that Landlord does not
provide security guards or other security measures, and that Landlord has no
obligation of any nature whatsoever to provide the same, and that,
notwithstanding any other provision of this Lease, Landlord shall have no
obligation of any nature whatsoever to install, repair and/or maintain an alarm
system within the Building and/or the Leased Premises, and Landlord shall have
no responsibility for the protection and safety of Tenant, and/or Tenant's
employees, agents, and invitees, from acts of third parties.
18.8 Miscellaneous. This Lease contains all the agreements of the parties
and cannot be amended or modified except by written agreement signed by the
party against whom enforcement of the amendment or modification is sought. All
provisions, whether covenants or conditions, creating obligations on the part of
Tenant shall be deemed to be both covenants and conditions. The article and
section headings used in this Lease are for the purpose of convenience only;
they shall not be construed to limit or to extend the meaning of any part of
this Lease. This is a negotiated Lease. Should any provision of this Lease be
found to create an ambiguity, Tenant waives any right it may have to construe
the ambiguity against Landlord on the basis that Landlord provided the Lease
form or the particular provision. When required by the context of this Lease,
the neuter shall include the masculine and feminine and the singular shall
include the plural. The unenforceability, invalidity, or illegality of any
provision except those requiring payment of rent or any other sum to Landlord
shall not render the other provisions unenforceable, invalid, or illegal. This
Lease may be executed in two or more identical counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
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<PAGE> 42
18.9 Effect of Delivery of this Lease. Landlord has delivered a draft of
this Lease to Tenant for Tenant's review only. The delivery hereof is not
intended to, and shall not construed to, constitute an offer from Landlord to
Tenant or the granting of an option to Tenant to lease. This Lease shall only be
effective when: (i) a copy has been duly executed by both Landlord and Tenant;
(ii) a fully executed original has been delivered to and accepted by Landlord;
and (iii) the terms and conditions of this Lease have been approved by
Landlord's lender(s), if such approval is required by the terms of any
agreements, deeds of trust, mortgages, or other liens in effect between Landlord
and its lender(s).
18.10 Brokers. Landlord and Tenant each represents and warrants to the
other that, with the sole exceptions of Dave Evans and Steve Zamudio of Colliers
International, who represent both Landlord and Tenant in this transaction
("Broker"), neither party has dealt with any agent or broker in this
transaction. The parties acknowledge that Broker is not party to this Lease or a
third party beneficiary hereof. Landlord and Tenant each further represents and
warrants to the other that it has not promised a commission, finder's fee, or
advisory fee to any party, including, but not limited to Broker, arising out of
any extension or other modification of this Lease. Except with respect to
Broker, who shall be paid a commission by Landlord pursuant to a separate Lease
Commission Agreement, each party indemnifies, defends, and holds the other
harmless from any claim for commission, finder's fee, or advisory fee arising
out of the actions of such party in this transaction.
18.11 Guarantee. The duties and obligations of Tenant under the terms of
this Lease shall be guaranteed by Terremark Worldwide, Inc. a Delaware
corporation (the "Guarantor"). This Lease is contingent upon said Guarantor
executing the Net Premises Lease Guaranty in the form attached hereto as Exhibit
"D" and incorporated by reference herein.
18.12 Right of First Offer. If Landlord decides to sell all of the Leased
Premises, then Landlord shall first offer to sell the Leased Premises to Tenant,
pursuant to the terms of this Section 18.12. Tenant will have the right to
purchase the Leased Premises at the price and terms listed in Landlord's offer
to sell the Leased Premises (the "Landlord's Offer"). Tenant shall have ten (10)
days from the receipt of Landlord's Offer to accept such offer. If Tenant
accepts Landlord's Offer, Tenant shall have sixty days from the receipt of
Landlord's Offer to complete the purchase of the Leased Premises. If Tenant does
not accept Landlord's Offer within the said ten (10) day period, or fails to
complete the purchase of the Leased Premises within the said sixty (60) day
period, Landlord's Offer or the right to purchase as described above shall
terminate and Landlord shall be free to sell the Leased Premises to anyone, on
terms no less favorable than those in Landlord's Offer, without any obligation
to provide Tenant with a further right of first offer to purchase the Leased
Premises, for a period of twelve (12) months. If the Landlord shall not have
sold the Leased Premises within such twelve (12) month period, then Landlord
shall not have the right to sell the Leased Premises after such date, unless
Landlord complies with the terms and obligations just described in this section.
The rights and obligations just described apply only to the originally named
Tenant, unless Landlord, in its sole discretion, agrees otherwise in writing.
All rights of Tenant under the provisions of this section shall terminate and be
of no further force or effect if during the term of the Lease, Tenant defaults
under any of the provisions of the Lease, unless Landlord, in its sole
discretion agrees otherwise in writing. Notwithstanding the foregoing, Landlord
shall be able to transfer the Leased Premises to the
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<PAGE> 43
following without having to first offer to sell the Leased Premises to Tenant:
(i) any member of Landlord's immediate family (for purposes of this section,
"Landlord's immediate family" shall include all spouses and children (including,
natural born, adopted, and step children), the spouses of said children, and
their respective lineal descendants); (ii) any refinancing of the Leased
Premises, Land or Building; (iii) any transfer to a subsidiary, affiliate,
division or corporation controlling, controlled by or under common control with
Landlord; or (iv) to a successor corporation related to Landlord by merger,
consolidation, nonbankruptcy reorganization, or government action.
18.13 Leasehold Mortgage.
18.13.1 Tenant's Right to Mortgage Leasehold. Landlord shall not
be obligated to subordinate Landlord's fee title to the Leased Premises to any
mortgage, deed of trust, or other security instrument. Tenant shall have the
right from time to time to subject the leasehold estate and any or all
improvements to a mortgage as security for a loan or other obligation of
Tenant, provided that: (a) the mortgage and all rights acquired under it shall
be subject to each and all of the covenants, conditions and restrictions stated
in this Lease and to all rights and interests of Landlord except as otherwise
provided in this Lease; (b) Tenant shall deliver to Landlord a true copy of the
note and mortgage and other loan documents; (c) Tenant shall not then be in
default under this Lease; and (d) there shall be no personal liability imposed
on Landlord for repayment of the loan secured by said mortgage nor shall
Landlord incur any other liability in connection with the note and mortgage or
other loan documents in connection with the loan.
18.13.2 Limit on Mortgagee's Liability. The leasehold mortgagee
shall not be liable to perform Tenant's obligations under this Lease until the
mortgagee acquires Tenant's rights by foreclosure. After acquiring Tenant's
rights by foreclosure, mortgagee shall be liable to perform Tenant's obligations
only until mortgagee assigns or transfers the leasehold as permitted by this
Lease. Landlord does not, however, waive its right to exercise any right or
remedy available to Landlord under this Lease, including, without limitation,
the right to terminate this Lease upon Tenant's default.
18.14 Recordation Of Memorandum of Lease. The parties shall execute a
memorandum of this Lease in form and substance mutually acceptable to the
parties and sufficient to give constructive notice of this Lease to subsequent
purchasers and mortgages in a form similar to Exhibit "E", which is attached
hereto and incorporated by reference herein, upon the condition that Tenant
shall
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<PAGE> 44
provide Landlord with a quit claim deed to the Leased Premises with an effective
date of the earlier of the Expiration Date or the earlier termination of this
Lease.
Executed on the Reference Date first set forth above.
LANDLORD: TENANT:
Rainbow Property Management, LLC, Coloconnection, Inc.,
a California limited liability company a Florida corporation
/s/ Dan Burfeind /s/ Brian K. Goodkind
---------------------------- ------------------------------
Dan Burfeind, Manager By: Brian K. Goodkind
Executive Vice-President
--------------------------
Its:
--------------------------
/s/ Diane G. Burfeind
---------------------------- ------------------------------
Diane G. Burfeind, Manager By:
--------------------------
Its:
--------------------------
Schedule of Exhibits to be Attached:
Exhibit "A": Description of the Leased Premises
Exhibit "B": The Rules and Regulations
Exhibit "C": Tenant Work Letter
Exhibit "D": Guarantee
Exhibit "E": Memorandum of Lease
Exhibit "F": Environmental Consulting Agreement
Exhibit "G": Form Letter of Credit
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<PAGE> 45
EXHIBIT "A"
Description: The land referred to herein is situated in the State of California,
County of SANTA CLARA, CITY OF SANTA CLARA, and is described as follows:
PARCEL 1:
ALL OF PARCEL 2A, AS SHOWN UPON THAT CERTAIN PARCEL MAP ENTITLED, "BEING A
PORTION OF TRACT NO. 2791 (LOTS 2 & 3) AND A PORTION OF LOT 5 - MAP OF THE
ARQUES SUBDIVISION IN THE CITY OF SANTA CLARA, CALIFORNIA", WHICH MAP WAS FILED
FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, ON APRIL 10, 1970 IN BOOK 266 OF MAPS, PAGE 32.
PARCEL 2:
AN EASEMENT FOR LIGHT AND AIR OVER AND ACROSS THE PARCEL OF LAND HEREINAFTER
DESCRIBED TO BE USED IN COMMON WITH THE RECORD OWNER (AS SUCH OWNER SHALL EXIST
FROM TIME TO TIME) OF THE LAND ADJOINING TO THE SOUTH A STRIP OF LAND OF A
UNIFORM 30.00 FEET LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT
A POINT IN THE WESTERLY LINE OF CORVIN DRIVE AT THE INTERSECTION THEREOF WITH
THE NORTHERLY LINE OF THE HEREINBEFORE DESCRIBED PARCEL 2A; RUNNING THENCE ALONG
SAID NORTHERLY LINE SOUTH 89 DEGREES 29' WEST 310 FEET. SAID EASEMENT AREA SHALL
AT ALL TIMES TO BE UNOBSTRUCTED FROM GROUND TO SKY BY THE CONSTRUCTION,
INSTALLATION, OR MAINTENANCE OF ANY BUILDING OR STRUCTURE.
SAID ABOVE EASEMENT IS CREATED BY EASEMENT AGREEMENT RECORDED MARCH 30, 1998,
INSTRUMENT 14115469, SANTA CLARA COUNTY RECORDS.
PARCEL 3:
AN EASEMENT FOR INSTALLATION AND MAINTENANCE OF STORM DRAINAGE FACILITIES OVER
AND ACROSS THE PARCEL OF LAND HEREINAFTER DESCRIBED, TO BE USED IN COMMON WITH
THE RECORD OWNER (AS SUCH OWNER SHALL EXIST FROM TIME TO TIME) OF THE LAND
ADJOINING TO THE SOUTH A STRIP OF LAND OF A UNIFORM WIDTH OF 10.00 FEET, THE
CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE
NORTHERLY LINE OF THE HEREINBEFORE DESCRIBED PARCEL 2A: DISTANCE THEREIN SOUTH
89 DEGREES 29' WEST 52.50 FEET FROM THE NORTHEASTERLY CORNER THEREOF; RUNNING
THENCE FROM SAID LINE NORTH 45 DEGREES EAST 14.14 FEET; THENCE NORTH 30.00 FEET
AND NORTH 67 DEGREES 31' 24" EAST 46.41 FEET TO THE WESTERLY LINE OF CORVIN
DRIVE.
SAID ABOVE EASEMENT IS CREATED BY EASEMENT AGREEMENT RECORDED MARCH 30, 1998,
INSTRUMENT 14115469, SANTA CLARA COUNTY RECORDS.
<PAGE> 46
PARCEL 4:
AN EASEMENT FOR THE PERMANENT, MUTUAL INGRESS AND EGRESS OVER A COMMON DRIVEWAY
TO SERVE BOTH PARCELS AND AS A COMMON STORM DRAINAGE AREA TO SERVE BOTH PARCELS,
DESCRIBED AS A STRIP OF LAND 25 FEET IN WIDTH AND 310 FEET IN LENGTH, THE
CENTERLINE OF SAID STRIP BEING THE LINE COMMON TO PARCEL 4A OF THAT PARCEL MAP
FILED FOR RECORD JULY 9, 1970 IN BOOK 270 OF MAPS AT PAGE 21, SANTA CLARA COUNTY
RECORDS, AND PARCEL 2A OF THAT PARCEL MAP FILED FOR RECORD APRIL 10, 1970 IN
BOOK 266 OF MAPS AT PAGE 32, SAID COUNTY RECORDS.
EXCEPTING THEREON THAT PORTION LYING WITHIN PARCEL ONE ABOVE.
ASSESSOR'S PARCEL NO.: 216-33-025
<PAGE> 47
EXHIBIT B
RULES AND REGULATIONS
The following Rules and Regulations apply to and govern Tenant's use of
the Leased Premises, the Building and the Entire Property. Capitalized terms
have the meanings given in the Lease, of which these Rules and Regulations are a
part. Tenant is responsible for all claims arising from any violation of the
Rules and Regulations by Tenant.
1. No awning or other projection may be attached to the outside walls
of the Leased Premises or the Building, without the prior written consent of
Landlord, which may be withheld in Landlord's sole determination. In connection
with the foregoing, all windows visible from the exterior of the Building shall
be covered by Building Standard mini-blinds selected by Landlord, which shall,
at all times, be in the fully lowered position.
2. No sign, lettering, picture, notice or advertisement which is
visible from the exterior of the Leased Premises or the Building may be
installed on or in the Leased Premises without Landlord's prior written consent,
and then only in such manner, character and style as Landlord may have approved
in writing.
3. Tenant will not obstruct sidewalks, entrances, passages, corridors,
vestibules, halls, or stairways in and about the Building. Tenant will not place
objects against glass partitions or doors or windows, which would be unsightly
from the exterior of the Building and will promptly remove any such objects upon
notice from Landlord.
4. Tenant will not create or allow obnoxious or harmful fumes, odors,
smoke or other discharges which may be offensive to occupants of neighboring
properties, or otherwise create any nuisance.
5. The Leased Premises shall not be used for cooking (as opposed to
heating of food), lodging, sleeping or for any immoral or illegal purpose.
6. Tenant will not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices or other
equipment that emit excessive sound or other waves or disturbances or which may
be offensive to occupants of adjacent properties, or that may unreasonably
interfere with the operation of any device, equipment, computer, video, radio,
television broadcasting or reception from or within the Building or elsewhere.
7. 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 degree as to be objectionable, shall be placed
and maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration.
8. No dog or other animal or bird is allowed in the Building, except
for animals assisting the disabled.
<PAGE> 48
9. Tenant will not waste electricity, water or air conditioning and
will ensure the most effective operation of the Building's heating, air
conditioning, ventilation and utility systems. Tenant will not use any
additional method of heating or air conditioning (including without limitation
fans or space heaters) other than those approved in writing.
10. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping valuable items locked up
and doors locked and other means of entry to the Leased Premises closed and
secured after Building Hours and at other times the Leased Premises are not in
use.
11. Tenant will provide Landlord with a duplicate key and/or lock
combination in order for Landlord to be able to gain access to all areas within
the Leased Premises and the Building except for safes and confidential files.
Tenant will surrender all keys to the Leased Premises and to the parking
facilities and shall explain to Landlord all combination locks on safes,
cabinets and vaults.
12. Tenant will not bring inflammables, such as gasoline, kerosene,
naphtha and benzine, or explosives or any other article of intrinsically
dangerous nature into the Leased Premises, or any portion thereof.
13 . Tenant shalt not bring any bicycles or other vehicles of any kind
into the Building, except for appropriate vehicles necessary for assisting the
disabled; provided, however, that Tenant shall be allowed to bring some bicycles
in the Building upon Landlord's approval and subject to any reasonable rules
promulgated by Landlord pursuant to such request by Tenant.
14. If any carpeting or other flooring is installed by Tenant using an
adhesive, such adhesive will be an odorless, releasable adhesive.
15. The water and wash closets, drinking fountains and other plumbing
fixtures will not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein.
16. Tenant will not overload any utilities serving the Leased Premises.
17. All loading, unloading, receiving or delivery of goods, supplies,
furniture or other items will be made only through entryways provided for such
purposes.
18. Landlord will in all cases have the right to specify the proper
position of any safe, equipment or other heavy article, which shall only be used
by Tenant in a manner which will not interfere with or cause damage to the
Leased Premises or the Building. Tenant will not overload the floors or
structure of the Building.
19. Canvassing, soliciting, and peddling in or about the Leased
Premises is prohibited at all times and Tenant will cooperate to prevent the
same.
20. In case of invasion, mob, riot, public excitement, or other
commotion, Landlord reserves the right to limit or prevent access to the
Building during the continuance of the same by closing the doors or taking other
appropriate steps. Landlord will in no case be liable for
B-2
<PAGE> 49
damages for any error or other action taken with regard to the admission to or
exclusion from the Building of any person at any time.
21. Smoking is not permitted within the Leased Premises, except in the
smoking areas located outside of the Building, if any, as designated and
redesignated in writing from time to time by Landlord, in its sole, absolute and
arbitrary discretion. Except as set forth in the previous sentence, Tenant shall
not permit smoking anywhere within the Leased Premises, including, without
limitation, the Building, sidewalks, entrances, passages, corridors, halls,
elevators and stairways of the Building, other than the smoking areas, if any,
designated in writing by Landlord. All smoking materials must be disposed of in
ashtrays or other appropriate receptacles provided for that purpose.
22. Landlord reserves the right to exclude or expel from the Building,
or the Land, or any portion thereof, any person who, in Landlord's judgment,
appears to be intoxicated or under the influence of liquor or drugs or who is in
violation of any of the Rules and Regulations or any applicable governmental
rules or regulations.
23. Tenant shall store all its trash and garbage in proper receptacles
within the Leased Premises or in other facilities provided for such purpose by
Landlord. Tenant shall 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 shall be made in accordance
with directions issued from time to time by Landlord. Tenant will cooperate with
any recycling program in place from time to time at the Building.
24. Tenant will not use in the Leased Premises any hand truck except
those equipped with rubber tires and side guards or such other material-
handling equipment as Landlord may approve.
25. Tenant will not use the name of the building in connection with or
in promoting or advertising the business of Tenant except as Tenant's address.
26. Tenant will comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
27. No overnight or extended term parking (over two (2) business days)
or storage of vehicles is permitted, unless otherwise approved by Landlord.
28. Parking is prohibited (a) in areas not striped for parking; (b) in
aisles; (c) where "no parking" signs are posted; (d) on ramps; (e) in
cross-hatched areas; (f) in loading areas; and (g) in such other areas as may be
designated by Landlord.
29. All responsibility for damage, loss or theft to vehicles and the
contents thereof is assumed by the person parking their vehicle.
30. Tenant and/or each user of the parking areas may be required to
sign a parking agreement, as a condition to parking.
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<PAGE> 50
31. Landlord reserves the right to refuse parking identification
devices and parking rights to Tenant or any other person who fails to comply
with the Rules and Regulations applicable to the parking areas. Any violation of
such rule shall subject the vehicle to removal, at such person's expense.
32. Tenant shall be responsible for the observance of all of the Rules
and regulations by Tenant (including, without limitation, all employees,
agents, clients, customers, invitees and guests).
33. Landlord may, from time to time, waive any one or more of these
Rules and Regulations, but no such waiver by Landlord shall be construed as a
continuing waiver of such Rules and Regulations, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations.
34. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the other terms,
covenants, agreements and conditions of the Lease. In the event of any conflict
between these Rules and Regulations and any express term or provision of the
Lease otherwise set forth in the Lease, such other express term or provision
shall be controlling. Landlord may amend or supplement these rules from time to
time in the sole determination of Landlord.
B-4
<PAGE> 51
EXHIBIT C
TENANT WORK LETTER
(To be attached)
<PAGE> 52
SCHEDULE I
FLOOR PLANS SHOWING
1. Location and type of all partitions.
2. Location and type of all doors. Indicate hardware and provide keying
schedule.
3. Location and type of glass partitions, windows, and doors. Indicate
framing and reference full-height partitions.
4. Locations of telephone equipment room.
5. Critical dimensions necessary for construction, with indication of
required clearances.
6. Location and types of all electrical items: outlets, switches,
telephone outlets and lighting.
7. Location and type of equipment that will require special electrical
requirements. Provide manufacturers' specifications for use and operation,
including heat output.
8. Location, weight per square foot, and description of any heavy
equipment or filing system.
9. Requirements for special air-conditioning or ventilation.
10. Location and type of plumbing
11. Location and type of kitchen equipment.
12. Location, type and color of floor covering, wall covering, paint
and finishes.
DETAILS SHOWING
1. All millwork with verified dimensions of all equipment to be built
in.
2. Corridor entrance.
3. Bracing or support of special walls, glass partitions, etc., if
desired. If not included with the plans, Tenant's engineer will design all
support or bracing required at Tenant's expense.
ADDITIONAL INFORMATION
4. Provide Landlord with Title 24 energy calculations.
<PAGE> 53
TENANT WORK LETTER
3030 CORVIN DRIVE
SANTA CLARA, CALIFORNIA
This Tenant Work Letter is entered into with respect to that certain
NET PREMISES LEASE, of equal date herewith (the "Lease"), executed by and
between Rainbow Property Management, LLC, a California limited liability company
("Landlord") and Coloconnection, Inc., a Florida corporation ("Tenant"), to
which this Tenant Work Letter is attached as Exhibit "C" and of which this
Tenant Work Letter forms a part. This Tenant Work Letter shall set forth the
terms and conditions relating to the construction of Tenant's Work (as defined
in Section 5.1 of the Lease). This Tenant Work Letter is essentially organized
chronologically and addresses the issues of the configuration and construction
of the Tenant's Work, in sequence, as such issues will arise during the actual
configuration and construction of the Leased Premises. All capitalized terms not
otherwise defined shall have the meanings given to them in the Lease.
1. CONDITION UPON DELIVERY BY LANDLORD. Upon the Commencement Date,
Landlord shall deliver the Leased Premises to Tenant, and Tenant shall accept
the Leased Premises from Landlord in its presently existing, "as-is" condition.
2. TENANT WORK.
2.1 UPGRADE OF THE BUILDING. Subject to the terms of the Lease
and this Work Letter, Tenant, at Tenant's sole cost and expense, shall install
and configure the Building as a state of the art telecommunications data
center and co-location facility (the "Upgrade"). Tenant shall cause the Upgrade
of the Building to be completed in four phases, each phase more particularly set
forth in this section below. During each phase of construction, Tenant shall
comply with all of the terms of the Lease and this Work Letter, including,
without limitation, Sections 3, 4, 5 and 6 herein, as applicable to the
particular phase of construction.
2.2 PHASE ONE. Tenant shall commence the first phase, ("Phase
One") immediately upon receipt of possession of the Leased Premises, and
diligently prosecute all construction in Phase One to completion. During, Phase
One, Tenant shall install and configure a state of the art telecommunications
data center and co-location facility, at a minimum, over approximately one
fourth (1/4th) of the interior of the Building, together the configuration and
installation of each of the following within the Building:
2.2.1 Architectural. An access floor to allow for
managing the service requirements of complex electronic environments,
together with underfloor cooling, for network server racks and distribution of
electrical/network wiring.
2.2.2 ELECTRICAL INFRASTRUCTURE. A primary electrical
substation adequate to provide 5,000 amps of power for the facility from a local
utility provider. A distribution system, based on redundant diverse distributed
components consisting of demarcation power, power distribution units, static
transfer switches, uninterrupted power supplies, and a utility service bus. And
an emergency power generation system sufficient to provide power to operate the
facility for a period of _____________ continuous hours in the event of any
interruption of service from the local utility
<PAGE> 54
provider, consisting of automatic transfer devices, emergency service bus, and
emergency power generation in the form of diesel generators and battery back up
for uninterrupted power supply.
2.2.3 PRECISION ENVIRONMENTAL CONTROL SYSTEMS. A
closed loop heat rejection system for environmental control sufficient to
maintain an average space temperature of 72 degrees at 50% relative humidity.
Air filtration is accomplished by the use of both pre-filters and high
efficiency air filters.
2.2.4 SUPPRESSION SYSTEM. A two-stage
state-of-the-art fire suppression system and a pre-action dry pipe fire
sprinkler system located above and below the raised floor.
2.2.5 COMPREHENSIVE SECURITY SYSTEM. A security
system, which incorporates distributed control with central monitoring located
within the security center, including a comprehensive state of the art security
system, trained security personnel, and closed circuit television cameras, with
access readers installed at all primary entry and egress points.
2.2.6 NETWORK INFRASTRUCTURE. A network
infrastructure designed to meet the service and quality requirements of
businesses executing telecommunications and Internet based strategies, which is
designed for high availability, low latency, and resiliency, and includes two
separate points of connection into the Building by multiple network fiber
providers.
2.2.7 SITE IMPROVEMENTS. Removal of any above grade
fuel tanks; Equipment leveling concrete slabs; Ramps, Access for ADA compliance;
Undergound Electrical HI-Voltage; 12 000 KVA Primary sub-station; Generators and
associated diesel fuel storage (appx 2-3 1500 KW); Primary cooling systems,
chillers; Cooling Tower; Perimeter Architectural Fencing; Parking
Stall/Installation and Striping.
2.2.8 ROOF. Structural upgrade for HVAC; Air
Handlers; and Office HVAC.
2.2.9 BUILDING EXTERIOR. Seismic Bracing; upgrade
Overhead door; replacement/upgrade Exterior doors; and ADA Required Lobby/Entry.
Infill of 2 existing loading.
2.2.10 BUILDING INTERIOR. Toilet Cores; Lobby; and
mechanical/electrical rooms.
2.2.11 Tenant Work. Elevated Floor; Preaction
Dry-Pipe Fire Sprinkler System; Preaction Fire System; HVAC Distribution
Liebert Units; PDU; UPS; Electrical Distribution; Transformers; Security/Access
Control; Lighting; Fire Sprinkler O.H.; Partitions; Ceilings; and Flooring.
2.2.12 CHATTEL ITEMS. Data Wiring; Telephone Switch;
and Cable Tray.
2.3 PHASE TWO. During the second phase ("Phase Two"), Tenant
shall install and configure a state of the art telecommunications data center
and co-location facility, at a minimum, over the lesser of: (i) approximately
one fourth (1/4th of the interior of the Building; or (ii) the portion of the
Building remaining to be Upgraded after Phase One. Tenant shall complete Phase
Two prior to the second anniversary of the Commencement Date.
2
<PAGE> 55
2.4 PHASE THREE. During the third phase ("Phase Three"),
Tenant shall install and configure a state of the art telecommunications data
center and co-location facility, at a minimum, over the lesser of: (i)
approximately one fourth (1/4th of the interior of the Building; or (ii) the
portion of the Building remaining to be Upgraded after Phase Two. Tenant shall
complete Phase Three prior to the fourth anniversary of the Commencement Date.
2.5 PHASE FOUR. During the fourth phase ("Phase Four"), Tenant
shall install and configure a state of the art telecommunications data center
and co-location facility over the remaining portion of the Building that has
not been previously Upgraded. Tenant shall complete Phase Four prior to the
sixth anniversary of the Commencement Date.
3. CONSTRUCTION DRAWINGS.
3.1 SELECTION OF DRAWINGS. Tenant shall retain the
architect/space planner reasonably approved by Landlord (tile "Architect") to
prepare the Construction Drawings. Tenant shall retain tile engineering
consultants reasonably approved by Landlord (the "Engineers") to prepare all
plans and engineering working drawings relating to the structural, mechanical,
electrical, plumbing, HVAC, life-safety, and sprinkler work for the Leased
Premises. The plans and drawings to be prepared by Architect and the Engineers
hereunder shall be known collectively as the "Construction Drawings." All
Construction Drawings shall comply with the drawing format and specifications
determined by Landlord, and shall be subject to Landlord's reasonable approval,
which Construction Drawings shall contain the information listed on SCHEDULE 1,
attached hereto. Tenant and Architect shall verify, in the field, the dimensions
and conditions as shown on the relevant portions of the base building plans, and
Tenant and Architect shall be solely responsible for the same, and Landlord
shall have no responsibility in connection therewith. Landlord's review of the
Construction Drawings as set forth in this Section 3, shall be for its sole
purpose and shall not imply Landlord's review of the same, or obligate Landlord
to review the same, for quality, design, Code compliance or other like matters.
Accordingly, notwithstanding that any Construction Drawings are reviewed by
Landlord or its space planner, architect, engineers and consultants, and
notwithstanding any advice or assistance which may be rendered to Tenant by
Landlord or Landlord's space planner, architect, engineers, and consultants,
Landlord shall have no liability whatsoever in connection therewith and shall
not be responsible for any omissions or errors contained in the Construction
Drawings, and Tenant's waiver and indemnity set forth in Section of this Lease
shall specifically apply to the Construction Drawings.
3.2 Final Space Plan. Tenant shall supply Landlord with four
(4) copies signed by Tenant of its final space plan for the Leased Premises
before any architectural working drawings or engineering drawings have been
commenced. The final space plan (the "Final Space Plan") shall include a layout
and designation of all offices, rooms and other partitioning, their intended
use, and equipment to be contained therein. Landlord may request clarification
or more specific drawings for special use items not included in the Final Space
Plan. Landlord shall advise Tenant within seven (7) days after Landlord's
receipt of the Final Space Plan for the Leased Premises if the same is
unsatisfactory or incomplete in any respect. If Tenant is so advised, Tenant
shall promptly cause the Final Space Plan to be revised to correct any
deficiencies or other matters Landlord may reasonably require. Landlord's
failure to so advise Tenant within the said seven (7) day period shall be deemed
to constitute Landlord's acceptance of the Final Space Plan, so long as the
Final Space Plans are reasonably similar to the Construction Drawings and
proposed space plans previously submitted to Landlord by Tenant, otherwise,
Landlord's failure to respond within the seven (7) day period shall not be
deemed approval by Landlord of the Final Space Plan.
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3.3 FINAL WORKING DRAWINGS. After the Final Space Plan has
been approved by Landlord, Tenant shall supply the Engineers with a complete
listing of standard and non-standard Equipment and specifications, including,
without limitation, B.T.U. calculations, electrical requirements and special
electrical receptacle requirements for the Leased Premises, to enable the
Engineers and the Architect to complete the "Final Working Drawings" (as that
term is defined below) in the manner as set forth below. Upon the approval of
the Final Space Plan by Landlord and Tenant, Tenant shall promptly cause the
Architect and the Engineers to complete the architectural and engineering
drawings for the Leased Premises, and Architect shall compile a fully
coordinated set of architectural, structural, mechanical, electrical and
plumbing working drawings in a form which is complete to allow subcontractors to
bid on the work and to obtain all applicable permits (collectively, the "Final
Working Drawings") and shall Submit the same to Landlord for Landlord's
approval. Tenant shall supply Landlord with four (4) copies signed by Tenant of
such Final Working Drawings. Landlord shall advise Tenant within seven (7) days
after Landlord's receipt of the Final Working Drawings for the Leased Premises
if the same is unsatisfactory or incomplete in any respect. If Tenant is so
advised, Tenant shall immediately revise the Final Working Drawings in
accordance with such review and any disapproval of Landlord in connection
therewith. Landlord's failure to so advise Tenant within the said seven (7) day
period shall be deemed to constitute Landlord's acceptance of the Final Working
Drawings, so long as the Final Work Drawings are reasonably similar to the Final
Space Plan and the Construction Drawings previously submitted to Landlord by
Tenant, otherwise, Landlord's failure to respond within the seven (7) day period
shall not be deemed approval by Landlord of the Final Working Drawings.
3.4 APPROVED WORKING DRAWINGS. The Final Working Drawings
shall be approved by Landlord (the "Approved Working Drawings") prior to the
commencement of construction of the Leased Premises by Tenant. After approval by
Landlord of the Final Working Drawings, Tenant may submit the same to the City
of Santa Clara for all applicable building permits. Tenant hereby agrees that
neither Landlord nor Landlord's consultants shall be responsible for obtaining
any building permit or certificate of occupancy for the Leased Premises and that
obtaining the same shall be Tenant's responsibility; provided, however, that
Landlord shall cooperate with Tenant in executing permit applications and
performing other ministerial acts reasonably necessary to enable Tenant to
obtain any such permit or certificate of occupancy. No changes, modifications or
alterations in the Approved Working Drawings may be made without the prior
written consent of Landlord, which consent may not be unreasonably withheld.
4. CONSTRUCTION OF THE TENANT WORK.
4.1 TENANT'S SELECTION OF CONTRACTORS.
4.1.1 The CONTRACTOR. Tenant shall retain a general
contractor ("Contractor") reasonably approved by Landlord to construct the
Tenant Work.
4.1.2 TENANT'S AGENTS. All subcontractors, laborers,
materialmen, and suppliers used by Tenant (such subcontractors, laborers,
materialmen, and suppliers, and the Contractor to be known collectively as
"Tenant's Agents") must be approved in writing by Landlord, which approval shall
not be unreasonably withheld or delayed. If Landlord does not approve any of
Tenant's proposed Subcontractors, laborers, materialmen or suppliers, Tenant
shall submit other proposed subcontractors, laborers, materialmen or suppliers
for Landlord's written approval. Notwithstanding the foregoing, Tenant shall
retain subcontractors designated by Landlord in
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<PAGE> 57
connection with any structural, mechanical, electrical, plumbing or heating,
air-conditioning or ventilation work to be performed in the Leased Premises.
4.2 CONSTRUCTION OF TENANT WORK BY TENANT'S AGENTS.
4.2.1 CONSTRUCTION CONTRACT: COST BUDGET. Prior to
Tenant's execution of the construction contract and general conditions with
Contractor (the "Contract"), Tenant shall submit the Contract to Landlord for
its approval, which approval shall not be unreasonably withheld or delayed.
Prior to the commencement of the construction of the Tenant Work, and after
Tenant has accepted all bids for the Tenant Work, Tenant shall provide Landlord
with a detailed breakdown, by trade, of the final costs to be incurred or which
have been incurred in connection with the design and construction of the Tenant
Work to be performed by or at the direction of Tenant or the Contractor, which
costs form a basis for the amount of the Contract (the "Final Costs"). Prior to
the commencement of construction of the Tenant Work, Landlord, at Landlord's
sole election, shall require Tenant: (i) to supply Landlord with cash in an
amount equal to the Final Costs, which amount shall be deposited into a
construction escrow account reasonably acceptable to Tenant and Landlord (the
"Construction Deposit") and shall be used to fund the costs of construction in
accordance with escrow instructions to be mutually executed by Landlord and
Tenant; or (ii) to purchase and deliver to Landlord a payment and/or completion
bond in amount equal to the Final Costs. If at any time, or from time to time,
Landlord should reasonably determine that the balance of the Construction
Deposit then remaining should be insufficient to fully fund the remaining costs
of construction of the Tenant Work, Landlord shall provide written notice
thereof to Tenant and Tenant shall deposit additional funds sufficient to ensure
the completion of the Tenant Work.
4.4.2 TENANT'S AGENTS.
4.2.2.1 LANDLORD'S GENERAL CONDITIONS FOR
TENANT'S AGENTS AND TENANT IMPROVEMENT WORK. Tenant's and Tenant's Agent's
construction of the Tenant Work shall comply with the following: (i) the Tenant
Work shall be constructed in strict accordance with the Approved Working,
Drawings; (ii) Tenant's Agents shall submit schedules of all work relating to
the Tenant's Improvements to Contractor and Contractor shall, within five (5)
business days of receipt thereof, inform Tenant's Agents of any changes which
are necessary thereto, and Tenant's Agents shall adhere to such corrected
schedule; and (iii) Tenant shall abide by all rules made by Landlord's Building
manager with respect to the use of freight, loading dock and service elevators,
storage of materials, coordination of work with other contractors, if any, and
any other matter in connection with this Tenant Work Letter, including, without
limitation, the construction of the Tenant Work.
4.2.2.2 INDEMNITY. Tenant's indemnity of
Landlord as set forth in Section 7.1 of the Lease shall also apply with respect
to any and all costs, losses, damages, injuries and liabilities related in any
way to any act or omission of Tenant or Tenant's Agents, or anyone directly or
indirectly employed by any of them, or in connection with Tenant's non-payment
of any amount arising out of the Tenant Work and/or Tenant's disapproval of all
or any portion of any request for payment. Such indemnity by Tenant, as set
forth in Section of this Lease, shall also apply with respect to any and all
costs, losses, damages, injuries and liabilities related in any way to
Landlord's performance of any ministerial acts reasonably necessary (i) to
permit Tenant to complete the Tenant Work, and (ii) to enable Tenant to obtain
any building permit or certificate of occupancy for the Leased Premises.
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<PAGE> 58
4.2.2.3 REQUIREMENTS OF TENANT'S AGENTS.
Each of Tenant's Agents shall guarantee to Tenant and for the benefit of
Landlord that the portion of the Tenant Work 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. Each of tenant's agents
shall be 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 the later to occur of (i) completion of the
work performed by such contractor or subcontractors and (ii) the Lease
Commencement Date. 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 Tenant Work, and/or the Leased
Premises, or any portion thereof, that may be damaged or disturbed thereby. All
such warranties or guarantees as to materials or workmanship of or with respect
to the Tenant Work shall be contained in the Contract or subcontract and shall
be written such that such guarantees or warranties shall inure to the benefit of
both Landlord and Tenant, as their respective interests may appear, and can be
directly enforced by either. Tenant covenants to give to Landlord any assignment
or other assurances which may be necessary to effect such right of direct
enforcement.
4.3 GOVERNMENTAL COMPLIANCE. The Tenant Work shall comply in
all respects with the following: (i) the Code and other state, federal, city or
quasi-governmental laws, codes, ordinances and regulations, as each may apply
according to the rulings of the controlling public official, agent or other
person; (ii) applicable standards of the American Insurance Association
(formerly, the National Board of Fire Underwriters) and the National Electrical
Code; and (iii) building material manufacturer's specifications.
4.4 INSPECTION BY LANDLORD. Landlord shall have the right to
inspect the Tenant Work at all times, provided however, that Landlord's failure
to inspect the Tenant Work shall in no event constitute a waiver of any of
Landlord's rights hereunder nor shall Landlord's inspection of the Tenant Work
constitute Landlord's approval of the same. Should Landlord disapprove any
portion of the Tenant Work, Landlord shall notify Tenant in writing of such
disapproval and shall specify the items disapproved. Any defects or deviations
in, and/or disapproval by Landlord of, the Tenant Work shall be rectified by
Tenant at no expense to Landlord, provided however, that in the event Landlord
determines that a defect or deviation exists or disapproves of any matter in
connection with any portion of the Tenant Work and such defect, deviation or
matter might adversely affect the mechanical, electrical, plumbing, heating,
ventilating and air-conditioning or life-safety systems of the Building, the
structure or exterior appearance of the Building or any other portion of the
Leased Premises, Landlord may take such action as Landlord deems necessary, at
Tenant's expense and without incurring any liability on Landlord's part, to
correct any such defect, deviation and/or matter, including, without limitation,
causing the cessation of performance of the construction of the Tenant Work
until such time as the defect, deviation and/or matter is corrected to
Landlord's satisfaction.
4.5 MEETINGS. During the preparation of the Work Drawings, and
the Construction of Tenant's Work during each of the phases of construction as
set forth in Section 3 above, Tenant shall hold bi-monthly meetings at
reasonable times, with the Architect and the Contractor regarding the progress
of the preparation of Construction Drawings and the construction of the Tenant
Work, which meetings shall be held at a location designated by Landlord, and
Landlord and/or its agents shall receive prior notice of, and shall have the
right to attend, all such meetings, and, upon Landlord's request, certain of
Tenant's Agents shall attend such meetings. In addition, minutes shall be taken
at all such meetings, a copy of which minutes shall be promptly delivered to
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<PAGE> 59
Landlord. One such meeting each month shall include the review of Contractor's
current request for payment.
4.6 NOTICE OF COMPLETION COPY OF RECORD SET OF PLANS. Within
ten (10) days after completion of construction of the Tenant Work, Tenant shall
cause a Notice of Completion to be recorded in the office of the Recorder of the
County of Santa Clara in accordance with Section 3093 of the Civil Code of the
State of California or any successor statute, and shall furnish a copy thereof
to Landlord upon such recordation. If Tenant fails to do so, Landlord may
execute and file the same on behalf of Tenant as Tenant's agent for such
purpose, at Tenant's sole cost and expense. At the conclusion of construction.
(i) Tenant shall cause the Architect and Contractor (A) to update the Approved
Working Drawings as necessary to reflect all changes made to the Approved
Working Drawings during the course of construction, (B) to certify to the best
of their knowledge that the "record-set" of mylar as-built drawings are true and
correct, which certification shall survive the expiration or termination of the
Lease, and (C) to deliver to Landlord two (2) sets of copies of such record set
of drawings within ninety (90) days following issuance of a certificate of
occupancy for the Building, and (ii) Tenant shall deliver to Landlord a copy of
all warranties, guaranties, and operating manuals and information relating to
the improvements, equipment, and systems in the Leased Premises.
5. MISCELLANEOUS
5.1 TENANT'S REPRESENTATIVE. Tenant has designated _________
_______________ as its sole representative with respect to the matters set forth
in this Tenant Work Letter, who shall have full authority and responsibility to
act on behalf of the Tenant as required in this Tenant Work Letter.
5.2 LANDLORD'S REPRESENTATIVE. Landlord has designated Dan
Burfeind as its sole representatives with respect to the matters set forth in
this Tenant Work Letter, who, until further notice to Tenant, shall have full
authority and responsibility to act on behalf of the Landlord as required in
this Tenant Work Letter.
5.3 TIME OF THE ESSENCE IN THIS TENANT WORK LETTER. Unless
otherwise indicated, all references herein to a "number of days" shall mean and
refer to calendar days. If any item requiring approval is timely disapproved by
Landlord, the procedure for preparation of the document and approval thereof
shall be repeated until the document is approved by Landlord.
5.4 TENANT'S LEASE DEFAULT. Notwithstanding any provision to
the contrary contained in the Lease, if an event of default as described in
either the Lease or this Tenant Work Letter shall occur at any time prior to
Substantial Completion of the Tenant Work, then in addition to all other rights
and remedies granted to Landlord pursuant to the Lease, (i) Landlord may cause
Contractor to cease the construction of the Leased Premises (in which case,
Tenant shall be responsible for any delay in the substantial completion of the
Leased Premises caused by such work stoppage), and (ii) all other obligations of
Landlord under the terms of this Tenant Work Letter shall be forgiven until
such time as such default is cured pursuant to the terms of this Lease (in which
case, Tenant shall be responsible for any delay in the substantial completion of
the Leased Premises caused by such inaction by Landlord).
5.5 HAZARDOUS MATERIALS. If the construction of the Tenant
Work or Tenant's move into the Leased Premises will involve the use of or
disturb hazardous materials or Substances
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<PAGE> 60
existing in the Leased Premises, Tenant shall comply with Landlord's rules and
regulations concerning such hazardous materials or substances.
6. NOTICES. For the purposes of this Work Letter only, and except as
otherwise required by law, any and all notices or other communications required
or permitted by this Lease or by law to be served on or given to either party
hereto by the other party hereto shall be in writing and shall be deemed duly
served and given when personally delivered and received by the party to whom it
is directed or to any managing employee or officer of such party, or, in lieu of
such personal service, when sent by Certified United States Mail, Return Receipt
Requested, with all postage charges thereon fully prepaid, addressed to Tenant
at the Leased Premises, or to Landlord at the address set forth in the
introductory paragraph of the Lease and when received by such party. Either
party, may chance its address for purposes of this section by giving written
notice of such change to the other party in the manner provided in this section.
Executed on the date first set forth above.
LANDLORD: TENANT:
Rainbow Property Management, LLC, Coloconnection, Inc.,
a California limited liability company a Florida corporation
/s/ Dan Burfeind /s/ Brian K. Goodkind
--------------------------------------- ------------------------------------
Dan Burfeind, Manager By: Brian K. Goodkind,
Executive Vice President
Its:
--------------------------------
/s/ Diane G. Burfeind
--------------------------------------- ------------------------------------
Diane G. Burfeind, Manager By:
---------------------------------
Its:
--------------------------------
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<PAGE> 61
EXHIBIT D
NET PREMISES LEASE GUARANTY
By this Net Premises Lease Guaranty (the "Guaranty"), dated August __,
2000, the undersigned Terremark Worldwide., Inc., a Delaware corporation, or its
successors(s) or assign(s), whose address is 3030 Corvin Drive, Santa Clara, CA
95051 does hereby endorse, guaranty, and promise to pay to Rainbow Property
Management, LLC, a California limited liability company, whose address is 18070
China Grade, Boulder Creek, CA 95006 ("Landlord"), or its successor(s) or
assign(s), any and all sums which may become due and payable to Landlord by
Coloconnection, Inc., a Florida corporation, whose address is 3030 Corvin Drive,
Santa Clara, California, 95113 ("Tenant"), under the terms of that certain
Net Premises Lease dated September 13, 2000, by and between Tenant and Landlord,
including any renewals, extensions, or modifications thereof (the "Lease"),
relating to that certain real property located in the City and County of Santa
Clara, California, at 3030 Corvin Drive, and the improvements thereon consisting
of a one story industrial building containing approximately forty-thousand four
hundred ninety-one (40,491 ) square feet, as more particularly described in the
Lease (the "Leased Premises"). A copy of the Lease is attached hereto as
Exhibit "A" and incorporated herein by reference. In addition, Guarantor hereby
endorses, guarantees, and promises to Landlord to fully and timely perform any
and all non-monetary obligations of Tenant under the Lease. THIS GUARANTY IS
GIVEN AS A MATERIAL INDUCEMENT TO LANDLORD TO ENTER INTO THE LEASE WITH TENANT.
Guarantor hereby irrevocably appoints Tenant as Guarantor's sole agent
for the purpose of amending or modifying the Lease in any manner. The aforesaid
agency agreement is coupled with an interest and is irrevocable. This Guaranty
is a continuing guaranty and shall remain fully enforceable with respect to any
such amendment or modification of the Lease.
If any party fails to perform its obligations under this Guaranty or
if a dispute arises concerning the meaning or interpretation of any provision of
this Guaranty, the defaulting party, or the party not prevailing in Such
dispute, as the case may be, shall pay any, and all costs and expenses incurred
by the other party in enforcing or establishing its rights hereunder, including,
without limitation, court costs and attorneys' fees. The obligations of
Guarantor hereunder are independent of the obligations of Tenant. One or more
Separate action(s) may, at Landlord's option, be brought and prosecuted against
Guarantor, whether or not Landlord has utilized any security deposit or rental
deposit posted by Tenant under the Lease, whether or not any action has been
first or is subsequently brought against Tenant, whether or not Tenant is
joined in any such action, and whether or not Guarantor may have been joined in
any action or proceeding commenced by Landlord against Tenant arising out of, in
connection with, or based upon the Lease.
Guarantor hereby waives any right to assert or plead at any time any
surety or other defenses in the nature thereof, including, without limitation,
the provisions of California Civil Code Section 2845 or any other similar,
related or successor provision of law. In addition, Guarantor hereby waives any
rights to (a) require Landlord to proceed against or exhaust any entity or
pursue any other remedy in Landlord's power whatsoever; or (b) require Landlord
to proceed against or exhaust any security held from Tenant or Guarantor.
Guarantor further waives any defense arising by reason of any disability of
Tenant. Except as otherwise provided in the Lease, Guarantor waives all demands
and notices to Tenant and to Guarantor, including, without limitation, demands
for payment or performance, and notices of nonperformance or nonpayment. Any act
of Landlord, or its successors or assignors, consisting of a waiver of any of
the terms or conditions of the Lease, or the giving of any consent to any matter
or thing relating to the Lease, or the granting of any indulgences or extensions
of time to Tenant, may be done without notice to Guarantor, and without
releasing
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<PAGE> 62
Guarantor from any obligations hereunder. The obligations of Guarantor hereunder
shall not be discharged, diminished or released by reason of any amendment or
modification to the Lease.
The liability of Guarantor hereunder shall in no way be affected by (a)
the release or discharge of Tenant in any creditors' receivership, bankruptcy or
other proceeding; (b) the impairment, limitation or modification of the
liability of Tenant or the estate of Tenant in bankruptcy, or of any remedy for
the enforcement of Tenant's liability under the Lease resulting from the
operation of any present or future provision of the Bankruptcy Code or any
successor statute; (c) Landlord's receipt, application or release of any
security given for Tenant's performance and observance of Tenant's obligations;
(d) the rejection or disaffirmance of the Lease in any such proceedings; (e) the
assignment or transfer of the Lease or subletting of the rental premises by
Tenant; (f) the assignment or transfer of the Lease or this Guaranty by
Landlord; or (g) the exercise by Landlord of any of its rights or remedies
reserved under the Lease or by law. The obligations of Guarantor hereunder shall
be joint and several.
This Guaranty shall be deemed to be made under, and shall be governed
by, the laws of the State of California in all respects, including matters of
construction, validity, and performance, and its terms and provisions may not be
waived, altered, modified, or amended except in writing duly signed by Landlord
and Guarantor. Any dispute or litigation brought to enforce or interpret the
provisions of this Guaranty shall be commenced in a court or other appropriate
forum for the resolution of such disputes located within the County of Santa
Clara of the State of California.
Guarantor represents and warrant to Landlord that the execution of this
Guaranty is given freely and voluntarily, in consideration of Landlord entering
into the Lease with Tenant. This Guaranty may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
In the case of any obligation of Tenant arising under the Lease to
execute and deliver estoppel certificates and deliver financial statements, as
therein provided, Guarantor shall also do and provide the same.
This Guaranty shall expire the later of: (i) ninety (90) days after the
expiration of the Lease term, as extended by the Option; or (ii) ninety (90)
days after Tenant vacates the Leased Premises; provided however, this Guaranty
shall remain in full effect as to those provisions in the Lease that survive the
expiration or termination of the Lease.
Executed on the date first above written.
GUARANTOR
Terrermark Worldwide, Inc.,
a Delaware corporation
By: /s/ Brian K. Goodkind
------------------------------------
Brian K. Goodkind
Executive Vice-President
Its:
------------------------------------
2
<PAGE> 63
EXHIBIT E
Recording Requested By and
When Recorded Mail to:
Robert Finvarb, Esq.
2601 S. Bayshore Drive, Suite 900
Miami, FL 33133
MEMORANDUM OF LEASE
This Memorandum of Lease ("Memorandum") is executed as of the ___ day
of September, 2000, between Rainbow Property Management, LLC, a California
limited liability company ("Landlord") and Coloconnection, Inc., a Florida
corporation ("Tenant"), and is as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord that certain real property in the City and County of
Santa Clara, State of California more particularly described in Exhibit A which
is attached hereto (the "Premises") on the terms and conditions set forth in a
certain Net Premises Lease dated for reference purposes only September 13, 2000
(the "Lease"), the provisions of which are hereby incorporated into this
Memorandum by this reference. The Premises includes, without limitation, rights
now or hereafter appurtenant to the Premises and any and all improvements now or
hereafter located thereon.
2. LEASE TERM. The term of the Lease shall commence October 1, 2000,
and shall expire on September 30, 2020, except that Tenant has two (2) options
to extend the term of the Lease for additional terms of 60 months each, unless
sooner terminated by Landlord or Tenant pursuant to the terms of the Lease.
3. RIGHT OF FIRST OFFER TO PURCHASE. Landlord hereby grants to Tenant
the right of first offer to purchase the Premises, on all of the terms and
conditions stated herein and in the Lease.
5. FURTHER INFORMATION. Any party who wishes to obtain further
information concerning the Lease may contact: Robert Finvarb, Esq.,
Coloconnection, Inc., 2601 S. Bayshore Dr. Suite 900, Miami, FL 33133.
6. BINDING EFFECT. Provisions of the Lease to be performed by Landlord
or Tenant, whether to be performed on the Premises or in any other location, and
whether affirmative or negative in nature, are intended to and shall inure to
the benefit of and bind Landlord and Tenant, respectively, and their respective
heirs, administrators, executors, successors, and assigns at any time.
<PAGE> 64
7. PURPOSE OF MEMORANDUM. This Memorandum is prepared for the purpose
of recordation, and it in no way modifies the provisions of the Lease referred
to above.
Executed as of the date first set forth above.
LANDLORD: TENANT:
Rainbow Property Management, LLC, Coloconnection, Inc.,
a California limited liability company a Florida corporation
/s/ Dan Burfeind /s/ Brian K. Goodkind
--------------------------------------- ------------------------------------
Dan Burfeind, Manager By: Brian K. Goodkind,
Executive Vice-President
Its:
--------------------------------
/s/ Diane G. Burfeind
--------------------------------------- ------------------------------------
Diane G. Burfeind, Manager By:
---------------------------------
Its:
--------------------------------
<PAGE> 65
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA CLARA )
On 9/14/00 before me, Donn Byrne, Jr., Notary Public, personally
appeared Dan Burfeind, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Donn H. Byrne, Jr. DONN H. BYRNE, JR.
----------------------------------- Comm. #1129574
Notary Public (Seal) NOTARY PUBLIC-CALIFORNIA
Santa Clara County
My Comm. Expires March 12, 2001
STATE OF FLORIDA )
) ss.
COUNTY OF MIAMI DADE )
On 9/14/00 before me, __________________________, Notary Public,
personally appeared Brian Goodkind, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Damarys Martinez OFFICIAL NOTARY SEAL
----------------------------------- DAMARYS MARTINEZ
Notary Public (Seal) COMMISSION NUMBER
CC698688
MY COMMISSION EXPIRES
NOV. 24, 2001
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA CLARA)
On 9/14/00 before me, Donn Byrne, Jr., Notary Public, personally
appeared Diane Burfeind, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
<PAGE> 66
WITNESS my hand and official seal.
/s/ Donn H. Byrne, Jr. DONN H. BYRNE JR
----------------------------------- Comm. #1129574
Notary Public (Seal) NOTARY PUBLIC-CALIFORNIA
Santa Clara County
My Comm. Expires March 12, 2001
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA CLARA)
On _________________ before me, _________________, Notary Public,
personally appeared __________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public (Seal)
<PAGE> 67
EXHIBIT A
DESCRIPTION OF PREMISES
<PAGE> 68
EXHIBIT "A"
DESCRIPTION: THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SANTA CLARA, CITY OF SANTA CLARA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
ALL OF PARCEL 2A, AS SHOWN UPON THAT CERTAIN PARCEL MAP ENTITLED, "BEING A
PORTION OF TRACT NO. 2791 (LOTS 2 & 3) AND A PORTION OF LOT 5 - MAP OF THE
ARQUES SUBDIVISION IN THE CITY OF SANTA CLARA, CALIFORNIA", WHICH MAP WAS FILED
FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, ON APRIL 10, 1970 IN BOOK 266 OF MAPS, PAGE 32.
PARCEL 2:
AN EASEMENT FOR LIGHT AND AIR OVER AND ACROSS THE PARCEL OF LAND HEREINAFTER
DESCRIBED TO BE USED IN COMMON WITH THE RECORD OWNER (AS SUCH OWNER SHALL EXIST
FROM TIME TO TIME) OF THE LAND ADJOINING TO THE SOUTH A STRIP OF LAND OF A
UNIFORM 30.00 FEET LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT
A POINT IN THE WESTERLY LINE OF CORVIN DRIVE AT THE INTERSECTION THEREOF WITH
THE NORTHERLY LINE OF THE HEREINBEFORE DESCRIBED PARCEL 2A; RUNNING THENCE ALONG
SAID NORTHERLY LINE SOUTH 89 DEGREES 29' WEST 310 FEET, SAID EASEMENT AREA
SHALL AT ALL TIMES TO BE UNOBSTRUCTED FROM GROUND TO SKY BY THE CONSTRUCTION,
INSTALLATION, OR MAINTENANCE OF ANY BUILDING OR STRUCTURE.
SAID ABOVE EASEMENT IS CREATED BY EASEMENT AGREEMENT RECORDED MARCH 30, 1998,
INSTRUMENT 14115469, SANTA CLARA COUNTY RECORDS.
PARCEL 3:
AN EASEMENT FOR INSTALLATION AND MAINTENANCE OF STORM DRAINAGE FACILITIES OVER
AND ACROSS THE PARCEL OF LAND HEREINAFTER DESCRIBED, TO BE USED IN COMMON WITH
THE RECORD OWNER (AS SUCH OWNER SHALL EXIST FROM TIME TO TIME) OF THE LAND
ADJOINING TO THE SOUTH A STRIP OF LAND OF A UNIFORM WIDTH OF 10.00 FEET, THE
CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE
NORTHERLY LINE OF THE HEREINBEFORE DESCRIBED PARCEL 2A: DISTANCE THEREIN SOUTH
89 DEGREES 29' WEST 52.50 FEET FROM THE NORTHEASTERLY CORNER THEREOF; RUNNING
THENCE FROM SAID LINE NORTH 45 DEGREES EAST 14.14 FEET; THENCE NORTH 30.00 FEET
AND NORTH 67 DEGREES 31' 24" EAST 46.41 FEET TO THE WESTERLY LINE OF CORVIN
DRIVE.
SAID ABOVE EASEMENT IS CREATED BY EASEMENT AGREEMENT RECORDED MARCH 30, 1998,
INSTRUMENT 14115469, SANTA CLARA COUNTY RECORDS.
<PAGE> 69
PARCEL 4:
AN EASEMENT FOR THE PERMANENT, MUTUAL INGRESS AND EGRESS OVER A COMMON DRIVEWAY
TO SERVE BOTH PARCELS AND AS A COMMON STORM DRAINAGE AREA TO SERVE BOTH PARCELS,
DESCRIBED AS A STRIP OF LAND 25 FEET IN WIDTH AND 310 FEET IN LENGTH, THE
CENTERLINE OF SAID STRIP BEING THE LINE COMMON TO PARCEL 4A OF THAT PARCEL MAP
FILED FOR RECORD JULY 9, 1970 IN BOOK 270 OF MAPS AT PAGE 21, SANTA CLARA COUNTY
RECORDS, AND PARCEL 2A OF THAT PARCEL MAP FILED FOR RECORD APRIL 10, 1970 IN
BOOK 266 OF MAPS AT PAGE 32, SAID COUNTY RECORDS.
EXCEPTING THEREON THAT PORTION LYING WITHIN PARCEL ONE ABOVE.
ASSESSOR'S PARCEL NO.: 216-33-025
<PAGE> 70
EXHIBIT F
LOWNEYASSOCIATES Mountain View
Environmental/Geotechnical/Engineering Services
Oakland
Pasadena
San Ramon
Mr. Alex Johnson
Don L. Beck Associates
10050 North Foothill Boulevard
Cupertino, California 95014
RE: Agreement for Environmental Consulting Services
3030 Corvin Drive
Santa Clara, California
-------------------------------
OUR MISSION IS TO DEVELOP A
PROGRAM THAT WILL ADD VALUE
TO YOUR EFFORTS
-------------------------------
Dear Mr. Johnson
Thank you for requesting our agreement for investigative services at the 3030
Corvin Drive facility. This document will serve as our agreement to work
together.
THE PROJECT
It is our understanding that your client plans to lease the 3030 Corvin Drive
facility and, that under conditions of the lease, they will he responsible only
for contaminants they generate at the site. This investigation is designed to
evaluate existing subsurface conditions at the facility so that your client has
a "baseline" prior to occupying the facility. The site is bordered by Kifer Road
to the south, Copper Road to the west, Central Expressway to the north, and
Corvin Road to the east.
LOCAL EXPERIENCE
Since 1969, Lowney Associates has provided geotechnical and environmental
services for more than 5,000 projects. We have prepared this agreement based on
our previous work in the area, our site visit and discussions with you.
PROJECT TEAM
Our team consists of Stason I Poster, Principal in Charge, and Douglas T. Young,
Project Manager. We are prepared to begin the following scope of work.
405 Clyde Avenue Mountain View, CA 94043-2209 Tel:
650.967.2365 Fax: 650.967.2785
P.O. Box 1388 Mountain View, CA 94042-1388 E-mail:
[email protected] htpp//www.lowney.com
<PAGE> 71
---------------------------
RECENT A WARDS
1999 AP WA
1998 CELSOC
1995 CELSOC
1994 CELSOC
---------------------------
---------------------------
SOIL SAMPLING HELPS
DOCUMENT BASELINE
CONDITIONS AND POSSIBLE
SOURCES OF CONTAMINATION
---------------------------
SCOPE OF SERVICES
We propose the following scope of work to evaluate soil and ground water quality
near the facility by 1) reviewing available environmental records from sites
near the facility, 2) collecting a water sample from an existing on-site
monitoring well (MW-12), and 3) analyzing soil and ground water samples from a
boring drilled in the vicinity of the proposed aboveground fuel storage area.
Document Review
We will review case histories that are on record at the Santa Clara Valley Water
District (SCVWD) for facilities that are adjacent to and either up or
cross-gradient to the site Review of these facility records may assist in
refining the analytical testing program for the site.
FIELD INVESTIGATION
We plan to drill one soil boring in the proposed fuel storage area to obtain
baseline chemical data from soil and ground water samples.
PRE-FIELD ACTIVITIES: Prior to beginning work, we will contact Underground
Service Alert (LISA) to attempt to locate public underground utilities in the
area of our exploratory boring. Please note that USA will not mark private
utility locations. We will need you to mark any private utilities at the site
or provide us with utility plans prior to on-site drilling. We recommend using
a private utility locator to help reduce the risk of damaging underground
utilities during drilling, especially on sites where little information is
available regarding existing underground utilities. We are not responsible for
damage to underground structures.
SUBSURFACE EXPLORATION- Our field engineer or scientist will direct a subsurface
exploratory program, supervise, log, and sample one exploratory boring to a
depth of approximately 25 feet. Ground water is anticipated to be at a depth of
between 20 and 25 feet.
The subsurface investigation will be performed using a limited access rig
equipped with Direct Push Technology equipment. The
<PAGE> 72
--------------------------------
GROUND WATER SAMPLING
HELPS IDENTIFY IF ON-SITE
SOURCES OF CONTAMINATION
MAY EXIST
--------------------------------
boring will be advanced by hydraulically driving a 2-inch-diameter by
4-foot-long open sampler with an interior clear acetate sample liner. After
being driven to a depth of 4 feet, the sampler will be retracted to the surface.
The soils sampled at approximately 5-foot intervals will be logged using the
Unified Soil Classification system (ASTM D-2487). Soil vapors from each sample
will be monitored with an organic vapor meter (OVM). The soil will he placed in
a Ziplock(TM) bag for several minutes; the bag then will be pierced with the OVM
probe in order to record the organic vapor levels present.
Soi1 samples for laboratory analysis will be collected in acetate liners. The
ends of the liners will be covered in Teflon film, fitted with plastic end
caps, taped, and labeled with a unique identification number. The samples then
will be placed in an ice-chilled cooler and transported to a state-certified
analytical laboratory with chain of custody documentation.
GROUND WATER SAMPLING
Ground water will be collected through the direct push drive rods using a small
diameter bailer and placed in appropriate sample bottles labeled with a unique
identification number. The samples then will he placed in an ice-chilled cooler
and transported to a state-certified analytical laboratory with chain of custody
documentation.
SAMPLING OF MONITORING WELL MW-12: Ground Water From the Monitoring Well MW-12
will be sampled in general accordance with EPA guidelines. A Teflon bailer or
submersible pump will be used to purge a minimum of three well casing volumes of
water from the well. After purging, the volume, pH, temperature, and
conductivity measurements will be recorded. In general, these measurements
stabilize (consecutive readings within 10 percent) after three to four well
volumes. If, after the third well volume, the pH and conductivity have not
stabilized, additional well volumes will he removed until these measurements do
stabilize. If the yield is low and the well pumped dry, the well will be allowed
to recharge to the 80 percent level before sampling.
<PAGE> 73
------------------------------------
IF THE SITE IS "CLEAN," WE
DOCUMENT COMPLIANCE; IF
PROBLEMS EXIST, WE HELP YOU
WEIGH BUSINESS DECISIONS
AGAINST ENVIRONMENTAL
LIABILITIES
------------------------------------
Ground water samples will be collected using a Teflon bailer and placed in
appropriate sample bottles labeled with a unique identification number. The
samples then will be placed in an ice-chilled cooler and transported to a
state-certified analytical laboratory with chain of custody documentation.
SAMPLING EQUIPMENT DECONTAMINATION
All sampling equipment will be thoroughly cleaned with an aqueous solution of
tri-sodium phosphate and distilled water or steam cleaned
SOIL CUTTINGS, STEAM CLEANING RINSATE, AND PURGED GROUND WATER
Soil cuttings, steam cleaning rinsate, and purged ground water will be stored
on-site in EPA approved drums. Our costs do not include handling or disposal of
this material. After receipt of the analytical results, we could provide a cost
estimate for disposal of these materials. If this is desired by you, please
notify us.
LABORATORY ANALYSES
Four soil samples and two ground water samples will he analyzed at a state
certified laboratory for total petroleum hydrocarbons in the diesel range
(TPHd)(EPA Test Method 8015/8020), and volatile organic compounds (VOCs) (EPA
Test Method 8240). All analyses will be performed on a standard one-week
laboratory response time.
REPORT
We will prepare a soil and ground water letter evaluation report presenting the
results of our investigation and summarizing our conclusions and
recommendations. Our conclusions and recommendations will he based on readily
available information, observations of existing conditions, and our
interpretation of the analytical data. The report will include a site plan
showing sampling locations and copies of permits and laboratory data sheets
FEES AND TERMS
We will perform the above tasks for the fixed fees presented in Table 1, per the
attached terms and conditions. Percent complete
<PAGE> 74
invoices will be issued on a monthly basis. Any requested contract changes will
need to be approved in writing before we can proceed. The project cost is based
on reported conditions at the site to date. Should any significant factor be
encountered other than as represented at the time of this proposal, such as
difficulty in accessing the site with our drilling equipment or deeper than
anticipated ground water levels, we reserve the right to adjust our fees in a
reasonable manner.
TABLE 1. FIXED FEES FOR ENVIRONMENTAL SERVICES
Document Review .................................... $ 792
Pre-Field Activities ............................... 396
Subsurface Exploration ............................. 1,628
Monitoring Well MW-12 Sampling ..................... 560
Laboratory Costs.................................... 1,395
Office Coordination, Data Interpretation,
and Report Preparation ............................ 806
TOTAL............................... $5,577
Optional Task
Utility Locator .................................... $ 650
-----------
Initial to
Authorize
ADDITIONAL SERVICES
Additional services requested by you that are not outlined in this agreement,
such as attendance at project meetings and preparation of draft reports, will
be charged on a time and-expense basis. Please let us know if you would like us
to provide an estimate for any additional services, such as a geotechnical
investigation.
<PAGE> 75
-------------------------------
OUR GOAL IS TO CONSISTENTLY
MEET YOUR TIME SCHEDULE
-------------------------------
SCHEDULE
We are prepared to begin work within one week of receiving your authorization to
proceed. Scheduling and performance of field work will take approximately two
weeks to complete. All laboratory analyses will be performed on a standard
one-week laboratory response time. After receipt of the laboratory results,
review of the data and completion of our report will take approximately two
additional weeks. We will strive to keep you informed of significant project
developments and to be available to answer your inquiries.
AUTHORIZATION
Please acknowledge your receipt of and agreement with the terms contained in
this agreement by signing below and returning one signed original to us. As soon
as we receive a signed agreement, we will begin work.
Thank you for choosing us to assist you with this project. If you have any
questions, please call and we will be glad to discuss them with you.
Very truly yours, Agreement accepted by:
Lowney Associates Don L. Beck and Associates
/s/ Douglas T. Young, RG
------------------------------- -----------------------------------------
Senior Environmental Geologist Signature Date
-----------------------------------------
Please Print Name and Title
<PAGE> 76
TERMS AND CONDITIONS OF AGREEMENT
AGREEMENT
Lowney's services are defined by and limited to (1) those services (the "Work")
described in the attached proposal, which is incorporated by this reference,
and these Terms and Conditions of Agreement ("Terms and Conditions"). Together,
the proposal and Terms and Conditions form our Agreement. This Agreement
supersedes the parties' entire agreement and supersedes all prior negotiations,
representations, or agreements, either written or oral. The Agreement can only
be altered by a written instrument signed by both the Client and Lowney.
Failure to immediately enforce any provision in this Agreement shall not
constitute a waiver of right to enforce that provision or any other provision.
MISCELLANEOUS CHARGES
Expenses and other similar project-related costs are billed at cost plus
eighteen and one-half (18-1/2) percent. Telephone costs, computer usage
charges, and computerized control of project charges will be additionally
billed at five (5) percent of the total project charge. Reproduction charges
will be billed at twenty-five cents (25) per page plus the technical
assistant's time billed at their hourly rate. Fax transmissions will be charged
at fifty cents ($0.50) per sheet. Fixed fee services will be charged for the
agreed fixed fee sum.
TERMS OF PAYMENT
The Client's obligation to pay for the Work is in no way dependent upon the
Client's ability to obtain financing or dependent upon the Client's successful
completion of the project. Payment for Work and expenses shall be due and
payable upon receipt of Lowney's statement. To be recognized, any dispute over
charges must be claimed in writing within thirty (30) days of the billing date.
Disputes or questions about a statement shall not be cause for withholding
payment for remaining portions due. Amounts unpaid thirty (30) days after the
issue date of Lowney's statement shall be assessed a service charge of one (1)
percent per month on balances outstanding to compensate Lowney for the cost and
burden of administering the account and collecting fees owed. Should any legal
proceeding be commenced between the parties to this Agreement seeking to enforce
any of its provisions, including, but not limited to, fee provisions, the
prevailing party in such a proceeding shall be labeled to, in addition to such
other relief as may be granted, a reasonable sum for attorneys' fees and other
costs. For purposes of this provision, "prevailing party" shall include a party
which dismisses an action for recovery hereunder in exchange for payment of the
sum allegedly due, performance of covenants allegedly breached, or in
consideration substantially equal to the relief sought in the action or
proceeding. Lowney may at its option withhold delivery of reports and other data
pending receipt of statement for all Work rendered and shall have no liability
to the Client for delay or damage caused because of such withholding.
INSURANCE
Lowney, its officers, employees, and agents (hereafter referred to as Lowney)
are protected by Worker's Compensation Insurance (and/or Employer's Liability
Insurance), by Commercial General Liability Insurance for bodily injury and
property damage, and by Professional Liability Insurance (including
Contractor's Pollution Liability Insurance), and will furnish certificates
thereof upon request. Client specifically agrees that Lowney will not be
responsible for property damage from any cause, including fire and explosion,
beyond the amounts actually paid by Lowney's insurance carriers under Lowney's
available insurance.
LIMITATIONS
Client recognizes the inherent risks connected with construction activities,
geotechnical investigations, environmental investigations, and assessments.
Client also recognizes that actual conditions at the site may vary from those
observed by Lowney when performing the Work. Client specifically acknowledges
and agrees that the representations and recommendations of Lowney are based on
information actually reviewed and conditions actually observed by Lowney.
Lowney shall not be responsible for the validity or accuracy of data collected
by others or interpretations made by others.
The Client agrees to defend and indemnify Lowney from any and all claims,
damages, costs, and losses (included attorneys' fees and costs) arising out of
or in any way related to the Work or the performance or non-performance of
obligations under this Agreement except when the Claim arises from the sole
negligence of Lowney or where the Claim arises from the willful, wanton, or
reckless conduct of Lowney.
In performing its professional services, Lowney will strive to use that degree
of care and skill ordinarily exercised, under similar circumstances, by members
of its profession practicing in the same or similar locality and under the same
standard of care. No warranty, expressed or implied, is made or intended by
Lowney by the proposal for consulting services, the contract between Lowney and
Client, or by furnishing oral or written reports of the findings made to the
Client or any other person.
This paragraph limits Lowney's liability -- READ IT CAREFULLY. The Client
understands and acknowledges that the Work poses certain risks to both Lowney
and the Client. Client further acknowledges and agrees that the amount of risk
that Lowney accepts by this Agreement is commensurate with the amount of
compensation received under this Agreement for the Work. Lowney's fee for the
Work is based on and reflects Client's agreement to limit Lowney's liability as
described below. Client specifically acknowledges and agrees that but for this
promise to limit Lowney's liability, Lowney's fee would be significantly higher
to accommodate Lowney for the risks assessed by the Work and entering this
Agreement. Client acknowledges its right to discuss this provision with legal
counsel and negotiate with Lowney regarding this provision and the proposed fee.
In reliance on the foregoing and in consideration for the fee proposed, Client
specifically acknowledges and agrees that, to the fullest extent permitted by
law, Lowney's total liability for any and all injuries, claims, liabilities,
losses, costs, expenses, or damages whatsoever including, without limitation,
Attorney's fees and legal costs (hereinafter "Claims") to Client and any third
party arising out of or in any way related to the Work or this Agreement from
any cause or causes including, but not limited to, Lowney's negligence, errors,
omissions, or breach of contract or any duty, is limited to and shall not exceed
$50,000 or the amount of Attorney's fee, whichever is greater (Option 1) except
when the Claim arises from the sole negligence of Lowney or where the Claim
arises from the willful, wanton, or reckless conduct of Lowney. In consideration
of an additional fee of four (4) percent of Lowney's total Work fee or $400,
whichever is greater, Lowney will raise the limitation of liability up to the
amount actually paid by Lowney's insurance carriers for the Claims under
Lowney's available insurance coverage (Limitation Increase) if and only if
Client makes its written request for the Limitation Increase before the
commencement of the Work and Client and Lowney each initial and date this
paragraph 5.4 below (Option 2) except when the Claim arises from the sole
negligence of Lowney or where the Claim arises from the willful, wanton, or
reckless conduct of Lowney.
5.4. LIMITATION INCREASE: AGREED THAT LIMITATION OF LIABILITY INCREASED TO
ACTUAL AMOUNT OF PROCEEDS PAID BY LOWNEY'S INSURANCE CARRIERS IN EXCHANGE FOR
ADDITIONAL FEE OF FOUR (4) PERCENT OF TOTAL SERVICE CHARGE OR $400, WHICHEVER
IS GREATER.
______________ _________ _______________ ___________
Client Initial Date Lowney Initial Date
5.5 Client agrees on its behalf and on behalf of Client's officers,
directors, partners, principals, agents, employees, successors,
representatives, and assignees (collectively referred to as "Client Group")
that in no event shall any action or proceeding be brought against Lowney by
Client or Client Group for any claim or cause of action arising from or in any
way related to the Work or this agreement unless such action or proceeding is
commenced within three (3) years from the Date of Completion of Work provided
by Lowney under this Agreement. Client and Client Group agree and acknowledge
that the limitations period set forth herein supercedes, replaces, and
supplants any and all limitation periods which would otherwise apply including,
but not limited to, those appearing in the California Code of Civil Procedure.
The Date of Completion shall be the date of the final invoice for the Work
performed under this Agreement.
5.6 If Client requests that Lowney's work product be relied upon by a
third party, including, but not limited to, a lender, Client specifically
agrees to provide the third party with a copy of these terms and conditions and
Client agrees to limit Lowney's total liability to Client and any third party
as described in paragraph 5.4 above, and Client agrees to defend and indemnify
Lowney from any and all third party claims, damages, costs, and losses arising
out of or in any way related to the Work or the performance or non-performance
of obligations under this Agreement except when the Claim arises from the sole
negligence of Lowney or where the Claim arises from the willful, wanton, or
reckless conduct of Lowney. Any third party which accepts Lowney's work product
does so under the strict understanding that the third party is bound by all
provisions in these Terms and Conditions, including, but not limited to, the
provisions of paragraphs 5.4 and 5.5. above, and this paragraph 5.6. Every
report, recommendation, finding, or conclusion issued by Lowney shall be
subject to the limitations stated therein.
6.0 SCOPE AND EXECUTION OF SERVICES
6.1 Lowney will serve the Client by providing professional counsel and
technical advise based on information furnished by the Client. The Client will
make available to Lowney all known information regarding existing and proposed
conditions of the site, including the location of all underground utilities and
installations, and will immediately transmit any new information that becomes
available or any change in plans. When hazardous materials are known, assumed or
suspected to exist at a site, Lowney may be required by law to take appropriate
precautions to protect the health and safety of its personnel. Client hereby
warrants that if it knows or has any reason to assume or suspect that hazardous
materials may exist at the project site, Client will immediately inform Lowney
and warrants that Client has done its best to inform Lowney of the known or
suspected hazardous materials' type, quantity, and location. Client and Lowney
agree that Lowney shall not be responsible for any claims, damages, costs, or
losses arising from or in any way related to conditions not actually encountered
during the course of Lowney's work and Lowney shall not have any liability or
responsibility for losses resulting from inaccurate or incomplete information
supplied by Client, and Client agrees to defend and indemnify Lowney against
claims, damages, costs, or losses arising therefrom. Lowney shall not be liable
for failing to discover any condition the discovery of which would reasonably
require the performance of services not authorized by Client.
6.2 Lowney will diligently proceed with its services and will submit its
report in a timely manner, but it is expressly agreed and understood by Client
that Lowney shall not be held responsible for delays occasioned by factors
beyond its control, nor by factors which could not reasonably have been
foreseen at the time of the execution of the Agreement between the parties.
Lowney will not be responsible for any damages, consequential or otherwise,
caused by delays in the completion of the Work.
<PAGE> 77
They make no warranties regarding time of completion of the Work. In the event
that the Work is interrupted or delayed due to causes beyond Lowney's control,
including, but not limited to, acts of God, war, riot, insurrection, inclement
weather, fire, acts of third parties or governmental bodies, or matters within
the control of Client, Lowney shall be paid compensation for labor, equipment,
and other costs Lowney incurs in order to perform the Work for the Client's
benefit during the interruption or delay.
The individual or individuals who contract with Lowney on behalf of the Client
warrant that they are duly authorized agents of the Client and are empowered to
so interact.
Unless otherwise agreed in writing, the Client shall be entitled to two copies
of each report prepared by Lowney.
In the event that Lowney submits a proposal including these Terms and
Conditions of Agreement, to provide professional services and the Client
authorizes the Work by means of a purchase order or other writing
("Confirmation"), it is expressly agreed that these Terms and Conditions shall
apply, and any terms, condition, or provisions appearing in the Confirmation
are void and inapplicable except to the extent the Confirmation authorizes the
Work and binds Client to this Agreement.
7.0 SITE SAFETY
Lowney shall not be responsible for construction means, methods, techniques,
sequences, or procedures, or for safety precautions and programs in connection
with the job or the work of any contractor, subcontractor, or their agents or
employees, or any other person performing work or services on the job or at the
site.
8.0 TERMINATION
8.1 Either party may terminate this Agreement by giving the other party
seven (7) days' written notice. Notice shall be effective as of the date of
deposit in the U.S. mail of the written notice, properly addressed to the
person to be notified. In the event that the Client requests termination of the
services prior to completion of Work, Lowney reserves the right to complete
such analyses and records as may be necessary to place its files in order and,
where considered necessary to protect its professional reputation, to complete
a report on the services performed to date. A termination charge of 10 percent
of the total contract amount in addition to all costs incurred to the date of
Work stoppage may be made at the discretion of Lowney.
9.0 OWNERSHIP OF DOCUMENTS
9.1 All reports, boring logs, field data, field notes, laboratory test
data, calculations, estimates, and other documents prepared by Lowney, as
instruments of Work, shall remain the property of Lowney. Client agrees that
all reports and other services furnished to the Client or its agents, that are
not paid for, will be immediately returned upon demand and will not be used by
the Client for any purpose whatever. Client warrants that Lowney, in order to
perform its Work under this Agreement, has the unrestricted license and right
to use any information provided to Lowney by the Client or others.
10.0 RIGHT OF ENTRY
10.1 The Client will provide for right of entry of Lowney personnel and all
necessary equipment, in order to complete the Work. While Lowney will take all
reasonable precautions to minimize any damage to the property including
underground utilities, it is acknowledged and agreed by Client that in the
normal course of the Work some damage may occur, the correction of which is not
part of this Agreement. Accordingly, Client shall waive any claim against
Lowney and agree to defend and indemnify Lowney from any claims arising from
entering or working on the site which is the subject of the Work.
11.0 MONITORING OF CONSTRUCTION
11.1 The Client hereby acknowledges and understands that unanticipated or
changed conditions may be encountered during construction. Further, there is a
substantial risk to both the Client and Lowney if Lowney is not engaged to
provide complete services, including but not limited to, construction
observation services. Such risks include the increased likelihood of
misinterpretation of Lowney's findings and conclusions, and error in
implementing recommendations by Lowney. Therefore, if the Client fails to
retain Lowney to provide complete services, the Client agrees to defend and
indemnify Lowney against any and all claims, damages, costs, and losses arising
out of or in any way related to the Work or arising out of implementing or
interpreting Lowney's work product except where the Claim arises from the sole
negligence of Lowney or where the Claim arises from the willful, wanton, or
reckless conduct of Lowney.
12.0 DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS
12.1 Hazardous materials or other toxic substances may exist at a site where
there is no reason known to Client to believe they could or should be present.
Lowney and Client agree that the discovery of unanticipated potentially
hazardous materials constitutes a changed condition mandating a renegotiation
of the scope of Work or termination of Work. Lowney and Client also agree that
the discovery of unanticipated potentially hazardous materials may make it
necessary for Lowney to take immediate measures to protect public health,
safety, and the environment. Lowney agrees to notify Client as soon as
practically possible should unanticipated hazardous materials be encountered.
Client encourages Lowney to take any or all measures that in Lowney's
professional opinion are justified to preserve and protect the health and
safety of Lowney's personnel, the public, and the environment, and Client
agrees to compensate Lowney for the cost of such services. Further, the Client
agrees to defend and indemnify Lowney from any and all claims, damages, costs,
and losses arising out of or in any way related to subsurface sampling,
including, but not limited to, claims, damages, costs, and losses arising from
cross-contamination except when the Claim arises from the sole negligence of
Lowney or where the Claim arises from the willful, wanton, or reckless conduct
of Lowney.
13.0 CONTAMINATION OF A WATER-BEARING ZONE
13.1 Subsurface sampling may result in unavoidable contamination of certain
subsurface areas, as when a probe or boring is advanced or drilled through a
contaminated area, into a clean soil or a water-bearing zone. Because of the
risks posed by such Work, and because subsurface sampling is often a necessary
part of Lowney's Work, the Client hereby agrees to waive all claims against
Lowney that in any way arise out of subsurface sampling, including claims
relating to cross-contamination.
14.0 DISPOSAL OF SAMPLES AND DRILL CUTTINGS
14.1 Lowney shall hold samples collected during the performance of its Work
no longer than 45 calendar days after issuance of any document that includes
data obtained from them unless Client advises in writing otherwise; drill
cuttings will be left on-site. In the event that soil, rock, water, or drill
cuttings, and/or other samples or material are contaminated or are suspected to
contain hazardous materials or other toxic substances hazardous or detrimental
to public health, safety, or the environment as defined by federal, state, or
local statutes, regulations, or ordinances, Lowney will, after completion of
testing, notify the Client of same in order for the Client to arrange for the
disposal of samples and materials. The Client recognizes and agrees that Lowney
at no time assumes title to said samples and/or materials. The Client, not
Lowney, remains ultimately responsible for selecting the disposal or treatment
facility to which such samples and/or materials are to be delivered. The Client
agrees to pay all costs associated with any storage, transport, and disposal of
samples and materials, and to defend and indemnify Lowney from any and all
claims arising out of or in any way related to the storage, transport, and
disposal of asbestos, hazardous or toxic substances, or pollutants, including
but not limited to, any samples and/or materials.
15.0 MISCELLANEOUS PROVISIONS
15.1 The term "indemnify" shall mean indemnify, defend, and hold harmless
from and against any and all claims, liabilities, suits, demands, losses,
costs, and expenses, including, but not limited to, reasonable attorneys' fees
and all legal expenses and fees incurred on appeal, and all interest thereon
("claims"), accruing or resulting to any and all persons, firms, or any other
legal entities, on account of any damages or losses to property or persons,
including death, or economic losses, arising out of the item, matter, action,
or inaction specified in the specific provision.
15.2 This Agreement shall be governed by California law. The venue for any
legal action brought pursuant to this Agreement shall be located within the
County of Santa Clara, State of California.
15.3 Nothing contained in this Agreement shall create a contractual
relationship with or cause of action in favor of a third party against either
the Client or Lowney.
15.4 The Client and Lowney, respectively, bind themselves, their partners,
successors, assigns, and legal representatives to the other party to this
Agreement and to the right or cause of action hereunder without the written
consent of Lowney.
15.5 Unless specified otherwise by Lowney, this quotation shall not remain
in effect after thirty (30) days of the proposal date.
15.6 Lowney maintains a General Engineering A license (No. 682286) and
Hazardous Substances Removal and Remedial Actions Certification with the State
of California which are regulated by the Contractors State License Board. Any
questions concerning a contractor may be referred to the Registrar, Contractors
State License Board, P.O. Box 26000, Sacramento, California 95826.
15.7 Client agrees that Lowney may use and publish Client's name and a
general description of Lowney's services with respect to the project in
describing Lowney's experience and qualification to other clients or
prospective clients.
15.8 Client acknowledges and agrees that it has received and reviewed these
Terms and Conditions and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to
the interpretation of this Agreement.
<PAGE> 78
EXHIBIT "G"
FORM OF LETTER OF CREDIT
____________________________
____________________________
____________________________
____________________________
Contact Phones:_____________
IRREVOCABLE LETTER OF CREDIT
_______ , 2000 Our irrevocable Letter of Credit:
No. _____________________________
Beneficiary: Applicant:
_______________________ ___________________________
_______________________ Amount: Exactly USD$ _____________
_______________________ (_________________________ Dollars)
Final Date of Expiration: _________
We (the "Bank") hereby issue our irrevocable Letter of Credit No.
__________ in Beneficiary's favor for the account of the above-referenced
Applicant, in the aggregate amount of exactly USD $___________________.
This Letter of Credit is available with us at our above office by
presentation of your draft drawn on us at sight bearing the clause: "Drawn
under No. ______________________ [INSERT NAME OF BANK] Letter of Credit
No. __________ " and accompanied by the following:
1. Beneficiary's signed certification purportedly signed by an
authorized officer or agent stating:
(A) "Such amount is due to the Beneficiary as landlord under the
terms and conditions of that certain lease agreement dated ___________, 2000
for premises known as the __________ ____________________________________; or
(B) "The Bank has notified us that this Letter of Credit will not be
extended beyond the current expiration date of this Letter of Credit and
Applicant has not delivered to Beneficiary at least thirty (30) days prior to
the current expiration of this Letter of Credit a replacement Letter of Credit
satisfactory to Beneficiary."
<PAGE> 79
EXHIBIT "G"
2. The original of this Letter of Credit.
Special conditions:
Partial draws under this Letter of Credit are permitted. Notwithstanding
anything to the contrary contained herein, this Letter of Credit shall expire
permanently without renewal on _______________________________.
This Letter of Credit shall be automatically extended for an additional
period of one (1) year, without amendment, from the present or each future
expiration date but in any event not beyond _________ which shall be the final
expiration date of this Letter of Credit, unless, at least thirty (30) days
prior to the then current expiration date we notify you by registered
mail/overnight courier service at the above address that this Letter of Credit
will not be extended beyond the current expiration date.
We hereby agree with you that all drafts drawn under and in compliance
with the terms of this Letter of Credit will be duly honored upon presentation
to us of the documents described in Paragraph 1 above on or before the
expiration date of this Letter of Credit, without inquiry as to the accuracy
thereof and regardless of whether Applicant disputes the content of any such
documents or certifications.
This Letter of Credit may only be transferred in its entirety by the
issuing bank upon our receipt of the attached Exhibit "A" duly completed and
executed by the beneficiary and accompanied by the original letter of credit
and all amendment(s), if any. All transfer fees shall be charged to Applicant.
Except so far as otherwise expressly stated, this documentary credit is
subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber Of Commerce Publication No. 500.
_________________________________
By: _____________________________
Authorized signature
Please direct any correspondence including drawing or inquiry quoting our
reference number to the above referenced address.
This document consists of two pages.
<PAGE> 80
EXHIBIT "A"
DATE:
TO: RE:
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS
TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS,
WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING
OR HEREAFTER MADE, ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
SINCERELY,
--------------------------------
(BENEFICIARY'S NAME)
--------------------------------
SIGNATURE OF BENEFICIARY
--------------------------------
SIGNATURE AUTHENTICATED
--------------------------------
(NAME OF BANK)
--------------------------------
AUTHORIZED SIGNATURE
