EXHIBIT 10.44
PARTICIPATION AND PUT OPTION AGREEMENT
This PARTICIPATION AND PUT OPTION AGREEMENT ("AGREEMENT") is made and
entered into as of September 5, 2002, by and among PARKSIDE TOWERS CO-TENANCY, a
tenancy in common between GATEWAY PHOENIX ASSOCIATES, L.P., a California limited
partnership, and 5990 XXXXXXXXX ASSOCIATES, L.P., a California limited
partnership (collectively, "PARKSIDE"), EOP Operating Limited Partnership, a
Delaware limited partnership ("EQUITY OFFICE"), and INKTOMI CORPORATION, a
Delaware corporation ("INKTOMI").
R E C I T A L S :
A. Concurrently herewith, Parkside, Equity Office and Inktomi have
entered into that certain Lease Termination Agreement ("LEASE TERMINATION
AGREEMENT"), pursuant to which Parkside has agreed to terminate the "Lease," as
defined in the Lease Termination Agreement, in exchange for certain
consideration from Inktomi to Parkside and/or Equity Office, including (i)
Inktomi's agreement to enter into this Agreement, and (ii) Inktomi's making of
the Note in the initial principal amount of $21,500,000.00, which Note is
secured by the "Note Deed of Trust" encumbering Inktomi's interest in the
"Bayside Project", as those terms also are defined in the Lease Termination
Agreement.
B. Inktomi desires to hereby grant Equity Office the right to
participate in the value, if any, of the Bayside Project in excess of an agreed
minimum amount (the "PARTICIPATION INTEREST") on the terms and conditions set
forth herein. Equity Office directly or indirectly owns and controls Parkside.
C. Equity Office desires to hereby grant Inktomi an option to sell the
Bayside Project to Equity Office (the "PUT OPTION") on the terms and conditions
set forth herein.
D. Parkside executes this Agreement to acknowledge that it
constitutes the Participation Agreement contemplated by the Lease Termination
Agreement. However, this Agreement confers no rights or obligations on
Parkside.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows.
1. GENERAL TERMS. All undefined terms when used herein shall have the same
respective meanings as are given such terms in the Lease Termination Agreement,
unless expressly provided otherwise in this Agreement. The terms of this
Agreement shall be immediately binding upon the full execution and delivery of
this Agreement, but this Agreement shall become effective only upon the "Lease
Termination Date," as defined in the Lease Termination Agreement. To the extent
required hereunder, Equity Office shall take any and all actions required to
cause Parkside to act in accordance with any obligations of Equity Office
hereunder.
2. GRANT OF PARTICIPATION INTEREST.
2.1 GRANT. Inktomi hereby grants to Equity Office the Participation
Interest, consisting of the right to receive fifty percent (50%) of the amount,
if any, by which the "Value", as defined in Section 3.3 below, of the Bayside
Project exceeds $50,000,000.00 (the "BASE VALUE"). This Participation Interest
consists of only a contractual right to receive a stipulated sum of money in the
event the Value exceeds the Base Value, and does not constitute an interest in,
or confer any lien upon or create any other encumbrance against, the Bayside
Project, except through the operation of the "Participation Deed of Trust",
defined in Section 2.2, below. Any payment to be made by Inktomi to Equity
Office in satisfaction of the Participation Interest is referred to in this
Agreement as the "PARTICIPATION PAYMENT."
2.2 DEED OF TRUST AS SECURITY. To secure Inktomi's obligation to
recognize the Participation Interest, concurrently with the execution of this
Agreement, Inktomi has executed, acknowledged and delivered the Participation
Deed of Trust in the form attached as Exhibit A to this Agreement (the
"PARTICIPATION DEED OF TRUST"), which will on the Lease Termination Date
encumber Inktomi's fee title in the Bayside Project. The Participation Deed of
Trust is subordinate and junior to the Note Deed of Trust.
3. RECOGNITION OR TERMINATION OF PARTICIPATION INTEREST.
3.1 LIQUIDITY EVENT.
3.1.1 MARKETING BAYSIDE PROJECT. Equity Office acknowledges that
Inktomi has retained Eastdil Realty Co., Inc. ("Eastdil") to arrange a
recapitalization of the Bayside Project, to be accomplished through a bona fide
sale (including a sale at a "foreclosure") of the Bayside Project (the
"LIQUIDITY EVENT") to an unaffiliated third party (the "LIQUIDITY PURCHASER").
In connection with this Liquidity Event, it is anticipated that Inktomi will
enter into a lease-back arrangement (the "LEASE-BACK") with the Liquidity
Purchaser on approximately the same economic terms (consisting of the lease
term, base rent, pass through of operating expenses and taxes, amount of letter
of credit security, rights to renew and renewal rent) as are contained in the
"Lease-Back Lease," as defined in Section 4.2.2 below, and demising only that
portion of the Bayside Project as is described in the Lease-Back Lease. Inktomi
shall use commercially reasonable efforts and customary due diligence to arrange
a Liquidity Event in accordance with this Agreement on or before the
"Participation Date," as defined in Section 3.2 below, but Inktomi may arrange a
Liquidity Event on terms other than those in the Lease-Back Lease and with a
Liquidity Purchaser which is not an unaffiliated third party.
3.1.2 RIGHT TO SELL. Inktomi shall be free to enter into and
consummate a Liquidity Event without prior notice to, or the approval of Equity
Office. However, where the Liquidity Event has not been approved by Equity
Office prior to the consummation thereof (either because Equity Office does not
have notice of the Liquidity Event or because Equity Office withholds its
approval pursuant to Section 3.1.3, below), Equity Office shall be obligated to
reconvey the Participation Deed of Trust only upon the payment of the "Release
Amount," as defined in Section 3.4.1, below, into "Escrow", as that term is
defined in Section 3.4.2, below, and such reconveyance shall not extinguish the
rights of Equity Office to receive the full amount
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of the Participation Payment, including any such amounts which are in excess of
the Release Amount.
3.1.3 RIGHT TO REVIEW SALE TERMS. Within five (5) business days
after reaching agreement on the terms and conditions of a Liquidity Event (but
not necessarily before the consummation thereof), Inktomi shall present such
terms and conditions to Equity Office, together with copies of all of the fully
executed documents evidencing the proposed Liquidity Event and any other
information reasonably required by Equity Office to enable Equity Office to
determine the relationship or lack of relationship between Inktomi and the
Proposed Purchaser. Equity Office shall give or withhold such approval, in its
sole discretion, within five (5) business days after request therefor. The
failure of Equity Office to respond as required by this section within such five
(5) business day period shall be deemed an approval by Equity Office. If Equity
Office approves or is deemed to approve such Liquidity Event, Equity Office
shall be deemed to have approved the amount of the Participation Payment
reflected in the documents provided by Inktomi in connection with its request
for approval. If Equity Office disapproves the Liquidity Event, its notice of
disapproval must include Equity Office's good faith estimate of the "Appraised
Value," as defined in Section 3.3.2, of the Bayside Project, and the
corresponding Participation Payment.
3.1.4 RESTRICTION ON TRANSFERS. Other than in connection with (i) an
"Authorized Transfer" as defined in Section 3.7 of this Agreement, (ii) a
Liquidity Event under Section 3.3.1 of this Agreement, or (iii) the exercise of
the Put Option under Section 4 of this Agreement, Inktomi shall not sell,
assign, mortgage, pledge, hypothecate, encumber, master lease or ground lease,
or permit any lien to attach to or be executed upon, or otherwise voluntarily
transfer, any interest whatsoever in the Bayside Property.
3.1.5 SOLE REMEDY. Except as expressly set forth in the
Participation Deed of Trust, Equity Office's sole remedy for breach of Inktomi's
covenants under Sections 3.1.1 and 3.1.4, above, shall be to advance the
Liquidity Event Deadline in accordance with Section 3.5.1, below, and cause the
"Appraisal Determination", as defined in Section 3.6.3, below, to be made as of
the date prior to such breach, as if such breach had not occurred.
3.2 PARTICIPATION DATE. The Participation Interest, if any, granted to
Equity Office shall be (i) if the Participation Payment has been approved by
Equity Office and Inktomi, paid to Equity Office on, or (ii) if the
Participation Payment has not been approved by Equity Office and Inktomi, valued
as of, the "PARTICIPATION DATE," which date shall be the earlier of (i) the
closing date of a Liquidity Event (the "LIQUIDITY CLOSING") or (ii) January 21,
2003, as that date may be advanced or extended in accordance with Section 3.5.1
below (the "LIQUIDITY EVENT DEADLINE"). The Value of the Bayside Project shall
be calculated as of the Participation Date using the "Liquidity Value," as
defined in Section 3.3.1, or the Appraised Value, whichever is applicable. If
the Value as so determined is equal to or less than the Base Value, the
Participation Interest shall terminate and be of no further force or effect; and
if the Value as so determined is greater than the Base Value, Inktomi shall pay
the Participation Payment in accordance with this Agreement.
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3.3 VALUATION. The "VALUE" of the Bayside Project, for purposes of
recognizing or terminating the Participation Interest, shall be either the
Liquidity Value, as determined under Section 3.3.1 below, or the Appraised
Value, as determined under Section 3.3.2 below.
3.3.1 LIQUIDITY VALUE. The term "LIQUIDITY VALUE" shall mean the
total net proceeds of a Liquidity Event paid to Inktomi, including, without
limitation, cash, assumed indebtedness, notes or other deferred payments,
prepaid expenses and non-customary prorations which materially benefit Inktomi
(provided, however, that the Value shall reflect the fair market value of all
non-cash consideration received in connection with such Liquidity Event, whether
or not contingent, with appropriate discounting to reflect the net present value
of any notes or deferred payments or the likelihood of any contingency being
satisfied or the debt being collected), as adjusted by the "Lease-Back
Adjustment." The "LEASE-BACK ADJUSTMENT" shall mean an increase or decrease in
the Liquidity Value which shall equal the positive or negative difference
between (i) the net present value of the Base Rent rental stream (i.e., $1.50
per rentable square foot of the Inktomi Premises per month) for the first five
(5) years of the Lease-Back Lease, discounted at an annual discount rate of 11%
(the "ASSUMED LEASE VALUE"), and (ii) the net present value of the Base Rent
rental stream (which rental stream shall be calculated on an effective basis by
deducting on a straight-line basis any monetary concessions received by Inktomi
over the term of the Lease-Back Lease) for the first five (5) years of the
Lease-Back actually agreed to in connection with the Liquidity Event, also
discounted at an annual discount rate of 11% (the "ACTUAL LEASE VALUE"). If such
difference is positive (i.e., if the Actual Lease Value is greater than the
Assumed Lease Value), then the Liquidity Value shall be decreased by the amount
of such difference. If such difference is negative (i.e., if the Actual Lease
Value is less than the Assumed Lease Value), then the Liquidity Value shall be
increased by the amount of such difference.
3.3.2 APPRAISED VALUE. The "APPRAISED VALUE" shall mean the Value of
the Bayside Project established by the "Arbitration Determination, as defined in
Section 3.6.3 below.
3.3.3 VALUE NET OF TRANSACTION COSTS. Regardless of whether the
Value of the Bayside Project is based on the Liquidity Value or the Appraised
Value, the Value shall be net of all reasonable and customary costs to be paid
or incurred in connection with the Liquidity Event (or which a seller could
reasonably be expected to pay or incur, where Value is being determined without
the prior occurrence of a Liquidity Event), including, without limitation,
escrow and recording fees, transfer taxes, title insurance premiums and
reasonable fees for brokerage commissions, attorneys, appraisers, surveyors,
engineers and other experts (including any consideration paid to Eastdil) and
prorations ordinarily deducted from the sales price.
3.4 CONSUMMATION OF LIQUIDITY EVENT. Concurrently with the Liquidity
Closing, Inktomi shall repay the Note in full, together with any accrued and
outstanding interest owing thereon, and Inktomi also shall pay either (i) if
Equity Office has approved the Liquidity Event and the Liquidity Closing occurs
on or before the Liquidity Event Deadline, the amount of the Participation
Payment, if any, calculated using the Liquidity Value (in which case the
Participation Payment shall be paid to Equity Office at the Liquidity Closing),
(ii) if the Liquidity Closing occurs following Equity Office's approval of the
Liquidity Event, but after the Liquidity Event Deadline (as extended under
Section 3.5.1, below) associated with such Liquidity event, the Release Amount
(in which case the Release Amount shall be paid as provided in Section 3.4.2
below), or (iii) if the Liquidity Closing occurs without Equity Office's
approval (regardless of the timing of such event), the Release Amount (in which
case the Release Amount shall be paid as
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provided in Section 3.4.2 below). Conditioned upon such payment(s), Equity
Office shall concurrently reconvey and release or otherwise extinguish the Note
Deed of Trust, the Participation Deed of Trust, and any other liens or
encumbrances against the Bayside Property relating thereto or to the
Participation Interest created by this Agreement.
3.4.1 RELEASE AMOUNT CALCULATION. The "RELEASE AMOUNT," shall be the
lesser of (i) the Participation Payment specified in Equity Office's notice of
disapproval delivered under Section 3.1.3 above, or, if Equity Office has
previously approved a Liquidity Event, but the Liquidity Closing occurs after
the Liquidity Event Deadline, then the Estimate designated by Equity Office
under Section 3.6.2, below, or (ii) Two Million Five Hundred Thousand Dollars
($2,500,000.00).
3.4.2 PAYMENT OF RELEASE AMOUNT. If the Release Amount is calculated
under clause (i) of Section 3.4.1, above, and Inktomi elects to accept such
amount as the Participation Payment, the Release Amount shall be paid to Equity
Office in connection with the Liquidity Closing and such payment shall fully
satisfy and forever release and discharge the Participation Interest. If the
Release Amount is calculated under clause (i) of Section 3.4.1 above and Inktomi
does not accept such amount as the Participation Payment, or if Release Amount
is calculated under clause (ii) of Section 3.4.1 above, the Release Amount shall
be paid into the same escrow account through which the Liquidity Closing is
conducted (the "ESCROW") under mutual, irrevocable instructions from Equity
Office and Inktomi directing that the Release Amount be paid to Equity Office,
or returned to Inktomi, or partially paid and partially returned to each such
party, out of the Escrow based on the Participation Payment established by the
Arbitration Determination. Notwithstanding the foregoing, the payment of the
Release Amount into Escrow, and any subsequent release of such Release Amount to
Equity Office, shall not release Inktomi from its obligation to pay any
additional amounts if the Participation Payment due to Equity Office based on
the Arbitration Determination exceeds the Release Amount. Concurrently with its
deposit of the Release Amount into the Escrow, Inktomi shall notify Equity
Office in writing of Inktomi's estimate of the Appraised Value of the Bayside
Project and the corresponding amount of the Participation Payment.
3.5 FAILURE TO OBTAIN LIQUIDITY EVENT.
3.5.1 CHANGE IN LIQUIDITY EVENT DEADLINE. Equity Office may advance
the Liquidity Event Deadline if Inktomi breaches the covenants in Sections 3.1.1
or 3.1.4, above, in which event (i) the Participation Date for determining the
Appraised Value shall be the date immediately preceding Inktomi's breach of such
covenant, and (ii) the Appraisal Determination shall be made as if such breach
had not occurred. If requested by Inktomi, Equity Office will not unreasonably
withhold its consent to extending the Liquidity Event Deadline for up to 30 days
after January 21, 2003, if on the date Inktomi requests such extension there is
a pending Liquidity Event approved by Equity Office (as provided in Section
3.1.3 above) and the parties thereto reasonably and in good faith expect (and so
notify Equity Office in writing) that all closing conditions for such Liquidity
Event will be satisfied within the period covered by the requested extension of
the Liquidity Event Deadline. In all other instances, Equity Office may grant or
withhold its consent to any extension of the Liquidity Event Deadline in its
sole discretion.
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3.5.2 RIGHT TO REQUIRE ARBITRATION. If Inktomi fails to consummate a
Liquidity Event in accordance with this Agreement by the Liquidity Event
Deadline (as the same may be changed under Section 3.5.1 above), and provided
that Inktomi has not previously exercised the Put Option, then Equity Office
shall have the right to obtain an Arbitration Determination of the Appraised
Value of the Bayside Project, by delivering written notice (the "ARBITRATION
NOTICE") of such election to Inktomi. In the event that the final Arbitration
Determination shows an Appraised Value in excess of the Base Value, then, within
five (5) days after the issuance of the Arbitration Determination, Inktomi shall
pay to Equity Office the Participation Payment based on the Arbitration
Determination. Promptly upon Inktomi's payment of the Participation Payment,
Equity Office shall reconvey and release the Participation Deed of Trust. In the
event that the final Arbitration Determination shows an Appraised Value equal to
or less than the Base Value, then, within five (5) days after the issuance of
the Arbitration Determination, Equity Office shall reconvey and release the
Participation Deed of Trust.
3.6 ARBITRATION PROCEDURE.
3.6.1 ARBITRATION AFTER LIQUIDITY CLOSING. If there is a Liquidity
Event under circumstances where the Release Amount is held by the Escrow Holder
after the Liquidity Closing, references in this Section 3.6 to "Estimates" shall
refer to Equity Office's estimate of the Appraised Value delivered under Section
3.1.3 above and Inktomi's estimate of the Appraised Value delivered pursuant to
Section 3.4.2 above. In such case, the parties shall arbitrate the question of
the Appraised Value, utilizing the procedures outlined beginning at Section
3.6.3 below.
3.6.2 ARBITRATION WITHOUT LIQUIDITY EVENT. If Equity Office
initiates arbitration without there being a Liquidity Event, then within five
(5) days after the delivery of the Arbitration Notice, each party shall
simultaneously submit to the other, in a sealed envelope, its good faith
estimate of the Appraised Value of the Bayside Project and the corresponding
Participation Payment (if any) Equity Office is entitled to receive in
satisfaction of its Participation Interest. Where arbitration is conducted
without a Liquidity Event, references in this Section 3.6 to "Estimates" shall
refer to the estimates so exchanged by Equity Office and Inktomi. If the higher
of such Estimates is such that the associated Participation Payment is not more
than 105% of Participation Payment associated with the lower of such Estimates,
then the Participation Payment shall be determined based upon the average of the
two Estimates. If the amount of the Participation Payment is not resolved by the
exchange of Estimates, then, within seven (7) days after the exchange of
Estimates, the parties shall proceed as outlined beginning in Section 3.6.3
below.
3.6.3 SELECTION OF APPRAISERS. Inktomi and Equity Office shall each
select an appraiser to determine which of the two Estimates most closely
reflects the Appraised Value and the Participation Payment to which Equity
Office is entitled based on such Appraised Value. Each appraiser so selected
shall be certified as an MAI appraiser or as an ASA appraiser and shall have had
at least five (5) years experience within the previous ten (10) years as a real
estate appraiser working in the San Francisco Bay Area, with working knowledge
of current market conditions and practices. For purposes hereof, an "MAI"
appraiser means an individual who holds an MAI designation conferred by, and is
an independent member of, the American Institute
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of Real Estate Appraisers (or its successor organization, or in the event there
is no successor organization, the organization and designation most similar),
and an "ASA" appraiser means an individual who holds the Senior Member
designation conferred by, and is an independent member of, the American Society
of Appraisers (or its successor organization, or, in the event there is no
successor organization, the organization and designation most similar). Upon
selection, the two (2) appraisers selected by the parties shall work together in
good faith to agree upon which of the two Estimates most closely reflects the
Appraised Value. If either party fails to appoint an appraiser within the seven
(7) day period referred to in Section 3.6.2 above, the appraiser appointed by
the other party shall be the sole appraiser for the purposes hereof. If the two
appraisers cannot agree upon which of the two Estimates most closely reflects
the Appraised Value and the corresponding Participation Payment within twenty
(20) days after their appointment, then, within ten (10) days after the
expiration of such twenty (20) day period, the two appraisers shall select a
third appraiser meeting the aforementioned criteria. If the appraisers are not
able to agree upon a third appraiser within such ten (10) day period, then they
shall ask the American Institute of Real Estate Appraisers, or successor
organization, to provide a list of five (5) qualified appraisers. Beginning with
the appraiser appointed by Inktomi, each appraiser shall, within three (3)
business days, strike the name of one (1) of the five (5) appraisers on such
list, and the appraiser remaining after each appraiser has stricken two (2)
names shall be the third appraiser. Once the third appraiser (the "ARBITRATOR")
has been selected as provided for above, then, as soon thereafter as practicable
but in any case within fourteen (14) days, the Arbitrator shall make his or her
determination of which of the two Estimates most closely reflects the Appraised
Value, and the corresponding Participation Payment. If the Arbitrator believes
that expert advice would materially assist him or her, he or she may retain one
or more qualified persons to provide such expert advice. Each of Equity Office
and Inktomi initially shall pay the costs of the Arbitrator and of any experts
retained by the Arbitrator. Any fees of any appraiser, counsel or experts
engaged directly by Equity Office or Inktomi initially shall be borne by the
party retaining such appraiser, counsel or expert. The Appraised Value and the
corresponding Participation Payment agreed upon by the appraisers, or determined
by the Arbitrator, is referred to herein as the "ARBITRATION DETERMINATION." The
party whose Estimate is selected as most closely reflecting the Appraised Value
shall be entitled to recover from the other party its one-half share of the
Arbitrator's costs (including costs of experts retained by the Arbitrator) and
all reasonable attorneys', appraisers' and experts' fees incurred by such party
in connection with the Arbitration Determination.
3.6.4 DELIVERY OF INFORMATION TO APPRAISER. Within ten (10) days
after the appointment of the appraisers, Inktomi shall deliver to each
appraiser, with copies to Equity Office (except to the extent such materials
have been delivered to Equity Office previously), the following documents (the
"DILIGENCE DOCUMENTS").
(i) TITLE DOCUMENTS. The most recent title report,
with copies of all title exceptions shown thereon, together
with the most recent ALTA survey completed on the Bayside
Project.
(ii) ENVIRONMENTAL. The most recent Phase I and Phase
II environmental reports prepared with respect to the Bayside
Project.
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(iii) LEASES AND ESTOPPELS. Complete copies of all
leases encumbering the Bayside Project, and all amendments or
modifications thereto, together with the most current estoppel
certificates from (i) Legacy Partners L.P., and (ii) PE
Corporation (NY) (formerly named The Xxxxxx-Xxxxx
Corporation), which entities are currently occupying portions
of the Bayside Project (collectively, the "Current Tenants").
(iv) BUILDING RECORDS. Copies of the most current
operating statements and tax bills.
Inktomi shall, within ten (10) days after request by the
appraisers, provide the appraisers with reasonable access to other materials,
information or documentation reasonably requested by the appraisers in forming
their opinions as to Value, including all business licenses and permits, the
Bayside Project certificate of occupancy, and evidence of the Bayside Project's
compliance with applicable zoning and use laws and regulations. Inktomi may
require that all recipients of the Diligence Documents first sign a customary
confidentiality agreement to assure that the data supplied or made available by
Inktomi are used solely for the purposes contemplated by this Section 3.6.
3.6.5 ENTRY. Inktomi shall allow the appraisers to enter the Bayside
Project at reasonable times upon reasonable prior notice and to make such
investigations and surveys as the appraisers reasonably determine to be
appropriate in connection with the Arbitration Determination.
3.6.6 ARBITRATION DETERMINATION. The Arbitration Determination shall
establish the Participation Payment based upon the Appraised Value of the
Bayside Project as of the Participation Date, which Appraised Value shall be the
"fair market value" of the Bayside Project, assuming an arms' length sale of the
Bayside Project to an unaffiliated third party, accompanied by a Lease-Back by
Inktomi on the same basic economic terms (consisting of the lease term, base
rent, pass through of operating expenses and taxes, amount of letter of credit
security, rights to renew and renewal rent) as are contained in the Lease-Back
Lease, and assuming the Current Tenants are in occupancy, and otherwise on such
terms as would be consistent with a transaction conforming to market terms in
effect on the Participation Date, and in conformance with commercially
reasonable, industry standard appraisal procedures applied when appraising an
office property. The appraisers shall render the Arbitration Determination
within forty-five (45) days after the date of their appointment. The Arbitration
Determination shall be the final determination of the Appraised Value of the
Bayside Project and the corresponding Participation Payment, and shall be
binding and conclusive as between Equity Office and Inktomi. Notwithstanding the
foregoing, if prior to the Arbitration Determination, Inktomi (i) tenders to
Equity Office either (A) if Equity Office has approved a Liquidity Event, the
amount Equity Office has approved as the Participation Payment in connection
with such Liquidity Event, or (B) if Equity Office has not approved a Liquidity
Event, the Estimate of Participation Payment calculated by Equity Office and
submitted under Section 3.1.3 or Section 3.6.2, and (ii) agrees to promptly
reimburse Equity Office, upon presentation of an invoice therefor (together with
reasonable supporting documentation) for all amounts Equity Office has incurred
and could recover as the party prevailing in the Arbitration Determination, the
arbitration shall
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be cancelled and such Participation Payment will fully satisfy and forever
release and discharge the Participation Interest.
3.7 AUTHORIZED TRANSFERS. Each of the following shall be an "AUTHORIZED
TRANSFER" by Inktomi: (i) any sale or other transfer of the Bayside Project to
an entity which controls Inktomi, is controlled by Inktomi, or is under common
control with Inktomi; (ii) any sale or other transfer of the Bayside Project in
connection with a merger, consolidation or reorganization or a sale of all or
substantially all of Inktomi's assets as a going concern, provided the
creditworthiness of the surviving entity or asset purchaser is comparable to
Inktomi's creditworthiness on the date of this Agreement; and (iii) any
modification of the existing leases with the Current Tenants and any new lease
of the Bayside Project, in each case made with Equity Office's prior written
consent, which shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the preceding clause (iii), Equity Office acknowledges that it
has reviewed and approved a proposed second amendment to the existing lease with
PE Corporation (NY) (formerly named The Xxxxxx-Xxxxx Corporation) which was
delivered to Xxxxx X. Xxxxxx by Xxxxxx Xxxxx under cover of e-mail, dated
September 5, 2002, and, provided there is no material change to such proposed
amendment, and provided that the provision dealing with the right of first offer
is substantially similar to that contained therein, Inktomi may enter into such
amendment without Equity Office's consent, and the same shall be an Authorized
Transfer.
3.8 NO ASSURANCES AS TO VALUE. Equity Office acknowledges that Inktomi
has made no statements, representations or other assurances regarding the Value
of the Bayside Project, and that Equity Office is entering to this Agreement
solely in reliance on its own investigation and evaluation concerning the Value
of the Bayside Project.
3.9 EFFECT OF NOTE DEED OF TRUST FORECLOSURE. The parties acknowledge
and intend that the foreclosure of the Note Deed of Trust will extinguish the
Participation Deed of Trust. However, if the Note Deed of Trust is foreclosed
and neither Equity Office nor any affiliate of Equity Office is the foreclosure
purchaser, the Participation Interest shall survive the Note Deed of Trust
foreclosure. In such case the Participation Payment shall be based on the
Appraised Value of the Bayside Project using the date of the foreclosure sale as
the Participation Date. References in this Agreement to "foreclosure" shall
include judicial foreclosure, exercise of private power of sale and like
remedies.
4. GRANT OF PUT OPTION. Equity Office hereby grants Inktomi the Put Option,
which upon exercise by Inktomi will obligate Equity Office to purchase fee title
in the Bayside Project from Inktomi, on the terms and conditions set forth in
this Section 4. Upon exercise of the Put Option, Equity Office's Participation
Interest shall be extinguished and forever released and discharged.
4.1 PUT PURCHASE PRICE. The purchase price payable to Inktomi in
connection with Equity Office's purchase of the Bayside Project pursuant to the
Put Option shall be $37,500,000.00 (the "PUT PURCHASE PRICE"), which Put
Purchase Price shall be paid at the consummation of the sale of the Bayside
Project by Inktomi to Equity Office, less only reasonable and customary closing
costs, and reasonable and customary prorations to be added or deducted in
determining the net Put Purchase Price, all as allocated in the Put Purchase
Agreement. At the option of Equity Office, if as of the closing of the sale to
Equity Office of the Bayside Project in accordance with the terms of this
Section 4, any of the principal balance of the
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Note remains outstanding (the "OUTSTANDING BALANCE"), Equity Office shall have
the right to pay such Outstanding Balance to the holder of the Note, and credit
the amount of such payment against the Put Purchase Price payable to Inktomi at
the closing of the sale.
4.2 EXERCISE OF PUT OPTION. In the event that Inktomi desires to
exercise the Put Option, Inktomi shall deliver written notice of such exercise
(the "PUT EXERCISE NOTICE") to Equity Office, which delivery shall not be prior
to November 1, 2002, and shall, in any event be on or before January 21, 2003
(the "PUT TERMINATION DATE"). In the event that Inktomi has not delivered the
Put Exercise Notice on or before the Put Termination Date, then the Put Option
granted to Inktomi herein shall terminate and be of no further force or effect.
Concurrently with the delivery of the Put Exercise Notice, Inktomi shall deliver
the following documents.
4.2.1 PUT PURCHASE AGREEMENT. Inktomi shall deliver to Equity Office
three (3) copies of a purchase and sale agreement (the "PUT PURCHASE AGREEMENT")
in the form attached hereto as EXHIBIT C, executed by Inktomi.
4.2.2 LEASE-BACK. Inktomi shall deliver to the "Escrow Holder" as
defined in the Put Purchase Agreement three (3) copies of a lease (the
"LEASE-BACK LEASE") in the form attached hereto as EXHIBIT D, executed by
Inktomi. The Lease-Back Lease shall become effective upon the close of the sale
of the Bayside Project to Equity Office pursuant to the Put Purchase Agreement.
4.2.3 LETTER OF CREDIT. Inktomi shall deliver to the "Escrow Holder"
as defined in the Put Purchase Agreement a letter of credit (the "LEASE LETTER
OF CREDIT") in the amount of six (6) months base rent and estimated operating
and tax expenses (which shall be deemed to be $1.00 per rentable square foot per
month for this purpose) and otherwise in the form required by the Lease-Back
Lease.
4.2.4 DILIGENCE DOCUMENTS. Inktomi shall deliver to Equity Office
all of the Diligence Documents as defined in Section 3.5.2, above (except to the
extent such Diligence Documents have been delivered to Equity Office
previously).
4.3 ACCEPTANCE OF PUT PURCHASE AGREEMENT. Within five (5) business days
after Equity Office's receipt of the Put Exercise Notice, Equity Office shall
promptly execute the Put Purchase Agreement, and deliver one (1) fully executed
original of the Put Purchase Agreement to Inktomi, and one (1) fully executed
original of the Put Purchase Agreement to "Escrow Holder", as defined in the Put
Purchase Agreement, and shall cause the Escrow Holder to open the "Escrow" as
defined in the Put Purchase Agreement, at which point the terms of the Put
Purchase Agreement shall be in full force and effect and binding upon the
parties. Concurrently with such delivery, Equity Office shall execute all three
(3) copies of the Lease-Back Lease, and deliver the same to Escrow Holder, to be
held in accordance with the terms of the Put Purchase Agreement. The purchase of
the Bayside Project by Equity Office shall thereafter proceed in accordance with
the terms of the Put Purchase Agreement.
4.4 PERSONAL TO INKTOMI. The Put Option is personal to Inktomi, and may
not be assigned or transferred to any other party, except for any transferee
under an Approved Transfer of the types described in clauses (i) and (ii) of
Section 3.7 above.
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4.5 TERMINATION OF PUT PURCHASE AGREEMENT. In the event that the Put
Purchase Agreement is terminated as a result of (i) a failure of a "Put
Condition", as that term is defined in Section 2.2 of the Put Purchase
Agreement, the satisfaction of which condition is outside of the reasonable
control of Inktomi, or (ii) a default under the Put Purchase Agreement by Equity
Office (or its assignee under the Put Purchase Agreement), the maturity date of
the Note shall be extended to be June 30, 2003.
5. INVALIDITY. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law, but, if any
provisions of this Agreement shall be invalid or prohibited thereunder, such
invalidity or prohibition shall be construed as if such invalid or prohibited
provisions had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement.
6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. A facsimile copy of this
Agreement is effective as a signed original.
7. ENTIRE AGREEMENT. This Agreement and the documents expressly referred to
herein and dated concurrently herewith, constitute and are intended to
constitute the entire agreement of the parties hereto concerning the subject
matter hereof. No covenants, agreements, representations or warranties of any
kind whatsoever have been made by any party hereto except as specifically set
forth herein. All prior discussions and negotiations with respect to the subject
matter hereof are superseded by this Agreement and the documents expressly
referred to herein and dated concurrently herewith.
8. ASSIGNMENT OF AGREEMENT. Equity Office shall have the right to assign or
otherwise transfer this Agreement to either of the co-tenants which constitute
Parkside (which co-tenants are jointly and severally liable for the obligations
of Parkside), or to any parent, subsidiary or other affiliate of Equity Office
or of either of the co-tenants which constitute Parkside. Inktomi may assign or
otherwise transfer this Agreement to any transferee of an Approved Transfer of
the types described in clauses (i) and (ii) of Section 3.7 above.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
10. ATTORNEYS' FEES. If any action is brought by either party against the
other party to interpret or enforce any of the terms of this Agreement, or in
the case of an Arbitration Determination, the prevailing party shall be entitled
to recover from the other party reasonable attorneys' fees, costs and expenses
incurred in connection with the prosecution or defense of such action, whether
or not the action is prosecuted to a final judgment. For purposes of this
Agreement, the term "attorneys' fees" shall mean the reasonable fees and
expenses of counsel to the parties hereto, which may include printing,
photostatting, duplicating and other expenses, air freight charges, and fees
billed for law clerks, paralegals and other persons not admitted to the bar but
performing services under the supervision of an attorney.
11. AUTHORITY TO EXECUTE AGREEMENT. Each individual and entity executing this
Agreement hereby represents and warrants that he, she or it has the capacity set
forth on the signature pages
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hereof with full power and authority to bind the party on whose behalf he, she
or it is executing this Agreement to the terms hereof. The parties have read and
understand this Agreement and have had the opportunity to consult with counsel
with respect hereto.
12. INTEGRATION CLAUSE/MODIFICATION. This Agreement, and the documents
contemplated or referred to expressly herein, constitutes the entire agreement
between the parties and supersedes any and all prior agreements, whether oral or
written. This Agreement may not be altered, amended, modified or otherwise
changed in any respect whatsoever, except by a writing duly executed by all of
the parties affected by such modification or by their authorized
representatives. Any modification or waiver of any one provision shall not
constitute waiver or modification of any other provision not expressly waived or
modified.
13. BANKRUPTCY WAIVERS. As an inducement to Equity Office's agreement to enter
into this Agreement and the other Operative Documents, Inktomi has agreed to
waive any and all rights to reject and/or disaffirm this Agreement or the other
Operative Documents, or any portion thereof, pursuant to Sections 363 and 365 of
the United States Bankruptcy Code and under any other laws and regulations
providing debtors with relief from creditor's rights and remedies. Inktomi
likewise waives any and all rights to reject and/or disaffirm the Note, the Note
Deed of Trust or the Participation Deed of Trust, and/or to sell the Bayside
Project free and clear of the Note Deed of Trust or the Participation Deed of
Trust pursuant to Sections 363 and 365 of the United States Bankruptcy Code, as
amended or recodified, and under any other laws and regulations providing
debtors with relief from creditor's rights and remedies.
14. NOTICES. All notices, requests, demands, statements, designations,
approvals or other communications (collectively, "NOTICES") given or required to
be given by either party to the other hereunder or by law shall be in writing,
shall be (A) sent by United States certified or registered mail, postage
prepaid, return receipt requested ("MAIL"), (B) transmitted by telecopy, if such
telecopy is promptly followed by a Notice sent by Mail, (C) delivered by a
nationally recognized overnight courier, or (D) delivered personally. Any Notice
shall be sent, transmitted, or delivered, as the case may be, to Inktomi at the
addresses set forth below, or to such other place as Inktomi may from time to
time designate in a Notice to Equity Office, or to Equity Office at the
addresses set forth below, or to such other places as Equity Office may from
time to time designate in a Notice to Inktomi. If personally delivered, such
Notice shall be effective upon delivery. If Notice is sent by telex or fax
transmission or other form of electronic transmission, such Notice shall be
effective upon transmission (if prior to 6:00 p.m. in the recipient's time zone.
If after 6:00 p.m., the Notice shall be effective at 9:00 a.m. on the next
business day after such transmission). If mailed, Notice shall be deemed given
on the third day after it is deposited in the mail in accordance with the
foregoing. Any correctly addressed Notice that is refused, unclaimed or
undelivered because of an act or omission of the party to be notified shall be
considered to be effective as of the first date that the Notice was refused,
unclaimed or considered undeliverable by the postal authorities, messenger,
officer of the law or overnight delivery service. As of the date hereof, any
Notices must be sent, transmitted, or delivered, as the case may be, to the
following addresses:
Equity Office and Parkside:
c/o EOP Operating Limited Partnership
0 Xxxxx Xxxxxxxxx Xxxxx
-00-
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
with copies, at the same address, to:
Chief Legal Counsel
Facsimile: (000) 000-0000
and with additional copies to:
Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP
1901 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Inktomi:
Inktomi Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with copies, at the same address, to
Xxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
and with additional copies to:
Xxxxxx Xxxxxx Xxxxx & May
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile (000) 000-0000
15. FURTHER ASSURANCES. Parkside, Equity Office and Inktomi hereby agree to
execute such further documents or instruments as may be necessary or appropriate
to carry out the intention of this Agreement.
16. EFFECT OF AGREEMENT. The terms and provisions of this Agreement shall be
binding upon, and inure to the benefit of, each of the parties hereto, their
respective assignors, officers, directors, agents, heirs, related and affiliated
entities, guarantors, assigns and successors in interest of every kind and
nature whatsoever, as well as their representatives and attorneys.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
"PARKSIDE"
PARKSIDE TOWERS CO-TENANCY,
a tenancy in common
GATEWAY PHOENIX ASSOCIATES, L.P., a 5990 XXXXXXXXX ASSOCIATES, L.P.,
California limited partnership a California limited partnership
By: Cornerstone Holdings, LLC, a By: Cornerstone Holdings, LLC, a
Delaware limited liability company, Delaware limited liability
its general partner company, its general partner
By: EOP Operating Limited By: EOP Operating Limited
Partnership, a Delaware limited Partnership, a Delaware
partnership, its sole member limited partnership, its sole
member
By: Equity Office Properties
Trust, By: Equity Office Properties
a Maryland real estate Trust,
investment trust, its a Maryland real estate
general partner investment trust, its
general partner
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------ ------------------------
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
------------------------ ------------------------
Senior Vice President -- Senior Vice President --
------------------------ ------------------------
Development Investments Development Investments
------------------------ ------------------------
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EXHIBIT A
PARTICIPATION DEED OF TRUST
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
ALLEN, MATKINS, XXXX, XXXXXX
& XXXXXXX
1901 Avenue of the Stars
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
--------------------------------------------------------------------------------
(Above Space For Recorder's Use Only)
SECOND LIEN DEED OF TRUST WITH
ASSIGNMENT OF RENTS AND FIXTURE FILING
THIS SECOND LIEN DEED OF TRUST ("Deed of Trust") is made as of September
5, 2002, by Inktomi Corporation, a Delaware corporation ("Trustor"), whose
address is 0000 Xxxx 0xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx, in favor of First
American Title Insurance ("Trustee"), whose address is 000 Xxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and PARKSIDE TOWERS CO-TENANCY, a tenancy
in common between GATEWAY PHOENIX ASSOCIATES, L.P., a California limited
partnership, and 5990 XXXXXXXXX ASSOCIATES, L.P., a California limited
partnership ("Beneficiary"), whose address is set forth in Paragraph 7.14 below.
NOTE: THIS DEED OF TRUST IS SPECIFICALLY MADE SUBJECT AND SUBORDINATE TO
THAT CERTAIN DEED OF TRUST ("FIRST DEED OF TRUST") EXECUTED BY TRUSTOR IN FAVOR
OF FIRST AMERICAN TITLE INSURANCE WHICH WAS RECORDED ON _____________ IN THE
OFFICIAL RECORDS OF SAN MATEO COUNTY, CALIFORNIA AS INSTRUMENT NO. _____________
X.
XXXXX IN TRUST
1.01 Trustor irrevocably grants, conveys, transfers and assigns to
Trustee, in trust, with power of sale and right of entry and possession, all
right, title and interest which Trustor now has or may hereafter acquire in and
to that certain real property (the "Subject Property") located at 4000 and 0000
Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx, as more particularly described on Exhibit
"A" attached hereto and incorporated herein by reference, together with all
easements and other rights now or hereafter located thereon or appurtenant
thereto, all buildings situated on the Subject Property, together with all
appurtenances and all other existing or subsequently erected improvements in,
under or upon the Subject Property, all development rights or credits and air
rights, all fixtures, all additions and accretions thereto, and any greater
estate in the
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Subject Property or any part thereof now owned or hereafter acquired by Trustor.
Trustor makes the foregoing grant to Trustee to hold the Subject Property in
trust for the benefit of Beneficiary, and for the purpose and upon the terms and
conditions hereinafter set forth.
II.
ASSIGNMENT OF RENTS
2.01 Trustor absolutely and irrevocably assigns to Beneficiary the rents,
issues, deposits and profits of the Subject Property, together with the
immediate and continuing right to collect and receive the same, for the purposes
and upon the terms and conditions hereinafter set forth. The foregoing
assignment shall not impose upon Beneficiary any duty to produce rents from the
Subject Property, and said assignment shall not cause Beneficiary to be a
"mortgagee in possession" for any purpose.
III.
FIXTURE FILING
3.01 This Deed of Trust encumbers, and Trustor hereby grants Beneficiary
a security interest in, all personal property of any kind whatsoever, which is
now or becomes a "fixture" and which is used or will be used in construction of,
or is or will be placed upon or is derived from or used in any connection with
the use, occupancy or enjoyment of, the Subject Property. "Fixtures" shall
include all articles of personal property, furniture and furnishings which are
so related to the Subject Property such that an interest arises in them under
the real estate laws of the State of California. To the extent of the existence
of personal property encumbered by the Deed of Trust, this Deed of Trust
constitutes a security agreement and is intended to create a security interest
in such personal property in favor of Beneficiary and to constitute a "fixture
filing" in accordance with the provisions of Section 9313 of the Uniform
Commercial Code in effect in the State of California. This Deed of Trust shall
be self-operative with respect to such personal property, but Trustor agrees to
execute and deliver on demand such security agreements, financing statements and
other instruments as Beneficiary may request in order to impose the lien hereof
more specifically upon any of such property.
IV.
OBLIGATIONS SECURED
Trustor makes the foregoing grant and assignment for the purpose of
securing the following obligations which Trustor covenants to pay and perform
promptly in accordance with their terms:
4.01 Payment to Beneficiary of all indebtedness evidenced by and arising
under that certain Participation and Put Option Agreement, dated as of the date
hereof (the "Participation Agreement"), in an amount not to exceed Two Million
Five Hundred Thousand Dollars ($2,500,000.00).;
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4.02 Payment to Beneficiary of all indebtedness or such further sums
and/or performance of such further obligations as Trustor may undertake to pay
and/or perform (whether as principal, surety or guarantor) for the benefit of
Beneficiary, its successors or assigns, when said borrowings and/or obligations
are evidenced by a writing or writings reciting that they are so secured; and
4.03 Performance of each agreement of Trustor herein contained or
contained in the Participation Agreement, and the payment of each fee, cost and
expense by Trustor as herein set forth.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE PARTIES AGREE AS
FOLLOWS:
V.
RIGHTS AND DUTIES OF THE PARTIES.
5.01 Warranties by Trustor. Trustor is a corporation duly organized and
existing under the laws of the State of Delaware and qualified to do business in
the State of California. Trustor warrants that Trustor is the lawful owner of
the Subject Property in fee simple, without limitation on its right to encumber.
5.02 Taxes and Assessments. Trustor shall pay or cause to be paid prior
to delinquency all real property taxes, assessments, levies and charges imposed
by any public or quasi-public authority or utility company which are or may
become a lien upon the Subject Property, any part thereof or interest therein.
Trustor shall also pay when due all real property taxes, assessments, levies and
charges imposed by any public authority upon Beneficiary by reason of its
interest in the Subject Property created hereby; provided, however, that Trustor
shall have no obligation to pay or discharge taxes which may be imposed from
time to time upon Beneficiary and which are measured by and imposed upon
Beneficiary's net income. Upon written request of Beneficiary, Trustor shall
provide Beneficiary with evidence of such payment. Trustor shall have the right
to contest in good faith any such real property taxes, assessments, levies or
charges provided that it does so diligently and without prejudice to
Beneficiary.
As used herein, the term "real property taxes" shall include any form of
assessment, possessory interest tax, license fee, license tax, business license
fee, business license tax, commercial rental tax, levy, charge, penalty, tax or
similar imposition imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement or special assessment
district thereof, as against any legal or equitable interest of Trustor in the
Subject Property, including, but not limited to, the following:
(a) Any assessment, tax, fee, levy or charge in substitution, partially
or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax. It is the intention
of Trustor and Beneficiary that all such new and increased assessments,
taxes, fees, levies and charges and all similar assessments, taxes, fees,
levies and charges be included within the definition of real property
taxes for the purposes of this Deed of Trust;
-3-
(b) Any assessment, tax, fee, levy or charge allocable to the operation
of or measured by the area of the Subject Property, including, without
limitation, any gross income tax or excise tax levied in lieu of real
property taxes by the state, city or federal government, or any political
subdivision thereof, with respect to the possession, leasing, operating,
management, maintenance, alteration, repair, use or occupancy of the
Subject Property, or any portion thereof; and
(c) Any assessment, tax, fee, levy or charge upon this transaction or
any document creating or transferring any interest or an estate in the
Subject Property.
5.03 Impounds for Insurance Premiums and Taxes. After the occurrence of
an Event of Default, at Beneficiary's option, Trustor shall pay to Beneficiary
monthly, on or before the fifth (5th) of each month, 1/12 of such amount as
Beneficiary from time to time estimates will be required to pay all taxes
required to be paid by Paragraph 5.02 and insurance premiums for insurance
required by Paragraph 5.04. Beneficiary's estimates shall be based on the
amounts actually payable or, if unknown, on the amounts actually paid for the
year preceding that for which such payments are being made. Any deficiencies
shall be promptly paid by Trustor to Beneficiary on demand. Trustor shall
transmit bills for the taxes and insurance premiums as soon as received. When
Beneficiary has received from Trustor or on its account funds sufficient to pay
the same, Beneficiary shall pay such bills. If the amount paid by Trustor in any
year exceeds the aggregate required, such excess shall be applied to impound
payments for the succeeding year. Beneficiary shall not be a trustee of funds in
said account and may commingle such funds with its general assets without any
obligation to pay interest thereon or account for any earnings, income or
interest on such funds.
5.04 Insurance. Trustor shall at all times provide, maintain and keep in
force (i) commercial general public liability in the amount of at least
$5,000,000.00 and property damage coverage with a broad form coverage
endorsement and also breach of warranty coverage; (ii) protection against fire,
"extended coverage" and other "all risk" perils, including earthquake, and, if
the improvements are located in a flood hazard area, flood insurance on the
improvements, all in an amount equal to the full replacement value of all real
and personal property and improvements as determined by Beneficiary; (iii) rent
loss insurance in the amount of gross pro forma income for twelve (12) months;
(iv) insurance against loss or damage from leakage of sprinkler systems, air
conditioning equipment or other equipment now or hereafter installed in or on
the Subject Property; (v) during the course of any construction of or repairs to
the improvements or personal property, builders course of construction and
completed value insuring each name insured against "all risks of physical loss"
and worker's compensation insurance and any other employee benefit insurance
required by law, for all employees of Trustor engaged on or with respect to the
Subject Property in such amount as is reasonably satisfactory to Beneficiary, or
if such limits are established by law, in such amounts; and (vi) such other
insurance as Beneficiary may reasonably require insuring against loss which at
the time is commonly insured against and generally available at commercially
reasonable rates in the case of premises similarly situated, with due regard
being given to the height and type of improvements, the personal property and
the location, construction, use and occupancy thereof.
5.05 Terms of Insurance. All policies of insurance required by the terms
of this Deed of Trust, or otherwise carried by Trustor and applicable to the
Property (except the employee benefit and public liability insurance which shall
name Beneficiary as an additional insured)
-4-
shall contain a lender's loss payable endorsement for the benefit of
Beneficiary, which shall provide that (i) all insurance proceeds shall be paid
to Beneficiary and Beneficiary shall be authorized and empowered by Trustor to
settle, adjust or compromise any claims for loss, damage or destruction under
such policies of insurance, (ii) any loss covered by such insurance shall be
payable by the insurer in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor, its agents or employees, the
named insured, or any owner, tenant, or occupant of the Subject Property which
might otherwise result in forfeiture of said insurance, (iii) the insurer waives
all rights of setoff, counterclaim or deduction against Trustor, and (iv) should
legal title to and beneficial ownership of the Subject Property become vested in
Beneficiary, the insurance provided by such policies shall continue for the term
thereof for the benefit of Beneficiary. All required insurance shall provide (i)
a waiver of subrogation endorsement in a form satisfactory to Beneficiary; (ii)
the insurance afforded all parties named as insured shall be primary insurance
and shall not participate with, nor be in excess over, any other valid and
collectible insurance available to Beneficiary; (iii) any other insurance
obtained by any named insured shall not be called upon to contribute until the
limits of the policies required hereunder are exhausted; (iv) the insurance
required hereunder cannot be cancelled or materially amended or altered without
at least thirty (30) days prior written notice to Beneficiary; and (v) the
insurer shall notify Beneficiary, within thirty (30) days prior to the
expiration of any policy, of Trustor's failure to renew such policy; and (vi)
with respect to the fire and "extended coverage" insurance, a replacement cost
endorsement, an agreed amount endorsement, and an inflation guard endorsement,
all in a form satisfactory to Beneficiary. All insurance required hereunder
shall be issued by companies approved in advance by Beneficiary and rated at
least A-VIII by a current Best's Insurance Guide, and such insurance shall be in
the form and on terms (including but not limited to deductibles, self-insured
retentions, or similar provisions) reasonably approved in advance by
Beneficiary.
5.06 Delivery of Policies, Payment of Premiums. Trustor shall furnish
Beneficiary with a certificate of insurance evidencing the insurance required
hereunder and naming Beneficiary as additional insured. If Trustor elects to
provide any of the required insurance through blanket policies carried by
Trustor and covering more than one location, then Trustor shall furnish
Beneficiary with a certificate of insurance for each such policy setting forth
the coverage, the limits of liability, the aggregate amount of all claims paid
under said policy, the nature of the carrier, the policy number, and the
expiration date. At least thirty (30) days prior to the expiration of each
required insurance policy (without regard to any grace period for nonpayment of
premium), Trustor shall furnish Beneficiary with evidence satisfactory to
Beneficiary of the payment of the premium and the reissuance of a policy
continuing in force without lapse or reduction in coverage.
5.07 Insurance Proceeds. Trustor hereby agrees that after the happening
of any casualty to the Subject Property or any part thereof, Trustor shall give
prompt written notice thereof to Beneficiary.
(a) Trustor hereby assigns its interest in all insurance proceeds to
Beneficiary and authorizes and directs any affected insurance company to
make payment of such proceeds directly to Beneficiary. Trustor shall
obtain Beneficiary's approval, which approval shall not be unreasonably
withheld or delayed, prior to any settlement, adjustment or compromise of
any claims for loss, damage or destruction under any policy or policies of
insurance, and Beneficiary shall have
-5-
the right to participate with Trustor in negotiation of any such
settlement, adjustment or compromise. Beneficiary shall also have the
right to appear with Trustor in any action against an insurer based on a
claim for loss, damage or destruction under any policy or policies of
insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance
recoveries, rights of action and payments which Trustor may receive or to
which Trustor may become entitled with respect to the Subject Property or
any part thereof (herein the "Proceeds") shall be paid over to the
Beneficiary. In the event such loss or damage is less than Fifty Thousand
Dollars ($50,000.00) the Proceeds will be paid to Trustor by Beneficiary
and Trustor agrees to promptly thereafter repair and/or replace such
damage or loss. In the event of a loss greater than Fifty Thousand Dollars
($50,000.00) ("Major Damage"), Beneficiary shall apply the Proceeds to the
repair, replacement or restoration of the Subject Property in which event
Beneficiary shall disburse the Proceeds in accordance with the procedures
set forth in subparagraph (c) below. If there are any Proceeds in excess
of the amount necessary to repay the amount secured hereunder and all
other amounts secured hereby, then such excess Proceeds shall be paid to
Trustor.
(c) Beneficiary shall disburse Proceeds to Trustor in connection with
Major Damage, upon the satisfaction of the following conditions
("Disbursement Conditions"):
(i) Proceeds have been deposited with the Beneficiary;
(ii) Beneficiary shall have been furnished with a reasonable
estimate of the cost of restoration accompanied by a certificate
from a party acceptable to Beneficiary as to such costs and
appropriate final plans and specifications for reconstruction of the
improvements, if necessary, all of which shall be approved by
Beneficiary;
(iii) the improvements so restored or rebuilt shall be of
substantially the same character and value as prior to the damage or
destruction and appropriate for the purposes for which they were
originally erected;
(iv) Trustor shall have furnished Beneficiary with evidence
satisfactory to Beneficiary that all improvements so restored and/or
reconstructed and their use shall fully comply with all zoning,
building and use laws, ordinances and regulations;
(v) If the estimated cost of restoration exceeds the Proceeds
available, Trustor shall have furnished a satisfactory bond of
completion or deposited with Beneficiary such sums as may be
necessary to pay such excess costs;
(vi) Beneficiary shall have received notice within thirty (30) days
after the fire or other hazard or of the condemnation proceedings
specifying the date of such fire or other hazard or the date the
notice of condemnation proceedings was received;
-6-
(vii) Trustor shall not then be in default under the Participation
Agreement or this Deed of Trust,
then the Proceeds, less the actual costs, fees and expenses, if any, incurred in
connection with adjustment of loss and Beneficiary's administrative expenses
relating to the disbursement of the Proceeds shall be applied by Beneficiary to
the payment of all the costs of the aforesaid restoration, repairs, replacement,
rebuilding or alterations, (all of which are hereinafter collectively referred
to as the "Restoration"), and shall be paid out by Beneficiary from time to time
as such Restoration progresses upon the written request of Trustor accompanied
by the following:
A certificate of an architect licensed in the State of California
acceptable to Beneficiary, dated not more than thirty (30) days
prior to such request, setting forth the following:
(A) That the sum then requested either has been paid, or is
justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered
services or furnished materials for the restoration therein
specified or have paid for the same, the names and addresses
of such persons, a brief description of such services and
materials, the several amounts so paid or due to each of said
persons in respect thereof, that no part of such expenditures
has been or is being made on the basis of any previous or then
pending request for the withdrawal of Proceeds or has been
made out of any of the Proceeds received by Trustor, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate.
(B) That, except for the amount, if any, stated (pursuant to
the foregoing subclause (A)) in such certificate to be due for
services or materials, there is no outstanding indebtedness
known to the person signing such certification, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such restoration.
(C) That the costs, as estimated by the person signing such
certificate, of the Restoration required to be done subsequent
to the date of such certificate in order to complete and pay
for the same, do not exceed the Proceeds, plus any amount or
security approved by Beneficiary and deposited by Trustor to
defray such costs and remaining in the hands of the
Beneficiary after payment of the sum requested in such
certificate.
Upon compliance with the foregoing provisions, Beneficiary shall,
out of Proceeds (and the amount of security approved by Beneficiary,
if any, deposited by Trustor to defray the costs of the
Restoration), pay or cause to be paid to Trustor or the persons
named (pursuant to Subclause (A) above) in such certificate the
respective amounts (subject to subparagraph (e) below) stated
therein to have been paid by Trustor or to be due to them, as the
case may be.
(d) If the Proceeds at the time held by the Beneficiary, less
the actual costs,
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fees and expenses, if any, incurred in connection with the adjustment of
the loss and the Beneficiary's administrative expenses relating to such
loss and the disbursement of the Proceeds, shall be, in Beneficiary's
reasonable judgment insufficient to pay the entire cost of the
Restoration, Trustor shall deposit with the Beneficiary any such
deficiency prior to disbursement of any additional portion of the
Proceeds.
(e) No payment made prior to the final completion of the Restoration
shall exceed ninety percent (90%) of the value of the work performed from
time to time, and at all times the undisbursed balance of said Proceeds
remaining in the hands of the Beneficiary shall be at least sufficient to
pay for the cost of completion of the Restoration free and clear of liens.
(f) Final payment shall be upon an architect's certificate of completion
in accordance with the final plans and specifications and compliance with
all zoning, building, subdivision and other governmental laws, ordinances,
rules, and regulations, and the filing of a Notice of Completion and the
receipt of Beneficiary of final lien releases for such work or the
expiration of the period provided under California law for the filing of
mechanic's and materialmen's liens. Beneficiary may at its option require
an Endorsement to its title insurance policy insuring the continued
priority of the lien of this Deed of Trust as to all sums advanced
hereunder. The cost of such endorsement will be paid by Trustor.
(g) In the event of a "Condemnation" (as defined below), upon completion
of the Restoration in a good and workmanlike manner in accordance
herewith, and provided that Beneficiary has received satisfactory evidence
that the Restoration has been paid for in full and the Subject Property is
free and clear of all liens related to or in connection with the
Restoration, any balance of the Proceeds at the time held by the
Beneficiary (after reimbursement to Beneficiary of all costs and expenses
of the Beneficiary, including administrative expenses, in connection with
recovery of the same and disbursement of such Proceeds for the
Restoration), if any, shall be applied as follows: (i) to the extent that
such balance of the Proceeds is equal to or less than the amount, if any,
by which the value of the Subject Property prior to such damage or
destruction exceeds the value of the Subject Property after such
Restoration (for these purposes, the value of the Subject Property shall
be determined by Beneficiary in its discretion), then the portion of the
balance of the Proceeds equal to such excess amount shall be applied to
the payment or prepayment of the principal balance of the indebtedness
outstanding under the Participation Agreement in such order as Beneficiary
may determine, and any amounts so applied shall reduce the indebtedness
secured hereby pro tanto; and (ii) to the extent that the balance of the
Proceeds exceeds such excess amount, such excess portion of the balance of
the Proceeds shall, at Beneficiary's option, be applied so as to reduce
the indebtedness secured hereby or be paid to Trustor.
(h) Subject to Beneficiary releasing all available proceeds in
accordance with the provisions of this Deed of Trust, nothing herein
contained shall be deemed to excuse Trustor from repairing or maintaining
the Subject Property as provided herein or restoring all damage or
destruction to the Subject Property, regardless of whether or not there
are insurance proceeds available or whether any such proceeds are
sufficient in amount, and the application or release by the Beneficiary of
any insurance proceeds shall not cure or waive any Event of Default, as
hereinafter defined, or notice of default under this Deed of Trust or
invalidate any other act done by Beneficiary to exercise its remedies
hereunder.
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5.08 Condemnation. Should all or any part of the Subject Property or any
interest therein be taken or damaged by reason of any public improvement, by the
exercise of the power of eminent domain (whether by legal proceedings or
otherwise) by any person or entity having the legal power to do so, by a
voluntary sale or transfer either under threat of condemnation or while legal
proceedings for condemnation are pending, by inverse condemnation, or in any
other similar manner (collectively a "Condemnation"), or should Trustor receive
any notice or other information regarding a Condemnation (whether threatened or
pending), Trustor shall give prompt written notice thereof to Beneficiary. In
the event of a Condemnation:
(a) Beneficiary shall be entitled to, and is hereby assigned, all
compensation, awards, damages, proceeds, or other payments or relief
resulting therefrom (the "Condemnation Proceeds") to the extent of the
principal balance of the indebtedness secured hereby together with any
unpaid accrued interest thereon and other amounts due under the
Participation Agreement or this Deed of Trust. Beneficiary shall also be
entitled at its option to appear in, and prosecute in its own name any
Condemnation action or proceedings, and to make any reasonable compromise
or settlement thereof taking into account Trustor's interest in the
Subject Property. Trustor agrees to execute such further assignments of
the Condemnation Proceeds as Beneficiary or Trustee may require. Whether
or not Beneficiary appears in or prosecutes in its own name any such
action or proceeding, Trustor shall be responsible for representing, at
its sole cost, its own interest therein. Trustor hereby specifically,
unconditionally, and irrevocably waives all rights of a property owner
under the provisions of Section 1265.225(a) of the California Code of
Civil Procedure or any successor statute, providing for the allocation of
Condemnation Proceeds between a property owner and a lienholder.
(b) Beneficiary shall have the option to apply all such Condemnation
Proceeds, after deducting therefrom all costs and expenses incurred by it
in connection with obtaining such Condemnation Proceeds, in the same
manner and with the same effect provided for in paragraph 5.07 regarding
the disposition of insurance proceeds. Such application or release shall
not cure or waive any default or notice of default hereunder or invalidate
any act done pursuant to such notice.
5.09 Hazardous Materials Compliance, Notices, Inspections and
Indemnification. Trustor shall, and Trustor shall cause all tenants, employees,
agents, contractors and subcontractors of Trustor and any other persons present
on or occupying the Subject Property to, keep and maintain the Subject Property,
including the soil and ground water thereof, in compliance with, and not cause
or permit the Subject Property, including the soil and ground water thereof, to
be in violation of any federal, state or local laws, ordinances or regulations
relating to industrial hygiene or to the environmental conditions thereon
(including but not limited to any "Hazardous Materials Laws" as hereinafter
defined). Except in compliance with all applicable Hazardous Materials Laws,
neither Trustor nor employees, agents, contractors and subcontractors of Trustor
or any other persons occupying or present (including tenants) on the Subject
Property shall use, generate, manufacture, store or dispose of on, under or
about the Subject Property or transport to or from the Subject Property any
flammable explosives, radioactive materials, hazardous wastes, toxic substances
or related materials, including, without limitation, any substances defined as
or included in the definition of "hazardous substances,"
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"hazardous wastes," "hazardous materials," or "toxic substances" under any
Hazardous Materials Laws (collectively referred to hereinafter as "Hazardous
Materials"), except for ordinary and customary materials used in the normal
course of construction, maintenance or use of the Property, so long a such
materials are used and/or stored in compliance with Hazardous Materials Laws.
Trustor shall immediately advise Beneficiary in writing of: (i) any
notices (whether such notices are received from the Environmental Protection
Agency, the Occupational Safety and Health Agency, the Department of Health
Services, the State Water Quality Control Board, the Department of Sanitation,
the Department of Public Works or any other federal, state or local governmental
agency or regional office thereof) of violation or potential violation which are
received by Trustor of any applicable federal, state or local laws, ordinances,
or regulations relating to any Hazardous Materials including but not limited to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Hazardous Materials Transportation Act, the Resource
Conservation and Recovery Act, the Hazardous Substances Account Act, the
Hazardous Substances Act, the Occupational Health and Safety Act, the
Xxxxxx-Cologne Water Quality Control Act, the Solid Waste Management Act of
1980, the Toxic Pit Cleanup Act, the Underground Tank Act of 1984, and the
California Water Quality Improvement Act (collectively, "Hazardous Materials
Laws"); (ii) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened pursuant to any Hazardous
Materials Laws; (iii) all claims made or threatened in writing by any third
party against Trustor or the Subject Property relating to damage, contribution,
cost recovery compensation, loss or injury resulting from any Hazardous
Materials (the matters set forth in clauses (i), (ii) and (iii) above are
hereinafter referred to as "Hazardous Materials Claims"); and (iv) Trustor's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of the Subject Property that could cause the Subject Property or
any part thereof to be classified as "border-zone property" under the provisions
of California Health and Safety Code, Sections 25220 et seq. or any regulation
adopted in accordance therewith, or to be otherwise subject to any restrictions
on the ownership, occupancy, transferability or use of the Subject Property
under any Hazardous Materials Laws.
Trustor shall be solely responsible for, and shall indemnify and hold
harmless Beneficiary, its directors, officers, employees, agents, successors and
assigns from and against, any loss, damage, cost, expense or liability directly
or indirectly arising out of or attributable to the use, generation, storage,
release, threatened release, discharge, disposal, or presence (whether prior to
or during the term of the loan secured by this Deed Trust) of Hazardous
Materials on, under or about the Property (whether by Borrower or a predecessor
in title or any employees, agents, contractors or subcontractors of Borrower or
any predecessor in title or any third persons at any time occupying or present,
including tenants, on the Subject Property), including, without limitation: (a)
all foreseeable and unforeseeable consequential damage, including third party
claims; (b) the costs of any required or necessary repair, cleanup or
detoxification of the Subject Property, including the soil and ground water
thereof, and the preparation and implementation of any closure, remedial or
other required plans; (c) damages to any natural resources; and (d) all
reasonable costs and expenses incurred by Beneficiary in connection with clauses
(a), (b) and (c), including but not limited to reasonable attorneys' and
consultants' fees.
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Any costs or expenses incurred by Beneficiary for which Trustor is
responsible or for which Trustor has indemnified Beneficiary shall be paid to
Beneficiary on demand, and failing prompt reimbursement, shall be added to the
indebtedness secured by this Deed of Trust.
Trustor shall take any and all remedial action necessary in response to
the presence of any Hazardous Materials on, under, or about the Subject
Property, provided that in such event Trustor shall notify Beneficiary as soon
as practicable of any action so taken.
If Beneficiary has reasonable cause (based on written notice) to believe
that a release, or the threat of a release, of any Hazardous Materials exists or
if an Event of Default has occurred and remains uncured, then upon Beneficiary's
request, Trustor shall retain, at Trustor's sole cost and expense, a licensed
geologist, industrial hygienist or an environmental consultant (referred to
hereinafter as the "Consultant") acceptable to Beneficiary to conduct a baseline
investigation of the Property for the presence of Hazardous Materials
("Environmental Audit"). The Environmental Audit shall be performed in a manner
reasonably calculated to discover the presence of Hazardous Materials
contamination; provided, however, such investigation shall be of a scope and
intensity no greater than a baseline investigation conducted in accordance with
the general standards of persons providing such services taking into
consideration the known uses of the Subject Property and property in the
vicinity of the Subject Property and any factors unique to the Subject Property.
The Consultant shall concurrently deliver the results of its investigation in
writing directly to Trustor and Beneficiary without prior consultation with
either party unless conducted in the presence of the other party. Such results
shall be kept confidential by both Trustor and Beneficiary unless legally
compelled or required to disclose such results or disclosure is reasonably
required in order to pursue rights or remedies provided herein or at law.
If Trustor fails to pay for or obtain an Environmental Audit as provided
for herein, Beneficiary may, but shall not be obligated to, obtain the
Environmental Audit, and either demand reimbursement from Trustor or add the
cost thereof to the indebtedness secured by this Deed of Trust, in which case
interest shall accrue on such sum at the Default Rate from the date of demand.
Trustor covenants to reasonably cooperate with the Consultant and to allow
entry and reasonable access to all portions of the Subject Property for the
purpose of Consultant's investigation. Trustor covenants to comply, at its sole
cost and expense, with all recommendations contained in the Environmental Audit,
including any recommendation for additional testing and studies to detect the
presence of Hazardous Materials, if Beneficiary requires the implementation of
the same.
5.10 Liens and Encumbrances. Trustor shall pay or cause to be paid at or
prior to maturity, all obligations secured by or reducible to liens and
encumbrances which shall now or hereafter encumber or appear to encumber the
Subject Property or any part thereof, all claims for work or labor performed, or
materials or supplies furnished, in connection with any work of demolition,
alteration, improvement of or construction upon the Subject Property.
Beneficiary hereby expressly reserves the right to advance any and all funds
necessary to cure any and all such obligations and/or claims after providing
written notice to Trustor and a five (5) day opportunity to cure.
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5.11 Maintenance and Preservation of the Subject Property. Trustor
covenants (i) to keep the Subject Property in good condition and repair; (ii)
not to remove or demolish the Subject Property or any part thereof; (iii) to
complete or restore promptly and in good and workmanlike manner the Subject
Property or any part thereof which may be damaged or destroyed; (iv) to comply
with and not suffer violations of (a) all laws, ordinances, regulations,
standards, and (b) all covenants, conditions, restrictions and equitable
servitudes, whether public or private, of every kind and character, and (c) all
requirements of insurance companies and any bureau or agency which establishes
standards of insurability, which laws, covenants or requirements affect the
Subject Property and pertain to acts committed or conditions existing thereon,
including, but without limitation, such work or alteration, improvement or
demolition as such laws, covenants or requirements mandate; (v) not to commit or
permit waste thereof; (vi) to do all other acts which from the character or use
of the Subject Property may be reasonably necessary to maintain it in the
condition (reasonable wear and tear excepted) as of the date of this Deed of
Trust; (vii) to perform all obligations required to be performed by Trustor
pertaining to the Subject Property, including, but not limited to, any and all
leases or subleases of which Trustor is or shall be the lessor or sublessor (and
in the event of default, all right, title and interest of Trustor under any such
leases or subleases and any and all other agreements affecting the Subject
Property in which Trustor shall have an interest shall be and hereby are
automatically assigned to Beneficiary hereunder, together with any deposits made
in connection therewith); (viii) not to create any deed of trust or encumbrance
upon the Subject Property subsequent hereto; and (ix) to execute, and where
appropriate acknowledge, and deliver such further instruments as Beneficiary or
Trustee deems necessary or appropriate to preserve, continue, perfect and enjoy
the security provided for herein, including, but without limitation, assignments
of Trustor's interest in leases or subleases of the Subject Property.
5.12 Defense and Notice of Actions. Trustor shall, without liability,
cost or expense to Beneficiary or Trustee, protect, preserve and defend
Trustor's fee interest in and to the Subject Property, the security hereof or
the rights or powers of Beneficiary or Trustee hereunder. Said protection,
preservation and defense shall include protection, preservation and defense
against all adverse claimants to Trustor's interest in the Subject Property
whether or not such claimants or encumbrances assert title paramount to that of
Trustor or claim their interest on the basis of events or conditions arising
subsequent to the date hereof. Trustor shall give Beneficiary and Trustee prompt
notice in writing of the filing of any such action or proceeding.
5.13 Collection of Rents, Issues and Profits. Beneficiary confers upon
Trustor a license to collect and retain the rents, issues and profits of the
Subject Property as they become due and payable, subject, however, to the right
of Beneficiary upon default hereunder to revoke said authority at any time in
its sole discretion and without notice to Trustor. Beneficiary may revoke said
authority and collect and retain the rents, issues and profits of the Subject
Property assigned herein to Beneficiary upon the occurrence of an Event of
Default hereunder or under any of the obligations secured hereby, and without
taking possession of all or any part of the Subject Property, and without
prejudice to or limitation upon any of its additional rights and remedies
granted pursuant hereto or pursuant to the Participation Agreement or this Deed
of Trust.
5.14 Right of Inspection. Subject to the rights of tenants under their
respective leases, Beneficiary, its agents or employees, may enter the Subject
Property at any reasonable time for
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the purpose of inspecting the Subject Property and ascertaining Trustor's
compliance with the terms hereof.
5.15 Acceptance of Trust, Notice of Indemnification. Trustee accepts this
trust when this Deed of Trust, duly executed and acknowledged, becomes a public
record as provided by law. Trustee is not obligated to notify any party hereto
of pending sale under any other deed of trust or of any action or proceeding in
which Trustor, Beneficiary or Trustee shall be a party unless Trustee brings
such action. Trustee shall not be obligated to perform any act required of it
hereunder unless the performance of such act is requested in writing and Trustee
is reasonably indemnified against loss, cost, liability and expense.
5.16 Powers of Trustee. From time to time upon written request of
Beneficiary and presentation of this Deed of Trust for endorsement, and without
affecting the personal liability of any person for payment of any indebtedness
or performance of the obligation secured hereby, Trustee may, without liability
therefor and without notice (i) reconvey all or any part of the Subject
Property; (ii) consent to the making of any map or plat thereof; (iii) join in
granting any easement thereon; (iv) join in any declaration of covenants and
restrictions; or (v) join in any extension agreement or any agreement
subordinating the lien or charge hereof. Trustee or Beneficiary may from time to
time apply to any court of competent jurisdiction for aid and direction in the
execution of the trusts hereunder and the enforcement of the rights and remedies
available hereunder, and Trustee or Beneficiary may obtain orders or decrees
directing or confirming or approving acts in the execution of said trusts and
the enforcement of said remedies. Trustee has no obligation to notify any party
of any pending sale or any action or proceeding unless held or commenced and
maintained by Trustee under this Deed of Trust. Trustor shall pay to Trustee
reasonable compensation and reimbursement for services and expenses in the
administration of the trusts created hereunder, including reasonable attorneys'
fees. Trustor hereby agrees to indemnify Trustee and Beneficiary against all
losses, claims, demands and liability which either may incur, suffer or sustain
in the execution of the trust or trusts created hereunder or in the performance
of any act required or permitted hereunder or by law.
5.17 Substitution of Trustees. From time to time, by a writing signed and
acknowledged by Beneficiary and recorded in the Office of the Recorder of the
County in which the Subject Property is situated, Beneficiary may appoint
another trustee to act in the place and stead of Trustee or any successor. Such
writing shall refer to this Deed of Trust and set forth the date, book and page
of its recordation. The recordation of such instrument of substitution shall
discharge Trustee herein named and shall appoint the new trustee as the trustee
hereunder with the same effect as if originally named Trustee herein. A writing
recorded pursuant to the provisions of this paragraph shall be conclusive proof
of the proper substitution of such new trustee.
5.18 Acceleration Upon Sale or Encumbrance. That the financial stability
and managerial and operational ability of Trustor are a substantial and material
consideration to Beneficiary in its agreement to enter into the transaction
evidenced by this Deed of Trust and the Participation Agreement is hereby
acknowledged by Trustor and Beneficiary. That the transfer or further
encumbrance of the Subject Property, could significantly and materially alter,
impair and reduce Beneficiary's security for the Participation Agreement is
likewise acknowledged by
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Trustor and Beneficiary. In order, therefore, to induce Beneficiary to accept
the Participation Agreement, except with respect to a transfer which is included
in items (i) and (ii) of the definition of "Authorized Transfer," in Section 3.7
of the Participation Agreement (a "Permitted Transfer"), Trustor agrees not to
transfer or further encumber the Subject Property, or any portion thereof, or
any interest therein, without the prior written consent of Beneficiary. In the
event Trustor, or any successor in interest of Trustor, shall transfer or
further encumber the Subject Property or any portion thereof, or any interest
therein, other than by a Permitted Transfer, without first obtaining the written
consent of Beneficiary, all indebtedness secured by this Deed of Trust,
including without limitation the amount due under the Participation Agreement,
shall, at the option of Beneficiary and without notice or demand, become
immediately due and payable. As used herein, "transfer" includes the sale,
option to sell, transfer or conveyance of the Subject Property, or any portion
thereof, or any interest therein, or the transfer of any general partnership
interests, membership interests or shares of stock (as applicable) in Trustor,
whether voluntary, involuntary (except by eminent domain or upon death or mental
incapacity), by operation of law or otherwise, except that the transfer of
outstanding capital stock or other listed equity interests through the
"over-the-counter" market or any recognized national or international securities
exchange, shall not be included in determining whether Subject Property has been
transferred.
5.19 Intentionally Left Blank.
5.20 Reconveyance. Upon Beneficiary's written request, and upon surrender
to Trustee for cancellation of this Deed of Trust and any note, instrument or
instruments setting forth all obligations secured hereby, Trustee shall
reconvey, without warranty, the Subject Property or that portion thereof then
held hereunder. The recitals of any matters or facts in any reconveyance
executed hereunder shall be conclusive proof of the truthfulness thereof. To the
extent permitted by law, the reconveyance may describe the grantee as "the
person or persons legally entitled thereto." Neither Beneficiary nor Trustee
shall have any duty to determine the right of persons claiming to be rightful
grantees of any reconveyance. When the Subject Property has been fully
reconveyed, the last such reconveyance shall operate as a reassignment of all
future rents, issues and profits of the Subject Property to the person or
persons legally entitled thereto, unless such reconveyance expressly provides to
the contrary.
VI.
DEFAULT PROVISIONS
The following shall constitute events of default ("Events of Default")
hereunder:
6.01 Payment. Failure of Trustor to make any payment required under this
Deed of Trust or the Participation Agreement when and as it becomes due and
payable.
6.02 Breach of General Covenants. A default by Trustor in the due, prompt
and complete observance and performance of each and every material obligation,
covenant and agreement in the Participation Agreement or in this Deed of Trust,
other than a default specified in paragraph 6.01 above and the continuation of
the default for a period of thirty (30) days after Trustor's receipt of written
notice by Beneficiary describing the defect in reasonable detail and
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demanding its cure, however, if the default is of a type which, for reasons
other than reasons within the reasonable control of Trustor, is not susceptible
of cure within such thirty (30) day period, but is susceptible of cure within a
reasonable period of time, then no Event of Default shall occur under this
paragraph unless Trustor shall fail to commence to cure such default within
thirty (30) day period or shall fail to diligently pursue the cure of such
default to completion within a reasonable period of time thereafter.
6.03 Intentionally Omitted.
6.04 Appointment of Receiver. The appointment, pursuant to an order of a
court of competent jurisdiction, of a trustee, receiver or liquidator of the
Subject Property or any part thereof, or of Trustor, unless such appointment is
discharged within ninety (90) days after the date of filing thereof.
6.05 Bankruptcy Filing By Trustor. The filing by Trustor of a petition in
bankruptcy or for an arrangement or for reorganization pursuant to the Federal
Bankruptcy Code or any similar law, federal or state, or the adjudication of
Trustor as a bankrupt or as insolvent by a decree of a court of competent
jurisdiction, or the making of an assignment for the benefit of creditors, or
the admission by Trustor in writing of its inability to pay its debts generally
as they become due, or the giving of consent by Trustor to the appointment of a
receiver or receivers of all or any part of its property, unless such bankruptcy
filing is discharged within ninety (90) days after the date of filing thereof.
6.06 Bankruptcy Filing by Creditors. The filing by any of the creditors
of Trustor or the reorganization of Trustor pursuant to the Federal Bankruptcy
Code or any similar law, federal or state and the same is not discharged within
ninety (90) days after the date of filing thereof.
6.07 Default Under First Deed of Trust. The giving of notice or
declaration of default or the occurrence of any default under the First Deed of
Trust or any of the documents related thereto which default is not cured within
thirty (30) days after the date of such notice or occurrence.
6.08 Intentionally Omitted.
6.09 Rights and Remedies. At any time after the occurrence of an Event of
Default hereunder, Beneficiary and/or Trustee shall have the following rights
and remedies, all of which are in addition to any rights and remedies available
to Beneficiary under the Participation Agreement or this Deed of Trust:
(a) With or without notice, to declare all obligations secured hereby
immediately due and payable;
(b) With or without notice, and without releasing Trustor from any
obligation hereunder, to cure any default of Trustor and, in connection
therewith, to enter upon the Subject Property and to do such acts and
things as Beneficiary or Trustee deem necessary or desirable to protect
the security hereof, including, but without limitation, to appear in and
defend any action or proceeding purporting to affect
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the security hereof or the rights or powers of Beneficiary or Trustee
hereunder; to pay, purchase, contest or compromise any encumbrance,
charge, lien or claim of lien which, in the judgment of either Beneficiary
or Trustee is prior or superior hereto, the judgment of Beneficiary or
Trustee being conclusive as between the parties hereto; to pay any
premiums or charges with respect to insurance required to be carried
hereunder; and to employ counsel, accountants, contractors and other
appropriate persons to assist them;
(c) To commence and maintain an action or actions in any court of
competent jurisdiction to foreclose this instrument as a mortgage or to
obtain specific enforcement of the covenants of Trustor hereunder, and
Trustor agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy and that for the
purposes of any suit brought under this subparagraph, Trustor waives the
defense of laches and any applicable statute of limitations;
(d) To enter upon, possess, manage and operate the Subject Property or
any part thereof; to make, terminate, enforce or modify leases of the
Subject Property upon such terms and conditions as Beneficiary deems
proper; to make repairs, alterations and improvements to the Subject
Property necessary, in Trustee's or Beneficiary's judgment, to protect or
enhance the security hereof. All sums realized by Beneficiary under this
subparagraph, less all costs and expenses incurred by it under this
subparagraph, including reasonable attorneys' fees, and less such sums as
Beneficiary deems appropriate as a reserve to meet future expenses under
this subparagraph, shall be applied on any indebtedness secured hereby in
such order as Beneficiary shall determine. Neither application of said
sums to said indebtedness nor any other action taken by Beneficiary under
this subparagraph shall cure or waive any default or notice of default
hereunder or nullify the effect of any such notice of default. Beneficiary
or Trustee, or any employee or agents of Beneficiary or Trustee, or a
receiver appointed by a court may take any action or proceeding authorized
hereunder or by law without regard to (i) the adequacy of the security for
the indebtedness secured hereunder, (ii) the existence of a declaration
that the indebtedness secured hereby has been declared immediately due and
payable, or (iii) the filing of a notice of default;
(e) To execute a written notice of such default and of its election to
cause the Subject Property to be sold to satisfy the obligations secured
hereby. Trustee shall give and record such notice as the law then requires
as a condition precedent to a Trustee's sale. When the minimum period of
time required by law after such notice has elapsed, Trustee, without
notice to or demand upon Trustor except as otherwise required by law,
shall sell the Subject Property at the time and place of sale fixed by it
in the notice of sale, either as a whole or in separate parcels and in
such order as it or Beneficiary may determine, at public auction to the
highest bidder for cash, in lawful money of the United States, payable at
time of sale (the obligations hereby secured being the equivalent of cash
for purposes of said sale). Trustor shall have no right to direct the
order in which the Subject Property is sold. Trustee may if so instructed
by Beneficiary postpone sale of all or any portion of the Subject Property
by public announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by public announcement at such time
fixed by the preceding postponement. Trustee shall deliver to the
purchaser at such sale a deed conveying the Subject Property or portion
thereof so sold, but without any covenant or warranty, express or implied.
The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Trustor or Beneficiary, but not
Trustee, may purchase at
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such sale.
After deducting all costs, fees and expenses of Trustee and of this trust,
including cost of evidence of title and reasonable attorneys' fees in
connection with the sale, Trustee shall apply the proceeds of sale to
payment of (i) all sums so expended under the terms hereof not then
repaid, with accrued interest at the Default Rate; (ii) the payment of all
other sums then secured hereby in such order as Beneficiary may direct;
and (iii) the remainder, if any, to the person or persons legally entitled
thereto;
(f) To resort to and realize upon or waive the security hereunder and
any other security now or hereafter held by Beneficiary in such order and
manner as Trustee and Beneficiary or either of them may, in their sole
discretion determine; resort to any or all such security may be taken
concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken non-judicial proceedings,
or both;
(g) With respect to all or any part of the encumbered Property that
constitutes personalty, Beneficiary shall also have all of the rights and
remedies of a secured party under the Commercial Code in effect in the
State of California; and
(h) If this Deed of Trust is foreclosed by judicial action, Beneficiary
will be entitled to a judgment which will provide that if the foreclosure
sale proceeds are insufficient to satisfy the judgment, execution may
issue for any amount by which the unpaid balance of the obligations
secured by this Deed of Trust exceeds the net sale proceeds payable to
Beneficiary. Such judgment will be enforceable against Trustor.
6.10 Receiver. In addition to the foregoing rights and remedies,
Beneficiary shall upon the occurrence of an Event of Default be entitled to the
appointment of a receiver as a matter of right without regard to whether the
apparent value of the Subject Property exceeds the amount of the secured
indebtedness, and any receiver appointed may serve without bond.
6.11 Payment of Costs, Expenses and Attorneys' Fees. All costs and
expenses incurred by Trustee and Beneficiary pursuant to subparagraphs (a)
through (h), inclusive, of Paragraph 6.09 and Paragraph 6.10 (including, but
without limitation, court costs and attorneys' fees, whether incurred in
litigation or not) shall be payable by Trustor and shall bear interest at a rate
per annum equal to the Default Rate from the date of expenditure until said sums
have been paid. Beneficiary shall be entitled to bid, at the sale of the Subject
Property held pursuant to Paragraph 6.09 above, the amount of said costs,
expenses and interest in addition to the amount of the other obligations hereby
secured as a credit bid, the equivalent of cash.
6.12 Remedies Cumulative. All rights and remedies of Beneficiary and
Trustee hereunder are cumulative and in addition to all rights and remedies
provided by law.
6.13 Releases, Extensions, Modification and Additional Security.
Beneficiary may, without affecting the liability of any person for payment of
any indebtedness secured hereby, make any agreement or take any action extending
the maturity or otherwise altering the terms or increasing the amount of any
indebtedness secured hereby, and accept additional security or
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release all or a portion of the Subject Property and/or other security held to
secure the indebtedness secured hereby.
6.14 Failure of Trustor to Comply With Deed of Trust. Should Trustor fail
to make any payment or do any act required by this Deed of Trust, or should
there be any action or proceeding (including, without limitation, any judicial
or nonjudicial proceeding to foreclose the lien of a junior or senior mortgage
or deed of trust) affecting or purporting to affect the Subject Property, this
Deed of Trust, Beneficiary's security for the performance of Trustor's
obligations under the Participation Agreement, or the rights or powers of
Beneficiary or Trustee under the Participation Agreement or this Deed of Trust,
Beneficiary or Trustee may (but are not obligated to): (a) make any such payment
or do any such act in such manner and to such extent as either deems necessary
to preserve or protect the Subject Property, this Deed of Trust, or
Beneficiary's security for the performance of Trustor's obligations under the
Participation Agreement, Beneficiary being authorized to enter upon the Subject
Property for any such purpose; and (b) in exercising any such power, pay
necessary expenses, employ attorneys and pay reasonable attorneys' fees incurred
in connection with the exercise of such power without notice to or demand upon
Trustor and without releasing Trustor from any obligation under this Deed of
Trust.
VII.
MISCELLANEOUS PROVISIONS
7.01 Non-Waiver. By accepting payment of any sum secured hereby after its
due date or late performance of any obligation secured hereby, Beneficiary shall
not waive its right against any person obligated directly or indirectly
hereunder or on any obligation hereby secured or to declare default for failure
to make such prompt payment. No exercise of any right or remedy by Beneficiary
or Trustee hereunder shall constitute a waiver of any other right or remedy
herein contained or provided by law.
7.02 Execution of Documents. Trustor agrees, upon demand by Beneficiary
or Trustee, to execute any and all documents and instruments required to
effectuate the provisions hereof.
7.03 Statements of Conditions. From time to time as required by law,
Beneficiary shall furnish to Trustor such statement as may be required
concerning the condition of the obligations secured hereby. Beneficiary shall be
entitled to the payment of a fee, not to exceed the maximum fee allowed by law,
for any such statement.
7.04 Obligations of Trustor, Joint and Several. If more than one person
has executed this Deed of Trust as Trustor, the obligations of all such persons
hereunder shall be joint and several.
7.05 Beneficiary Defined. The word "Beneficiary" hereunder means the
beneficiary named herein or any future owner or holder, including pledgee, of
any note, notes or instrument secured hereby.
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7.06 Rules of Construction. When the identity of the parties hereto or
other circumstances make it appropriate, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural. Specific
enumeration of rights, power and remedies of Trustee and Beneficiary and of acts
which they may do and of acts Trustor must do and acts Trustor must not do shall
not exclude or limit the general. The headings of each paragraph are for
information and convenience and do not limit or construe the contents of any
provision hereof.
7.07 Severability. If any term of this Deed of Trust, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Deed of Trust, or the application of such
term to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Deed of
Trust shall be valid and enforceable to the fullest extent permitted by law.
7.08 Successors in Interest. The terms, covenants and conditions herein
contained shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the parties hereto.
7.09 Modification and Extensions. References to the Participation
Agreement or this Deed of Trust in this document shall be deemed to include all
modifications, extensions and renewals thereof. No such modification, extension
or renewal shall be valid or binding unless in writing and executed by both
Trustor and Beneficiary.
7.10 Interpretation. The provisions of this Deed of Trust shall be
governed by and construed in accordance with the laws of the state in which the
Subject Property is located, except to the extent that Federal laws preempt the
laws of such state.
7.11 Notices. All written notices expressly provided hereunder to be
given by Beneficiary to Trustor and all notices and demands of any kind or
nature whatsoever which Trustor may be required or may desire to give to or
serve on Beneficiary shall be in writing and shall be served by personal
delivery or registered mail, return receipt requested at the address set forth
on the cover page hereof or in Paragraph 7.13, below.
7.12 Mailing of Notices of Default. Pursuant to California Government
Code Section 27321.5(b), Trustor hereby requests that a copy of any Notice of
Default as may be required by law be mailed to it at its address herein
contained.
7.13 Addresses for Notices to Beneficiary.
c/o EOP Operating Limited Partnership
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxx Xxxxxx
with copies, at the same address, to Chief Legal Counsel
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and with additional copies to:
Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP
1901 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day
and year set forth above.
"TRUSTOR"
INKTOMI CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Its: CFO
-00-
XXXXXXX "X"
(Xxxxx Description)
Real property in the City of Xxxxxx City, County of San Mateo,
State of California, described as follows:
PARCEL ONE:
Parcel I as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX-00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records, and further described as follows:
COMMENCING at a point on the Northwesterly line of State
Xxxxxxx Xxxxx 00 (200 feet wide) being the Southwesterly
corner of parcel designated "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967, in Book 5306 of
Official Records at page 220, Records of San Mateo County;
thence along said Northwesterly line, North 42 degrees 11' 46"
East, 1024.01 feet to the true point of beginning;
Thence North 47 degrees 48' 14" West, 47.50
feet;
Thence North 42 degrees 11' 46" East, 55.87
feet;
Thence North 19 degrees 14' 15" West, 225.61 feet to a point
on a non-tangent curve having a radius of 671.00 feet, from
which point a radial line bears North 10 degrees 21' 52" West;
Thence Northeasterly, along said curve to the left through a
central angle of 8 degrees 52' 23", an arc distance of 103.91
feet;
Thence radial to last said curve, North 19 degrees 14' 15",
West 353.53 feet to a point on the Northerly line of Parcel 2
of Parcel Map No. 39-80, filed for recorded in Book 52 of
Parcel Maps at pages 42 and 43, Records of San Mateo County;
Thence along said Northerly line the following seven (7)
courses:
1. North 66 degrees 27' 38" East, 74.77 feet;
2. North 62 degrees 34' 48" East, 130.91 feet;
3. North 53 degrees 22' 49" East, 50.09 feet;
4. North 47 degrees 11' 51" East, 125.14 feet;
5. North 32 degrees 12' 03" East, 26.25 feet;
6. North 44 degrees 54' 58" East, 50.19 feet;
and
7. North 55 degrees 44' 31" East, 9.79 feet;
Thence leaving said Northerly line, South 25
degrees 09' 20" East 136.05 feet;
Thence North 64 degrees 50' 40" East, 22.71
feet;
Thence North 42 degrees 27' 02" East, 270.86
feet;
EXHIBIT "A"
-1-
Thence North 04 degrees 11' 44" East, 52.00 feet to a point on
the Northerly line of said Parcel 2 of Parcel Map No. 39-80;
Thence along said Northerly line the following four (4)
courses:
1. South 64 degrees 21' 32" East, 27.73 feet; 2. South 85
degrees 48' 16" East, 129.85 feet; 3. North 61 degrees 26' 03"
East 51.24 feet; and 4. North 68 degrees 58' 30" East, 127.02
feet to the most Easterly corner of said Parcel 2 and a point
in said Xxxxxxxxxxxxx xxxx xx Xxxxx Xxxxxxx Xxxxx 00;
Thence Southwesterly along said Northwesterly line and the
Southeasterly line of said Parcel 2 the following three (3)
courses:
1. South 42 degrees 27' 02" West, 897.25 feet;
2. South 12 degrees 32' 05" West, 202.07 feet;
and
3. South 42 degrees 11' 16" West, 327.25 feet
to the True Point of Beginning.
PARCEL TWO:
Parcel II as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records of San Mateo County and further described as
follows:
COMMENCING at a point in the Northwesterly right of way line
of State Xxxxxxx Xxxxx 00 (200 feet wide) being also the most
Easterly corner of Parcel 2 of Parcel Map No. 39-80, filed for
record in Book 52 of Parcel Maps at pages 42 and 43, Records
of San Mateo County; thence Westerly along the Northerly line
of said Parcel 2, the following four courses:
South 68 degrees 58' 30" West, 127.02 feet; South 61 degrees
26' 03" 51.24 feet; North 85 degrees 48' 16" West 129.85 feet;
and North 64 degrees 21' 32" West 27.73 feet to the True Point
of Beginning; thence South 04 degrees 11' 44" West 52.00 feet;
thence South 42 degrees 27' 02" West 270.86 feet; thence South
64 degrees 50' 40" West 22.71 feet; thence North 25 degrees
09" 20" West 136.05 feet, to the Northerly line of Parcel 2 of
Parcel Map No. 39-80; thence along said Northerly line North
55 degrees 44' 31" East 242.00 feet and North 88 degrees 14'
15" East 65.03 feet to the True Point of Beginning.
PARCEL THREE:
Parcel III as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records of San Mateo County and further described as
follows:
EXHIBIT "A"
-2-
BEGINNING at a point in the Southerly line of East Third
Avenue (80 feet wide), being also the Northeasterly corner of
Parcel 1 of Parcel Map No. 39-80, file for record in Book 52
of Parcel Maps at pages 42 and 43, Records of San Mateo
County;
Thence along said Southerly line, North 70 degrees 45' 45"
East, 5.97 feet to a point on a non-tangent curve, from which
point a radial line bears North 46 degrees 20' 02" East;
Thence Easterly, Northerly and Westerly along the right of way
line of East Third Avenue, along said non-tangent curve to the
left, having a radius of 44.50 feet, through a central angle
of 264 degrees 20' 35", an arc distance of 205.31 feet to a
point of reverse curvature;
Thence Westerly, along a reverse curve to the right, having a
radius of 49.50 feet, through a central angle 18 degrees 46'
18", an arc distance of 16.22 feet;
Thence, tangent to last said curve, South 70 degrees 45' 45"
West 16.24 feet to a point on the Northerly extension of the
Easterly line of said Parcel 1 of Parcel Map No. 39-80;
Thence along said extension, North 19 degrees 14' 15" West,
22.10 feet to the intersection of the Northerly line of Third
Avenue with said extension of said Easterly line;
Thence along said Northerly line, South 70 degrees 45' 45"
West, 1,017.61 feet, to the most Westerly corner of said
Parcel 2 of said Parcel Map No. 39-80;
Thence along the Northerly line of said Parcel 2, the
following thirteen (13) courses:
1. North 49 degrees 55' 43" East, 12.25 feet;
2. North 61 degrees 13' 12" East, 271.98 feet;
3. North 65 degrees 58' 42" East, 49.80 feet;
4. South 86 degrees 22' 18" East, 41.20 feet;
5. North 55 degrees 34' 52" East, 64.36 feet;
6. North 67 degrees 59' 17" East, 50.00 feet;
7. North 59 degrees 27' 28" East, 101.12 feet;
8. North 68 degrees 22' 12" East, 300.01 feet;
9. North 67 degrees 59' 17" East, 50.00 feet;
10. North 73 degrees 41' 53" East, 50.25 feet;
11. North 69 degrees 08' 02" East, 450.09 feet;
12. North 60 degrees 01' 10" East, 50.49 feet; and
13. North 66 degrees 27' 38" East, 0.26 feet;
Thence leaving said Northerly line of Parcel 2, along a radial
line South 19 degrees 14' 15" East 353.53 feet to a point on a
radial curve having a radius of 671.00 feet;
Thence Westerly along said curve, through a central angle of 8
degrees
EXHIBIT "A"
-3-
52' 23", an arc distance of 103.91 feet to a point on said
curve from which point a radial line bears North 10 degrees
21' 52" West;
Thence South 19 degrees 14' 15" East, 225.61
feet;
Thence South 42 degrees 11' 46" West, 55.87
feet;
Thence South 47 degrees 48' 14" East 47.50 feet to a point in
the Northwesterly line of State Xxxxxxx Xxxxx 00 (200 feet
wide);
Thence along said Northwesterly line South 42 degrees 11' 46"
West, 1024.01 feet to the most Southwesterly corner of said
parcel of land designated, "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967 in Book 5306 of
Official at page 220, Records of San Mateo County, being also
a point in the Southeasterly line of Parcel 1 of Parcel Map
No. 44-81, filed for record in Volume 52 of Parcel Maps at
pages 47 and 48, Records of San Mateo County;
Thence along said Southeasterly line, North 39 degrees 54' 19"
East, 662.49 feet to the Southeasterly corner of Parcel 1 of
Parcel Map No. 46-82, filed for record in Volume 53 of Parcel
Maps at pages 8 and 9, Records of San Mateo County;
Thence along the Easterly line of said Parcel 1 of Parcel Map
Xx. 00-00, Xxxxx 00 degrees 14' 15" West, 598.13 feet to the
Point of Beginning.
PARCEL FOUR:
A non-exclusive perpetual easement for the purposes of
construction, placing, installing, using, maintaining,
operating, reconstructing, replacing, repairing, renewing and
removing an
(A) underground eight (8) inch sanitary sewer line, together
with any and all improvements appurtenant to such sewer line
and/or any other improvements required or necessary, to
construct, place, install, use, maintain, operate,
reconstruct, replace, repair, renew or remove said sewer line
and its appurtenances, and
(B) an underground thirty-six (36) inch storm drain line,
together with any and all improvements appurtenant to such
storm drain line and/or any other improvements required or
necessary to construct, place, install, use, maintain,
operate, reconstruct, replace, repair, renew or remove said
storm drain line and its appurtenances, in, through, over,
along, across and under the "Easement Area", more particularly
described as follows:
A strip of land, 15 feet in width, situate in Xxxxxx Xxxx,
Xxxxxx xx Xxx Xxxxx, Xxxxx xx Xxxxxxxxxx, being a portion of
Parcel 1, as said Parcel is shown on Parcel Map No. 46-82,
filed for record November 30, 1982 in Book 53 of Parcel Maps
at pages 8 and 9,
EXHIBIT "A"
-4-
San Mateo County Records, the Southwesterly line of said strip
being described as follows:
BEGINNING at the Southwesterly corner of said Parcel 1, said
corner being on the Northeasterly line of Lincoln Centre Drive
(60' wide) as shown on said map;
Thence along the Southerly line of said Parcel 1, and the
Northeasterly prolongation thereof, North 73 degrees 11' 08"
East, 530.47 feet to the Northwesterly line of said Parcel 1
and the terminus of said strip.
The Northwesterly line of said strip shall be lengthened or
shortened to begin on the Southwesterly line of said Parcel 1
and terminate on said Northeasterly line of said Parcel I.
The above easement is appurtenant to Parcels I and II above
and was created by that certain Easement Agreement recorded
July 15, 1998 as Document No. 98111669, Official Records.
APN: 000-000-000, -000, -000 & -000
XXXXXXX "X"
-0-
XXXXX OF _____________________)
) ss.
COUNTY OF ____________________)
On ________________________, before me, ________________________, a Notary
Public in and for said state, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for said State
-1-
EXHIBIT B
INTENTIONALLY OMITTED
-2-
EXHIBIT C
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
INKTOMI CORPORATION,
A DELAWARE CORPORATION
("SELLER")
AND
________________________________
a ___________________________
("BUYER")
TABLE OF CONTENTS
Page
----
I SUMMARY OF BASIC TERMS ................................................ 1
II PURCHASE ............................................................. 3
1. Purchase Price; Escrow Opening ................................. 3
2. CONTINGENCY PERIOD ............................................. 4
3. Closing Conditions ............................................. 8
4. Failure of Conditions to Close of Escrow ....................... 9
III CLOSING, ESCROW AND TITLE ........................................... 9
5. Closing; Deliveries to Escrow Holder ........................... 9
6. Costs and Expenses ............................................. 11
7. Prorations ..................................................... 11
8. Disbursements and Other Actions by Escrow Holder and Seller .... 13
IV. REPRESENTATIONS AND WARRANTIES ...................................... 13
9. Seller's Representations and Warranties ........................ 13
10. Buyer's Representations and Warranties ........................ 15
11. Seller's Covenants Regarding Operation of the Property
Through the Closing Date ................................... 17
12. Condemnation, Damage and Destruction .......................... 17
13. Legal and Equitable Enforcement of this Agreement ............. 18
14. Miscellaneous ................................................. 19
EXHIBITS
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B TITLE EXCEPTIONS
EXHIBIT C INTENTIONALLY OMITTED
EXHIBIT D INTENTIONALLY OMITTED
EXHIBIT E GRANT DEED
EXHIBIT F TENANT LEASE ASSIGNMENT
EXHIBIT G GENERAL ASSIGNMENT AND XXXX OF SALE
(i)
EXHIBIT H TRANSFEROR'S CERTIFICATE OF NON-FOREIGN STATUS
EXHIBIT I TENANT NOTIFICATION LETTER
(ii)
Page(s)
-------
Agreement....................................................................1
Agreement Date...............................................................1
Approval Date................................................................2
Broker.......................................................................3
Buyer........................................................................1
Closing Date.................................................................2
Deed........................................................................10
Deposit......................................................................1
Escrow.......................................................................4
Escrow Holder................................................................2
FIRPTA Certificate..........................................................10
General Assignment..........................................................10
Governmental Regulations....................................................14
Hazardous Materials.........................................................14
Improvements.................................................................2
PCOR........................................................................11
Personal Property,...........................................................2
Project......................................................................3
Project Name.................................................................3
Property.....................................................................2
Purchase Price...............................................................1
Real Property................................................................2
RULES.......................................................................22
Seller.......................................................................1
Tenant Deposits.............................................................13
Tenant Lease Assignment.....................................................10
Tenant Notification Letter..................................................10
Title Company................................................................3
(iii)
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Joint Escrow Instructions (the
"Agreement"), dated as of the date set forth in Section 1 of the Summary of
Basic Terms, below, is made by and between the "Seller," as that term is set
forth in Section 2, below, and [EXACT BUYER'S NAME AND ENTITY TO BE PROVIDED]
("Buyer"). The terms as set forth below shall have the meanings as set forth
below when used in this Agreement.
RECITALS
A. Buyer and Seller have previously entered into that certain Lease
Termination Agreement dated as of September 5, 2002 (the "Lease Termination
Agreement").
B. In accordance with the terms of the Lease Termination Agreement,
Buyer and Seller have previously entered into that certain Participation
Agreement dated as of September 5, 2002 (the "Participation Agreement"),
pursuant to which Buyer granted Seller an option (the "Put Option") to require
Buyer to purchase the "Property", as that term is defined in Section 8 of the
Summary of Basic Terms, below.
C. Seller has exercised the Put Option in accordance with the terms of
the Participation Agreement, and has delivered the "Diligence Documents", as
that term is defined in the Participation Agreement, to Buyer.
D. Buyer and Seller desire to proceed with the transaction contemplated
by this Agreement on the terms and conditions set forth herein.
I
SUMMARY OF BASIC TERMS
TERMS OF AGREEMENT
(First reference in
the Agreement) DESCRIPTION
1. "Agreement Date": ____________________.
2. "Seller": Inktomi Corporation,
a Delaware corporation
3. "Purchase Price" $37,500,000.00
(Section 1):
4. "Deposit" $1,125,000.00, subject to the terms of
(Section 1.1): Section 1.1, below.
5. "Escrow Holder" First American Title Company
(Section 1.3): 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxx
6. "Approval Date" The later of: thirty (30) days from the
(Section 2.1): Agreement Date, or (ii) ten (10) days
from the date Buyer receives all of the
"Diligence Documents."
7. "Closing Date" Thirty (30) days after the Approval Date.
(Section 2.1.2.2):
8. "Property" The "Real Property," "the Improvements,"
(Section 2.1.1): if any, the "Licenses and Permits," as
those terms are defined in this
Agreement, the "Records and Plans," as
that term is defined in this Agreement,
and all of Seller's interest in the
"Tenant Leases," as that term is defined
in this Agreement, "Tenant Deposits," as
that term is defined in this Agreement,
and the "Contracts," as that term is
defined in this Agreement, approved by
Buyer, together with: (i) all
appurtenances, streets and/or alleys, if
any, easements, right-of-way in or to all
streets or other interests in, on,
across, in front of, abutting or
adjoining the Real Property, (ii) all of
the rights, title, interests, privileges
and appurtenances which are in any way
related to or used in connection with the
Real Property and Improvements; and (iii)
any entitlement or development rights
held by Seller with respect to the Real
Property, including those relating to the
possible construction of a third office
building on the Real Property, and
associated parking structure.
9. "Real Property": That certain real property described on
Exhibit A attached hereto.
10. "Improvements" All buildings, fixtures, structures,
parking areas, landscaping and other
improvements constructed and located on
the Real Property, including, but not
limited to, two (2) building(s)
containing approximately 260,000 square
feet in the aggregate, together with all
machinery and mechanical, electrical,
HVAC and plumbing systems (other than
"Personal Property," as that term is
defined in this Agreement) used in the
operation thereof, but excluding any such
items owned by Tenants in possession or
public or private utilities or
contractors under contract.
-2-
11. "Project": The Real Property and the Improvements,
if any.
12. "Title Company" First American Title Company
(Section 2.1.2):
13. "Project Name" Bayside Towers
(Section 2.1.3):
14. "Broker" Eastdil Realty Co., Inc.
(Section 14.2):
II
PURCHASE
1. Purchase Price; Escrow Opening. Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, the Property for the sum of the Purchase
Price, which shall be paid as set forth below in this Section 1.
1.1 Deposit. Concurrent with the delivery to the Escrow Holder of
this Agreement, executed by Buyer, Buyer shall deliver to Escrow Holder the
Deposit which Escrow Holder shall invest in a federally-insured, interest
bearing account. All interest which accrues on the Deposit shall be deemed a
part of the Deposit, and credited to Buyer's account and shall be credited to
payment of the Purchase Price or paid to the party entitled thereto pursuant to
this Agreement. The Deposit shall remain fully refundable to Buyer during the
period commencing on the Agreement Date and ending at 5:00 pm (Pacific Time) on
the Approval Date (the "Contingency Period"). Thereafter, the Deposit shall not
be refunded to Buyer unless the transaction contemplated by this Agreement is
not consummated as the result of Seller' default under the terms of this
Agreement or the failure of a condition precedent to Buyer's obligations as set
forth in Section 2 of this Agreement. The Deposit and all interest earned
thereon shall be credited toward the payment of the Purchase Price at Closing.
Notwithstanding the foregoing, in lieu of making the Deposit, Buyer shall have
the right to cause the entity that, as of the Agreement Date, is the holder of
the "Note", as that term is defined in the Lease Termination Agreement, to
deliver to Seller such holder's written agreement that, upon a default by Buyer
under this Agreement which would otherwise entitle Seller to receive the Deposit
pursuant to the terms of Section 13.2, below, the principal balance of such Note
shall be reduced by the amount of $1,125,000.00. In such event, Buyer shall have
no obligation to deliver the Deposit to Escrow Holder.
1.2 Purchase Price Balance. Provided that this Agreement has not
previously terminated, not later than one (1) Business Day prior to the Closing
Date, Buyer shall deliver the balance of the Purchase Price, together with
Buyer's share of costs, expenses and prorations, to Escrow Holder by wire
transfer of immediately available funds.
1.3 Escrow Opening. Buyer and Seller shall promptly cause the opening of
"Escrow" by delivering a fully executed copy of this Agreement to Escrow Holder
and this instrument shall serve as the instructions to Escrow Holder for
consummation of the purchase and sale contemplated hereby. Seller and Buyer
agree to execute such additional and supplementary escrow instructions as may be
appropriate to enable the Escrow Holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control, and this instrument shall serve as the
instructions to Escrow Holder for consummation of the purchase and sale
contemplated
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hereby. "Escrow" means the escrow opened with Escrow Holder for the consummation
of the transaction described in this Agreement, which shall open by the delivery
of a fully executed original of this Agreement to Escrow Holder together with
the Deposit.
2. Contingency Period.
2.1 Property Inspections and Investigations. During the
Contingency Period, Buyer shall have the right subject to the terms set forth
herein to enter the Property, make such investigations and surveys as Buyer
reasonably determines to be appropriate in connection with its determination of
whether or not the Put Conditions have been satisfied.
2.1.1 Insurance. After Buyer has provided to Seller a
certificate of insurance(s) evidencing Buyer's or Buyer's agents', consultants'
and/or contractors' (as the case may be) procurement of a commercial general
liability insurance policy as required herein, Seller shall permit Buyer and its
authorized agents, consultants and contractors to enter upon the Property during
reasonable business hours (provided that Buyer shall not unreasonably interfere
with or disturb any tenants' operations therein or Seller's operation of the
Property) to make and perform such environmental evaluations, and other
inspections and investigations of the physical condition of the Property, as
Buyer reasonably deems appropriate. Buyer shall maintain, and shall ensure that
its agents, consultants and contractors maintain, public liability and property
damage insurance insuring against any liability arising out of any entry, tests
or investigations of the Property pursuant to the provisions hereof. Such
insurance maintained by Buyer and/or its consultants, agents and contractors (as
applicable) shall be in the amount of Two Million Dollars ($2,000,000.00)
combined single limit for injury to or death of one or more persons in an
occurrence, and for damage to tangible property (including loss of use) in an
occurrence. The policy maintained by Buyer shall insure the contractual
liability of Buyer covering the indemnities herein and shall (i) name the Seller
and its manager (and their successors, assigns and affiliates) as additional
insureds, (ii) contain a cross-liability provision, and (iii) contain a
provision that "the insurance provided by Buyer hereunder shall be primary and
non-contributing with any other insurance available to Seller." Buyer shall
provide Seller with evidence of such insurance coverage prior to any entry,
tests or investigations of the Property. The aforementioned insurance coverage
may be obtained under a blanket policy carried by Buyer or its agents,
consultants or contractors, as the case may be.
2.1.2 Intrusive or Destructive Testing. Notwithstanding the
foregoing, Buyer shall not be permitted to undertake any intrusive or
destructive testing of the Property, including without limitation a "Phase II"
environmental assessment, without in each instance first obtaining Seller's
written consent as to the manner and timing thereof, which consent shall not be
unreasonably withheld. Prior to entering the Property, and prior to any entry to
perform any necessary on-site inspections, tests or investigations, (and on each
and every occasion), Buyer shall (i) deliver to Seller prior written notice
thereof [or verbal notice wherein Buyer actually speaks with a representative of
Seller (not a voicemail message) with written notice delivered immediately
thereafter, if requested at such time], (ii) inform Buyer of the identity of the
company or party(s) who will perform such inspections, tests or investigations
and the proposed scope of the inspections, tests or investigations, and (iii)
shall afford Seller a reasonable opportunity to have a representative of Seller
present to accompany Buyer while Buyer or such third-party company performs its
evaluations, inspections, tests and other investigations of the physical
condition of the Property. Seller shall approve or disapprove any proposed
inspections, tests or investigations and the party(s) performing the same within
two (2) business days after receipt of such notice. Seller's failure to advise
Buyer of its disapproval of any proposed inspections, tests or investigations
and the party(s) performing the same within such two (2) business day period
shall be deemed Seller's approval thereof, except to the extent said proposed
inspections, tests or investigations relate to "Phase II" environmental matters,
in which event Seller's failure to advise Buyer of its approval or disapproval
of any proposed environmental inspections, tests or investigations and the
party(s) performing the same within such two (2)
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business day period shall be deemed Seller's disapproval thereof. Upon request,
Buyer shall promptly deliver to Seller copies of any reports relating to any
inspections, tests or investigations of the Property performed by or on behalf
of Buyer. Prior to Buyer contacting the tenants, Buyer shall give Seller written
notice thereof, including the identity of the company or persons who will
perform any tenant interview or contacts. Seller or its representative(s) may be
present at any such interview or meeting with the tenants and Buyer will
reasonably cooperate and coordinate with Seller to effectuate same. The term
"Hazardous Materials" as used in this Agreement shall mean and refer to (a) any
hazardous or toxic wastes, materials or substances, or chemicals, and other
pollutants or contaminants, which are or become regulated by applicable local,
state, regional and/or federal orders, ordinances, statutes, rules, regulations
(as interpreted by judicial and administrative decisions) and laws; (b)
asbestos, asbestos-containing materials or urea formaldehyde; (c)
polychlorinated biphenyls; (d) flammables, explosive, corrosive or radioactive
materials; (e) medical waste and biochemicals; and (f) gasoline, diesel,
petroleum or petroleum by-products.
2.1.3 Investigations Indemnity. Buyer shall keep the Property
free from all liens and shall indemnify, defend (with counsel reasonably
satisfactory to Seller), protect, and hold Seller and each of the parties
comprising Seller and each of their members, partners, officers, trustees,
employees, representatives, agents, lenders, related and affiliated entities,
successors and assigns harmless from and against any and all claims, demands,
liabilities, judgments, penalties, losses, costs, damages, and expenses
(including, without limitation, attorneys' and experts' fees and costs) relating
to or arising in any manner whatsoever from any studies, evaluations,
inspections, investigations or tests made by Buyer or Buyer's agents or
representatives relating to or in connection with the Property or entries by
Buyer or its agents or representatives in, on or about the Property; provided,
Buyer shall not be liable to Seller under the foregoing indemnity solely as a
result of the discovery by Buyer of a pre-existing condition in or on the
Property. Notwithstanding any provision to the contrary in this Agreement, the
indemnity obligations of Buyer under this Agreement shall survive any
termination of this Agreement or the delivery of the Grant Deed and the transfer
of title. In addition to the foregoing indemnity, if there is any damage to the
Property caused by Buyer's and/or its agents' or representatives' entry in or on
the Property, Buyer shall immediately restore the Property substantially to the
same condition existing prior to Buyer's and its agents' or representatives'
entry in, on or about the Property.
2.1.4 Contracts. If and to the extent not previously delivered
under the Participation Agreement, within five (5) days after the Agreement
Date, but only to the extent the same is actually in Seller's or its property
manager's possession or under their immediate control, Seller will deliver to
Buyer a copy of all service agreements, commission agreements, maintenance
agreements, easement agreements, improvement agreements, license agreements, and
other agreements related to or affecting the Property and not included as part
of the title documents delivered pursuant to Section 4.1.1 hereof (collectively,
the "Contracts"). Buyer shall have until 5:00 p.m. (Pacific Time) on the date
which is five (5) business days prior to the Approval Date to notify Seller in
writing, specifying any Contracts which Buyer desires be left in place following
the Closing(collectively, the "Approved Contracts") which Approved Contracts
shall be assigned by Seller to Buyer at the Closing. All Contracts other than
the Approved Contracts (the "Disapproved Contracts") shall be terminated by
Seller as of the Closing. Seller shall assign its rights and interests under the
Approved Contracts to Buyer at the Closing pursuant to the General Assignment in
substantially the form attached hereto as Exhibit "G". Failure by Seller
terminate some or all of the Disapproved Contracts on or before the Closing
shall be deemed to be a failure of this condition.
2.1.5 Diligence Documents. Within five (5) days after the
Agreement Date, Seller will deliver to Buyer or otherwise make available to
Buyer at Seller's offices during normal business hours for inspection by Buyer,
a true and complete copy of the following (collectively, the "Diligence
Documents") (a) the title report and copies of all title exceptions as more
particularly described in Section 2.1.6, (b) without any warranty or
representation as to the accuracy thereof or to the ability of Buyer to rely
thereon, a copy of any existing survey(s) of the Property, (c) current Phase I
and Phase II environmental
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reports prepared with respect to the Property and delivered by a contractor
reasonably approved by Buyer and with a reliance letter to the benefit of Buyer,
(d) complete copies of all leases encumbering the Property, together with all
amendments and modification thereto, and the tenant estoppel certificates
referred to in Section 2.2.5, and (e) copies of the most current operating
statement, tax bills, rent roll and the general ledger for the Property. Buyer
shall have until 5:00 p.m. (Pacific Time) on the Approval Date to notify Seller
in writing of its approval of such matters as set forth in Section 2.2, below.
2.1.6 Title Review. If not already delivered prior to the
Agreement Date, within five (5) days after the Agreement Date, Seller will cause
to be issued and delivered to Buyer a preliminary title report for the Property,
together with all documents evidencing exceptions to title referred to therein
issued by the Title Company (collectively, the "Title Report"). Any exceptions
shown on the Title Report which were not listed on Exhibit H to the Lease
Termination Agreement are referred to herein as the "New Exceptions". Buyer
shall have until 5:00 p.m. (Pacific Time) on the date which is fifteen (15)
business days prior to the Approval Date to either approve or disapprove of any
New Exceptions, or to notify Seller in writing, specifying those New Exceptions
to which Buyer objects ("Title Objection Notice"). Seller shall have a period of
three (3) business days after Seller's receipt of the Title Objection Notice (a)
to remove, or agree to remove prior to the Closing, some or all of those New
Exceptions to which Buyer has objected in the Title Objection Notice, and to
inform Buyer of the same, or (b) to advise Buyer, in writing, that Seller will
not agree to remove some or all of the New Exceptions to which Buyer has
objected in the Title Objection Notice; the foregoing election by Seller being
at Seller's sole option and discretion ("Title Response Notice"). If Seller
fails to timely deliver to Buyer the Title Response Notice, it shall be
conclusively deemed that Seller has elected not to remove any of those New
Exceptions to which Buyer has objected as specified in the Title Objection
Notice. If Seller advises Buyer in its Title Response Notice that it will not
remove or agree to remove some or all of those New Exceptions to which Buyer has
objected in the Title Objection Notice (or Seller is deemed to have so advised
Buyer), then Buyer shall have until 5:00 p.m. (Pacific Time) on the Approval
Date to advise Seller, in writing, whether Buyer elects to waive such objections
and proceed with the acquisition of the Property or to terminate this Agreement.
Failure by Seller to remove or failure of Seller to inform Buyer that Seller has
or has not removed those specified New Exceptions which Seller has expressly
agreed to remove in the Title Response Notice on or before the business day
prior to the Closing Date shall be deemed to be a failure of this condition, in
which event the Agreement shall terminate, the Deposit shall be returned to
Buyer, and the parties shall have no further obligations hereunder except for
Buyer's surviving obligations and Seller's surviving obligations, unless Buyer
withdraws its objections in writing. Notwithstanding the foregoing, on or prior
to Closing Seller shall remove or cause to be removed those certain monetary
liens or encumbrances affecting the Property which Seller has created or
expressly permitted to exist other than current taxes and assessments.
2.1.7 Space Certificate. No later than five (5) business days
prior to the Approval Date, Seller shall provide Buyer with a written
certification delivered by a licensed architect approved by Buyer, certifying
that the combined rentable square footage of the 4000 and 0000 Xxxxx Xxxxxx
buildings (as determined in accordance with the Standard Method for Measuring
Floor Area in Office Buildings published by the Building Owners and Mangers
Association International (ANSI-Z65.1-1996) is 260,000 square feet or greater
(the "Space Certificate"). In the event that the Space Certificate shows
combined rentable square footage which is less than 260,000 square feet (the
"Certified Square Footage"), the Purchase Price shall be reduced by the
percentage by which the Certified Square Footage is less than 260,000.
2.2 Put Conditions. Buyer's inspections of the Property as set
forth in Section 2.1, above, shall be for the purpose of determining whether or
not the Property meets the following conditions (the "Put Conditions").
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2.2.1 Title and Survey. There are no New Exceptions
disapproved by Buyer in accordance with the terms of Section 2.1.6, above, which
Seller has not agreed to remove prior to the Closing Date.
2.2.2 Physical Property Conditions. There shall have been no
material changes in the physical condition of the Property, normal wear and tear
excepted, from the condition in which it existed as of the date of the
Participation Agreement, as such condition may be evidenced by documents and
materials provided directly to Xxxxxxx Xxxx, a representative of Buyer, prior to
the date of the Participation Agreement, except as allowed pursuant to the terms
of Section 12, below.
2.2.3 Environmental Conditions. The environmental condition of
the Property shall not be materially different from the condition set forth in
that certain Phase I Environmental Site Assessment for Xxxx 0xx Xxxxxx Xxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxxxx, prepared for Inktomi, Inc. by Romig Engineers, Inc.,
dated July, 2000, which report was delivered to Buyer prior to the date of the
Participation Agreement.
2.2.4 Existing Tenants. There shall have been no modifications
to (i) that certain Lease Agreement between PE Corporation (NY) (then named The
Xxxxxx-Xxxxx Corporation) and WHFST Real Estate Limited Partnership (predecessor
in interest to Seller), dated as of December 10, 1998, as amended by that
certain First Amendment to Lease Agreement dated as of August 16, 1999, and (ii)
that certain Office Lease between Lincoln Property Company N.C., Inc., and WHFST
Real Estate Limited Partnership (predecessor in interest to Seller), dated as of
October 10, 1997, as amended by that certain First Amendment to Lease dated
October 30, 1998, that certain Second Amendment to Lease dated as of December
11, 1998, that certain Third Amendment to Lease Agreement dated as of August 13,
1999, that certain Fourth Amendment to Lease Agreement, dated as of January 31,
2000, and that certain Fifth Amendment to Lease Agreement dated as of August,
2000 (items (i) and (ii), collectively, the "Leases", and the current tenants
under such Leases, collectively, the "Tenants"), which modifications have not
been approved in advance by Buyer, which approval shall not be unreasonably
withheld, conditioned or delayed. Buyer hereby approves the terms of the second
amendment to the Lease by PE Corporation (NY), in the form which was delivered
to Xxxxx X. Xxxxxx by Xxxxxx Xxxxx under cover of e-mail, on or about September
5, 2002, and, provided there has been no material change to such proposed
amendment from such form.
2.2.5 Tenant Estoppels. Seller shall have delivered estoppel
certificates from each of the Tenants, dated during the Contingency Period, for
the Leases in substantially the same form as the form estoppel attached to each
Tenant's Lease, with no exceptions shown thereon, and with no assertions therein
of any default by Seller under the relevant Tenant's Lease.
2.2.6 Seller Financial Condition. There shall have been no
general assignment by Seller for the benefit of creditors, or the taking of any
corporate action in furtherance of bankruptcy or dissolution whether or not
there exists any proceeding under an insolvency or bankruptcy law, or the filing
by or against Seller of any proceeding under an insolvency or bankruptcy law, or
any execution or other judicially authorized seizure of any of Seller's assets.
2.3 Approval or Disapproval of Put Conditions. In the event that
during the Contingency Period, Buyer determines that any of the Put Conditions
are not met, Buyer shall have the right on or before 5:00 p.m. (Pacific Time) to
deliver notice to Seller of such failure (the "Failure of Condition Notice").
Any Failure of Condition Notice shall specify with reasonable particularity
which of the Put Conditions are unsatisfied and the curative action by Seller,
if any, needed to satisfy the particular Put Conditions(s). If Buyer approves or
otherwise waives in writing all of the Put Conditions (the
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"Approval Notice"), by timely delivering to Seller the Approval Notice, the
parties shall proceed with this transaction and the Closing. Failure by Buyer to
notify Seller of its approval or disapproval the Put Condition within the
specified time period set forth herein, shall be deemed an approval by Buyer of
all such matters, in which event such the Put Conditions shall be conclusively
deemed to be satisfied and approved. If Buyer delivers to Seller the Approval
Notice prior to 5:00 p.m. (Pacific Time) on the Approval Date or if the Put
Conditions are deemed approved pursuant to this Section 2.2.1, the Deposit shall
become non-refundable to Buyer.
2.4 Seller Cure; Conditions Notice. Seller shall have three (3)
business days after Buyer has delivered to Seller the Buyer's Failure of
Condition Notice to notify Buyer in writing of Seller's election either to (a)
take such actions as may be necessary to cure such matters to Buyer's reasonable
satisfaction prior to the date of Closing, or (b) advise Buyer that Seller will
not cure such matters (the "Seller's Conditions Notice"). If Seller elects not
to cure such matters, then within two (2) business days after Buyer's receipt of
the Seller's Conditions Notice, Buyer, at its sole option, may elect to do any
of the following: (1) Buyer may elect to terminate this Agreement by delivering
written notice thereof to Seller, in which event Seller shall promptly cause the
return to Buyer of the Deposit, and the parties shall have no further
obligations hereunder except for Buyer's surviving obligations and Seller's
surviving obligations; (2) Buyer may elect to waive such Put Condition and
proceed to Closing. If Seller elects to cure such matters as set forth in the
Failure of Condition Notice, Seller shall promptly take any and all actions as
may be necessary to cure same and the date of the Closing may be extended for a
period of time reasonably acceptable to both Seller and Buyer, not to exceed
thirty (30) days, to enable Seller to accomplish same.
3. Closing Conditions.
3.1 Conditions Precedent to Buyer's Obligations. Except as
otherwise expressly indicated, unless all the following conditions are timely
satisfied (or waived by Buyer in its sole discretion), as evidenced by delivery
of written notice thereof to Seller, then a condition precedent to Buyer's
obligations under this Agreement shall have failed and this Agreement shall
terminate without either party having any further rights or obligations
hereunder, except as set forth in Section 13.1, below, and except those which by
their respective terms survive the termination of this Agreement, and Buyer
shall receive a full refund of the Deposit.
3.1.1 Seller's Delivery of Closing Documents. Each of the
documents required to be delivered by Seller pursuant to Section 5.2 shall have
been timely delivered as provided therein.
3.1.2 Delivery of Title Policy. At the Closing, if Buyer has
timely delivered to the Title Company an ALTA Survey in insurable form
reasonably acceptable to the Title Company, the Title Company shall be
irrevocably committed to issue to Buyer the ALTA Policy (defined below).
Alternatively, if Buyer has not timely delivered to the Title Company an ALTA
Survey in insurable form reasonably acceptable to the Title Company, the Title
Company shall be irrevocably committed to issue to Buyer the CLTA Title Policy
(defined below). The ALTA Policy or the CLTA Title Policy, as the case may be,
shall be subject only to (i) the exceptions listed on Exhibit B to this
Agreement; (ii) matters of title respecting the Real Property approved by Buyer
pursuant to the provisions of this Agreement; and (iii) matters affecting the
condition of title to the Real Property created or permitted with the written
consent of Buyer or its agents, representatives, consultants or contractors
(collectively, the "Permitted Exceptions").
3.1.3 Representations, Warranties and Covenants of Seller.
Seller shall have duly performed each and every covenant and agreement to be
performed by Seller hereunder by the time and in the manner required by the
terms of this Agreement, and Seller's representations and warranties shall be
true and correct in all material respects as of the date hereof and as of the
Closing Date.
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3.2 Conditions Precedent to Seller's Obligations; Contingencies.
Except as otherwise expressly indicated, unless all the following conditions are
timely satisfied (or waived by Seller in its sole discretion), as evidenced by
delivery of written notice thereof to Buyer, then a condition precedent to
Seller's obligations under this Agreement shall have failed and this Agreement
shall terminate without either party having any further rights or obligations
hereunder except those which by their respective terms survive the termination
of this Agreement.
3.2.1 Delivery of Funds. Not later than one (1) Business Day
prior to the Closing Date, Buyer shall have delivered the balance of the
Purchase Price to Escrow Holder plus the costs, expenses and prorations required
to be paid by Buyer hereunder.
3.2.2 Buyer's Delivery of Closing Documents. Each of the
documents required to be delivered by Buyer pursuant to Section 5.3 shall have
been timely delivered as provided therein.
3.2.3 Representations, Warranties and Covenants of Buyer.
Buyer shall have duly performed each and every covenant and agreement to be
performed by Buyer hereunder by the time and in the manner required by the terms
of this Agreement, and Buyer's representations and warranties shall be true and
correct in all material respects as of the date hereof and as of the Closing
Date.
3.2.4 Put Conditions. Each of the Put Conditions shall be
true, or waived by Buyer in writing, as of the Closing Date.
4. Failure of Conditions to Close of Escrow. If any of the conditions
set forth in Sections 2 or 3 are not timely satisfied or waived (by the party
entitled to waive such condition), for a reason other than the default of Buyer
or Seller under this Agreement, then (i) this Agreement, the Escrow and the
rights and obligations of Buyer and Seller shall terminate, and the parties
shall have no further obligations hereunder except for Buyer's surviving
obligations and Seller's surviving obligations, except as otherwise provided
herein; and (ii) Escrow Holder is hereby instructed to promptly return to Seller
and Buyer all funds and documents deposited by them, respectively, into Escrow
which are held by Escrow Holder on the date of said termination; and (iii) the
cancellation charges required to be paid by and to Escrow Holder and the Title
Company shall be borne one-half (1/2) by Seller and one-half (1/2) by Buyer and
all other charges shall be borne by the party incurring same. Notwithstanding
anything to the contrary contained in this Agreement, if this Agreement
terminates for failure of a Put Condition or for any other reason, within ten
(10) days after such termination Buyer shall deliver to Seller a copy of all
materials, tests, audits, surveys, reports, studies and the results of any and
all investigations and inspections conducted by Buyer (excluding any proprietary
materials) (collectively, the "Buyer's Documents") and Buyer shall also return
to Seller any and all documents, leases, agreements, reports and other materials
given to Buyer by or on behalf of Seller (collectively, the "Seller's
Documents"). The foregoing covenants of Buyer shall survive any such termination
of this Agreement.
III
CLOSING, ESCROW AND TITLE
5. Closing; Deliveries to Escrow Holder.
5.1 Closing. The Closing shall occur through Escrow on the Closing
Date.
5.2 Seller's Deliveries to Escrow Holder. By the Closing Date,
Seller shall deliver to Escrow Holder:
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5.2.1 A grant deed ("Deed"), duly executed by Seller and
acknowledged in the form contained in Exhibit "E" attached hereto;
5.2.2 A Tenant Lease Assignment ("Tenant Lease Assignment"),
duly executed by Seller in the form of, and upon terms substantially similar to
those contained in, Exhibit "F" attached hereto;
5.2.3 An assignment and xxxx of sale ("General Assignment"),
duly executed by Seller in the form of, and upon the terms contained in, Exhibit
"G" attached hereto;
5.2.4 A transferor's certification of non-foreign status
("FIRPTA Certificate") duly executed by Seller in the form of, and upon the
terms contained in, Exhibit "H" attached hereto, provided if Seller is unable to
deliver such statement, Seller shall authorize Escrow Holder to withhold all
appropriate amounts as required by law;
5.2.5 A letter to each of the Tenants ("Tenant Notification
Letter"), duly executed by Seller and dated as of the Closing Date, in the form
of, and upon terms substantially similar to those contained in, Exhibit "I"
attached hereto;
5.2.6 Such proof of Seller's authority and authorization to
enter into this Agreement and consummate the transaction contemplated hereby,
and such proof of the power and authority of the individual(s) executing and/or
delivering any instruments, documents or certificates on behalf of Seller to act
for and bind Seller as may be reasonably required by Title Company;
5.2.7 A California Form 597-W duly completed and executed by
Seller, stating that Seller is not an out-of-state resident, provided if Seller
is unable to deliver such statement, Seller shall authorize Escrow Holder to
withhold all appropriate amounts as required by law.
5.2.8 A lease (the "Lease-Back Lease") in the form of Exhibit
C to the Participation Agreement, duly executed by Seller, which (i)
notwithstanding anything to the contrary in the Lease-Back Lease, incorporates
into the Seller's premises thereunder all of the rentable area of the
Improvements which is not then subject to the Leases (with appropriate
adjustments to the terms and conditions of the Lease-Back Lease as necessary to
change the rentable square footage of the "Premises" currently set forth in the
Lease), and (ii) which shall have a "Commencement Date" (to be inserted into the
Lease-Back Lease) which is the same date as the Closing.
5.2.9 A letter of credit (the "Letter of Credit") in favor of
Buyer, in the form and amount required by the terms of the Lease Back Lease.
5.2.10 Such other documents and instruments as may be
reasonably required by Title Company to consummate the transactions contemplated
herein.
5.3 Buyer's Deliveries to Escrow Holder. By the Closing Date,
Buyer shall deliver to Escrow Holder the following instruments and documents:
5.3.1 The Purchase Price in accordance with Section 1;
5.3.2 The Tenant Lease Assignment duly executed by Buyer;
5.3.3 The General Assignment duly executed by Buyer;
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5.3.4 The amount due to Seller, if any, after the prorations
are computed in accordance with Section 7; and
5.3.5 A completed Preliminary Change of Ownership Report
("PCOR") duly executed by Buyer.
5.3.6 Such proof of Buyer's authority and authorization to
enter into this Agreement and consummate the transaction contemplated hereby,
and such proof of the power and authority of the individual(s) executing and/or
delivering any instruments, documents or certificates on behalf of Buyer to act
for and bind Buyer as may be reasonably required by Title Company;
5.3.7 The Lease-Back Lease duly executed by Buyer.
5.3.8 Such other documents and instruments as may be
reasonably required by the Title Company to consummate the transaction
contemplated herein.
6. Costs and Expenses. If all conditions set forth in Sections 3.1 and
3.2 hereof have been satisfied or waived, the transaction contemplated by this
Agreement shall be closed and consummated. At Closing, Buyer shall obtain from
the Title Company a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price insuring fee simple title to the Property in Buyer (the "CLTA
Title Policy"). Buyer may elect to cause the Title Company to issue an ALTA
Owner's Policy of Title Insurance (Form 1992) and if Buyer so elects in writing,
Buyer shall timely provide the Title Company with an insurable ALTA Survey of
the Property (and as is reasonably acceptable to the Title Company), at Buyer's
sole cost and expense (the "ALTA Policy"). At Closing, Buyer shall pay the
premium charged by the Title Company for the CLTA Title Policy, and if Buyer so
elects, any and all costs and incremental premiums or other charges related to
the ALTA Policy (including all endorsements thereto). In addition, at Closing:
(i) Seller shall pay (A) all documentary transfer taxes, (B) one-half (1/2) of
all escrow fees and costs, and (C) Seller's share of prorations, (ii) Buyer
shall pay (A) any document recording charges, (B) one-half (1/2) of all escrow
fees and costs, (C) Buyer's share of prorations; and (iii) Buyer and Seller
shall each pay all legal and professional fees and fees of other consultants
incurred by them, respectively. All other costs and expenses shall be allocated
between Buyer and Seller in accordance with the customary practice in San Mateo
County.
7. Prorations. Except as otherwise indicated, rentals, revenues, and
other income, if any, from the Property, and real property taxes and operating
expenses, if any, affecting the Property shall be prorated on an accrual basis
as of 11:59 p.m. on the day preceding the Closing Date, on the basis of a
365-day year, and in accordance with the following provisions.
7.1 Rentals. At Closing, all rents actually paid and collected,
and any other charges owing and which have been collected by Seller for or in
respect of the month in which the Closing occurs shall be prorated as of and
through the Closing Date on the basis of a 365-day year, and the prorated amount
attributable to the period following the Closing shall either be paid to Buyer
at the Closing or credited against the Purchase Price, at Seller's option. Any
common area maintenance expenses or other operating cost pass throughs payable
by the Tenants under the Leases on an estimated basis (collectively, the "Tenant
Charges") shall be reconciled against actual charges and expenses as of and at
the Closing, to the extent then possible, and Seller shall provide a proposed
reconciliation for Buyer's approval. Seller shall have a period of sixty (60)
days following the actual Closing Date to provide Buyer with a final
reconciliation of Tenant Charges. If the final reconciliation, as approved by
Buyer, shows that Seller owes Buyer additional sums, Seller shall deliver such
amount to Buyer together with the delivery of the final reconciliation of the
Tenant Charges. If the final reconciliation, as approved by Buyer, shows that
Buyer owes Seller additional sums, Buyer shall pay such amount to Seller within
ten (10) days after Buyer's receipt of the final reconciliation.
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Other than as set forth above, there shall not be any further reconciliation of
such Tenant Charges after the final reconciliation thereof, the proration of
such Tenant Charges pursuant to the final reconciliation being conclusively
presumed to be accurate. After the final reconciliation of the Tenant Charges is
made by and between the parties, Buyer shall be solely liable and responsible to
the tenants for such reconciliation of Tenant Charges under the Leases. The
foregoing covenants made by the parties with respect to the final reconciliation
of the Tenant Charges shall survive the Closing.
7.2 Rent Arrearages. Delinquent rent and Tenant Charges shall be
prorated between Buyer and Seller as of and through the Closing Date upon
receipt by Buyer. Buyer shall have the right, but not the obligation, to collect
any delinquent or other rental and reimbursable Tenant Charges and other expense
arrearages attributable to the period prior to the Closing, provided that Buyer
agrees to send invoices to Tenants for delinquent rent on a monthly basis for
three (3) months following the Closing Date. With respect to any rent or Tenant
Charges arrears arising under any of the Leases, Seller shall have the right to
attempt to collect such pre-closing delinquent rental obligations (including
without limitation, all Tenant Charges) and Buyer will cooperate with Seller in
such regard, at no cost to Buyer, provided that Buyer shall not be required to
declare a default against such tenants under such Leases for such pre-closing
delinquent rental obligations (including without limitation, all taxes and
Tenant Charges). Notwithstanding the foregoing, after the Closing Seller shall
not bring an action against any tenant under any of the Leases while such
tenants are tenants of any portion of the Property. After deduction of Buyer's
actual out-of-pocket costs of collection (including reasonable attorneys' fees)
Buyer shall promptly account to Seller and shall immediately reimburse Seller
for all delinquent rent and Tenant Charges received by Buyer and attributable to
the period prior to the Closing Date. Buyer shall remit any amounts to which
Seller is entitled in accordance with this Section 7.2 to Seller immediately
upon receipt. If either Buyer or Seller receives any revenues attributable to
the period during which it is not the owner of the Property, said party shall
promptly forward such amounts to the other party (if such revenues are only
partially attributable to the period during which said party is not the owner of
the Property, the amount paid to the other party shall be based upon proration
as of the Closing Date as set forth above). The provisions of this Section 7.2
shall survive the Closing.
7.3 Property Taxes. To the extent not paid directly by any Tenants
of the Property or reimbursed by Tenants as part of Tenant Charges, all real
property taxes on the Property shall be prorated on an accrual basis so that
Seller pays all amounts that relate to the period prior to the Closing Date,
regardless of when such sums are billed, due or payable, and Buyer pays all
amounts relating to the period after the Closing Date.
7.4 Utilities. Except to the extent payable by Tenants as part of
Tenant Charges, all utility charges and other expenses incurred in the ordinary
course of managing and operating the Property disclosed in the Operating
Statements and not covered elsewhere in this Section 7 shall be prorated on an
accrual basis as of the Closing Date.
7.5 Leasing Commissions and Monetary Concessions. Seller shall pay
and perform all leasing commissions and other monetary and other concessions,
including improvement allowances and improvement work which relate to any Tenant
Leases, including any renewals, extensions or expansions related thereto,
executed or exercised, as applicable, before the Agreement Date, and Buyer shall
pay all leasing commissions and other monetary and other concessions, including
improvement allowances and improvement work, which relate to any Tenant Leases,
including any renewals, extensions or expansions related thereto, executed or
exercised, as applicable, from and after the Agreement Date, and, if applicable,
approved by Buyer pursuant to Section 11.5 below.
7.6 Tenant Deposits. Buyer shall be credited with an amount equal
to all security deposits, prepaid rentals, cleaning fees and other deposits
which have not been previously applied by
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Seller in accordance with any Lease, plus any interest accrued thereon, paid by
Tenants and received by Seller ("Tenant Deposits"). In addition, Seller shall,
at Seller's sole cost, take all actions required in order to transfer to Buyer
as of the Closing any letters of credit or other non-cash security held by
Seller under any Lease.
7.7 Service Contracts. Amounts payable under Approved
Contracts shall be prorated on an accrual basis as of the Closing Date.
Except as set forth above, all prorations shall be made in accordance with
customary practice in San Mateo County. If and to the extent known and agreed
upon as of the Closing Date, prorations shall be paid by Buyer to Seller (if the
prorations result in a net credit to the Seller) or by Seller to Buyer (if the
prorations result in a net credit to the Buyer), by increasing or reducing the
cash to be paid by Buyer at the Closing Date. Any such prorations not determined
or not agreed upon as of the Closing Date shall be paid by Buyer to Seller, or
by Seller to Buyer, as the case may be, in cash as soon as practicable following
the Closing Date.
8. Disbursements and Other Actions by Escrow Holder and Seller.
8.1 Escrow Holder's Disbursements and Other Actions. Upon the
Closing Date, Escrow Holder shall (A) deliver a completed PCOR to the "County
Recorder" and cause the Deed (with documentary transfer tax information to be
affixed after recording) and any other documents which the parties hereto may
mutually direct to be recorded in the Official Records of the County and obtain
conformed copies thereof for distribution to Buyer and Seller, (B) direct the
Title Company to issue the Title Policy to Buyer, (C) disburse the Purchase
Price, after adjustment pursuant to the terms of this Agreement for expenses and
prorations, to Seller and deliver the balance of the funds placed in escrow by
Buyer, if any, to Buyer, (D) disburse to Buyer a conformed copy of the Deed and
executed originals of the Tenant Lease Assignment, Assignment of Contracts, the
General Assignment, the FIRPTA Certificate, the Form 590, the Tenant
Notification Letters and change of address notices duly executed by Seller and
any other documents (or copies thereof) deposited into Escrow by Seller pursuant
hereto, and (E) disburse to Seller a conformed copy of the Deed and executed
originals of the Tenant Lease Assignment and the General Assignment.
IV
REPRESENTATIONS AND WARRANTIES
9. Seller's Representations and Warranties. Seller represents to Buyer
the following matters which shall be true and correct as of the date hereof and
as of the Closing Date. Buyer and Seller each specifically acknowledge and agree
that all references in this Agreement, in any of the exhibits attached hereto
and in any document, certificate or statement to be delivered by Seller to Buyer
hereunder to the phrases "to Seller's actual knowledge," or "known to Seller"
(whether used in the phrase "to the actual knowledge of Seller," "actually known
to Seller," "Seller's knowledge," or in similar or other contexts) (1) shall
mean the actual (not constructive or imputed) personal knowledge of Xxx Xxxxxx
and Xxxxxx Xxxxx (collectively, the "Seller's Personnel"); (2) shall in no case
mean or refer to the actual or constructive knowledge of any other employee,
partner, member, officer, director, agent, trustee or member, partner,
representative or employee of a partner, member, officer, director, agent or
other representative of Seller or any investment advisor, attorney, management
company, contractor or representative of Seller (together with Seller's
Personnel, the "Seller Representatives"); and (3) shall in no event or
circumstance impose upon Seller or any of the Seller Representatives any duty or
obligation to verify, inquire or make any independent inquiry or investigation
of any such representation, warranty or statement, or to otherwise investigate
the facts or circumstances relating or otherwise pertinent thereto. Buyer
further acknowledges and agrees that
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none of the Seller Representatives shall be personally liable, or otherwise have
any personal liability, under or in connection with this Agreement, including
without limitation, in connection with any of the representations, warranties or
statements made in connection with, or pursuant to, this Agreement. All of
Seller's representations and warranties set forth in this Agreement shall
survive the Closing for a period of twelve (12) months, and, if Buyer shall have
made a claim against Seller with respect to any such representation or warranty
during such twelve (12) month period, shall survive thereafter until the
resolution of such claim.
9.1 Authority. Seller is a corporation, duly formed, validly
existing and in good standing under the laws of the State of Delaware and
authorized to do business in the State of California. Seller has the legal
power, right and authority to enter into this Agreement and the instruments
referenced herein, and to consummate the transaction contemplated hereby. All
requisite corporate action has been taken by Seller in connection with the
entering into this Agreement and the instruments referenced herein, and the
consummation of the transaction contemplated hereby. No consent of any partner,
shareholder, creditor, investor, judicial or administrative body, Authority or
other party is required. The individuals executing this Agreement and the
instruments referenced herein on behalf of Seller have the legal power, right,
and actual authority to bind Seller to the terms and conditions hereof and
thereof. This Agreement and all documents required hereby to be executed by
Seller are and shall be valid and legally binding obligations of Seller.
9.2 Adverse Claims; Bankruptcy. Seller has not received written
notice of, and to the best of Seller's actual knowledge without inquiry, there
are no pending or threatened (as evidenced in a writing delivered to Seller)
actions, suits, arbitrations, claims or proceedings, at law or in equity,
materially affecting the Property except as otherwise disclosed in writing by
Seller to Buyer following the date hereof. No attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or threatened in writing against
Seller or, to the best of Seller's knowledge, any general partners of Seller,
nor are any of such proceedings contemplated by Seller or, to the best of
Seller's knowledge, any general partner of Seller.
9.3 Default Notices and Governmental Regulations. Seller has
received no notice of any violations of laws, ordinances, rules, requirements,
resolutions, policy statements and regulations of the Authorities relating to
the Project (the "Governmental Regulations"), which violations, if proven, would
materially impair the value, utility or operation of the Property. Seller has
received no notice of any proceeding by any Authority with respect to the
presence of any Hazardous Materials, which, as used herein shall mean any toxic,
hazardous or radioactive substances, materials, or waste, including but not
limited to, any radioactive, hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority, the State of
California or the United States Government, any material or substance which is
defined as a "hazardous waste," "extremely hazardous waste" or "restricted
hazardous waste" or "hazardous substance" under any state or federal law,
asbestos, lead, and/or petroleum (the "Hazardous Materials").
9.4 Service Contracts. To Seller's actual knowledge, there are no
service or maintenance contracts, warranties, guarantees, listing agreements,
parking agreements or bonds (whether oral or written) which will be obligations
of the Buyer after Closing, other than the Approved Contracts.
9.5 Tenant Leases. To the best of Seller's knowledge, there are no
leases, occupancies or tenancies in effect pertaining to the Property, to which
Seller is a party or to which Seller has consented in writing, except the Leases
delivered to Buyer by Seller pursuant to this Agreement. Seller has not received
any written notice of, and to the best of Seller's knowledge, there are no
uncured defaults under the Leases, and to the best of Seller's knowledge, no
Tenant has any defense to, offsets or claims against rents payable or any other
obligations under its Lease. There are no leases, occupancies or
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tenancies in effect pertaining to the Project, to which Seller is a party or to
which Seller has consented in writing, except the Leases delivered to Buyer by
Seller pursuant to this Agreement, and Seller has no knowledge of any oral
agreements made by Seller with anyone, including Tenants, with respect to the
occupancy of the Project.
10. Buyer's Representations and Warranties. Buyer represents to Seller
the following matters which shall be true and correct as of the date hereof and,
except as otherwise disclosed in writing by Buyer to Seller, shall be true and
correct as of the Closing Date. Buyer hereby represents and warrants to Seller
as follows: Buyer is a __________, duly formed, validly existing, and in good
standing under the laws of the State of __________ (and qualified to do business
in the State of California), has the legal power, right and authority to enter
into this Agreement and the instruments referenced herein, and to consummate the
transaction contemplated hereby. All requisite action (corporate, trust,
partnership or otherwise) has been taken by Buyer in connection with the
entering into this Agreement and the instruments referenced herein, and the
consummation of the transaction contemplated hereby. No consent of any partner,
shareholder, creditor, investor, judicial or administrative body, Authority or
other party is required. The individuals executing this Agreement and the
instruments referenced herein on behalf of Buyer have the legal power, right and
actual authority to bind Buyer to the terms and conditions hereof and thereof.
This Agreement and all documents required hereby to be executed by Buyer are and
shall be valid, legally binding obligations of the Buyer. Buyer hereby further
represents and warrants to Seller that (i) Buyer is not presently the subject of
a bankruptcy, insolvency or probate proceedings and Buyer does not anticipate
nor intend to file or cause to be filed any bankruptcy or insolvency proceeding
involving Buyer or Buyer's assets during the pendency of this Agreement, (ii)
Buyer is a sophisticated investor with substantial experience in investing in
assets of the same type as the Property and has such knowledge and experience in
financial and business matters that Buyer is capable of evaluating the merits
and risks of an investment in the Property, (iii) Buyer is represented by
competent counsel, and (iv) Buyer shall furnish all of the funds for the
purchase of the Property (other than funds supplied by institutional lenders
which will hold valid mortgage liens against the Property) and such funds will
not be from sources of funds or properties derived from any unlawful activity.
The foregoing representations and warranties of Buyer shall survive the Closing
and shall not be merged with the Deed.
10.1 Sale "As Is". Except with respect to the representations and
warranties of Seller set forth in Paragraph 9, Buyer has not relied upon and
will not rely upon, either directly or indirectly, any representation or
warranty of Seller, nor any member partner, officer, employee, attorney,
property manager, agent or broker of Seller, and acknowledges that no such
representations have been made. Except as set forth in Paragraph 9, or as
otherwise expressly set forth in this Agreement, Buyer further acknowledges and
agrees that Seller is not under any duty to make any inquiry regarding any
matter that may or may not be known to the Seller or any member, partner,
officer, employee, attorney, property manager, agent or broker of Seller. Except
with respect to the representations and warranties of Seller set forth in
Paragraph 9, or as otherwise expressly set forth in this Agreement, Buyer is
relying solely upon Buyer's own, independent inspection, investigation and
analysis of the Property as Buyer deems necessary or appropriate in so acquiring
the Property from Seller, including, without limitation, (i) the quality,
nature, habitability, merchantability, use, operation, value, marketability,
adequacy or physical condition of the Property or any aspect or portion thereof,
including, without limitation, structural elements, foundation, roof,
appurtenances, access, landscaping, parking facilities, electrical, mechanical,
HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils,
geology and groundwater, or whether the Real Property lies within a special
flood hazard area, an area of potential flooding, a very high fire hazard
severity zone, a wildland fire area, an earthquake fault zone or a seismic
hazard zone, (ii) except with respect to the Space Certificate, the dimensions
or lot size of the Real Property or the square footage of the Improvements
thereon or of any tenant space therein, (iii) the development or income
potential, or rights of or relating to, the Real Property or its use,
habitability, merchantability, or fitness, or the suitability, value or adequacy
of such Real Property for any particular purpose, (iv) the zoning or other legal
status of the Real
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Property or any other public or private restrictions on the use of the Real
Property, (v) the compliance of the Real Property or its operation with any
applicable codes, laws, regulations, statutes, ordinances, covenants, conditions
and restrictions of any governmental or regulatory agency or authority or of any
other person or entity (including, without limitation, the American with
Disabilities Act), (vi) the ability of Buyer to obtain any necessary
governmental approvals, licenses or permits for Buyer's intended use or
development of the Real Property, (vii) the presence or absence of Hazardous
Materials on, in, under, above or about the Real Property or any adjoining or
neighboring property, (viii) the quality of any labor and materials used in any
Improvements, (ix) the condition of title to the Real Property, (x) the Leases,
Contracts or any other agreements affecting the Real Property or the intentions
of any party with respect to the negotiation and/or execution of any lease or
contract with respect to the Real Property, (xi) Seller's ownership of the
Property or any portion thereof, or (xii) the economics of, or the income and
expenses, revenue or expense projections or other financial matters, relating to
the operation of the Real Property. Except with respect to the representations
and warranties of Seller set forth in Paragraph 9, or as otherwise expressly set
forth in this Agreement, Buyer shall assume the risk that adverse matters,
including, but not limited to, adverse physical and environmental conditions,
may not have been revealed by Buyer's inspections and investigations. Except
with respect to the representations and warranties of Seller set forth in
Paragraph 9, or as otherwise expressly set forth in this Agreement, Buyer
acknowledges and agrees that upon Closing, Seller shall sell and convey to Buyer
and Buyer shall accept the Property "AS IS, WHERE IS," "WITH ALL FAULTS," and
Buyer shall have no right to rely on, and Seller shall have no liability with
respect to any representation or warranty (including any future certification or
statement, actually or deemed made, as to representations or warranties which
Buyer actually knows to be inaccurate or untrue at the time such representation
or warranty is given, or deemed given or made. Seller is not liable or bound in
any manner by any oral or written statements, representations, or information
pertaining to the Property furnished by any real estate broker, agent, employee,
servant or other person. Without limiting the foregoing, Seller shall have no
liability to Buyer with respect to (A) the potential for further development of
the Property, (B) the existence of vested land use, zoning or building
entitlements affecting the Property, (C) the merchantability of the Property or
fitness of the Property for any particular purpose (Buyer affirming that Buyer
has not relied on Seller's skill or judgment to select or furnish the Property
for any particular purpose, and that Seller makes no warranty that the Property
is fit for any particular purpose), (D) tax consequences, (E) the content or
accuracy of any report, study, opinion or conclusion of any soils, environmental
or other engineer or other person or entity who has examined the Property or any
aspect thereof, (F) the content or accuracy of any information released to Buyer
by an engineer or planner in connection with the development of the Property, or
(G) the content or accuracy of the Diligence Documents and materials and any
other information given to Buyer by Seller with respect to the Property. The
terms and conditions of this Paragraph 10.1 shall expressly survive the Closing
and shall not be merged with the Deed. Buyer has fully reviewed the disclaimers
and waivers set forth in this Agreement with its counsel and understands the
significance and effect thereof. Buyer acknowledges and agrees that the
disclaimers and other agreements set forth in this Agreement are an integral
part of this Agreement and that Seller would not have agreed to sell the
Property to Buyer for the Purchase Price without this disclaimer and other
agreements set forth in this Agreement.
Buyer's Initials: _
10.2 Limited Liability. Buyer on its own behalf and on behalf of
its agents, members, partners, employees, representatives, related and
affiliated entities, successors and assigns (collectively, the "Buyer Parties")
hereby agrees that in no event or circumstance shall any of the members,
partners, employees, representatives, officers, directors, agents, property
management company, affiliated or related entities of Seller have any personal
liability under this Agreement, or to any of Buyer's creditors, or to any other
party in connection with the Property.
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V
OPERATIONS DURING ESCROW
11. Seller's Covenants Regarding Operation of the Property Through the
Closing Date. From and after the Execution Date, through and including the
Closing Date, Seller, at its sole cost and expense, shall:
11.1 Keep all existing insurance policies affecting the Property
in full force and effect;
11.2 Maintain the Property in such condition so that the Property
shall be in substantially the same condition on the Closing Date as on the
Agreement Date, reasonable wear and tear and the occurrence of any damage or
destruction to the Property by casualty or other causes or events beyond the
control of Seller excepted;
11.3 Not extend, renew, modify or replace any of the Approved
Contracts without the prior written consent of Buyer, which consent (A) may not
be unreasonably withheld, conditioned or delayed by Buyer prior to the
expiration of the Contingency Period, (B) may be withheld in Buyer's sole
discretion following the expiration of the Contingency Period, and Seller shall
cancel all Disapproved Contracts as of the Closing Date;
11.4 Not, without the prior written consent of Buyer, subject the
Property to any additional liens, encumbrances, covenants, conditions,
easements, rights of way after the date of this Agreement;
11.5 Not make any alterations to the Property, except (a) to the
extent required under existing Leases, or (b) if commenced prior to the opening
of Escrow;
11.6 Not modify, extend, terminate or otherwise change any material
terms, covenants or conditions of the Tenant Leases or enter into new leases
affecting the Property without the prior written consent of Buyer, which consent
(A) may not be unreasonably withheld, conditioned or delayed by Buyer prior to
the expiration of the Contingency Period, (B) may be withheld in Buyer's sole
discretion following the expiration of the Contingency Period. In the event
Buyer has not responded to Seller's written request for consent within five (5)
business days after Seller's delivery to Buyer of all pertinent information
concerning such lease, obligation or agreement, Buyer shall be deemed to have
consented thereto;
11.7 Not accept from any of the Tenants payment of rent more than
one month in advance (Seller shall be permitted to apply any security deposit to
rent or any other sum due from, or on account of any default by, any Tenant
subject to and in accordance with the terms of the applicable Tenant Lease); and
11.8 Promptly notify Buyer of any material change in any condition
with respect to the Property or of any event or circumstance which makes any
representation or warranty of Seller under this Agreement untrue or misleading
in any material respect.
12. Condemnation, Damage and Destruction.
12.1 Condemnation. If, prior to the Closing Date, any material
portion of the Real Property or any of the rentable square footage of the
Improvements is taken, by eminent domain or otherwise (or is the subject of a
pending, threatened or contemplated taking which has not been
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consummated), or if the access thereto or available parking area therefor is
reduced or restricted so that in all cases (i) more than twenty-five percent
(25%) the Property as it is currently used is no longer usable or is not in
compliance with zoning requirements or (ii) Tenants occupying not less than
twenty-five percent (25%) can terminate their Tenant Leases, Seller shall
immediately notify Buyer, in writing, of such fact. In such event, Buyer shall
have the option, in its sole discretion, to terminate this Agreement upon
written notice to Seller given not later than ten (10) days after receipt of
Seller's notice. If Buyer does not exercise this option to terminate this
Agreement, neither party shall have the right to terminate this Agreement, but
the Seller shall assign and turn over, and the Buyer shall be entitled to
receive and keep, all awards for the taking by eminent domain which accrue to
Seller for periods after the Closing Date less the costs incurred by Seller to
repair and restore the Property and to make it into an architectural whole, if
Seller completes such repair or restoration prior to Closing, and the parties
shall proceed to consummate the transaction contemplated by this Agreement
pursuant to the terms hereof, without modification of the terms of this
Agreement and without any reduction in the Purchase Price. Unless this Agreement
is terminated, Seller shall take no action with respect to any eminent domain
proceeding without obtaining Buyer's prior written consent.
12.2 Damage or Destruction. Prior to the Closing Date, and
notwithstanding the pendency of this Agreement, the entire risk of loss or
damage by earthquake, flood, landslide, fire or other casualty shall be borne
and assumed by Seller, except as otherwise provided in this Section. If, prior
to the Closing Date, any part of the Property is damaged or destroyed by
earthquake, flood, landslide, fire or other casualty, Seller shall immediately
notify Buyer, in writing, of such fact. If such damage or destruction is
"material", Buyer shall have the option to terminate this Agreement upon written
notice to the Seller given not later than ten (10) days after receipt of
Seller's notice. For purposes hereof, "material" shall be deemed to be (i) any
uninsured damage or destruction to the Property in excess of One Million and
No/100 Dollars ($1,000,000.00) or (ii) any insured damage or destruction (A)
where the cost of repair or replacement is estimated to be Two Million and
No/100 Dollars ($2,000,000.00) or more, or shall take more than one hundred
twenty (120) days to repair, in Buyer's good faith judgment, or (B) which would
allow any Tenant to terminate its Lease. If Buyer does not exercise this option
to terminate this Agreement, neither party shall have the right to terminate
this Agreement and Seller shall assign and turn over, and Buyer shall be
entitled to receive and keep, all insurance proceeds payable to it with respect
to such destruction (which shall then be repaired or not at Buyer's option and
cost), including any rent loss insurance applicable to periods after the Closing
Date, plus the Purchase Price shall be reduced by an amount equal to the
deductible amount with respect to the insurance and the parties shall proceed to
consummate the transaction contemplated by this Agreement pursuant to the terms
hereof without modification of the terms of this Agreement and without any
reduction in the Purchase Price. If Buyer does not elect to terminate this
Agreement by reason of any casualty, Buyer shall have the right to participate
in any adjustment of the insurance claim.
VI
RIGHTS AND REMEDIES
13. Legal and Equitable Enforcement of this Agreement.
13.1 Default by Seller. If the Close of Escrow and the consummation
of the transactions herein contemplated do not occur by reason of any default by
Seller, Buyer shall be entitled to terminate this Agreement and receive the
return of the Deposit, and/or to pursue any other remedy available to it at law
or in equity, including the specific performance of this Agreement, provided,
however, as a condition precedent to Buyer's right under this Section 13.1 to
obtain specific performance by Seller and to commence an action therefor and to
record a notice of lis pendens or other notice or filing in the county records,
Buyer shall have performed, or be in a position, ready, willing and able, as
required
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by law, to fully perform, all of its obligations under this Agreement,
including, without limitation, delivery to Escrow Holder of the balance of the
Purchase Price (as adjusted) pursuant to Section 7. In no event may Buyer seek,
and Buyer hereby waives and releases Seller from any claim for any consequential
damages, if either the transfer of the Property does not occur or if the
transfer of the Property does occur pursuant to an action for specific
performance.
13.2 DEFAULT BY BUYER. IF THE CLOSING AND THE CONSUMMATION OF THE
TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR ON OR BEFORE THE CLOSING DATE AS
HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER, BUYER AND SELLER AGREE THAT
IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH
SELLER MAY SUFFER. THEREFORE, BUYER AND SELLER HEREBY AGREE THAT A REASONABLE
ESTIMATE OF THE TOTAL DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER
DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE, AS
SELLER'S EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), AN AMOUNT EQUAL TO THE
DEPOSIT AND ALL INTEREST THEREON. SAID AMOUNT SHALL BE THE FULL, AGREED AND
LIQUIDATED DAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER, ALL OTHER CLAIMS
TO DAMAGES OR OTHER REMEDIES BEING HEREIN EXPRESSLY WAIVED BY SELLER. THE
PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT
IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA
CIVIL CODE SECTIONS 1671, 1676 AND 1677. BUYER AND SELLER HEREBY WAIVE THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON DEFAULT BY BUYER, THIS
AGREEMENT SHALL TERMINATE AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO
COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND/OR ESCROW HOLDER. NOTWITHSTANDING
THE FOREGOING, THE PROVISIONS OF THIS SECTION 13.2 SHALL NOT LIMIT BUYER'S
OBLIGATIONS UNDER SECTION 14.2 BELOW OR SELLER'S RIGHTS UNDER SECTION 14.8
BELOW.
________________ _________________
BUYER'S INITIALS SELLER'S INITIALS
14. Miscellaneous.
14.1 Notices. Unless otherwise expressly provided herein, all
notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered (including by means of professional
messenger service) or sent by facsimile (followed by delivery through any other
manner provided herein), registered or nationally recognized overnight courier
service, messenger service, or registered or certified mail, postage prepaid,
return receipt requested. All written communications in accordance with the
foregoing shall be deemed given (i) three (3) days after the date it is posted
if sent by mail, (ii) the date the telecopy is transmitted if transmitted by
3:00 p.m. Los Angeles time on a business day, or the next business day if
transmitted after 3:00 p.m. of a business day or on a non-business day, (iii)
the date the overnight courier delivery is made, or refused by the addressee, or
(iv) the date personal delivery is made, or refused by the addressee, at the
address set forth below the signature of the appropriate party. Notices of
change of address shall be given by written notice as described in this Section.
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14.2 Broker. Upon the Closing Date, Seller shall pay from funds
accruing to Seller through Escrow, any brokerage commission and fees owed to the
Broker(s) in connection with the transactions contemplated by this Agreement.
Seller represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no other broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement, or to
its knowledge is in any way connected with any of such transactions. If any such
claims for additional brokers' or finders' fees or commissions in connection
with the negotiation, execution or consummation of this Agreement, then Buyer
shall indemnify, save harmless and defend Seller from and against such claims if
they shall be based upon any statement, representation or agreement made by
Buyer, and Seller shall indemnify, save harmless and defend Buyer if such claims
shall be based upon any statement, representation or agreement made by Seller.
14.3 Assignment. Buyer shall have the right to assign this
Agreement at any time at Buyer's sole discretion to any entity which controls,
is controlled by, or is under common control with Buyer (an "Affiliate") and
Buyer may designate the Grantee of the Deed by notice in writing to Seller not
later than five (5) business days prior to the Closing Date provided any such
Assignee or Grantee assumes all of Buyer's obligations under this Agreement.
14.4 Partial Invalidity. If any term or provision of this Agreement
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each such term and provision of this Agreement shall be valid and be enforced to
the fullest extent permitted by law.
14.5 Waivers. No waiver of any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
14.6 Survival. Except as otherwise expressly provided herein, the
covenants, agreements, representations and warranties made herein shall not
survive the Closing Date for and shall merge into the Deed upon the recordation
thereof in the Official Records.
14.7 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the permitted successors and assigns of the
parties hereto.
14.8 Professional Fees. In the event of the bringing of any action
or suit by a party hereto against another party hereunder by reason of any
breach of any of the covenants, agreements or provisions on the part of the
other party arising out of this Agreement, then in that event the prevailing
party shall be entitled to have and recover from the other party all costs and
expenses of the action or suit, including actual attorneys' fees, accounting and
engineering fees, and any other professional fees resulting therefrom.
14.9 Entire Agreement. This Agreement (including all Exhibits
attached hereto) is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Agreement may not be
modified, changed, supplemented or terminated, nor may any obligations hereunder
be waived, except by written instrument signed by the party to be charged or by
its agent duly authorized in writing or as otherwise expressly permitted herein.
The parties do not intend to confer any benefit hereunder on any person, firm or
corporation other than the parties hereto.
-20-
14.10 Time of Essence. Seller and Buyer hereby acknowledge and agree
that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof and that failure to timely perform
any of the terms, conditions, obligations or provisions hereof by either party
shall constitute a material breach of and a non-curable default under this
Agreement by the party so failing to perform.
14.11 Construction. Headings at the beginning of each Section and
subparagraph are solely for the convenience of the parties and are not a part of
the Agreement. Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine and vice
versa. This Agreement shall not be construed as if it had been prepared by one
of the parties, but rather as if both parties had prepared the same. Unless
otherwise indicated, all references to Sections and subparagraphs are to this
Agreement. All exhibits referred to in this Agreement and the Glossary of Terms
are attached and incorporated by this reference. If the date on which Buyer or
Seller is required to take any action under the terms of this Agreement occurs
on a Saturday, Sunday or Federal or State Holiday, then, the action shall be
taken on the next succeeding business day.
14.12 Governing Law. The parties hereto acknowledge that this
Agreement has been negotiated and entered into in the State of California. The
parties hereto expressly agree that this Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the
State of California.
14.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which,
together, shall constitute one and the same instrument.
14.14 No Joint Venture. This Agreement shall not create a
partnership or joint venture relationship between Buyer and Seller.
14.15 Intentionally Omitted.
14.16 Required Actions of Buyer and Seller. Buyer and Seller agree
to execute all such instruments and documents and to take all actions pursuant
to the provisions hereof in order to consummate the purchase and sale herein
contemplated and shall use their commercially reasonable best efforts to
consummate the transaction contemplated by this Agreement in accordance with the
provisions hereof.
14.17 Indemnification.
14.17.1 Seller agrees to indemnify, protect, defend and hold
harmless Buyer and its respective nominees, successors, assigns, parent company
(if any), officers, directors, partners, agents, employees and beneficiaries
from any and all third-party liabilities, claims, causes of action, penalties,
demands and expenses, of any kind or nature whatsoever (including attorney's
fees and costs) arising out of, resulting from, or relating to, any breach by
Seller of the representations and warranties as set forth in Section 9 of this
Agreement.
14.17.2 Buyer agrees to indemnify and protect, defend and hold
harmless Seller and its respective nominees, successors, assigns, officers,
directors, partners, agents, employees and beneficiaries harmless from any and
all third-party liabilities, claims, causes of action, penalties, demands, and
expenses of any kind or nature whatsoever (including attorney's fees and costs)
arising out of, resulting from, or relating to, any breach by Buyer of the
representations and warranties set forth in Section 10 of this Agreement.
-21-
14.18 WAIVER OF JURY TRIAL. SELLER AND BUYER, TO THE EXTENT THEY MAY
LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO,
THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, SELLER AND BUYER HEREBY AGREE
THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR
THEIR RIGHT TO TRIAL BY JURY.
14.19 ARBITRATION OF DISPUTES. THE PARTIES HEREBY AGREE TO SUBMIT
ALL CONTROVERSIES, CLAIMS AND MATTERS OF DIFFERENCE ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY TO BINDING
ARBITRATION IN THE COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, IN ACCORDANCE
WITH THE RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION FROM TIME
TO TIME IN EFFECT (THE "RULES"). THIS SUBMISSION AND AGREEMENT TO ARBITRATE
SHALL BE MANDATORY, EXCLUSIVE AND SPECIFICALLY ENFORCEABLE. ALL REFERENCES IN
THIS AGREEMENT TO LITIGATION BETWEEN PURCHASER AND SELLER, SHALL BE GOVERNED BY
THE PROVISION OF THIS SECTION 14.20. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE FOLLOWING SHALL BE CONSIDERED CONTROVERSIES FOR THIS PURPOSE:
(i) ALL QUESTIONS RELATING TO THE BREACH OF ANY OBLIGATION,
WARRANTY, REPRESENTATION, COVENANT OR AGREEMENT HEREUNDER OR UNDER ANY EXHIBIT
HERETO AND ALL QUESTIONS RELATING TO THE CONSTRUCTION AND INTERPRETATION
THEREOF;
(ii) ALL QUESTIONS RELATING TO REPRESENTATIONS,
NEGOTIATIONS AND OTHER PROCEEDINGS LEADING TO THE EXECUTION HEREOF AND ALL
MODIFICATIONS OF THIS AGREEMENT OF EVERY NATURE AND DESCRIPTION;
(iii) FAILURE OF ANY PARTY TO DENY OR REJECT A CLAIM OR
DEMAND OF ANOTHER PARTY;
(iv) ALL QUESTIONS AS TO WHETHER THE RIGHT TO ARBITRATE
ANY QUESTIONS EXISTS OR AS TO THE EXISTENCE OF ANY AGREEMENT TO ARBITRATE; AND
(v) ALL ISSUES RAISED BY ANY SUBSEQUENT ALLEGED AMENDMENT
HERETO, WHETHER WRITTEN OR ORAL, UNLESS SUCH AMENDMENT EXPRESSLY CANCELS THIS
ARBITRATION PROVISION IN WRITING SIGNED BY ALL AFFECTED PARTIES HERETO.
THE PARTIES MAY AGREE ON A RETIRED JUDGE AS SOLE ARBITRATOR. IN THE
ABSENCE OF SUCH AGREEMENT, THERE SHALL BE THREE (3) ARBITRATORS, SELECTED IN
ACCORDANCE WITH THE RULES: ONE (1) ATTORNEY AND/OR RETIRED JUDGE, ONE (1)
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EXPERT IN COMMERCIAL MORTGAGE AND REAL ESTATE TRANSACTIONS, AND ONE (1)
CERTIFIED PUBLIC ACCOUNTANT. A DECISION AGREED ON BY TWO (2) OF THE ARBITRATORS
SHALL BE THE DECISION OF THE ARBITRATION PANEL; PROVIDED, HOWEVER, THAT IN THE
CASE OF MONETARY DAMAGES, IF THERE IS NO AGREEMENT OF TWO ARBITRATORS AS TO THE
AMOUNT OF THE AWARD, THEN THE FINAL AWARD OF THE ARBITRATION PANEL FOR THE
PURPOSE OF THIS AGREEMENT SHALL BE THE AMOUNT LEFT AFTER EXCLUDING THE HIGHEST
AND LOWEST AMOUNTS. THE PARTIES AGREE TO ABIDE BY ALL AWARDS RENDERED IN SUCH
PROCEEDINGS. ANY AWARD SHALL INCLUDE COSTS AND REASONABLE ATTORNEYS' FEES TO THE
SUCCESSFUL PARTY. SUCH AWARDS SHALL BE FINAL AND BINDING ON ALL PARTIES. THERE
SHALL BE NO APPEAL THEREFROM OTHER THAN FOR FRAUD OR MISCONDUCT. ALL AWARDS MAY
BE FILED WITH THE CLERK OF ONE OR MORE COURTS, STATE OR FEDERAL, HAVING
JURISDICTION OVER THE PARTY AGAINST WHOM SUCH AN AWARD IS RENDERED OR ITS
PROPERTY AS A BASIS OF JUDGMENT AND OF THE ISSUANCE OF AN ORDER AUTHORIZING
EXECUTION FOR COLLECTION. NOTHING IN THIS AGREEMENT AND/OR THE EXHIBITS HERETO
SHALL BE DEEMED TO PREVENT THE ARBITRATION PANEL FROM EXERCISING AUTHORITY TO
PERMIT EXERCISE BY A PARTY OF ITS LEGAL AND/OR EQUITABLE REMEDIES INCLUDING THE
RIGHT OF OFFSET. IT IS UNDERSTOOD BY THE PARITIES THAT THERE IS NOT INTENDED IN
THIS AGREEMENT OR ANY EXHIBIT HERETO THAT THERE BE A WAIVER OF A PARTY'S RIGHT
TO ANY REMEDY WHICH MAY BE ENFORCED THROUGH ARBITRATION, SPECIFICALLY INCLUDING,
WITHOUT LIMITATION, THE RIGHT OF SETOFF AND INJUNCTIVE RELIEF.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE
FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN
THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
_________________________ _________________________
SELLER'S INITIALS BUYER'S INITIALS
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year hereinabove written.
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"BUYER" "SELLER"
_________________________________, INKTOMI CORPORATION,
a _______________________________ a Delaware corporation
By:______________________________ By:___________________________________
Its:_____________________________ Its:______________________________
By:___________________________________
Its:______________________________
Address for notices: Address for notices:
c/o EOP Operating Limited Partnership Inktomi Corporation
0 Xxxxx Xxxxxxxxx Xxxxx 0000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000 Xxxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxxx, XX 00000-0000 Attention Xxxxx Xxxxxxxxx, with
Attention: Mr. Xxxxxx Xxxxxx copies, at the same address, to
Facsimile: (000) 000-0000 Xxxxxx Xxxxx, Esq.
with copies, at the same address, to: With copies to:
Chief Legal Counsel
Facsimile: (000) 000-0000 Crosby, Heafey, Xxxxx & May
Two Embarcadero Center
With copies to: Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx Facsimile No.: (000) 000-0000
1901 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
-24-
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Xxxxxx City, County of San Mateo,
State of California, described as follows:
PARCEL ONE:
Parcel I as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX-00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records, and further described as follows:
COMMENCING at a point on the Northwesterly line of State
Xxxxxxx Xxxxx 00 (200 feet wide) being the Southwesterly
corner of parcel designated "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967, in Book 5306 of
Official Records at page 220, Records of San Mateo County;
thence along said Northwesterly line, North 42 degrees 11' 46"
East, 1024.01 feet to the true point of beginning;
Thence North 47 degrees 48' 14" West, 47.50
feet;
Thence North 42 degrees 11' 46" East, 55.87
feet;
Thence North 19 degrees 14' 15" West, 225.61 feet to a point
on a non-tangent curve having a radius of 671.00 feet, from
which point a radial line bears North 10 degrees 21' 52" West;
Thence Northeasterly, along said curve to the left through a
central angle of 8 degrees 52' 23", an arc distance of 103.91
feet;
Thence radial to last said curve, North 19 degrees 14' 15",
West 353.53 feet to a point on the Northerly line of Parcel 2
of Parcel Map No. 39-80, filed for recorded in Book 52 of
Parcel Maps at pages 42 and 43, Records of San Mateo County;
Thence along said Northerly line the following seven (7)
courses:
1. North 66 degrees 27' 38" East, 74.77 feet;
2. North 62 degrees 34' 48" East, 130.91 feet;
3. North 53 degrees 22' 49" East, 50.09 feet;
4. North 47 degrees 11' 51" East, 125.14 feet;
5. North 32 degrees 12' 03" East, 26.25 feet;
6. North 44 degrees 54' 58" East, 50.19 feet; and
7. North 55 degrees 44' 31" East, 9.79 feet;
Thence leaving said Northerly line, South 25
degrees 09' 20" East 136.05 feet;
Thence North 64 degrees 50' 40" East, 22.71
feet;
Thence North 42 degrees 27' 02" East, 270.86
feet;
EXHIBIT A
-1-
Thence North 04 degrees 11' 44" East, 52.00 feet to a point on
the Northerly line of said Parcel 2 of Parcel Map No. 39-80;
Thence along said Northerly line the following four (4)
courses:
1. South 64 degrees 21' 32" East, 27.73 feet;
2. South 85 degrees 48' 16" East, 129.85 feet;
3. North 61 degrees 26' 03" East 51.24 feet; and
4. North 68 degrees 58' 30" East, 127.02 feet to the most
Easterly corner of said Parcel 2 and a point in said
Xxxxxxxxxxxxx xxxx xx Xxxxx Xxxxxxx Xxxxx 00;
Thence Southwesterly along said Northwesterly line and the
Southeasterly line of said Parcel 2 the following three (3)
courses:
1. South 42 degrees 27' 02" West, 897.25 feet;
2. South 12 degrees 32' 05" West, 202.07 feet; and
3. South 42 degrees 11' 16" West, 327.25 feet to the True
Point of Beginning.
PARCEL TWO:
Parcel II as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records of San Mateo County and further described as
follows:
COMMENCING at a point in the Northwesterly right of way line
of State Xxxxxxx Xxxxx 00 (200 feet wide) being also the most
Easterly corner of Parcel 2 of Parcel Map No. 39-80, filed for
record in Book 52 of Parcel Maps at pages 42 and 43, Records
of San Mateo County; thence Westerly along the Northerly line
of said Parcel 2, the following four courses:
South 68 degrees 58' 30" West, 127.02 feet; South 61 degrees
26' 03" 51.24 feet; North 85 degrees 48' 16" West 129.85 feet;
and North 64 degrees 21' 32" West 27.73 feet to the True Point
of Beginning; thence South 04 degrees 11' 44" West 52.00 feet;
thence South 42 degrees 27' 02" West 270.86 feet; thence South
64 degrees 50' 40" West 22.71 feet; thence North 25 degrees
09" 20" West 136.05 feet, to the Northerly line of Parcel 2 of
Parcel Map No. 39-80; thence along said Northerly line North
55 degrees 44' 31" East 242.00 feet and North 88 degrees 14'
15" East 65.03 feet to the True Point of Beginning.
PARCEL THREE:
Parcel III as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records of San Mateo County and further described as
follows:
EXHIBIT A
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BEGINNING at a point in the Southerly line of East Third
Avenue (80 feet wide), being also the Northeasterly corner of
Parcel 1 of Parcel Map No. 39-80, file for record in Book 52
of Parcel Maps at pages 42 and 43, Records of San Mateo
County;
Thence along said Southerly line, North 70 degrees 45' 45"
East, 5.97 feet to a point on a non-tangent curve, from which
point a radial line bears North 46 degrees 20' 02" East;
Thence Easterly, Northerly and Westerly along the right of way
line of East Third Avenue, along said non-tangent curve to the
left, having a radius of 44.50 feet, through a central angle
of 264 degrees 20' 35", an arc distance of 205.31 feet to a
point of reverse curvature;
Thence Westerly, along a reverse curve to the right, having a
radius of 49.50 feet, through a central angle 18 degrees 46'
18", an arc distance of 16.22 feet;
Thence, tangent to last said curve, South 70 degrees 45' 45"
West 16.24 feet to a point on the Northerly extension of the
Easterly line of said Parcel 1 of Parcel Map No. 39-80;
Thence along said extension, North 19 degrees 14' 15" West,
22.10 feet to the intersection of the Northerly line of Third
Avenue with said extension of said Easterly line;
Thence along said Northerly line, South 70 degrees 45' 45"
West, 1,017.61 feet, to the most Westerly corner of said
Parcel 2 of said Parcel Map No. 39-80;
Thence along the Northerly line of said Parcel 2, the
following thirteen (13) courses:
1. North 49 degrees 55' 43" East, 12.25 feet;
2. North 61 degrees 13' 12" East, 271.98 feet;
3. North 65 degrees 58' 42" East, 49.80 feet;
4. South 86 degrees 22' 18" East, 41.20 feet;
5. North 55 degrees 34' 52" East, 64.36 feet;
6. North 67 degrees 59' 17" East, 50.00 feet;
7. North 59 degrees 27' 28" East, 101.12 feet;
8. North 68 degrees 22' 12" East, 300.01 feet;
9. North 67 degrees 59' 17" East, 50.00 feet;
10. North 73 degrees 41' 53" East, 50.25 feet;
11. North 69 degrees 08' 02" East, 450.09 feet;
12. North 60 degrees 01' 10" East, 50.49 feet; and
13. North 66 degrees 27' 38" East, 0.26 feet;
Thence leaving said Northerly line of Parcel 2, along a radial
line South 19 degrees 14' 15" East 353.53 feet to a point on a
radial curve having a radius of 671.00 feet;
Thence Westerly along said curve, through a central angle of 8
degrees
EXHIBIT A
-3-
52' 23", an arc distance of 103.91 feet to a point on said
curve from which point a radial line bears North 10 degrees
21' 52" West;
Thence South 19 degrees 14' 15" East, 225.61 feet;
Thence South 42 degrees 11' 46" West, 55.87 feet;
Thence South 47 degrees 48' 14" East 47.50 feet to a point in
the Northwesterly line of State Xxxxxxx Xxxxx 00 (200 feet
wide);
Thence along said Northwesterly line South 42 degrees 11' 46"
West, 1024.01 feet to the most Southwesterly corner of said
parcel of land designated, "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967 in Book 5306 of
Official at page 220, Records of San Mateo County, being also
a point in the Southeasterly line of Parcel 1 of Parcel Map
No. 44-81, filed for record in Volume 52 of Parcel Maps at
pages 47 and 48, Records of San Mateo County;
Thence along said Southeasterly line, North 39 degrees 54' 19"
East, 662.49 feet to the Southeasterly corner of Parcel 1 of
Parcel Map No. 46-82, filed for record in Volume 53 of Parcel
Maps at pages 8 and 9, Records of San Mateo County;
Thence along the Easterly line of said Parcel 1 of Parcel Map
Xx. 00-00, Xxxxx 00 degrees 14' 15" West, 598.13 feet to the
Point of Beginning.
PARCEL FOUR:
A non-exclusive perpetual easement for the purposes of
construction, placing, installing, using, maintaining,
operating, reconstructing, replacing, repairing, renewing and
removing an
(A) underground eight (8) inch sanitary sewer line, together
with any and all improvements appurtenant to such sewer line
and/or any other improvements required or necessary, to
construct, place, install, use, maintain, operate,
reconstruct, replace, repair, renew or remove said sewer line
and its appurtenances, and
(B) an underground thirty-six (36) inch storm drain line,
together with any and all improvements appurtenant to such
storm drain line and/or any other improvements required or
necessary to construct, place, install, use, maintain,
operate, reconstruct, replace, repair, renew or remove said
storm drain line and its appurtenances, in, through, over,
along, across and under the "Easement Area", more particularly
described as follows:
A strip of land, 15 feet in width, situate in Xxxxxx Xxxx,
Xxxxxx xx Xxx Xxxxx, Xxxxx xx Xxxxxxxxxx, being a portion of
Parcel 1, as said Parcel is shown on Parcel Map No. 46-82,
filed for record November 30, 1982 in Book 53 of Parcel Maps
at pages 8 and 9,
EXHIBIT A
-4-
San Mateo County Records, the Southwesterly line of said strip
being described as follows:
BEGINNING at the Southwesterly corner of said Parcel 1, said
corner being on the Northeasterly line of Lincoln Centre Drive
(60' wide) as shown on said map;
Thence along the Southerly line of said Parcel 1, and the
Northeasterly prolongation thereof, North 73 degrees 11' 08"
East, 530.47 feet to the Northwesterly line of said Parcel 1
and the terminus of said strip.
The Northwesterly line of said strip shall be lengthened or
shortened to begin on the Southwesterly line of said Parcel 1
and terminate on said Northeasterly line of said Parcel I.
The above easement is appurtenant to Parcels I and II above
and was created by that certain Easement Agreement recorded
July 15, 1998 as Document No. 98111669, Official Records.
APN: 000-000-000, -000, -000 & -000
XXXXXXX X
-0-
XXXXXXX B
TITLE EXCEPTIONS
1. General and special taxes and assessments for the fiscal year
2002-2003, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code.
3. An easement for poles, wires and incidental purposes in the document
recorded December 7, 1928 as instrument no. 23859-B, in Book 382 at
page 452 of Official Records.
4. An easement for 2 independent lines of towers with wires, cables and
incidental purposes in the document recorded September 17, 1952 as
instrument no. 29466-K, in Book 2295 at page 719 of Official Records.
5. A waiver of any claims for damages by reason of the location,
construction, landscaping or maintenance of a contiguous freeway, highway
or roadway, as contained in the document recorded June 18, 1954 as
instrument no. 64810-L, in Book 2642 at page 328 of Official Records.
6. An easement for sanitary force main, sanitary outfall sewer, cathodic
protection and Lagoon Water level signal circuits, maintenance roadway,
drainage channel and incidental purpose in the document recorded August
24,1966 as instrument no. 91192-Z, in Book 5207 at page 237 of Official
Records.
7. Abutter's rights of ingress and egress to or from State Route 92 have been
relinquished in the document recorded May 12, 1967 as 48569-AA, in Book
5306 at page 220 of Official Records.
8. An easement for outfall sewer line and incidental purposes in the
document recorded July 27, 1972 as instrument no. 41769-AF, in Book
6197 at page 691 of Official Records.
9. An easement for sewer, roadway and drainage and incidental purposes in
the document recorded December 11, 1972 as instrument no. 85687-AF, in
Book 6287 at page 413 of Official Records.
10. Abutter's rights of ingress and egress to or from State Route 92 have been
relinquished in the document recorded December 11, 1972 as instrument no.
85687-AF, in Book 6287 at page 413 of Official Records.
11. Abutter's rights of ingress and egress to or from State Route 92 have been
relinquished in the document recorded February 26, 1974 as instrument no.
18554-AH, in Book 6559 at page 183 of Official Records.
EXHIBIT B
-1-
12. An easement shown or dedicated on the map filed or recorded Parcel Map
as No. 41-80 in Book 51 of Parcel Maps at pages 24 and 25
For: water easement and incidental purposes.
13. The fact that the land lies within the boundaries of the Xxxxxx City
Community Development Project Area Redevelopment Project Area, as
disclosed by the document recorded December 23, 1981 as instrument no.
20308-AT of Official Records.
14. EASEMENTS as shown on the Parcel Map No. 39-80 recorded in Book 52 of
Parcel Maps at pages 42 and 43, over Parcel I herein, such strips to be
kept open and free from buildings and structures of any kind, for:
(a) 5 foot public utility easements
(b) proposed 10' x 10' sanitary sewer
Easement to City of San Mateo
(c) proposed ingress and egress
(d) proposed temporary roadway easement to the City of Xxxxxx City
15. An easement for view and incidental purposes in the document recorded
June 10, 1982 as instrument no. 82048611 of Official Records.
16. Covenants, conditions, restrictions and easements in the document recorded
June 10, 1982 as instrument no. 82048611 of Official Records, which
provide that a violation thereof shall not defeat or render invalid the
lien of any first mortgage or deed of trust made in good faith and for
value, but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, national origin, sexual orientation,
marital status, ancestry, source of income or disability, to the extent
such covenants, conditions or restrictions violate Title 42, Section
3604(c), of the United States Codes or Section 12955 of the California
Government Code. Lawful restrictions under state and federal law on the.
age of occupants in senior housing or housing for older persons shall not
be construed as restrictions based on familial status.
17. An easement for sanitary sewer force main and incidental purposes in
the document recorded June 15,1998 as instrument no. 98090737 of
Official Records.
18. The terms and provisions contained in the document entitled "EASEMENT
AGREEMENT" recorded July 15,1998 as instrument no. 98111669 of Official
Records.
19. An easement for communication facilities and incidental purposes in the
document recorded September 21,1998 as instrument no. 98152031 of
Official Records.
20. An easement for sanitary sewer force main and incidental purposes in
the document recorded September 29,1998 as instrument no. 98157615 of
Official Records.
EXHIBIT B
-2-
21. Covenants, conditions, restrictions and easements in the document recorded
October 19,1998 as instrument no. 98169032 of Official Records, which
provide that a violation thereof shall not defeat or render invalid the
lien of any first mortgage or deed of trust made in good faith and for
value, but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, national origin, sexual orientation,
marital status, ancestry, source of income or disability, to the extent
such covenants, conditions or restrictions violate Title 42, Section
3604(c), of the United States Codes or Section 12955 of the California
Government Code. Lawful restrictions under state and federal law on the
age of occupants in senior housing or housing for older persons shall not
be construed as restrictions based on familial status.
22. AN EASEMENT as contained in the above document.
For: ingress, egress and incidental purposes.
23. Covenants, conditions, restrictions and easements in the document recorded
October 19, 1998 as instrument no. 98169033 of Official Records, which
provide that a violation thereof shall not defeat or render invalid the
lien of any first mortgage or deed of trust made in good faith and for
value, but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, national origin, sexual orientation,
marital status, ancestry, source of income or disability, to the extent
such covenants, conditions or restrictions violate Title 42, Section
3604(c), of the United States Codes or Section 12955 of the California
Government Code. Lawful restrictions under state and federal law on the
age of occupants in senior housing or housing for older persons shall not
be construed as restrictions based on familial status.
24. AN EASEMENT as contained in the above document:
For: parking access and incidental purposes.
25. The terms and provisions contained in the document entitled "IMPROVEMENT
AGREEMENT BAYSIDE TOWERS (UP 96-011)" recorded November 2, 1998 as
instrument no. 98179260 of Official Records.
26. An easement for underground gas and electric facilities and incidental
purposes in the document recorded December 29, 1999 as instrument no.
1999-210897 of Official Records.
27. The Lease-Back Lease.
28. The Leases.
29. Any facts, rights, interests or claims that may exist or arise by reason
of the following matters , disclosed by an ALTA/ACSM survey made by Xxxx &
Xxxxxx Civil Engineers & Surveyors, Inc. on August 17, 2000, designated
Job Number 96260-8:
(e) Encroachment of buildings located on Parcels One and Three onto a
sewer easement (98090737).
EXHIBIT B
-3-
(b) Walkway between Parcel Three and land adjacent to the west of
Parcel Three.
(c) Encroachment of bridge stradeling Parcels One and Three onto land
adjacent to the northwest.
(d) Encroachment of high voltage vault and two transformers over the
southeast line of Parcel One onto State highway 92.
(e) 4 electrical boxes and 1 transformer serving the land located
outside of Parcel One within the State highway 92 right of way.
Parcels One, Two and Three lie within the 100 feet of the shore of San Francisco
Bay and are within the jurisdiction of the Bay Conservation and Development
Commission.
EXHIBIT B
-4-
EXHIBIT C
INTENTIONALLY OMITTED
EXHIBIT C
-1-
EXHIBIT D
INTENTIONALLY OMITTED
EXHIBIT D
-1-
EXHIBIT E
GRANT DEED
RECORDING REQUESTED BY:
______________________________,
a ____________________________
WHEN RECORDED MAIL TO:
Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx
0000 Xxxxxx Xx Xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
MAIL TAX STATEMENTS TO:
______________________________
______________________________
______________________________
______________________________
================================================================================
(Space above this line is for recorder's use)
GRANT DEED
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant
to Section 11932 of the Revenue and
Taxation Code, as amended
County of ____________
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, __________,
a ____________ hereby GRANTS to ____________, a ____________, that certain real
property in the County of _________, State of ____________, which is more
particularly described on Schedule "1" ("Property") which is attached hereto.
EXHIBIT E
-1-
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed
as of the ___ day of ___________, 2002.
_____________________________________,
a ___________________________________
By: _________________________________,
a _______________________________
By: _____________________________
Its: ________________________
By: _____________________________
Its: ________________________
EXHIBIT E
-2-
STATE OF _____________________)
) ss.
COUNTY OF ____________________)
On ________________________, before me, ________________________, a Notary
Public in and for said state, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for said State
STATE OF _____________________)
) ss.
COUNTY OF ____________________)
On ________________________, before me, ________________________, a Notary
Public in and for said state, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for said State
EXHIBIT E
-3-
SCHEDULE "1"
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Xxxxxx City, County of San Mateo,
State of California, described as follows:
PARCEL ONE:
Parcel I as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX-00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records, and further described as follows:
COMMENCING at a point on the Northwesterly line of State
Xxxxxxx Xxxxx 00 (200 feet wide) being the Southwesterly
corner of parcel designated "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967, in Book 5306 of
Official Records at page 220, Records of San Mateo County;
thence along said Northwesterly line, North 42 degrees 11' 46"
East, 1024.01 feet to the true point of beginning;
Thence North 47 degrees 48' 14" West, 47.50 feet;
Thence North 42 degrees 11' 46" East, 55.87 feet;
Thence North 19 degrees 14' 15" West, 225.61 feet to a point
on a non-tangent curve having a radius of 671.00 feet, from
which point a radial line bears North 10 degrees 21' 52" West;
Thence Northeasterly, along said curve to the left through a
central angle of 8 degrees 52' 23", an arc distance of 103.91
feet;
Thence radial to last said curve, North 19 degrees 14' 15",
West 353.53 feet to a point on the Northerly line of Parcel 2
of Parcel Map No. 39-80, filed for recorded in Book 52 of
Parcel Maps at pages 42 and 43, Records of San Mateo County;
Thence along said Northerly line the following seven (7)
courses:
1. North 66 degrees 27' 38" East, 74.77 feet;
2. North 62 degrees 34' 48" East, 130.91 feet;
3. North 53 degrees 22' 49" East, 50.09 feet;
4. North 47 degrees 11' 51" East, 125.14 feet;
5. North 32 degrees 12' 03" East, 26.25 feet;
6. North 44 degrees 54' 58" East, 50.19 feet; and
7. North 55 degrees 44' 31" East, 9.79 feet;
Thence leaving said Northerly line, South 25
degrees 09' 20" East 136.05 feet;
SCHEDULE "1"
-1-
Thence North 64 degrees 50' 40" East, 22.71 feet;
Thence North 42 degrees 27' 02" East, 270.86 feet;
Thence North 04 degrees 11' 44" East, 52.00 feet to a point on
the Northerly line of said Parcel 2 of Parcel Map No. 39-80;
Thence along said Northerly line the following four (4)
courses:
1. South 64 degrees 21' 32" East, 27.73 feet;
2. South 85 degrees 48' 16" East, 129.85 feet;
3. North 61 degrees 26' 03" East 51.24 feet; and
4. North 68 degrees 58' 30" East, 127.02 feet to the most
Easterly corner of said Parcel 2 and a point in said
Xxxxxxxxxxxxx xxxx xx Xxxxx Xxxxxxx Xxxxx 00;
Thence Southwesterly along said Northwesterly line and the
Southeasterly line of said Parcel 2 the following three (3)
courses:
1. South 42 degrees 27' 02" West, 897.25 feet;
2. South 12 degrees 32' 05" West, 202.07 feet; and
3. South 42 degrees 11' 16" West, 327.25 feet to the True
Point of Beginning.
PARCEL TWO:
Parcel II as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records of San Mateo County and further described as
follows:
COMMENCING at a point in the Northwesterly right of way line
of State Xxxxxxx Xxxxx 00 (200 feet wide) being also the most
Easterly corner of Parcel 2 of Parcel Map No. 39-80, filed for
record in Book 52 of Parcel Maps at pages 42 and 43, Records
of San Mateo County; thence Westerly along the Northerly line
of said Parcel 2, the following four courses:
South 68 degrees 58' 30" West, 127.02 feet; South 61 degrees
26' 03" 51.24 feet; North 85 degrees 48' 16" West 129.85 feet;
and North 64 degrees 21' 32" West 27.73 feet to the True Point
of Beginning; thence South 04 degrees 11' 44" West 52.00 feet;
thence South 42 degrees 27' 02" West 270.86 feet; thence South
64 degrees 50' 40" West 22.71 feet; thence North 25 degrees
09" 20" West 136.05 feet, to the Northerly line of Parcel 2 of
Parcel Map No. 39-80; thence along said Northerly line North
55 degrees 44' 31" East 242.00 feet and North 88 degrees 14'
15" East 65.03 feet to the True Point of Beginning.
PARCEL THREE:
Parcel III as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No.
SCHEDULE "1"
-2-
98169031, Official Records of San Mateo County
and further described as follows:
BEGINNING at a point in the Southerly line of East Third
Avenue (80 feet wide), being also the Northeasterly corner of
Parcel 1 of Parcel Map No. 39-80, file for record in Book 52
of Parcel Maps at pages 42 and 43, Records of San Mateo
County;
Thence along said Southerly line, North 70 degrees 45' 45"
East, 5.97 feet to a point on a non-tangent curve, from which
point a radial line bears North 46 degrees 20' 02" East;
Thence Easterly, Northerly and Westerly along the right of way
line of East Third Avenue, along said non-tangent curve to the
left, having a radius of 44.50 feet, through a central angle
of 264 degrees 20' 35", an arc distance of 205.31 feet to a
point of reverse curvature;
Thence Westerly, along a reverse curve to the right, having a
radius of 49.50 feet, through a central angle 18 degrees 46'
18", an arc distance of 16.22 feet;
Thence, tangent to last said curve, South 70 degrees 45' 45"
West 16.24 feet to a point on the Northerly extension of the
Easterly line of said Parcel 1 of Parcel Map No. 39-80;
Thence along said extension, North 19 degrees 14' 15" West,
22.10 feet to the intersection of the Northerly line of Third
Avenue with said extension of said Easterly line;
Thence along said Northerly line, South 70 degrees 45' 45"
West, 1,017.61 feet, to the most Westerly corner of said
Parcel 2 of said Parcel Map No. 39-80;
Thence along the Northerly line of said Parcel 2, the
following thirteen (13) courses:
1. North 49 degrees 55' 43" East, 12.25 feet;
2. North 61 degrees 13' 12" East, 271.98 feet;
3. North 65 degrees 58' 42" East, 49.80 feet;
4. South 86 degrees 22' 18" East, 41.20 feet;
5. North 55 degrees 34' 52" East, 64.36 feet;
6. North 67 degrees 59' 17" East, 50.00 feet;
7. North 59 degrees 27' 28" East, 101.12 feet;
8. North 68 degrees 22' 12" East, 300.01 feet;
9. North 67 degrees 59' 17" East, 50.00 feet;
10. North 73 degrees 41' 53" East, 50.25 feet;
11. North 69 degrees 08' 02" East, 450.09 feet;
12. North 60 degrees 01' 10" East, 50.49 feet; and
13. North 66 degrees 27' 38" East, 0.26 feet;
Thence leaving said Northerly line of Parcel 2, along a radial
line South 19 degrees 14' 15" East 353.53 feet to a point on a
radial curve
SCHEDULE "1"
-3-
having a radius of 671.00 feet;
Thence Westerly along said curve, through a central angle of 8
degrees 52' 23", an arc distance of 103.91 feet to a point on
said curve from which point a radial line bears North 10
degrees 21' 52" West;
Thence South 19 degrees 14' 15" East, 225.61 feet;
Thence South 42 degrees 11' 46" West, 55.87 feet;
Thence South 47 degrees 48' 14" East 47.50 feet to a point in
the Northwesterly line of State Xxxxxxx Xxxxx 00 (200 feet
wide);
Thence along said Northwesterly line South 42 degrees 11' 46"
West, 1024.01 feet to the most Southwesterly corner of said
parcel of land designated, "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967 in Book 5306 of
Official at page 220, Records of San Mateo County, being also
a point in the Southeasterly line of Parcel 1 of Parcel Map
No. 44-81, filed for record in Volume 52 of Parcel Maps at
pages 47 and 48, Records of San Mateo County;
Thence along said Southeasterly line, North 39 degrees 54' 19"
East, 662.49 feet to the Southeasterly corner of Parcel 1 of
Parcel Map No. 46-82, filed for record in Volume 53 of Parcel
Maps at pages 8 and 9, Records of San Mateo County;
Thence along the Easterly line of said Parcel 1 of Parcel Map
Xx. 00-00, Xxxxx 00 degrees 14' 15" West, 598.13 feet to the
Point of Beginning.
PARCEL FOUR:
A non-exclusive perpetual easement for the purposes of
construction, placing, installing, using, maintaining,
operating, reconstructing, replacing, repairing, renewing and
removing an
(A) underground eight (8) inch sanitary sewer line, together
with any and all improvements appurtenant to such sewer line
and/or any other improvements required or necessary, to
construct, place, install, use, maintain, operate,
reconstruct, replace, repair, renew or remove said sewer line
and its appurtenances, and
(B) an underground thirty-six (36) inch storm drain line,
together with any and all improvements appurtenant to such
storm drain line and/or any other improvements required or
necessary to construct, place, install, use, maintain,
operate, reconstruct, replace, repair, renew or remove said
storm drain line and its appurtenances, in, through, over,
along, across and under the "Easement Area", more particularly
described as follows:
A strip of land, 15 feet in width, situate in
Xxxxxx City, County of
SCHEDULE "1"
-4-
San Mateo, State of California, being a portion of Parcel 1,
as said Parcel is shown on Parcel Map No. 46-82, filed for
record November 30, 1982 in Book 53 of Parcel Maps at pages 8
and 9, San Mateo County Records, the Southwesterly line of
said strip being described as follows:
BEGINNING at the Southwesterly corner of said Parcel 1, said
corner being on the Northeasterly line of Lincoln Centre Drive
(60' wide) as shown on said map;
Thence along the Southerly line of said Parcel 1, and the
Northeasterly prolongation thereof, North 73 degrees 11' 08"
East, 530.47 feet to the Northwesterly line of said Parcel 1
and the terminus of said strip.
The Northwesterly line of said strip shall be lengthened or
shortened to begin on the Southwesterly line of said Parcel 1
and terminate on said Northeasterly line of said Parcel I.
The above easement is appurtenant to Parcels I and II above
and was created by that certain Easement Agreement recorded
July 15, 1998 as Document No. 98111669, Official Records.
APN: 000-000-000, -300, -320 & -340
SCHEDULE "1"
-5-
EXHIBIT F
TENANT LEASE ASSIGNMENT
THIS TENANT LEASE ASSIGNMENT ("Assignment") is made this _____ day of
__________, ____ by and between ___________________________, a ________________
("Assignor"), and ______________________________, a ______________, ("Assignee")
with respect to the following matters.
WITNESSETH:
Assignor and Assignee entered into that certain Agreement of Purchase and
Sale and Joint Escrow Instructions, dated as of _______, ____ ("Purchase
Agreement"), respecting the sale of certain "Property" (as defined in the
Purchase Agreement). Unless otherwise indicated herein, all capitalized terms in
this Assignment shall have the meaning ascribed to them in the Purchase
Agreement.
Under the Purchase Agreement, Assignor is obligated to assign to Assignee
any and all of its right, title and interest in and to all Tenant Leases and
Tenant Deposits, which Tenant Leases and Tenant Deposits are set forth on
Exhibit "A" attached hereto.
NOW, THEREFORE, incorporating the foregoing recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby assigns, sells, transfers, sets over and delivers
unto Assignee all of Assignor's estate, right, title and interest in and to the
Tenant Leases (excluding the "Retained Rights") and Tenant Deposits and Assignee
hereby accepts such assignment. "Retained Rights" means Assignor's rights to
unpaid rents or other fees and amounts allocable to the period prior to the date
hereof.
Assignor hereby covenants that Assignor will, at any time and from time to
time upon written request therefor, execute and deliver to Assignee such
documents as Assignee may reasonably request to fully assign and transfer to and
vest in Assignee and protect Assignee's or their right, title and interest in
and to the Tenant Leases and the Tenant Deposits and the rights of Assignor
intended to be transferred and assigned hereby.
Assignee hereby assumes the performance of all of the terms, covenants and
conditions imposed upon Assignor as landlord under the Tenant Leases accruing or
arising on or after the date of this Assignment.
Assignor hereby agrees to indemnify and hold harmless Assignee, Assignee's
officers, directors, partners, members, employees, attorneys, property managers
and agents and their respective successors and assigns, from and against any and
all claims, losses, liabilities and expenses, including reasonable attorneys'
fees, suffered or incurred by Assignee by reason of: (i) any breach by Assignor
prior to the date hereof, of any Assignor's obligations under the Tenant Leases
or with respect to the Tenant Deposits, or (ii) any leasing commissions,
broker's commissions or finder's fees which accrue after the date hereof with
respect to (A) any Tenant Leases, executed prior to the date of the Agreement
and (B) any renewals or expansions of any Tenant Leases exercised prior to the
date of Agreement.
Assignee hereby agrees to indemnify and hold harmless Assignor, Assignor's
officers, directors, partners, members, employees, attorneys, property managers
and agents and their respective successors and assigns, from and against any and
all claims, losses, liabilities and expenses, including reasonable attorneys'
fees, suffered or incurred by Assignor by reason of any breach by Assignee from
and after
EXHIBIT F
-1-
the date hereof, of any of Assignee's obligations under the Tenant Leases or
with respect to the Tenant Deposits.
This Assignment is made without recourse and without any express or
implied representation or warranty of any kind, except as expressly set forth in
the Purchase Agreement.
In the event of the bringing of any action or suit by a party hereto
against another party hereunder by reason of any breach of any of the covenants,
conditions, agreements or provisions on the part of the other party arising out
of this Assignment, then in that event the prevailing party shall be entitled to
have and recover of and from the other party all costs and expenses of the
action or suit, including actual attorneys' fees and costs.
This Assignment may be executed simultaneously in counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute
one and the same instrument.
This Assignment shall be binding upon and inure to the benefit of the
successors, assignees, personal representatives, heirs and legatees of all the
respective parties hereto.
This Assignment shall be governed by, interpreted under, and construed and
enforceable in accordance with, the laws of the State of California.
"Assignor" _____________________________________,
a ___________________________________
By: _____________________________
Its: ________________________
By: _____________________________
Its: ________________________
"Assignee" _____________________________________,
a ___________________________________
By: _____________________________
Its: ________________________
By: _____________________________
Its: ________________________
EXHIBIT F
-2-
EXHIBIT A TO EXHIBIT F
TENANT LEASES AND TENANT DEPOSITS
[TO BE PROVIDED]
EXHIBIT A TO
EXHIBIT F
-1-
EXHIBIT G
GENERAL ASSIGNMENT AND XXXX OF SALE
THIS GENERAL ASSIGNMENT AND XXXX OF SALE ("Assignment") is made this ____
day of _______, ____ by and between _____________________________, a
_______________________ ("Assignor"), and _________________________, a
_________________, ("Assignee"), with respect to the following matters.
WITNESSETH
Assignor and Assignee entered into that certain Agreement of Purchase and
Sale and Joint Escrow Instructions, dated as of __________, ____ ("Purchase
Agreement"), respecting the sale of certain "Property", including the "Real
Property" described in Exhibit "A" attached hereto and the "Improvements"
located thereon (all as defined in the Purchase Agreement). Unless otherwise
indicated herein, all capitalized terms in this Assignment shall have the
meaning ascribed to them in the Purchase Agreement.
Under the Purchase Agreement, Assignor is obligated to assign to Assignee
any and all of its right, title and interest in and to: (i) the Records and
Plans, if any, (ii) the Licenses and Permits, if any, (iii) the Approved
Contracts, and (iv) the Personal Property.
NOW, THEREFORE incorporating the foregoing recitals and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby assigns, sells, transfers, sets over and delivers
unto Assignee all of Assignor's estate, right, title and interest in and to, and
Assignee hereby accepts such assignment, with respect to:
(i) the Records and Plans listed on Schedule 1 hereto;
(ii) the Licenses and Permits listed on Schedule 1 hereto;
(iii) the Approved Contracts;
(iv) the Personal Property listed on Schedule 2 hereto;
(v) all assignable warranties, indemnities, guarantees and bonds
(express or implied) issued in connection with or arising out of the purchase
and repair of the Personal Property;
(vi) any other tangible personal property and all intangible rights
in connection with the complete and comfortable use, enjoyment, occupancy or
operation of the Property, except that owned by any Tenant of the Property; and
(vii) any entitlements or rights with respect to the future
development of the Real Property.
Assignor hereby covenants that Assignor will, at any time and from time to
time, upon written request therefor, execute and deliver to Assignee any new or
confirmatory instruments which Assignee may reasonably request in order to fully
assign and transfer to and vest in Assignee, and to protect Assignee's right,
title and interest in and to the Records and Plans, Licenses and Permits,
Service Contracts, Personal Property and all related warranties, indemnities and
guarantees, and all other tangible
EXHIBIT G
-1-
property and intangible rights in connection with the Property, or to otherwise
realize upon or enjoy such rights in such assigned rights and properties.
Assignee hereby assumes the performance of all of the terms, covenants and
conditions imposed upon Assignor under the Approved Contracts and Licenses and
Permits accruing or arising on or after the date of this Purchase Agreement.
Assignee hereby agrees to indemnify and hold harmless Assignor, Assignor's
officers, directors, partners, members, employees, attorneys, property managers
and agents and Assignor's and their successors and assigns from and against any
and all claims, losses, liabilities and expenses, including reasonable
attorneys' fees, suffered or incurred by Assignor by reason of any breach by
Assignee from and after the date hereof of any of Assignee's obligations under
the Approved Contracts.
Assignor hereby agrees to indemnify and hold harmless Assignee's officers,
directors, partners, members, employees, attorneys, property managers and agents
and Assignee's and their successors and assigns from and against any and all
claims, losses, liabilities and expenses, including reasonable attorneys' fees,
suffered or incurred by Assignee by reason of any breach by Assignor prior to
the date hereof of any of Assignor's obligations under the Approved Contracts or
under the Licenses and Permits.
This Assignment is made without recourse and without any express or
implied representation or warranty of any kind, except as expressly set forth in
the Purchase Agreement.
In the event of the bringing of any action or suit by a party hereto
against another party hereunder by reason of any breach of any of the covenants,
conditions, agreements or provisions on the part of the other party arising out
of this Assignment, then in that event the prevailing party shall be entitled to
have and recover of and from the other party all costs and expenses of the
action or suit, including actual attorneys' fees and costs.
This Assignment maybe executed simultaneously in counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute
one and the same instrument.
This Assignment shall be binding upon and inure to the benefit of the
successors, assignees, personal representatives, heirs and legatees of all the
respective parties hereto.
This Assignment shall be governed by, interpreted under, and construed and
enforceable in accordance with, the laws of the State of California.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment as of the day and year first above written.
"Assignor" _____________________________________,
a ___________________________________
By: _____________________________
Its: ________________________
By: _____________________________
Its: ________________________
EXHIBIT G
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"Assignee" _____________________________________,
a ___________________________________
By: _____________________________
Its: ________________________
By: _____________________________
Its: ________________________
EXHIBIT G
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EXHIBIT A TO EXHIBIT G
LEGAL DESCRIPTION
Real property in the City of Xxxxxx City, County of San Mateo,
State of California, described as follows:
PARCEL ONE:
Parcel I as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX-00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records, and further described as follows:
COMMENCING at a point on the Northwesterly line of State
Xxxxxxx Xxxxx 00 (200 feet wide) being the Southwesterly
corner of parcel designated "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967, in Book 5306 of
Official Records at page 220, Records of San Mateo County;
thence along said Northwesterly line, North 42 degrees 11' 46"
East, 1024.01 feet to the true point of beginning;
Thence North 47 degrees 48' 14" West, 47.50 feet;
Thence North 42 degrees 11' 46" East, 55.87 feet;
Thence North 19 degrees 14' 15" West, 225.61 feet to a point
on a non-tangent curve having a radius of 671.00 feet, from
which point a radial line bears North 10 degrees 21' 52" West;
Thence Northeasterly, along said curve to the left through a
central angle of 8 degrees 52' 23", an arc distance of 103.91
feet;
Thence radial to last said curve, North 19 degrees 14' 15",
West 353.53 feet to a point on the Northerly line of Parcel 2
of Parcel Map No. 39-80, filed for recorded in Book 52 of
Parcel Maps at pages 42 and 43, Records of San Mateo County;
Thence along said Northerly line the following seven (7)
courses:
1. North 66 degrees 27' 38" East, 74.77 feet;
2. North 62 degrees 34' 48" East, 130.91 feet;
3. North 53 degrees 22' 49" East, 50.09 feet;
4. North 47 degrees 11' 51" East, 125.14 feet;
5. North 32 degrees 12' 03" East, 26.25 feet;
6. North 44 degrees 54' 58" East, 50.19 feet; and
7. North 55 degrees 44' 31" East, 9.79 feet;
Thence leaving said Northerly line, South 25 degrees 09' 20"
East 136.05 feet;
EXHIBIT A TO
EXHIBIT G
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Thence North 64 degrees 50' 40" East, 22.71 feet;
Thence North 42 degrees 27' 02" East, 270.86 feet;
Thence North 04 degrees 11' 44" East, 52.00 feet to a point on
the Northerly line of said Parcel 2 of Parcel Map No. 39-80;
Thence along said Northerly line the following four (4)
courses:
1. South 64 degrees 21' 32" East, 27.73 feet;
2. South 85 degrees 48' 16" East, 129.85 feet;
3. North 61 degrees 26' 03" East 51.24 feet; and
4. North 68 degrees 58' 30" East, 127.02 feet to the most
Easterly corner of said Parcel 2 and a point in said
Xxxxxxxxxxxxx xxxx xx Xxxxx Xxxxxxx Xxxxx 00;
Thence Southwesterly along said Northwesterly line and the
Southeasterly line of said Parcel 2 the following three (3)
courses:
1. South 42 degrees 27' 02" West, 897.25 feet;
2. South 12 degrees 32' 05" West, 202.07 feet; and
3. South 42 degrees 11' 16" West, 327.25 feet to the True
Point of Beginning.
PARCEL TWO:
Parcel II as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No. 98169031,
Official Records of San Mateo County and further described as
follows:
COMMENCING at a point in the Northwesterly right of way line
of State Xxxxxxx Xxxxx 00 (200 feet wide) being also the most
Easterly corner of Parcel 2 of Parcel Map No. 39-80, filed for
record in Book 52 of Parcel Maps at pages 42 and 43, Records
of San Mateo County; thence Westerly along the Northerly line
of said Parcel 2, the following four courses:
South 68 degrees 58' 30" West, 127.02 feet; South 61 degrees
26' 03" 51.24 feet; North 85 degrees 48' 16" West 129.85 feet;
and North 64 degrees 21' 32" West 27.73 feet to the True Point
of Beginning; thence South 04 degrees 11' 44" West 52.00 feet;
thence South 42 degrees 27' 02" West 270.86 feet; thence South
64 degrees 50' 40" West 22.71 feet; thence North 25 degrees
09" 20" West 136.05 feet, to the Northerly line of Parcel 2 of
Parcel Map No. 39-80; thence along said Northerly line North
55 degrees 44' 31" East 242.00 feet and North 88 degrees 14'
15" East 65.03 feet to the True Point of Beginning.
PARCEL THREE:
Parcel III as created by that certain Xxx Xxxx Xxxxxxxxxx Xx.
XX00-000, recorded October 19, 1998 as Document No.
EXHIBIT A TO
EXHIBIT G
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98169031, Official Records of San Mateo County and further
described as follows:
BEGINNING at a point in the Southerly line of East Third
Avenue (80 feet wide), being also the Northeasterly corner of
Parcel 1 of Parcel Map No. 39-80, file for record in Book 52
of Parcel Maps at pages 42 and 43, Records of San Mateo
County;
Thence along said Southerly line, North 70 degrees 45' 45"
East, 5.97 feet to a point on a non-tangent curve, from which
point a radial line bears North 46 degrees 20' 02" East;
Thence Easterly, Northerly and Westerly along the right of way
line of East Third Avenue, along said non-tangent curve to the
left, having a radius of 44.50 feet, through a central angle
of 264 degrees 20' 35", an arc distance of 205.31 feet to a
point of reverse curvature;
Thence Westerly, along a reverse curve to the right, having a
radius of 49.50 feet, through a central angle 18 degrees 46'
18", an arc distance of 16.22 feet;
Thence, tangent to last said curve, South 70 degrees 45' 45"
West 16.24 feet to a point on the Northerly extension of the
Easterly line of said Parcel 1 of Parcel Map No. 39-80;
Thence along said extension, North 19 degrees 14' 15" West,
22.10 feet to the intersection of the Northerly line of Third
Avenue with said extension of said Easterly line;
Thence along said Northerly line, South 70 degrees 45' 45"
West, 1,017.61 feet, to the most Westerly corner of said
Parcel 2 of said Parcel Map No. 39-80;
Thence along the Northerly line of said Parcel 2, the
following thirteen (3) courses:
1. North 49 degrees 55' 43" East, 12.25 feet;
2. North 61 degrees 13' 12" East, 271.98 feet;
3. North 65 degrees 58' 42" East, 49.80 feet;
4. South 86 degrees 22' 18" East, 41.20 feet;
5. North 55 degrees 34' 52" East, 64.36 feet;
6. North 67 degrees 59' 17" East, 50.00 feet;
7. North 59 degrees 27' 28" East, 101.12 feet;
8. North 68 degrees 22' 12" East, 300.01 feet;
9. North 67 degrees 59' 17" East, 50.00 feet;
10. North 73 degrees 41' 53" East, 50.25 feet;
11. North 69 degrees 08' 02" East, 450.09 feet;
12. North 60 degrees 01' 10" East, 50.49 feet; and
13. North 66 degrees 27' 38" East, 0.26 feet;
Thence leaving said Northerly line of Parcel 2, along a radial
line South 19 degrees 14' 15" East 353.53 feet to a point on a
radial curve
EXHIBIT A TO
EXHIBIT G
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having a radius of 671.00 feet;
Thence Westerly along said curve, through a central angle of 8
degrees 52' 23", an arc distance of 103.91 feet to a point on
said curve from which point a radial line bears North 10
degrees 21' 52" West;
Thence South 19 degrees 14' 15" East, 225.61 feet;
Thence South 42 degrees 11' 46" West, 55.87 feet;
Thence South 47 degrees 48' 14" East 47.50 feet to a point in
the Northwesterly line of State Xxxxxxx Xxxxx 00 (200 feet
wide);
Thence along said Northwesterly line South 42 degrees 11' 46"
West, 1024.01 feet to the most Southwesterly corner of said
parcel of land designated, "PARCEL 1C" in that certain Final
Order of Condemnation, recorded May 12, 1967 in Book 5306 of
Official at page 220, Records of San Mateo County, being also
a point in the Southeasterly line of Parcel 1 of Parcel Map
No. 44-81, filed for record in Volume 52 of Parcel Maps at
pages 47 and 48, Records of San Mateo County;
Thence along said Southeasterly line, North 39 degrees 54' 19"
East, 662.49 feet to the Southeasterly corner of Parcel 1 of
Parcel Map No. 46-82, filed for record in Volume 53 of Parcel
Maps at pages 8 and 9, Records of San Mateo County;
Thence along the Easterly line of said Parcel 1 of Parcel Map
Xx. 00-00, Xxxxx 00 degrees 14' 15" West, 598.13 feet to the
Point of Beginning.
PARCEL FOUR:
A non-exclusive perpetual easement for the purposes of
construction, placing, installing, using, maintaining,
operating, reconstructing, replacing, repairing, renewing and
removing an
(A) underground eight (8) inch sanitary sewer line, together
with any and all improvements appurtenant to such sewer line
and/or any other improvements required or necessary, to
construct, place, install, use, maintain, operate,
reconstruct, replace, repair, renew or remove said sewer line
and its appurtenances, and
(B) an underground thirty-six (36) inch storm drain line,
together with any and all improvements appurtenant to such
storm drain line and/or any other improvements required or
necessary to construct, place, install, use, maintain,
operate, reconstruct, replace, repair, renew or remove said
storm drain line and its appurtenances, in, through, over,
along, across and under the "Easement Area", more particularly
described as follows:
A strip of land, 15 feet in width, situate in Xxxxxx City,
County of
EXHIBIT A TO
EXHIBIT G
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San Mateo, State of California, being a portion of Parcel 1,
as said Parcel is shown on Parcel Map No. 46-82, filed for
record November 30, 1982 in Book 53 of Parcel Maps at pages 8
and 9, San Mateo County Records, the Southwesterly line of
said strip being described as follows:
BEGINNING at the Southwesterly corner of said Parcel 1, said
corner being on the Northeasterly line of Lincoln Centre Drive
(60' wide) as shown on said map;
Thence along the Southerly line of said Parcel 1, and the
Northeasterly prolongation thereof, North 73 degrees 11' 08"
East, 530.47 feet to the Northwesterly line of said Parcel 1
and the terminus of said strip.
The Northwesterly line of said strip shall be lengthened or
shortened to begin on the Southwesterly line of said Parcel 1
and terminate on said Northeasterly line of said Parcel I.
The above easement is appurtenant to Parcels I and II above
and was created by that certain Easement Agreement recorded
July 15, 1998 as Document No. 98111669, Official Records.
APN: 000-000-000, -300, -320 & -340
EXHIBIT A TO
EXHIBIT G
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SCHEDULE 1 TO EXHIBIT G
RECORDS AND PLANS
LICENSES AND PERMITS
EXHIBIT A TO
EXHIBIT G
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SCHEDULE 2 TO EXHIBIT G
PERSONAL PROPERTY
EXHIBIT A TO
EXHIBIT G
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EXHIBIT H
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform _________________________________, a _____________________,
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended ("Code") will not be required upon the transfer
of certain real property to the Transferee by __________________, a
________________________ ("Transferor"), the undersigned hereby certifies the
following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code and
the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer identification/social security
number is _______________________________________________; and
3. The Transferor's office/personal residence address is ______________
_________________________________________________________.
The Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The Transferor understands that the Transferee is relying on this
Certification in determining whether withholding is required upon said transfer.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of the
Transferor.
Date: ____________, 2002 _____________________________________,
a ___________________________________
By: _________________________________,
Its: ____________________________
EXHIBIT H
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EXHIBIT I
TENANT NOTIFICATION LETTER
______________________, 2002
____________________________
____________________________
____________________________
____________________________
Re: Your lease (the "Lease") of space in the project known as
"_______________" located in _______________, California
(the "Project")
Ladies and Gentlemen:
You are hereby notified that ___________________, (the "Owner"), as owner
of the Project and the current owner of the landlord's interest under the Lease,
has sold the Project to ______________________-, ("Buyer") as of the date of
this Tenant Notice Letter set forth above, and in connection with such sale the
Owner has assigned and transferred its interest in the Lease and any and all
security deposits thereunder or relating thereto to Buyer, and Buyer has assumed
and agreed to perform all of the landlord's obligations under the Lease
(including any obligations set forth in the Lease to repay or account for any
security deposits thereunder) from and after such date. Accordingly, (i) all of
your obligations under the Lease from and after the date of this Tenant Notice
Letter (including your obligations to pay rent and fulfill your insurance
requirements) shall be performable to and for the benefit of Buyer, its
successors and assigns and (ii) all of the obligations of the landlord under the
Lease (including any obligations to repay or account for any security deposits
thereunder) from and after the date of this Tenant Notice Letter shall be the
binding obligations of Buyer and its successors and assigns.
The address of Buyer for all purposes under the Lease (including the
payments of rentals, the recoupment of and security deposits and the giving of
any notices provided for in the Lease) is:
______________________________________
______________________________________
______________________________________
______________________________________
Very truly yours,
______________________________________
By: __________________________________
Its: _____________________________
EXHIBIT I
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EXHIBIT D
LEASE BACK LEASE
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EXHIBIT D
BAYSIDE TOWERS
FOSTER CITY, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
[[LANDLORD'S NAME AND ENTITY TYPE TO BE PROVIDED: EOP-XXX, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY]]
("LANDLORD")
AND
INKTOMI CORPORATION, A DELAWARE CORPORATION
("TENANT")
TABLE OF CONTENTS
I. BASIC LEASE INFORMATION......................................... 1
II. LEASE GRANT..................................................... 4
III. POSSESSION...................................................... 4
IV. RENT............................................................ 4
V. COMPLIANCE WITH LAWS; USE....................................... 10
VI. SECURITY DEPOSIT; LETTER OF CREDIT.............................. 11
VII. SERVICES TO BE FURNISHED BY LANDLORD............................ 12
VIII. LEASEHOLD IMPROVEMENTS.......................................... 13
IX. REPAIRS AND ALTERATIONS......................................... 14
X. USE OF ELECTRICAL SERVICES BY TENANT............................ 16
XI. ENTRY BY LANDLORD............................................... 17
XII. ASSIGNMENT AND SUBLETTING....................................... 17
XIII. LIENS........................................................... 21
XIV. INDEMNITY AND WAIVER OF CLAIMS.................................. 21
XV. INSURANCE....................................................... 22
XVI. SUBROGATION..................................................... 23
XVII. CASUALTY DAMAGE................................................. 23
XVIII. CONDEMNATION.................................................... 25
XIX. EVENTS OF DEFAULT............................................... 25
XX. REMEDIES........................................................ 26
XXI. LIMITATION OF LIABILITY......................................... 28
XXII. NO WAIVER....................................................... 29
XXIII. QUIET ENJOYMENT................................................. 29
XXIV. INTENTIONALLY OMITTED........................................... 29
XXV. HOLDING OVER.................................................... 29
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE................ 30
XXVII. ATTORNEYS' FEES................................................. 31
XXVIII. NOTICE.......................................................... 31
XXIX. EXCEPTED RIGHTS................................................. 31
XXX. SURRENDER OF PREMISES........................................... 32
XXXI. MISCELLANEOUS................................................... 32
XXXII. ENTIRE AGREEMENT................................................ 35
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the ____ day of ___________, 2002, by and between [[LANDLORD'S NAME AND ENTITY
TYPE TO BE PROVIDED EOP-XXX, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY]]
("Landlord") and INKTOMI CORPORATION, A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean the two buildings located at 0000 Xxxx 0xx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx (the "4000 Building") and 0000 Xxxx
0xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx (the "4100 Building") which
buildings are commonly known as Bayside Towers.
B. "Rentable Square Footage of the Building" is deemed to be 261,394
rentable square feet.
C. "Premises" shall mean the area shown on EXHIBIT A to this Lease. The
Premises are located on the 4th floor of the 4000 Building and known
as suite number 4000, and in the entire 4100 Building. The "Rentable
Square Footage of the Premises" is deemed to be 153,712 rentable
square feet, in the aggregate, which is comprised of 23,155 rentable
square feet in the 4000 Building and 130,557 rentable square feet in
the 4100 Building. If the Premises include one or more floors in
their entirety, all corridors and restroom facilities located on
such full floor(s) shall be considered part of the Premises.
Landlord and Tenant stipulate and agree that the Rentable Square
Footage of the Building and the Rentable Square Footage of the
Premises are correct and shall not be remeasured.
D. "Base Rent":
ANNUAL RATE PER ANNUAL MONTHLY
YEAR OF TERM RENTABLE SQUARE FOOT BASE RENT BASE RENT
---------------- -------------------- ---------------- -------------
1 $18.00 $2,766,816.00 $230,568.00
2 $18.00 $2,766,816.00 $230,568.00
3 $18.00 $2,766,816.00 $230,568.00
4 $18.00 $2,766,816.00 $230,568.00
5 $18.00 $2,766,816.00 $230,568.00
6-10 $18.00, as adjusted pursuant to Section IV.F below
E. "Tenant's Pro Rata Share": 58.8047%.
"Tenant's Monthly Expense and Tax Payment": $153,712.00 (which is
equal to the product of the Rentable Square Footage of the Premises
and $1.00 per rentable square foot per month), which is Tenant's Pro
Rata Share of the monthly estimated Expenses and monthly estimated
Taxes (as more fully described in, and subject to adjustment as
described in Article IV below).
F. "Term": A period of 120 months. The Term shall commence on [TO BE
PROVIDED] (the "Commencement Date") and, unless terminated early in
accordance with this Lease, end on [TO BE PROVIDED] (the
"Termination Date"). Promptly after the determination of the
Commencement Date, Landlord and Tenant shall enter into a
commencement letter agreement in the form attached as EXHIBIT C.
G. Tenant allowance(s): None.
H. "Security Deposit": $2,305,680.00 (which is equal to the product of
(i) 6, (ii) the Rentable Square Footage of the Premises, and (iii)
the sum of the monthly Base Rent rate per rentable square foot and
the estimate of Tenant's Monthly Expense and Tax Payment per
rentable square foot), in the form of a Letter of Credit, as further
set forth in Article VI, below.
I. "Guarantor(s)": None.
J. "Broker(s)": None.
K. "Permitted Use": General office use and administrative purposes and
ancillary office uses reasonably related thereto (including, without
limitation, electronic commerce research and development and product
support) and other legally permitted uses consistent with the
character of a first class office building.
L. "Notice Addresses":
Tenant: With a copy to:
Inktomi Corporation Inktomi Corporation
0000 Xxxx 0xx Xxxxxx 0000 Xxxx 0xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxx Xxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attention: Director of Attention: Real Estate
Real Estate Legal Counsel
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Landlord: With a copy to:
[INSERT NAME OF LANDLORD] c/o EOP Operating Limited
c/o Equity Office Properties Partnership
Trust Two North Riverside Plaza
0000 Xxxx 0xx Xxxxxx Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Property Manager Attention: Mr. Xxxxxx Xxxxxx
and to:
Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel --
San Francisco Region
and to:
Xxxxx Xxxxxxx Xxxx Xxxxxx &
Xxxxxxx LLP
1901 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Rent (defined in Section IV.A) is payable to the order of EQUITY
OFFICE PROPERTIES. Landlord shall notify Tenant in writing of the
address to be used for the payment of Rent following the execution
of this Lease.
M. "Business Day(s)" are Monday through Friday of each week, exclusive
of New Year's Day, President's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Holidays"). Landlord
may designate additional Holidays, provided that the additional
Holidays are commonly recognized by the Comparable Buildings
(defined in Exhibit E, Section I.E).
N. Intentionally Omitted.
O. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
P. "Normal Business Hours" for the Building are 8:00 A.M. to 6:00 P.M.
on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.
Q. "Property" means the Building and the parcel(s) of land on which it
is located, and the landscaping, the parking facilities (which shall
include only the existing surface parking lots serving the Building
as of September 1, 2002) and all other
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improvements owned by Landlord and serving the Building and the
tenants thereof and the parcel(s) of land on which they are located.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. POSSESSION.
Landlord and Tenant acknowledge that Tenant is currently is possession of
the Premises and subject to Landlord's obligations under Section IX.B., Tenant
shall continue to accept the Premises in its "as is" condition and
configuration. Tenant agrees that the Premises are in good order and
satisfactory condition, and that there are no representations or warranties by
Landlord regarding the condition of the Premises or the Building, except as may
be expressly set forth in this Lease.
IV. RENT.
A. Payments. As consideration for this Lease, Tenant shall pay
Landlord, without any setoff or deduction (other than as expressly
provided in this Lease), the Base Rent and Additional Rent due for
the Term. "Additional Rent" means all sums (exclusive of Base Rent)
that Tenant is required to pay Landlord. Additional Rent and Base
Rent are sometimes collectively referred to as "Rent". Tenant shall
pay and be liable for all rental, sales and use taxes (but excluding
income taxes), if any, imposed upon or measured by Rent under
applicable Law. Base Rent and recurring monthly charges of
Additional Rent shall be due and payable in advance on the first day
of each calendar month without notice or demand. All other items of
Rent shall be due and payable by Tenant on or before 30 days after
billing by Landlord. All payments of Rent shall be by good and
sufficient check or by other means (such as automatic debit or
electronic transfer) reasonably acceptable to Landlord. If Tenant
fails to pay any item or installment of Rent when due, Tenant shall
pay Landlord an administration fee equal to 4% of the past due Rent,
provided that Tenant shall be entitled to a grace period of 5
Business Days for the first 2 late payments of Rent in a given
calendar year. If the Term commences on a day other than the first
day of a calendar month or terminates on a day other than the last
day of a calendar month, the monthly Base Rent and Tenant's Pro Rata
Share of Expenses (defined in Section IV.C.) and Taxes (defined in
Section IV.D.) for the month shall be prorated based on the number
of days in such calendar month. Landlord's acceptance of less than
the correct amount of Rent shall be considered a payment on account
of the earliest Rent due. No endorsement or statement on a check or
letter accompanying a check or payment shall be considered an accord
and satisfaction, and either party may accept the
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check or payment without prejudice to that party's right to recover
the balance or pursue other available remedies. Except as expressly
set forth in this Lease, Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
B. Payment of Tenant's Pro Rata Share of Expenses and Taxes. Tenant
shall pay Tenant's Pro Rata Share of the total amount of Expenses
(defined in Section IV.C.) and Taxes (defined in Section IV.D) for
each calendar year during the Term. Landlord shall provide Tenant
with a good faith estimate of the total amount of Expenses and Taxes
for each calendar year during the Term. On or before the first day
of each month, Tenant shall pay to Landlord a monthly installment
equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the total amount of Expenses and Taxes, which initial
monthly sum is defined in Section I.E. above as the "Tenant's
Monthly Expense and Tax Payment". If Landlord determines that its
good faith estimate was incorrect by a material amount, Landlord may
provide Tenant with a revised estimate. After its receipt of the
revised estimate, Tenant's Monthly Expense and Tax Payment shall be
based upon the revised estimate. If Landlord does not provide Tenant
with an estimate of the total amount of Expenses and Taxes by
January 1 of a calendar year, Tenant shall continue to pay monthly
installments based on the previous year's estimate until Landlord
provides Tenant with the new estimate. Upon delivery of the new
estimate, an adjustment shall be made for any month for which Tenant
paid monthly installments based on the previous year's estimate.
Tenant shall pay Landlord the amount of any underpayment within 30
days after receipt of the new estimate. Any overpayment shall be
refunded to Tenant within 30 days or credited against the next due
future installment(s) of Additional Rent, provided, however, if the
Term has expired, then any overpayment shall be refunded to Tenant
within 30 days after receipt of the new estimate.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual amount
of Expenses and Taxes for the prior calendar year and Tenant's Pro
Rata Share of the actual amount of Expenses and Taxes for the prior
calendar year. If the estimated amount of Expenses and Taxes for the
prior calendar year is more than the actual amount of Expenses and
Taxes for the prior calendar year, Landlord shall apply any
overpayment by Tenant against Additional Rent due or next becoming
due, provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant after
first deducting the amount of Rent due. If the estimated amount of
Expenses and Taxes for the prior calendar year is less than the
actual amount of Expenses and Taxes for such prior year, Tenant
shall pay Landlord, within 30 days after its receipt of the
statement of Expenses and Taxes, any underpayment for the prior
calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred
in each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including,
but not limited to:
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1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance,
uniforms, training, and retirement and pension plans, for all
persons at or below the level of Portfolio Manager or
Portfolio Engineer who are engaged in the operation,
management, maintenance or security of the Building and/or the
Property; provided that if any employees of Landlord provide
services for the Building and other buildings of Landlord,
then a prorated portion of such employee's wages, benefits and
taxes shall be included in Expenses based on the portion of
their working time devoted to the Building.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed
the cost that would have been incurred had Landlord entered
into an arms-length contract for such services with an
unaffiliated entity of comparable skill and experience.
3. The cost of services, including amounts paid to service
providers and the rental and purchase cost of parts, supplies,
tools and equipment, provided that costs of rentals and other
related expenses incurred in leasing HVAC, elevators or other
equipment ordinarily considered to be of a capital nature may
only be included in Expenses in the event that (i) such
equipment is used in providing janitorial or similar services,
or normal repairs and maintenance, and is not affixed to the
Building or the Property, or (ii) such equipment is used in
the event of an emergency.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler
and other insurance customarily carried from time to time by
owners of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which
Landlord is reimbursed by tenants. "Electrical Costs" means:
(a) charges paid by Landlord for electricity; (b) costs
incurred in connection with an energy management program for
the Property; and (c) if and to the extent permitted by Law, a
fee for the services provided by Landlord in connection with
the selection of utility companies and the negotiation and
administration of contracts for electricity, provided that
such fee shall not exceed 50% of any savings obtained by
Landlord. Electrical Costs shall be adjusted as follows: (i)
amounts received by Landlord as reimbursement for above
standard electrical consumption shall be deducted from
Electrical Costs; (ii) the
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cost of electricity incurred to provide overtime HVAC to
specific tenants (as reasonably estimated by Landlord) shall
be deducted from Electrical Costs; and (iii) if Tenant is
billed directly for the cost of building standard electricity
to the Premises as a separate charge in addition to Base Rent,
the cost of electricity to individual tenant spaces in the
Building shall be deducted from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished
from replacement parts or components installed in the ordinary
course of business) made to the Property which are: (a)
performed primarily to reduce operating expense costs or
otherwise improve the operating efficiency of the Property; or
(b) required to comply with any Laws that are enacted, or
first interpreted to apply to the Property, after the date of
this Lease. The cost of capital improvements shall be
amortized by Landlord over lesser of the Payback Period
(defined below) or 10 years. The amortized cost of capital
improvements may, at Landlord's option, include actual or
imputed interest at the rate that Landlord would reasonably be
required to pay to finance the cost of the capital
improvement. "Payback Period" means the reasonably estimated
period of time that it takes for the cost savings resulting
from a capital improvement to equal the total cost of the
capital improvement, and shall only apply to capital
expenditures under item (a) above. Notwithstanding the
foregoing, the portion of the annual amortized costs to be
included in Expenses in any calendar year with respect to a
capital improvement which is intended to reduce expenses or
improve the operating efficiency of the Property or Building
shall equal the lesser of: (a) such annual amortized costs;
and (b) the projected annual amortized reduction in expenses
for that portion of the amortization period of the capital
improvement which falls within the Term (based on the total
cost savings for such period, as reasonably estimated by
Landlord).
7. All fees, costs, expenses or other amounts payable by Landlord
to any association established for the benefit of the Property
and/or other properties.
If Landlord incurs Expenses for the Property together with one or
more other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned
between the Property and the other buildings or properties. Expenses
shall not include: the cost of capital improvements (except as set
forth above); depreciation; interest (except as provided above for
the amortization of capital improvements); principal payments of
mortgage and other non-operating debts of Landlord; the cost of
repairs or other work to the extent Landlord is reimbursed by
insurance or condemnation proceeds; costs in connection with leasing
space in the Building, including brokerage commissions; lease
concessions, including rental abatements and construction
allowances,
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granted to specific tenants; costs incurred in connection with the
sale, financing or refinancing of the Building; fines, interest and
penalties incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses; organizational expenses associated with
the creation and operation of the entity which constitutes Landlord;
any penalties or damages that Landlord pays to Tenant under this
Lease or to other tenants in the Building under their respective
leases; the cost of providing any service directly to and paid
directly by Tenant; sums (other than management fees, it being
agreed that the management fees included in Expenses are as
described in Section IV.C.2 above) paid to subsidiaries or other
affiliates of Landlord for services on or to the Property, Building
and/or Premises, but only to the extent that the costs of such
services exceed the competitive cost for such services rendered by
persons or entities of similar skill, competence and experience;
attorney's fees and other expenses incurred in connection with
negotiations or disputes with prospective tenants or tenants or
other occupants of the Building; the cost or expense of any services
or benefits provided generally to other tenants in the Building and
not provided or available to Tenant; any expenses for which Landlord
has received actual reimbursement (other than through Expenses);
costs incurred to comply with Laws relating to the removal of
hazardous material (as defined under applicable Law) which was in
existence in the Building prior to the Commencement Date, and was of
such a nature that a federal, State or municipal governmental
authority, if it had then had knowledge of the presence of such
hazardous material, in the state, and under the conditions that it
then existed in the Building, would have then required the removal
of such hazardous material or other remedial or containment action
with respect thereto; and costs incurred to remove, remedy, contain,
or treat hazardous material, which hazardous material is brought
into the Building after the date hereof by Landlord or any other
tenant of the Building and is of such a nature, at that time, that a
federal, State or municipal governmental authority, if it had then
had knowledge of the presence of such hazardous material, in the
state, and under the conditions, that it then exists in the
Building, would have then required the removal of such hazardous
material or other remedial or containment action with respect
thereto; and any costs expressly excluded from Expenses elsewhere in
this Lease.
If the Building is not at least 95% occupied during any calendar
year or if Landlord is not supplying services to at least 95% of the
total Rentable Square Footage of the Building at any time during a
calendar year, then the Expenses which vary in amount based upon the
occupancy levels of the Building shall, at Landlord's option, be
determined as if the Building had been 95% occupied and Landlord had
been supplying services to 95% of the Rentable Square Footage of the
Building during that calendar year. If Tenant pays for Tenant's Pro
Rata Share of Expenses based on increases over a "Base Year" and
Expenses for a calendar year are determined as provided in the prior
sentence, Expenses for the Base Year shall also be determined as if
the Building had been 95% occupied and Landlord had been supplying
services to 95% of the Rentable Square Footage of the Building. The
extrapolation of Expenses under this Section shall be performed by
appropriately adjusting the cost of those components of Expenses
that are
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impacted by changes in the occupancy of the Building. Landlord shall
(i) not make a profit by charging items to Expenses that are
otherwise also charged separately to others and (ii) Landlord shall
not collect Expenses from Tenant and all other tenants/occupants in
the Building in an amount in excess of what Landlord incurred for
the items included in Expenses.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
other assessments on the Building and/or Property, including, but
not limited to, assessments for special improvement districts and
building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such
taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property; (2)
all personal property taxes for property that is owned by Landlord
and used in connection with the operation, maintenance and repair of
the Property; and (3) all costs and fees reasonably incurred in
connection with seeking reductions in any tax liabilities described
in (1) and (2), including, without limitation, any costs reasonably
incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income,
capital levy, franchise, capital stock, gift, estate or inheritance
tax. If an assessment is payable in installments, Taxes for the year
shall include the amount of the installment and any interest due and
payable during that year. For all other real estate taxes, Taxes for
that year shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for the year or the amount
due and payable for that year, provided that Landlord's election
shall be applied consistently throughout the Term. If a change in
Taxes is obtained for any year of the Term, then Taxes for that year
will be retroactively adjusted and Landlord shall provide Tenant
with a credit, if any, based on the adjustment.
E. Audit Rights. Tenant may, within 180 days after receiving Landlord's
statement of Expenses, give Landlord written notice ("Review
Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year. Within a reasonable time after
receipt of the Review Notice, Landlord shall make all pertinent
records available for inspection that are reasonably necessary for
Tenant to conduct its review. If any records are maintained at a
location other than the office of the Building, Tenant may either
inspect the records at such other location or pay for the reasonable
cost of copying and shipping the records. If Tenant retains an agent
to review Landlord's records, the agent must be with a licensed CPA
firm. Tenant shall be solely responsible for all costs, expenses and
fees incurred for the audit. Within 60 days after the records are
made available to Tenant, Tenant shall have the right to give
Landlord written notice (an "Objection Notice") stating in
reasonable detail any objection to Landlord's statement of Expenses
for that year. If Tenant fails to give Landlord an Objection Notice
within the 60 day period or fails to provide Landlord with a Review
Notice within the 180 day period described above, Tenant shall be
deemed to have approved Landlord's statement of Expenses and shall
be barred from raising any claims
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regarding the Expenses for that year. If Tenant provides Landlord
with a timely Objection Notice, Landlord and Tenant shall work
together in good faith to resolve any issues raised in Tenant's
Objection Notice. If Landlord and Tenant determine that Expenses for
the calendar year are less than reported, Landlord shall provide
Tenant with a credit against the next installment of Rent in the
amount of the overpayment by Tenant. Likewise, if Landlord and
Tenant determine that Expenses for the calendar year are greater
than reported, Tenant shall pay Landlord the amount of any
underpayment within 30 days. In no event shall Tenant be permitted
to examine Landlord's records or to dispute any statement of
Expenses unless Tenant has paid and continues to pay all Rent when
due.
F. Increase in Base Rent. On the fifth anniversary of the Commencement
Date, the monthly Base Rent per rentable square foot of the Premises
shall be increased by the greater of (i) the cumulative percentage
increase in the "Consumer Index" during the five year period ending
on such anniversary or (ii) $0.156 per rentable square foot of the
Premises per month. The "Consumer Index" shall mean the Consumer
Price Index for Urban Wage Earners and Clerical Workers
(1982-1984=100) U.S. City Average for All Items, as published by the
United States Department of Labor, Bureau of Labor Statistics. If
the Consumer Index is discontinued or revised during the Term, then
such other index or computation with which it is replaced or other
reasonable replacement as determined by Landlord shall be used.
Landlord shall submit a statement to Tenant reflecting the increase,
if any, as provided in this Section. If such statement is delayed,
Tenant shall continue to pay the Base Rent in effect and shall
immediately pay to Landlord any deficiency in Base Rent due upon
submission of such statement. The Base Rent, as adjusted pursuant to
this Section, shall remain in effect for the balance of the initial
Term.
V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever except with Landlord's prior written consent (which may be withheld
in Landlord's sole discretion). Tenant shall not use or permit the use of the
Premises for any purpose which is illegal, dangerous to persons or property or
which, in Landlord's reasonable opinion, unreasonably disturbs any other tenants
of the Building or interferes with the operation of the Building. Tenant shall
comply with all Laws, including the Americans with Disabilities Act, regarding
the operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall comply with the rules and regulations of the
Building attached as EXHIBIT B and such other reasonable rules and regulations
adopted by Landlord from time to time. Tenant shall also cause its agents,
contractors, subcontractors, employees, customers, and subtenants to comply with
all rules and regulations. Landlord shall not knowingly discriminate against
Tenant in Landlord's enforcement of the rules and regulations.
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VI. SECURITY DEPOSIT; LETTER OF CREDIT.
The Security Deposit, if any, shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance payment of Rent
or a measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant within 45 days after the later to occur of: (1)
the determination of Tenant's Pro Rata Share of Expenses and Taxes for the final
year of the Term; (2) the date Tenant surrenders possession of the Premises to
Landlord in accordance with this Lease; or (3) the Termination Date. If Landlord
transfers its interest in the Premises, Landlord may assign the Security Deposit
to the transferee and, following the assignment, Landlord shall have no further
liability for the return of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts. Tenant hereby
waives the provisions of Section 1950.7 of the California Civil Code, or any
similar or successor Laws now or hereinafter in effect.
The Security Deposit may be in the form of an irrevocable letter of credit
(the "Letter of Credit"), which Letter of Credit shall: (a) be in the amount of
six (6) months of Base Rent due hereunder (at the rate payable for the first 5
years of the Term) and the estimate of Tenant's Monthly Expense and Tax Payment
as set forth in Section I.E above; (b) be issued on the form attached hereto as
EXHIBIT G; (c) name Landlord as its beneficiary; and (d) be drawn on an FDIC
insured financial institution satisfactory to the Landlord. The Letter of Credit
(and any renewals or replacements thereof) shall be for a term of not less than
1 year. Tenant agrees that it shall from time to time, as necessary, whether as
a result of a draw on the Letter of Credit by Landlord pursuant to the terms
hereof or as a result of the expiration of the Letter of Credit then in effect,
renew or replace the original and any subsequent Letter of Credit so that a
Letter of Credit, in the amount required hereunder, is in effect until a date
which is at least 60 days after the Termination Date of the Lease. If Tenant
fails to furnish such renewal or replacement at least 60 days prior to the
stated expiration date of the Letter of Credit then held by Landlord, Landlord
may draw upon such Letter of Credit and hold the proceeds thereof (and such
proceeds need not be segregated) as a Security Deposit pursuant to the terms of
this Article VI. Any renewal or replacement of the original or any subsequent
Letter of Credit shall meet the requirements for the original Letter of Credit
as set forth above, except that such replacement or renewal shall be issued by a
national bank satisfactory to Landlord at the time of the issuance thereof.
If Landlord draws on the Letter of Credit as permitted in this Lease or
the Letter of Credit, then, upon demand of Landlord, Tenant shall restore the
amount available under the Letter of Credit to its original amount by providing
Landlord with an amendment to the Letter of Credit evidencing that the amount
available under the Letter of Credit has been restored to its original amount.
In the alternative, Tenant may provide Landlord with cash, to be held by
Landlord in accordance with this Article VI, equal to the restoration amount
required under the Letter of Credit.
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VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services in a
manner materially consistent with that of the Current Condition
(defined hereinbelow): (1) Water service for use in the lavatories
on each floor on which the Premises are located, water for drinking
fountains and food preparation areas within the Premises, and
chilled water for cooling of Tenant's computer equipment; (2) Heat
and air conditioning in season during Normal Business Hours, at such
temperatures and in such amounts as are consistent with the Current
Condition or as required by governmental authority. Tenant, upon
such advance notice as is reasonably required by Landlord, shall
have the right to receive HVAC service during hours other than
Normal Business Hours. Tenant shall pay Landlord the standard charge
for the additional service as reasonably determined by Landlord from
time to time; (3) Maintenance and repair of the Property as
described in Section IX.B.; (4) Janitor service on Business Days. If
Tenant's use, floor covering or other improvements require special
services in excess of the standard services for the Building, Tenant
shall pay the additional cost attributable to the special services;
(5) Elevator service; (6) Electricity to the Premises for general
office use, in accordance with and subject to the terms and
conditions in Article X; and (7) such other services as are
consistent with the Current Condition. The term "Current Condition"
for purposes of this Lease shall mean the condition of the Building
and the level and quality of utilities and services, as applicable,
provided at the Building immediately prior to the Commencement Date.
The water usage within the Premises, the chilled water usage for the
cooling of Tenant's computer equipment, and Tenant's HVAC usage
shall be separately metered. Landlord shall install such meters, and
the cost thereof, including the cost of installation, operation and
maintenance thereof, as reasonably determined by Landlord, shall be
paid by Tenant. Tenant shall pay the cost of its consumption of
chilled water, and if Tenant uses water or HVAC in excess of the
Current Condition, then Tenant shall also pay for such excess
consumption (but without charge, in any event, for depreciation,
profit, overhead or administration), including the cost of the
installation, operation, and maintenance of equipment which is
installed in order to supply the chilled water or the excess
consumption of water and/or HVAC, and the cost of increased wear and
tear on existing equipment caused by the chilled water usage or such
excess consumption, as reasonably determined by Landlord.
B. Landlord's failure to furnish, or any interruption or termination
of, services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations,
or the occurrence of any event or cause beyond the reasonable
control of Landlord, or Landlord's failure to provide access to the
Premises (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to
an abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement. However, if the Premises, or a
material portion of the Premises, is made untenantable for a period
in excess of 3 consecutive Business Days as a result of the Service
Failure,
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then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder retroactive to the beginning of
the Service Failure and ending on the day the service has been
restored. If the entire Premises has not been rendered untenantable
by the Service Failure, the amount of abatement that Tenant is
entitled to receive shall be prorated based upon the percentage of
the Premises rendered untenantable and not used by Tenant. In no
event, however, shall Landlord be liable to Tenant for any loss or
damage, including the theft of Tenant's Property (defined in Article
XV), arising out of or in connection with the failure of any
security services, personnel or equipment. Furthermore, if any
Service Failure is not due to the intentional acts or negligence of
Tenant and shall continue for more than 180 consecutive days, then
Tenant shall have the right to terminate this Lease during the first
10 Business Days of each calendar month following the end of such
180-day period until such time as Landlord has cured the Service
Failure, which right may be exercised only by delivery of 30 days'
notice to Landlord (the "Service Failure Termination Notice") during
such 10 Business Day period, and shall be effective as of a date set
forth in the Service Failure Termination Notice (the "Service
Failure Termination Date"), which Service Failure Termination Date
shall not be less than 30 days, and not more than 90 days, following
the delivery of the Service Failure Termination Notice.
Notwithstanding anything contained in this Section VII.B to the
contrary, Tenant's Service Failure Termination Notice shall be null
and void if Landlord cures such Service Failure within such 30 day
period following receipt of the Service Failure Termination Notice.
Notwithstanding the foregoing, Tenant shall not have the right to
terminate this Lease pursuant to the terms of this Section VII.B,
if, as of the date of delivery by Tenant of the Service Failure
Termination Notice, (A) the first trust deed holder of the Building,
if any (the "Bank") has recorded a notice of default on the Building
or filed a notice evidencing a legal action by the Bank against
Landlord on the Building, and (B) the Bank diligently proceeds to
gain possession of the Premises and, to the extent Bank does gain
possession of the Premises, the Bank diligently proceeds to cure
such Service Failure within 15 Business Days following the 60th
consecutive Business Day or 90th non-consecutive Business day in the
one year period upon written notice to Landlord without any
liability whatsoever to Landlord.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant given at
least 60 days prior to the Termination Date, may require Tenant to remove, at
Tenant's expense: (1) Cable (defined in Section IX.A) installed after the
Commencement Date by or for the exclusive benefit of Tenant and located in the
Premises or other portions of the Building; and (2) any Leasehold Improvements
that are performed by or for the benefit of Tenant after the Commencement Date
and, in Landlord's reasonable judgment, are of a nature that would require
removal and repair costs that are materially in excess of the removal and repair
costs associated with standard office
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improvements (collectively referred to as "Required Removables"). Without
limitation, it is agreed that Required Removables include internal stairways,
raised floors, personal baths and showers, vaults, rolling file systems and
structural alterations and modifications of any type, but Required Removables
shall not include any such items installed before the Commencement Date. The
Required Removables designated by Landlord shall be removed by Tenant before the
Termination Date, provided that upon prior written notice to Landlord, Tenant
may remain in the Premises for up to 5 days after the Termination Date for the
sole purpose of removing the Required Removables. Tenant's possession of the
Premises shall be subject to all of the terms and conditions of this Lease,
including the obligation to pay Rent on a per diem basis at the rate in effect
for the last month of the Term. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to remove any
Required Removables or perform related repairs in a timely manner, Landlord, at
Tenant's expense, may remove and dispose of the Required Removables and perform
the required repairs. Tenant, within 30 days after receipt of an invoice (which
shall be accompanied by reasonable supporting documentation of the amounts set
forth in such invoice), shall reimburse Landlord for the reasonable costs
incurred by Landlord. Notwithstanding the foregoing, Tenant, at the time it
requests approval for a proposed Alteration (defined in Section IX.C), may
request in writing that Landlord advise Tenant whether the Alteration or any
portion of the Alteration will be designated as a Required Removable. Within 10
days after receipt of Tenant's request, Landlord shall advise Tenant in writing
as to which portions of the Alteration, if any, will be considered to be
Required Removables.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under this
Lease, and shall keep the Premises in good condition and repair,
reasonable wear and tear and damage due to casualty (subject to
Section XVII below) or condemnation excepted. Tenant's obligations
shall consist of repairs to: (1) floor covering; (2) interior
partitions; (3) doors; (4) the interior side of demising walls; (5)
electronic, phone and data cabling and related equipment
(collectively, "Cable") that is installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of
the Building; (6) supplemental air conditioning units, private
showers and kitchens, including hot water heaters, plumbing, and
similar facilities serving Tenant exclusively; and (7) Alterations
performed by contractors retained by Tenant, including related HVAC
balancing. All work shall be performed in accordance with the rules
and procedures described in Section IX.C. below. If Tenant fails to
make any repairs to the Premises for more than 15 days after notice
from Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay the
reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an
amount equal to 7% of the cost of the repairs. Notwithstanding the
foregoing, if more than 15 days is reasonably required to complete
such repairs, then Tenant shall be allowed additional time (not to
exceed 60 days) as is reasonably necessary to complete such repairs
so long as: (i) Tenant commences the work within 15 days,
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and (ii) Tenant diligently pursues a course of action to complete
the work. However, if Tenant's failure to complete the work within
15 days creates a hazardous condition, then the failure may be cured
immediately by Landlord.
B. Landlord's Repair Obligations. Landlord shall use commercially
reasonable efforts to keep and maintain in the Current Condition and
make repairs to and perform maintenance upon (in order to maintain
the Current Condition): (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life
safety systems serving the Building in general; (3) Common Areas;
(4) the roof of the Building; (5) exterior windows of the Building;
and (6) elevators serving the Building. Landlord shall promptly make
repairs (considering the nature and urgency of the repair) for which
Landlord is responsible. Tenant hereby waives any and all rights
under and benefits of subsection 1 of Section 1932, and Sections
1941 and 1942 of the California Civil Code, or any similar or
successor Laws now or hereinafter in effect.
C. Alterations. Tenant shall not make alterations, additions or
improvements to the conditioned Premises or install any Cable in the
Premises or other portions of the Building (collectively referred to
as "Alterations") without first obtaining the written consent of
Landlord in each instance, which consent shall not be unreasonably
withheld or delayed. However, Landlord's consent shall not be
required for any Alteration that satisfies all of the following
criteria (a "Cosmetic Alteration"): (1) is of a cosmetic nature such
as painting, wallpapering, hanging pictures and installing
carpeting; (2) is not visible from the exterior of the Premises or
Building; (3) will not affect the systems or structure of the
Building; and (4) does not require work to be performed inside the
demising walls or above the ceiling of the Premises. However, even
though consent is not required, the performance of Cosmetic
Alterations shall be subject to all the other provisions of this
Section IX.C. Prior to starting work, Tenant shall furnish Landlord
with plans and specifications reasonably acceptable to Landlord;
names of contractors reasonably acceptable to Landlord (provided
that Landlord may designate specific contractors with respect to
Building systems provided the work of such contractors is
competitively priced); copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance in
amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums reasonably paid by
Landlord for third party examination of Tenant's plans for
non-Cosmetic Alterations. IN addition, within 30 days after receipt
of an invoice from Landlord, Tenant shall
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pay Landlord a fee for Landlord's oversight and coordination of any
non-Cosmetic Alterations equal to 7% of the cost of the non-Cosmetic
Alterations. Upon completion, Tenant shall furnish "as-built" plans
(except for Cosmetic Alterations), completion affidavits, full and
final waivers of lien in recordable form, and receipted bills
covering all labor and materials. Tenant shall assure that the
Alterations comply with all insurance requirements and Laws.
Landlord's approval of an Alteration shall not be a representation
by Landlord that the Alteration complies with applicable Laws or
will be adequate for Tenant's use.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall be paid for by
Tenant by a separate charge payable by Tenant to Landlord within 30
days after billing by Landlord; provided, however, that for so long
as the Premises include the entire 4100 Building, Tenant shall have
the option to arrange and pay for electricity consumed in the 4100
Building through a direct agreement with the utility supplier.
Electrical service to the Premises may be furnished by one or more
companies providing electrical generation, transmission and
distribution services, and the cost of electricity may consist of
several different components or separate charges for such services,
such as generation, distribution and stranded cost charges.
Notwithstanding the foregoing, Landlord shall have the exclusive
right to select any company providing electrical service to the
Premises, to aggregate the electrical service for the Property and
Premises with other buildings, to purchase electricity through a
broker and/or buyers group and to change the providers and manner of
purchasing electricity, provided that the electrical service
provided to the Premises: (1) shall be priced at or below the price
Tenant could reasonably expect to attain in a direct agreement with
the utility supplier; (2) shall be available and deliverable to the
Premises without interruption to the same extent as reasonably could
be expected if such service was supplied directly by the same
utility supplier as is supplying service on the Commencement Date;
and (3) Tenant is not required to bear any cost or expense (whether
directly or as a component of Expenses) or suffer any disruption in
supply in connection with the change-over in the electrical service
supplier. Tenant's electrical usage in the 4100 Building is
separately metered. If Landlord reasonably determines that Tenant's
electrical usage exceeds what is standard in the 4000 Building, in
which case the cost thereof, including the cost of installation,
operation and maintenance, as reasonably determined by Landlord,
shall be paid by Tenant. Landlord shall be entitled to receive a
profit (if permitted by Law) in connection with Landlord's selection
of utility companies and the negotiation and administration of
contracts for electricity provided the aggregate cost of electricity
supplied to the Property (including charges for services such as
generation, distribution and stranded costs) does not exceed the
cost Landlord could reasonably expect to attain in a direct
agreement with the utility supplier.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity or overall load, the Current Condition. If
Tenant requests permission to consume
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excess electrical service, Landlord may refuse to consent or may
condition consent upon conditions that Landlord reasonably elects
(including, without limitation, the installation of utility service
upgrades, additional meters or submeters, air handlers or cooling
units), and the additional usage (to the extent permitted by Law),
and installation and maintenance costs shall be paid by Tenant. If
Tenant uses electricity in excess of the Current Condition, then
Tenant shall pay for such excess consumption (but without charge, in
any event, for depreciation, profit, overhead of administration),
including the cost of increased wear and tear on existing equipment
caused by such excess consumption, as reasonably determined by
Landlord.
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or during the last 12 months of the Term show the Premises,
to clean and make reasonable repairs, alterations or additions to the Premises,
and to conduct or facilitate reasonable repairs, alterations or additions to any
portion of the Building, including other tenants' premises. Except in
emergencies or to provide janitorial and other Building services after Normal
Business Hours, Landlord shall provide Tenant with reasonable prior notice of
entry into the Premises, which may be given orally. If reasonably necessary for
the protection and safety of Tenant and its employees, Landlord shall have the
right to temporarily close all or a portion of the Premises to perform repairs,
alterations and additions. However, except in emergencies, Landlord will not
close the Premises if the work can reasonably be completed on weekends and after
Normal Business Hours. Entry by Landlord shall not constitute constructive
eviction, or entitle Tenant to an abatement or reduction of Rent (except as
expressly set forth in this Lease). Notwithstanding the foregoing, except in
emergency situations as determined by Landlord, Landlord shall exercise
reasonable efforts not to unreasonably interfere with the conduct of the
business of Tenant in the Premises. However, the foregoing shall not require
Landlord to perform work after Normal Business Hours unless Tenant agrees to
reimburse Landlord for the extra cost incurred in connection with such work
which exceeds the cost for such work which would have been incurred had it been
performed during Normal Business Hours. Notwithstanding anything to the contrary
set forth in this Article XI, Tenant may designate certain areas of the Premises
as "Secured Areas" should Tenant require such areas for the purpose of securing
certain valuable property or confidential information. In connection with the
foregoing, Landlord shall not enter such Secured Areas except in the event of an
emergency. Landlord need not clean any area designated by Tenant as a Secured
Area and shall only maintain or repair such Secured Areas to the extent (i) such
repair or maintenance is required in order to maintain and repair the Building
structure and/or the Building systems and equipment; (ii) as required by Law, or
(iii) in response to specific requests by Tenant and in accordance with a
schedule reasonably designated by Tenant, subject to Landlord's reasonable
approval.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or
encumber any interest in this Lease or allow any third party to use
any portion of the Premises (collectively or
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individually, a "Transfer") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Without limitation, it is agreed that
Landlord's consent shall not be considered unreasonably withheld if:
(1) the proposed transferee's financial condition is not reasonably
adequate to meet the obligations imposed on Tenant by this Lease (or
in the event of a sublease, the obligations imposed by the
sublease); (2) the proposed transferee's use is not a Permitted use
and either is not suitable for the Building considering the business
of the other tenants and the Building's prestige, or would result in
a violation of another tenant's rights; (3) the proposed transferee
is an occupant of the Building or Property, or a governmental agency
(unless Landlord, with respect to the Building, has leased space to,
or approved subleases with governmental agencies or
instrumentalities thereof which are comparable (in terms of use,
security issues, express or implied power of eminent domain,
reputation, character and size of space in the Building); (4) Tenant
is in Monetary Default (defined in Section XIX.A below) or material
non-Monetary Default after the expiration of the notice and cure
periods in this Lease; or (5) any portion of the Building or
Premises would become subject to additional or different Laws as a
consequence of the proposed Transfer. Tenant shall not be entitled
to receive any consequential, special or indirect damages based upon
a claim that Landlord unreasonably withheld its consent to a
proposed Transfer. Instead, any such claim of Tenant shall be
limited to the foreseeable, direct and actual damages incurred by
Tenant. Any attempted Transfer in violation of this Article shall,
at Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation
under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord
may reasonably request. Landlord shall, by written notice to Tenant
within 20 days of its receipt of the required information and
documentation, either consent to the Transfer by the execution of a
consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing. If Landlord
refuses to give such consent, its notice to Landlord shall specify
the grounds for such refusal. Tenant shall pay Landlord a review fee
equal to the actual out-of-pocket costs, expenses, and attorney fees
incurred for Landlord's review of any Permitted Transfer or
requested Transfer, including the preparation and negotiation of any
consent required of Landlord related to a Transfer. Notwithstanding
the foregoing, provided that neither the Tenant nor the proposed
transferee requests any changes to this Lease or Landlord's standard
form of consent in connection with the proposed Transfer, such costs
and expenses shall not exceed $1,500.00.
C. Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord
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for the portion of the Premises and Term covered by the Transfer
(the "Transfer Premium"). Tenant shall pay Landlord for Landlord's
share of any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer, including brokerage fees, legal fees
and construction costs, and any other reasonable and customary costs
directly incurred by Tenant in connection with the subject Transfer.
In the event that Tenant does not receive a profit and is at a loss
for a Transfer, such loss shall be carried forward into the
following calendar year for purposes of calculating amounts
hereunder to be paid to Landlord.
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority
of the voting shares/rights at any time changes for any reason
(including but not limited to a merger, consolidation or
reorganization), such change of ownership or control shall
constitute a Transfer. The foregoing shall not apply so long as
Tenant is an entity whose outstanding stock is listed on a
recognized security exchange, or if at least 80% of its voting stock
is owned by another entity, the voting stock of which is so listed.
E. So long as Tenant is not entering into the Permitted Transfer for
the purpose of avoiding or otherwise circumventing the remaining
terms of this Article XII, Tenant may assign its entire interest
under this Lease, without the consent of Landlord, to (i) an
affiliate, subsidiary, or parent of Tenant, or a corporation,
partnership or other legal entity wholly owned by Tenant
(collectively, an "Affiliated Party"), or (ii) a successor to Tenant
by purchase, merger, consolidation or reorganization, provided that
all of the following conditions are satisfied (each such Transfer a
"Permitted Transfer"): (1) Tenant is not in default under this
Lease; (2) the Permitted Use does not allow the Premises to be used
for retail purposes; (3) Tenant shall give Landlord written notice
at least 30 days prior to the effective date of the proposed
Permitted Transfer; (4) with respect to a proposed Permitted
Transfer to an Affiliated Party, Tenant continues to have a net
worth equal to or greater than Tenant's net worth at the date of
this Lease; and (5) with respect to a purchase, merger,
consolidation or reorganization or any Permitted Transfer which
results in Tenant ceasing to exist as a separate legal entity, (a)
Tenant's successor shall own all or substantially all of the assets
of Tenant, and (b) Tenant's successor shall have a net worth which
is at least equal to the greater of Tenant's net worth at the date
of this Lease or Tenant's net worth as of the day prior to the
proposed purchase, merger, consolidation or reorganization. Tenant's
notice to Landlord shall include information and documentation
showing that each of the above conditions has been satisfied. If
requested by Landlord, Tenant's successor shall sign a commercially
reasonable form of assumption agreement. As used herein, (A)
"parent" shall mean a company which owns a majority of Tenant's
voting equity; (B) "subsidiary" shall mean an entity wholly owned by
Tenant or at least 51% of whose voting equity is owned by Tenant;
and (C) "affiliate" shall mean an entity controlled by, controlling
or under common
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control with Tenant. Notwithstanding the foregoing, if any parent,
affiliate or subsidiary to which this Lease has been assigned or
transferred subsequently sells or transfers its voting equity or its
interest under this Lease other than to another parent, subsidiary
or affiliate of the original Tenant named hereunder, such sale or
transfer shall be deemed to be a Transfer requiring the consent of
Landlord hereunder.
F. Notwithstanding anything to the contrary contained in this Article
XII (but not with respect to transactions occurring under Sections
XII.E), in the event Tenant contemplates a Transfer of all or a
portion of the Premises, Tenant shall give Landlord notice (the
"Intention to Transfer Notice") of such contemplated Transfer
(whether or not the contemplated transferee or the terms of such
contemplated Transfer have been determined). The Intention to
Transfer Notice shall specify the portion of and amount of rentable
square feet of the Premises which Tenant intends to Transfer (the
"Contemplated Transfer Space"), the contemplated date of
commencement of the Contemplated Transfer (the "Contemplated
Effective Date"), and the contemplated length of the term of such
contemplated Transfer, and shall specify that such Intention to
Transfer Notice is delivered to Landlord pursuant to this Section
XII.F in order to allow Landlord to elect to recapture and terminate
Tenant's Lease of the Contemplated Transfer Space. Thereafter,
Landlord shall have the option, by giving written notice to Tenant
within 20 days after receipt of any Intention to Transfer Notice, to
recapture the Contemplated Transfer Space. Such recapture shall
cancel and terminate this Lease with respect to such Contemplated
Transfer Space as of the Contemplated Effective Date, provided that
Landlord shall separately demise the Contemplated Transfer Space, at
Landlord's cost, if Tenant would have entered into the Transfer
without separately demising the Contemplated Transfer Space. In the
event of a recapture by Landlord, if this Lease shall be canceled
with respect to less than the entire Premises, the Rent reserved
herein shall be prorated on the basis of the number of rentable
square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Premises, and this Lease as so
amended shall continue thereafter in full force and effect, and upon
request of either party, the parties shall execute written
confirmation of the same. If Landlord declines, or fails to elect in
a timely manner, to recapture such Contemplated Transfer Space under
this Section XII.F, then, subject to the other terms of this Article
XII, for a period of 1 year (the "One Year Period") commencing on
the last day of such 20 day period, Landlord shall not have any
right to recapture the Contemplated Transfer Space with respect to
any Transfer made during the One Year Period, provided that any such
Transfer is substantially on the terms set forth in the Intention to
Transfer Notice; provided however, that any such Transfer shall be
subject to the remaining terms of this Article XII. If such a
Transfer is not so consummated within the One Year Period (or if a
Transfer is so consummated, then upon the expiration of the term of
any Transfer of such Contemplated Transfer Space consummated within
such One Year Period), Tenant shall again be required to submit a
new Intention to Transfer
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Notice to Landlord with respect any contemplated Transfer, as
provided above in this Article XII.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition to
any other right or remedy of Landlord, Landlord may bond or insure over the lien
or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord,
together with reasonable supporting documentation.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful misconduct
of Landlord or any Landlord Related Parties (defined below), Tenant
shall indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by Law), which may
be imposed upon, incurred by or asserted against Landlord or any of
the Landlord Related Parties and arising out of or in connection
with any damage or injury occurring in the Premises during the Term
or any period during which Tenant holds over in the Premises after
the expiration of the Term, or any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees, or
any breach by Tenant hereunder.
B. Except to the extent caused by the negligence or willful misconduct
of Tenant or any Tenant Related Parties (defined below), Landlord
shall indemnify, defend and hold Tenant, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees
and agents ("Tenant Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law), which may be imposed upon, incurred by
or asserted against Tenant or any of the Tenant Related Parties and
arising out of or in connection with the acts or omissions
(including violations of Law) of Landlord, the Landlord Related
Parties or any of Landlord's contractors, or any breach by Landlord
hereunder.
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C. Landlord and the Landlord Related Parties shall not be liable for,
and Tenant waives, all claims for loss or damage to Tenant's
business or loss, theft or damage to Tenant's Property or the
property of any person claiming by, through or under Tenant
resulting from: (1) wind or weather; (2) the failure of any
sprinkler, heating or air-conditioning equipment, any electric
wiring or any gas, water or steam pipes; (3) the backing up of any
sewer pipe or downspout; (4) the bursting, leaking or running of any
tank, water closet, drain or other pipe; (5) water, snow or ice upon
or coming through the roof, skylight, stairs, doorways, windows,
walks or any other place upon or near the Building; (6) any act or
omission of any party other than Landlord or Landlord Related
Parties; and (7) any causes not reasonably within the control of
Landlord. Tenant shall insure itself against such losses under
Article XV below. Notwithstanding the foregoing, except as provided
in Article XVI to the contrary, Tenant shall not be required to
waive any claims against Landlord (other than for loss or damage to
Tenant's business) where such loss or damage is due to the
negligence or willful misconduct of Landlord or any Landlord Related
Parties. Nothing herein shall be construed as to diminish the repair
and maintenance obligations of Landlord contained elsewhere in this
Lease.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, with Broad form water damage including
an Earthquake Sprinkler Leakage endorsement, written at replacement cost value
and with a replacement cost endorsement covering all of Tenant's trade fixtures,
equipment, furniture and other personal property within the Premises ("Tenant's
Property"); (3) Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be required by applicable
statute; and (4) Employers Liability Coverage of at least $1,000,000.00 per
occurrence. Any company writing any of Tenant's Insurance shall have an A.M.
Best rating of not less than A-VIII. All Commercial General Liability Insurance
policies shall name Tenant as a named insured and Landlord (or any successor),
Equity Office Properties Trust, a Maryland real estate investment trust, EOP
Operating Limited Partnership, a Delaware limited partnership, Equity Office
Properties Management Corp., a Delaware corporation, and their respective
members, principals, beneficiaries, partners, officers, directors, employees,
and agents, and other designees of Landlord as the interest of such designees
shall appear, as additional insureds. All policies of Tenant's Insurance shall
contain endorsements that the insurer(s) shall give Landlord and its designees
at least 30 days' advance written notice of any change, cancellation,
termination or lapse of insurance. Tenant shall provide Landlord with a
certificate of insurance evidencing Tenant's Insurance prior to the earlier to
occur of the Commencement Date or the date Tenant is provided with possession of
the Premises for any reason, and upon renewals at least 15 days prior to the
expiration of the insurance coverage. So long as the same is available at
commercially reasonable rates, Landlord shall maintain so called All Risk
property insurance on the Building at replacement cost value, as reasonably
estimated
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by Landlord. Except as specifically provided to the contrary, the limits of
either party's' insurance shall not limit such party's liability under this
Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim, action or causes of action against the
other and their respective trustees, principals, beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Building,
the Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing.
During any period of time that all or a material portion of the
Premises is rendered untenantable as a result of a fire or other
casualty, the Rent shall xxxxx for the portion of the Premises that
is untenantable and not used by Tenant. Landlord shall have the
right to terminate this Lease if: (1) the Building shall be damaged
so that, in Landlord's reasonable judgment, substantial alteration
or reconstruction of the Building lasting more than 180 days shall
be required (whether or not the Premises has been damaged); (2)
Landlord is not permitted by Law to rebuild the Building in
substantially the same form as existed before the fire or casualty;
(3) the Premises have been materially damaged and there is less than
2 years of the Term remaining on the date of the casualty; (4) any
Mortgagee requires that the insurance proceeds be applied to the
payment of the mortgage debt; or (5) a material uninsured loss to
the Building occurs. Landlord may exercise its right to terminate
this Lease by notifying Tenant in writing within 90 days after the
date of the casualty. If Landlord does not terminate this Lease,
Landlord shall commence and proceed with reasonable diligence to
repair and restore the Building and the Leasehold Improvements
(excluding any Alterations that were performed by Tenant in
violation of this Lease). However, in no event shall Landlord be
required to spend more than the insurance proceeds received by
Landlord (plus the applicable deductible amount, provided that
Landlord shall in no event be required to spend the deductible
amount in the event of damage by earthquake or acts of terrorism),
provided that if Landlord does not have sufficient insurance
proceeds (taking into account the applicable deductible amount,
provided that Landlord shall in no event be required to spend the
deductible amount in the event of damage by earthquake or acts of
terrorism) to substantially complete the restoration of the
Leasehold Improvements in the Premises and Landlord elects not to
fund any
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shortfall, Landlord shall so notify Tenant and Tenant, within 10
days thereafter, shall have the right to terminate this Lease by the
giving of written notice to Landlord. Landlord shall not be liable
for any loss or damage to Tenant's Property or to the business of
Tenant resulting in any way from the fire or other casualty or from
the repair and restoration of the damage. Landlord and Tenant hereby
waive the provisions of any Law relating to the matters addressed in
this Article, and agree that their respective rights for damage to
or destruction of the Premises shall be those specifically provided
in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness
but in all events within 90 days from the date of such occurrence,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration
of the Premises and make the Premises tenantable again, using
standard working methods ("Completion Estimate"). If the Completion
Estimate indicates that the Premises cannot be made tenantable
within 270 days from the date of the damage, then regardless of
anything in Section XVII.A above to the contrary, either party shall
have the right to terminate this Lease by giving written notice to
the other of such election within 20 days after receipt of the
Completion Estimate. The Premises shall not be considered tenantable
until all necessary repairs and reconstruction work has been
substantially completed therein and substantially all necessary
parking and access to the Premises is available to Tenant. Tenant,
however, shall not have the right to terminate this Lease if the
fire or casualty was caused by the negligence or intentional
misconduct of Tenant, Tenant Related Parties or any of Tenant's
contractors or licensees. In addition, Tenant shall have the right
to terminate this Lease if: (1) a substantial portion of the
Premises has been damaged by fire or other casualty and such damage
cannot reasonably be repaired within 60 days after receipt of the
Completion Estimate; (2) there is less than 1 year of the Term
remaining on the date of such casualty; (3) the casualty was not
caused by the negligence or intentional misconduct of Tenant or its
agents, employees or contractors; and (4) Tenant provides Landlord
with written notice of its intent to terminate within 30 days after
the date of the fire or other casualty. Notwithstanding the
foregoing, if Tenant was entitled to but elected not to exercise its
right to terminate this Lease and Landlord does not substantially
complete the repair and restoration of the Premises within 2 months
after the expiration of the estimated period of time set forth in
the Completion Estimate, which period shall be extended to the
extent of any Reconstruction Delays, then Tenant may terminate this
Lease by written notice to Landlord within 15 days after the
expiration of such period, as the same may be extended, but prior to
substantial completion of the Premises. For purposes of this Lease,
the term "Reconstruction Delays" shall mean: (i) any delays caused
by Tenant; and (ii) any delays caused by events of Force Majeure
(defined in Section XXXI.D below).
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C. The provisions of this Lease, including this Article XVII,
constitute an express agreement between Landlord and Tenant with
respect to any and all damage to, or destruction of, all or any part
of the Premises or the Property, and any Laws, 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 similar or successor Laws now or hereinafter in
effect, shall have no application to this Lease or any damage or
destruction to all or any part of the Premises or the Property.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part of
the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the claim is
payable separately to Tenant or is otherwise separately identifiable.
Notwithstanding any contrary provision of this Article XVIII, Landlord and
Tenant shall each be entitled to receive 50% of the "bonus value" of the
leasehold estate in connection therewith, which bonus value shall be equal to
the difference between the Rent payable under this Lease and the sum established
by the condemning authority as the award for compensation. Tenant hereby waive
any and all rights it might otherwise have pursuant to Section 1265.130 of the
California Code of Civil Procedure, or any similar or successor Laws.
XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 5 days after written notice to Tenant
("Monetary Default").
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B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not
cured within 30 days after written notice to Tenant. However, if
Tenant's failure to comply cannot reasonably be cured within 30
days, Tenant shall be allowed additional time (not to exceed 90
days) as is reasonably necessary to cure the failure so long as: (1)
Tenant commences to cure the failure within 30 days, and (2) Tenant
diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the
failure must be cured immediately upon notice to Tenant.
C. A petition is filed by or against Tenant under the United States
Bankruptcy Code or any other federal or state laws governing
insolvency (and, in the case of a petition filed against Tenant, the
same is not discharged within 30 days), or Tenant makes a transfer
in fraud of creditors or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts when
due.
D. The leasehold estate is taken by process or operation of Law, and
such taking is not stayed or dismissed within 30 days.
XX. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XIX or not, Landlord shall have
the option to pursue any one or more of the following remedies
without any notice (except as expressly prescribed herein) or demand
whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of
Rent or other obligations, except for those notices specifically
required pursuant to the terms of Article XIX or this Article XX,
and waives any and all other notices or demand requirements imposed
by applicable law):
1. Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to
the sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which
had been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by which
the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount
of such Rent loss that Tenant affirmatively proves could
have been reasonably avoided;
(c) The Worth at the Time of Award of the amount by which
the unpaid Rent for the balance of the Term after the
time of award
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exceeds the amount of such Rent loss that Tenant
affirmatively proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for
all the detriment either proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease
or which in the ordinary course of things would be
likely to result therefrom; and
(e) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to in
parts (a) and (b) above, shall be computed by allowing
interest at the lesser of a per annum rate equal to: (i) the
greatest per annum rate of interest permitted from time to
time under applicable law, or (ii) the Prime Rate plus 4%. For
purposes hereof and of Section XX.D below, the "Prime Rate"
shall be the Prime Rate from time to time published in the
Money Rates column of The Wall Street Journal; provided,
however, if The Wall Street Journal ceases to publish the
Prime Rate in its Money Rates column or similar section of The
Wall Street Journal, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by
a federally insured bank selected by Landlord in the state in
which the Building is located. The "Worth at the Time of
Award" of the amount referred to in part (c), above, shall be
computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award
plus 1%;
2. Employ the remedy described in California Civil Code Section
1951.4 (Landlord may continue this Lease in effect after
Tenant's breach and abandonment and recover Rent as it becomes
due, if Tenant has the right to sublet or assign, subject only
to reasonable limitations); or
3. Notwithstanding Landlord's exercise of the remedy described in
California Civil Code Section 1951.4 in respect of an event or
events of default, at such time thereafter as Landlord may
elect in writing, to terminate this Lease and Tenant's right
to possession of the Premises and recover an award of damages
as provided above in Paragraph XX.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of
Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent. No waiver by Landlord of any breach hereof
shall be effective unless such waiver is in writing and signed by
Landlord.
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C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF
THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF
THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS
AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM
PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR
RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE RIGHT TO TRAIL BY JURY IN ANY LITIGATION ARISING OUT OF
OR RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing
by agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief, or to a
decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy
allowed to Landlord at law or in equity. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of
such default.
E. If Tenant is in default, then, to the extent permitted by Law,
Landlord shall be entitled to receive interest on any unpaid item of
Rent at a rate equal to the lesser of the maximum rate permitted by
Law or the Prime Rate plus 3% per annum.
F. This Article XX shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. FOR PURPOSES HEREOF, "INTEREST
OF LANDLORD IN
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THE PROPERTY" SHALL INCLUDE RENTS DUE FROM TENANTS, INSURANCE PROCEEDS, AND
PROCEEDS FROM CONDEMNATION OR EMINENT DOMAIN PROCEEDINGS (PRIOR TO THE
DISTRIBUTION OF SAME TO ANY PARTNER OR SHAREHOLDER OF LANDLORD OR ANY OTHER
THIRD PARTY).
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may quietly and peacefully have, hold and enjoy the
Premises, subject to the terms of this Lease, provided Tenant pays the Rent and
fully performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. INTENTIONALLY OMITTED.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if Tenant
fails to surrender the Premises at the expiration or earlier termination of this
Lease, occupancy of the Premises after the termination or expiration shall be
that of a tenancy at sufferance. During the first 15 days of any such holdover,
Tenant shall pay an amount equal to 125% of the sum of the Base Rent and
Additional Rent due for the period immediately preceding the holdover,
calculated and payable on a per day basis for each day in such initial 15 day
period that Tenant holds over in the Premises. Thereafter, commencing on the
16th day of any such holdover, Tenant shall pay an amount (on a per calendar
month basis without reduction for partial calendar months during the remainder
of the holdover) equal to 125% of the greater of: (1) the sum of the Base Rent
and Additional Rent due for the period immediately preceding the holdover; or
(2) the fair market gross rental for the Premises as reasonably determined by
Landlord. No holdover by Tenant or payment by Tenant after the expiration or
early termination of this Lease shall be construed to extend the Term or prevent
Landlord from immediate recovery of possession of the Premises by summary
proceedings or otherwise. In addition to the payment of the amounts provided
above, if Landlord is unable to deliver possession of the Premises to a new
tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
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XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
A. Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now
or subsequently arising upon the Premises, the Building or the
Property, and to renewals, modifications, refinancings and
extensions thereof (collectively referred to as a "Mortgage"). The
party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request
from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of having
the Mortgage be superior to this Lease, a Mortgagee shall have the
right at any time to subordinate its Mortgage to this Lease. If
requested by a successor-in-interest to all or a part of Landlord's
interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Notwithstanding the foregoing in this Section
to the contrary, as a condition precedent to the future
subordination of this Lease to a future Mortgage, Landlord shall be
required to provide Tenant with a non-disturbance, subordination,
and attornment agreement in favor of Tenant from any Mortgagee who
comes into existence after the Commencement Date. Such
non-disturbance, subordination, and attornment agreement in favor of
Tenant shall provide that, so long as Tenant is paying the Rent due
under the Lease and is not otherwise in default under the Lease
beyond any applicable cure period, its right to possession and the
other terms of the Lease shall remain in full force and effect. Such
non-disturbance, subordination, and attornment agreement may include
other commercially reasonable provisions in favor of the Mortgagee,
including, without limitation, additional time on behalf of the
Mortgagee to cure defaults of the Landlord to provide that (a)
neither Mortgagee nor any successor-in-interest shall be bound by
(i) any payment of the Base Rent, Additional Rent, or other sum due
under this Lease for more than 1 month in advance or (ii) any
amendment or modification of the Lease made without the express
written consent of Mortgagee or any successor-in-interest; (b)
neither Mortgagee nor any successor-in-interest will be liable for
(i) any act or omission or warranties of any prior landlord
(including Landlord), (ii) the breach of any warranties or
obligations relating to construction of improvements on the Property
or any tenant finish work performed or to have been performed by any
prior landlord (including Landlord), or (iii) the return of any
security deposit, except to the extent such deposits have been
received by Mortgagee; and (c) neither Mortgagee nor any
successor-in-interest shall be subject to any offsets or defenses
which Tenant might have against any prior landlord (including
Landlord).
B. Landlord and Tenant shall each, within 10 Business Days after
receipt of a written request from the other, execute and deliver an
estoppel certificate to those parties as are reasonably requested by
the other (including a Mortgagee or prospective purchaser). The
estoppel certificate shall include a statement certifying that this
Lease is unmodified (except as identified in the estoppel
certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to
such party's actual knowledge, there is no default (or
-30-
stating the nature of the alleged default) and indicating other matters with
respect to the Lease that may reasonably be requested.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or to
enforce any covenant or condition of this Lease, or if either party intervenes
in any suit in which the other is a party to enforce or protect its interest or
rights, the prevailing party shall be entitled to all of its costs and expenses,
including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively referred
to as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by nationally recognized overnight
or same day courier service at the party's respective Notice Address(es) set
forth in Article I, except that if Tenant has vacated the Premises (or if the
Notice Address for Tenant is other than the Premises, and Tenant has vacated
such address) without providing Landlord a new Notice Address, Landlord may
serve notice in any manner described in this Article or in any other manner
permitted by Law. Each notice shall be deemed to have been received or given on
the earlier to occur of actual delivery or the date on which delivery is
refused, or, if Tenant has vacated the Premises or the other Notice Address of
Tenant without providing a new Notice Address, 3 days after notice is deposited
in the U.S. mail or with a courier service in the manner described above. Either
party may, at any time, change its Notice Address (other than to a post office
box address) by giving the other party written notice of the new address in the
manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to the employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent, provided, however, Tenant shall be entitled to an abatement
of
-31-
Rent in accordance with Section VIII.B if the Building is closed, other than as
required by Law or by order of proper governmental authority, and Tenant is
unable to use the Premises as a result of such closure, for a period of at least
3 consecutive Business Days.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall remove Tenant's Property (defined in Article XV)
from the Premises, and quit and surrender the Premises to Landlord, broom clean,
and in good order, condition and repair, ordinary wear and tear excepted. Tenant
shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant's Property within 2 days
after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred for Tenant's Property. In addition, if Tenant fails to remove Tenant's
Property from the Premises or storage, as the case may be, within 30 days after
written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately
vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of
the State of California and Landlord and Tenant hereby irrevocably
consent to the jurisdiction and proper venue of such state. If any
term or provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected,
and each provision of this Lease shall be valid and enforced to the
fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and
shall have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action
by Landlord or Tenant, the period of time for the performance of
such action shall be extended by the number of days that the
performance is actually delayed due to strikes, acts of God,
shortages of labor or materials, war, civil disturbances and other
causes beyond the reasonable control of the performing party ("Force
Majeure"). However, events of Force Majeure shall not extend any
period of time for the payment of Rent or other sums payable by
either party or any period of time for the written exercise of an
option or right by either party.
-00-
X. Xxxxxxxx shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
Landlord shall be released from any further obligations hereunder,
and Tenant agrees to look solely to the successor in interest of
Landlord for the performance of such obligations.
F. Tenant shall indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any brokers claiming to have
represented Tenant in connection with this Lease. Landlord agrees to
indemnify and hold Tenant and the Tenant Related Parties harmless
from all claims of any brokers claiming to have represented Landlord
in connection with this Lease.
Equity Office Properties Management Corp. ("EOPMC") is an affiliate
of Landlord and represents only the Landlord in this transaction.
Any assistance rendered by any agent or employee of EOPMC in
connection with this Lease or any subsequent amendment or
modification hereto has been or will be made as an accommodation to
Tenant solely in furtherance of consummating the transaction on
behalf of Landlord, and not as agent for Tenant.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant; (2) this Lease is
binding upon Tenant; and (3) Tenant is duly organized and legally
existing in the state of its organization and is qualified to do
business in the State of California. Landlord covenants, warrants
and represents that: (1) each individual executing, attesting and/or
delivering this Lease on behalf of Landlord is authorized to do so
on behalf of Landlord; (2) this Lease is binding upon Landlord; and
(3) Landlord is duly organized and legally existing in the state of
its organization and is qualified to do business in the state in
which the Premises are located.
H. Time is of the essence with respect to each provision of this Lease
in which time is an element. This Lease shall create only the
relationship of landlord and tenant between the parties, and not a
partnership, joint venture or any other relationship. This Lease and
the covenants and conditions in this Lease shall inure only to the
benefit of and be binding only upon Landlord and Tenant and their
permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued
prior to or which may continue to accrue after the expiration or
early termination of this Lease. Without limiting the scope of the
prior sentence, it is agreed that Tenant's obligations under
Articles IV, VIII, XIV, XX, XXV and XXX shall survive the expiration
or early termination of this Lease.
-33-
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is relying
upon any warranty, statement or representation not contained in this
Lease. This Lease may be modified only by a written agreement signed
by Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord
may reasonably request in order to create a "business profile" of
Tenant and determine Tenant's ability to fulfill its obligations
under this Lease. Landlord, however, shall not require Tenant to
provide such information unless Landlord is requested to produce the
information in connection with a proposed financing or sale of the
Building. Upon written request by Tenant, Landlord shall enter into
a commercially reasonable confidentiality agreement covering any
confidential information that is disclosed by Tenant. However,
nothing in this Lease shall be construed to obligate Tenant to share
with Landlord or any actual or prospective Mortgagee any non-public
information concerning Tenant or Tenant's financial condition or
business affairs. The parties agree that this Section XXXI.L shall
not apply so long as Tenant is a public company and in material
compliance with the financial reporting requirements imposed by the
Securities and Exchange Commission. This Lease shall be subject and
subordinate to, and Tenant agrees to perform and comply with, the
terms, conditions and provisions of all documents of record now or
hereafter entered into affecting the Building and the Property.
M. Except (i) for matters for which there is a standard of consent or
discretion specifically set forth in this Lease; (ii) matters which
could have an adverse effect on the Building structure or the
systems and equipment of the Building, or which could affect the
exterior appearance of the Building, or which affect signage, or
which relate to costs of removal, or (iii) matters covered by
Article IV (Rent), Article XV (Insurance), Article XIX (Events of
Default), or Article XX (Remedies) of this Lease (collectively, the
"Excepted Matters"), any time the consent of Landlord or Tenant is
required under this Lease, such consent shall not be unreasonably
withheld or delayed, and, except with regard to the Excepted
Matters, whenever this Lease grants Landlord or Tenant the right to
take action, exercise discretion, establish rules and regulations or
make an allocation or other determination, Landlord and Tenant shall
act reasonably and in good faith.
N. Notwithstanding anything to the contrary set forth in this Lease,
Landlord shall be in default in the performance of any obligation
required to be performed by Landlord pursuant to this Lease if
Landlord fails to perform such obligation within 30 days after the
receipt of notice from Tenant specifying in detail
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Landlord's failure to perform; provided, however, if the nature of
Landlord's obligation is such that more than 30 days are required
for its performance, then Landlord shall not be in default under
this Lease if it shall commence such performance within such 30 day
period and thereafter diligently pursue the same to completion. Upon
any such default by Landlord under this Lease, Tenant may, except as
otherwise specifically provided in this Lease to the contrary,
exercise any of its rights provided at law or in equity. No right or
remedy herein conferred upon or reserved to Tenant is intended to be
exclusive of any other right or remedy, and each and every right and
remedy shall be cumulative and in addition to any other right or
remedy given hereunder or now or hereafter existing by agreement,
applicable law or in equity. In addition to other remedies provided
in this Lease, Tenant shall be entitled, to the extent permitted by
applicable law, to injunctive relief, or to a decree compelling
performance of any of the covenants, agreements, conditions or
provisions of this Lease, or to any other remedy allowed to Tenant
at law or in equity. Forbearance by Tenant to enforce one or more of
the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default.
XXXII. ENTIRE AGREEMENT.
This Lease, including the following exhibits and attachments which are
hereby incorporated into and made a part of this Lease, constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A (Outline and Location of Premises),
EXHIBIT B (Building Rules and Regulations), EXHIBIT C (Commencement Letter),
EXHIBIT D (Intentionally Omitted), EXHIBIT E (Additional Provisions), EXHIBIT F
(Parking Agreement) and EXHIBIT G (Form of Letter of Credit).
[The rest of this page intentionally left blank. Signatures on the next page.]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD:
[[SIGNATURE BLOCK OF LANDLORD TO BE PROVIDED]]
TENANT:
INKTOMI CORPORATION, A DELAWARE CORPORATION
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
-36-
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease by and between
[[LANDLORD'S NAME AND ENTITY TYPE TO BE PROVIDED: EOP-XXX, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY]] ("Landlord") and INKTOMI CORPORATION, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at Bayside Towers.
[TO BE PROVIDED PRIOR TO LEASE EXECUTION]
EXHIBIT A
-1-
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking facility (as defined in Section I.Q of the
Lease), the Property and the appurtenances. Capitalized terms have the same
meaning as defined in the Lease. In the event of any conflict between the terms
of this Exhibit B and the Lease, the terms of the Lease shall control.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other than
ingress and egress to and from the Premises. No rubbish, litter, trash, or
material shall be placed, emptied, or thrown in those areas. At no time shall
Tenant permit Tenant's employees to loiter in Common Areas or elsewhere about
the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed in the fixtures or appliances. Damage resulting to
fixtures or appliances by Tenant, its agents, employees or invitees, shall be
paid for by Tenant, and Landlord shall not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size, style
and in such places as are first approved in writing by Landlord. All tenant
identification and suite numbers at the entrance to the Premises shall be
installed by Landlord, at Tenant's cost and expense, using the standard graphics
for the Building. Except in connection with the hanging of lightweight pictures,
white boards, note boards and wall decorations, no nails, hooks or screws shall
be inserted into any part of the Premises or Building except by the Building
maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously consented
to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent and Landlord shall have the right to
retain at all times and to use keys to all locks within and into the Premises,
except for Secured Areas designated by Tenant. Five keys to the locks on the
entry doors in the Premises shall be furnished by Landlord to Tenant at
Landlord's cost and the balance required by Tenant shall be made by Landlord at
Tenant's cost, and Tenant shall not make any duplicate keys. All keys shall be
returned to Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior approval
and shall be required to comply with Landlord's standard rules, regulations,
policies and procedures, which may be reasonably revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use of
elevators, stairways, lobby
EXHIBIT B
-1-
areas or loading dock areas, shall be restricted to hours designated by
Landlord. Tenant shall obtain Landlord's prior approval, which approval shall
not be unreasonably withheld, conditioned or delayed, by providing a detailed
listing of the activity. If approved by Landlord, the activity shall be under
the supervision of Landlord at no cost and expense to Tenant, unless Landlord
requires extra security for the time of the activity, and performed in the
manner required by Landlord. Tenant shall assume all risk for damage to articles
moved and injury to any persons resulting from the activity. If equipment,
property, or personnel of Landlord or of any other party is damaged or injured
as a result of or in connection with the activity, Tenant shall be solely liable
for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises, which approval shall not
be unreasonably delayed. Damage to the Building by the installation,
maintenance, operation, existence or removal of Tenant's Property shall be
repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any way
with other tenants or persons having business with them; (2) solicit business or
distribute, or cause to be distributed, in any portion of the Building,
handbills, promotional materials or other advertising; or (3) conduct or permit
other activities in the Building that might, in Landlord's reasonable opinion,
constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances (except as set
forth below) shall be used or kept by Tenant in the Premises, Building or about
the Property. Tenant shall not, without Landlord's prior written consent, use,
store, install, spill, remove, release or dispose of, within or about the
Premises or any other portion of the Property, any asbestos-containing materials
or any solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any other
applicable environmental Law which may now or later be in effect, provided that
Tenant may use (in compliance with applicable Law) and/or store in the Premises
reasonable quantities of office products which are incidental to the operation
of its offices, which products may be considered, or may contain, "hazardous
materials" (e.g., photocopier toner and cleaning solutions). Tenant shall comply
with all Laws pertaining to and governing the use of these materials by Tenant,
and shall remain solely liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any purpose
which might injure the reputation or impair the present or future value of the
Premises or the Building. Tenant shall not use, or permit any part of the
Premises to be used, for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption or
dispute, or interfere with Landlord's or any other tenant's or occupant's
business or with the rights and privileges of any person
EXHIBIT B
-2-
lawfully in the Building ("Labor Disruption"). Tenant shall take the actions
necessary to resolve the Labor Disruption, and shall have pickets removed and,
at the request of Landlord, immediately terminate any work in the Premises that
gave rise to the Labor Disruption, until Landlord gives its written consent for
the work to resume. Tenant shall have no claim for damages against Landlord or
any of the Landlord Related Parties, nor shall the Commencement Date of the Term
be extended as a result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe operation
as determined solely by Landlord. Tenant shall not furnish cooling or heating to
the Premises, including, without limitation, the use of electronic or gas
heating devices, without Landlord's prior written consent. Tenant shall not use
more than its proportionate share of telephone lines and other telecommunication
facilities available to service the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation, telephones,
lockers, toilets, scales, amusement devices and machines for sale of beverages,
foods, candy, cigarettes and other goods), except for machines for the exclusive
use of Tenant's employees, and then only if the operation does ot violate the
lease of any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the security
and safety of the Building, its occupants, entry, use and contents. Tenant, its
agents, employees, contractors, guests and invitees shall comply with Landlord's
non-discriminatory systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion may
impair the reputation of the Building or its desirability. Upon written notice
from Landlord, Tenant shall refrain from and discontinue such publicity
immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas have
been declared a designated smoking area by Landlord, nor shall the above parties
allow smoke from the Premises to emanate into the Common Areas or any other part
of the Building. Landlord shall have the right to designate the Building
(including the Premises) as non-smoking buildings.
22. Landlord shall have the right to designate and approve standard exterior
window coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to the
extent reasonably practicable, that exterior window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the sun.
EXHIBIT B
-3-
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant shall
not make deliveries to or from the Premises in a manner that might unreasonably
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good business
practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and cleaning work may be done at any time when the offices are vacant.
Windows, doors, and fixtures may be cleaned at any time. Tenant shall provide
adequate waste and rubbish receptacles to prevent unreasonable hardship to the
cleaning service.
EXHIBIT B
-4-
EXHIBIT C
COMMENCEMENT LETTER
(EXAMPLE)
Date
----------------------
Tenant
----------------------
Address
----------------------
----------------------
----------------------
Re: Commencement Letter with respect to that certain Lease dated as of the
_____ day of __________, _____, by and between [[LANDLORD'S NAME AND
ENTITY TYPE TO BE PROVIDED: EOP-XXX, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY]], as Landlord, and ___________________________, as Tenant, for
________ rentable square feet on the ________ floor of the Building
located at _____________________________________.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is ________________________;
2. The Termination Date of the Lease is ____________________________.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
AGREED AND ACCEPTED:
LANDLORD: TENANT:
[[LANDLORD'S SIGNATURE BLOCK TO BE PROVIDED]] INKTOMI CORPORATION,
A DELAWARE CORPORATION
By:
----------------------
Name:
----------------------
Title:
----------------------
Date:
----------------------
EXHIBIT C
-1-
EXHIBIT D
INTENTIONALLY OMITTED
EXHIBIT D
-1-
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease by and between
[[LANDLORD'S NAME AND ENTITY TYPE TO BE PROVIDED: EOP-XXX, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY]] ("Landlord") and INKTOMI CORPORATION, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at Bayside Towers.
I. RENEWAL OPTIONS.
X. Xxxxx of Options; Conditions. Tenant shall have the right to extend
the Term (the first option exercisable by Tenant shall be referred
to as the "First Option" and the second option exercisable by Tenant
shall be referred to as the "Second Option," and collectively the
First Option and the Section Option are the "Options") for two
additional periods of 5 years each (the "First Option Term" and the
"Second Option Term," respectively, and each an "Option Term")
commencing on the day following the Termination Date of the initial
Term or the end of the First Option term, as applicable, and ending
on the 5th anniversary of the Termination Date of the First Option
Term or the Second Option Term, as applicable, if:
1. Landlord receives notice of exercise ("Initial Renewal
Notice") not less than 12 full calendar months prior to the
expiration of the initial Term or the expiration of the First
Option Term, as applicable; and
2. Tenant is not in Monetary Default or material non-Monetary
Default under the Lease beyond any applicable cure periods at
the time that Tenant delivers the applicable Initial Renewal
Notice or at the time Tenant delivers the applicable Binding
Notice (as defined below); and
3. No more than 25% of the Rentable Square Footage of the
Premises in the aggregate is sublet (other than pursuant to a
Permitted Transfer, as defined in Article XII of the lease) at
the time that Tenant delivers the applicable Initial Renewal
Notice or at the time Tenant delivers the applicable Binding
Notice.
B. Terms Applicable to Premises During the First Option Term and the
Second Option Term.
1. The initial Base Rent rate per rentable square foot for the
Premises during the First Option Term and the Second Option
Term, as applicable, shall equal ninety-five percent (95%) of
the Prevailing Market (hereinafter defined) rate per rentable
square foot for the Premises. Base Rent during the First
Option Term or the Second Option Term, as the case may be,
shall increase, if at all, in accordance with the increases
assumed in the determination of Prevailing Market rate. Base
Rent attributable to the
EXHIBIT E
-1-
Premises shall be payable in monthly installments in
accordance with the terms and conditions of Article IV of the
Lease.
2. Tenant shall pay Additional Rent (i.e. Taxes and Expenses) for
the Premises during the First Option Term and the Second
Option Term in accordance with Article IV of the Lease, and
the manner and method in which Tenant reimburses Landlord for
Tenant's share of Taxes and Expenses and the Base Year, if
any, applicable to such matter, shall be some of the factors
considered in determining the Prevailing Market rate for the
First Option Term or the Second Option Term, as the case may
be.
3. The parking rate for Tenant's Parking Rights (defined in
Section III.A of this Exhibit E) during the First Option Term
and the Second Option Term, as applicable, shall equal the
Prevailing Market for Parking (hereinafter defined) rate.
4. Landlord shall not be obligated to pay any brokerage
commission in connection with any broker representing, or
claiming to represent, Tenant in connection with either of the
Options.
C. Procedure for Determining Prevailing Market and Prevailing Market
for Parking. Within 30 days after receipt of Tenant's Initial
Renewal Notice (but no sooner than the first day of the 14th full
calendar month prior to the expiration of the initial Term or the
expiration of the First Option Term, as applicable, Landlord shall
advise Tenant of the applicable Base Rent rate for the Premises and
the parking rate for the applicable Option Term. Tenant, within 15
days after the date on which Landlord advises Tenant of the
applicable Base Rent rate and parking rate for the applicable Option
Term, shall either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its option, or (ii) if
Tenant disagrees with Landlord's determination, provide Landlord
with written notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Binding Notice or Rejection
Notice within such 15 day period, Tenant shall be deemed to have
delivered a Rejection Notice. If Tenant provides Landlord with a
Binding Notice, Landlord and Tenant shall enter into the Renewal
Amendment upon the terms and conditions set forth herein. If Tenant
provides (or is deemed to have provided) Landlord with a Rejection
Notice, Landlord and Tenant shall work together in good faith to
agree upon the Prevailing Market rate for the Premises and the
Prevailing Market for Parking rate during the applicable Option
Term. Upon agreement Tenant shall provide Landlord with Binding
Notice and Landlord and Tenant shall enter into the Renewal
Amendment in accordance with the terms and conditions hereof.
Notwithstanding the foregoing, if Landlord and Tenant are unable to
agree upon the Prevailing Market rate for the Premises and/or the
Prevailing Market for Parking rate within 30 days after the date on
which Tenant provides (or is deemed to have provided) Landlord with
a Rejection Notice, either party, by written notice to the other
(the "Arbitration Notice") within 5 Business Days after the
EXHIBIT E
-2-
expiration of such 30 day period, shall have the right to have the
Prevailing Market rate and/or the Prevailing Market for Parking rate
determined in accordance with the following procedures. If neither
party exercises its right to arbitrate, the Option and any
subsequent Options shall be deemed to be null and void and of no
further force and effect. If either party timely provides the other
with an Arbitration Notice, Landlord and Tenant, within 10 days
after the date of the Arbitration Notice, shall each simultaneously
submit to the other, in a sealed envelope, its good faith estimate
of the Prevailing Market rate (collectively referred to as the
"Estimates"). If the higher of such Estimates is not more than 105%
of the lower of such Estimates, the Prevailing Market rate shall be
the average of the two Estimates. The foregoing procedure shall also
be used with respect to the determination of the Prevailing Market
for Parking rate. If the Prevailing Market rate and/or the
Prevailing Market for Parking rate is not resolved by the exchange
of Estimates, Landlord and Tenant, within 10 days after the exchange
of Estimates, shall each select an appraiser to determine which of
the two applicable Estimates most closely reflects the Prevailing
Market rate for the Premises and/or the Prevailing Market for
Parking rate. Each appraiser so selected shall be certified as an
MAI appraiser or as an ASA appraiser and shall have had at least 5
years experience within the previous 10 years as a real estate
appraiser working in the vicinity with working knowledge of current
rental rates and practices. For purposes of this Lease, an "MAI"
appraiser means an individual who holds an MAI designation conferred
by, and is an independent member of, the American Institute of Real
Estate Appraisers (or its successor organization, or in the event
there is no successor organization, the organization and designation
most similar), and an "ASA" appraiser means an individual who holds
the Senior Member designation conferred by, and is an independent
member of, the American Society of Appraisers (or its successor
organization, or, in the event there is no successor organization,
the organization and designation most similar). Upon selection,
Landlord's and Tenant's appraisers shall work together in good faith
to agree upon which of the two Estimates most closely reflects the
Prevailing Market rate for the Premises and/or the Prevailing Market
for Parking rate, as applicable. The applicable Estimate chosen by
such appraisers shall be binding on both Landlord and Tenant as the
Prevailing Market rate and/or the Prevailing Market for Parking rate
for the Option Term, as applicable. If either Landlord or Tenant
fails to appoint an appraiser within the 10 day period referred to
above, the appraiser appointed by the other party shall be the sole
appraiser for the purposes hereof. If the two appraisers cannot
agree upon which of the two applicable Estimates most closely
reflects the Prevailing Market and/or the Prevailing Market for
Parking rate, as applicable, within the 20 days after their
appointment, then, within 10 days after the expiration of such 20
day period, the 2 appraisers shall select a third appraiser meeting
the aforementioned criteria. Once the third appraiser has been
selected as provided for above, then, as soon thereafter as
practicable but in any case within 14 days, the third appraiser
shall make his determination of which of the two applicable
Estimates most closely reflects the Prevailing Market rate and/or
the Prevailing Market for Parking rate, as applicable, and such
Estimate shall be binding on both
EXHIBIT E
-3-
Landlord and Tenant as the Prevailing Market rate and/or the
Prevailing Market for Parking rate, as applicable, for the Option
Term. If the arbitrator believes that expert advice would materially
assist him, he may retain one or more qualified persons, provided
they have had no dealings with Landlord or Tenant within the
immediately preceding 12 month period, to provide such expert
advice. The parties shall share equally in the costs of the
arbitrator and of any experts reasonably retained by the arbitrator.
Any fees of any appraiser, counsel or experts engaged directly by
Landlord or Tenant, however, shall be borne by the party retaining
such appraiser, counsel or expert. In the event that the Prevailing
Market rate and/or the Prevailing Market for Parking rate has not
been determined by the commencement date of the applicable Option
Term, Tenant shall pay Base Rent and the parking rate upon the terms
and conditions in effect for the Premises until such time as the
Prevailing Market rate and/or the Prevailing Market for parking
rate, as applicable, has been determined. Upon such determination,
the Base Rent for the Premises and the parking rate for Tenant's
Parking Rights shall be retroactively adjusted, if necessary, to the
commencement of the applicable Option Term. If such adjustment
results in an underpayment of Base Rent and/or parking charges by
Tenant, Tenant shall pay Landlord the amount of such underpayment
within 30 days after the determination thereof. If such adjustment
results in an overpayment of Base Rent and/or parking charges by
Tenant, Landlord shall credit such overpayment against the next
installment of Base Rent or parking charges, as applicable, due
under the Lease and, to the extent necessary, any subsequent
installments until the entire amount of such overpayment has been
credited against Base Rent or parking charges, as applicable, or at
Tenant's election, reimburse Tenant within 30 days.
D. Renewal Amendment. If Tenant is entitled to and properly exercises
its applicable Option, Landlord shall prepare an amendment (the
"Renewal Amendment") to reflect changes in the Base Rent, Term,
Termination Date, parking charges, and other appropriate terms. The
Renewal Amendment shall be sent to Tenant (and thereafter executed
and returned by Tenant) within a reasonable time after final
determination of the Prevailing Market rate applicable during the
First Option Term or the Second Option Term, as applicable. An
otherwise valid exercise of the applicable Option shall be fully
effective whether or not the Renewal Amendment is executed.
E. Definition of Prevailing Market. For purposes of the Options,
"Prevailing Market" shall mean the arms length fair market annual
rental rate per rentable square foot under renewal leases and
amendments entered into on or about the date on which the Prevailing
Market is being determined hereunder for space comparable to the
Premises in the Building and office buildings comparable to the
Building in the Foster City, California area (the "Comparable
Buildings"). The determination of Prevailing Market shall take into
account all relevant factors in determining the current fair market
rental rate for premises comparable to the Premises located in the
Building and the Comparable Buildings, fully recognizing any
material economic differences (but in any event disregarding the
presence or
EXHIBIT E
-4-
absence of brokerage commissions) between the terms of this Lease
and any comparison lease or amendment, including, without
limitation: (1) the creditworthiness of the tenant, (2) the size,
configuration and location of the leased premises (including rights
to expand or contract), (3) the presence or absence of parking,
views and other amenities serving the leased premises, (4) the term
of the letting (including options to extend or shorten the term),
(5) the condition of the leased premises and any improvement
allowances or construction obligations of the landlord pertaining
thereto, (5) the manner, if any, in which the landlord is reimbursed
or otherwise compensated for operating expenses and taxes, (6) any
periods of free or abated rent, and (7) any other material
concessions, inducements or consideration to be paid to or received
by either the landlord or the tenant in connection with the lease in
question. The determination of Prevailing Market shall also take
into consideration any reasonably anticipated changes in the
Prevailing Market rate from the time such Prevailing Market rate is
being determined and the time such Prevailing Market rate will
become effective under this Lease.
F. Definition of Prevailing Market for Parking. For purposes of the
Options, "Prevailing Market for Parking" shall mean the arms length
fair market parking rate under renewal leases and amendments entered
into on or about the date on which the Prevailing Market for Parking
is being determined hereunder for space comparable to the Premises
in the Building and the Comparable Buildings. The determination of
Prevailing Market for Parking shall take into account all relevant
factors in determining the current fair market parking rate for
premises comparable to the Premises located in the Building and in
Comparable Buildings, such as: (1) the creditworthiness of the
tenant, (2) the size of the leased premises (including rights to
expand or contract), and (3) the term of the letting (including
options to extend or shorten the term). The determination of
Prevailing Market for Parking shall also take into consideration any
reasonably anticipated changes in the Prevailing Market for Parking
rate from the time such Prevailing Market for Parking rate is being
determined and the time such Prevailing Market for Parking rate will
become effective under this Lease.
II. RIGHT OF FIRST OFFER.
X. Xxxxx of Right of First Offer. During the initial Term and the
Option Terms, Tenant shall have, subject to the provisions of this
Section II, a right of first offer to lease any space in the 4000
Building (other than the 4th floor thereof) (the "First Offer
Space") if such space becomes available for lease as provided
hereinbelow. Tenant's right of first offer shall be upon the terms
and conditions set forth in this Section II and shall be a one-time
right of first offer with respect to every portion, and all of the
square footage, of the First Offer Space which is offered to Tenant
for lease as set forth in this Section II. In the event that Tenant
elects not to lease, as set forth in Section II.C, below, the
particular First Offer Space offered to Tenant by Landlord, Tenant's
right of first offer with respect to that particular First Offer
Space shall terminate and Tenant will no longer have a right of
first
EXHIBIT E
-5-
offer to lease that particular First Offer Space. Notwithstanding
anything to the contrary contained in this Section II, Tenant's
right of first offer contained in this Section II shall be subject
and subordinate to any rights of any existing tenant of the Building
as of the Commencement Date to lease the First Offer Space, or any
portion thereof (whether pursuant to must-take rights, expansion
rights, rights of first refusal, first offer rights, or other
similar rights), and irrespective of whether the exercise of any
such right is consummated pursuant to a lease amendment or a new
lease (the "Superior Rights"), and Tenant shall not have any such
first offer right to lease any First Offer Space until after such
First Offer Space becomes available for lease following the
expiration or earlier termination of the lease of the tenant in
existence as of the Commencement Date as to such First Offer Space,
including renewals thereof (whether or not such renewal is pursuant
to an express written provision in such lease and regardless of
whether any such renewal is consummated pursuant to a new lease or
lease amendment) and the tenant thereunder has vacated such First
Offer Space. Notwithstanding any contrary provision of this Section
II, Landlord shall not be obligated to pay any brokerage commission
in connection with any broker representing, or claiming to
represent, Tenant in connection with Tenant's right of first offer
hereunder.
B. Procedure for Offer. Landlord shall give Tenant written notice (the
"First Offer Notice") that the First Offer Space shall or has become
available for lease by Tenant pursuant to the terms of Tenant's
right of first offer, as set forth in this Section II, provided that
no holder of the Superior Rights desires to lease all or any portion
of such space. Pursuant to such First Offer Notice, Landlord shall
offer to lease to Tenant the then available First Offer Space for a
term coterminous with the Term. The First Offer Notice shall
describe the space so offered to Tenant, including, without
limitation, Landlord's determination of the rentable square footage
thereof, and shall also set forth Landlord's determination of the
First Offer Rent, (defined in Section II.D below), and the other
terms upon which Landlord is willing to lease such space to Tenant.
After Landlord delivers the First Offer Notice to Tenant, Tenant may
submit a written request to Landlord for access to the First Offer
Space to view the First Offer Space. After receiving any such
written notice from Tenant, Landlord shall use commercially
reasonable efforts to arrange a mutually convenient time for Tenant
and a representative of Landlord to walk through the First Offer
Space.
C. Procedure for Acceptance. If Tenant wishes to exercise Tenant's
right of first offer with respect to the space described in the
First Offer Notice, then within 10 days of Tenant's receipt of the
First Offer Notice, Tenant shall deliver written notice to Landlord
("Tenant's Election Notice") pursuant to which Tenant shall elect
either to: (i) lease the entire First Offer Space described in the
First Offer Notice at the First Offer Rent and upon the terms
contained in such notice; or (ii) refuse to lease the First Offer
Space, specifying that Tenant is not interested in exercising its
right of first offer for the First Offer Space, in which event
Tenant's right of first offer with respect to the First Offer Space
described in the First Offer Notice shall terminate and be of no
further force or effect and Landlord shall be
EXHIBIT E
-6-
free to lease such First Offer Space or any portion thereof to
anyone to whom Landlord desires on any terms Landlord desires. If
Tenant does not timely notify Landlord of its election of either of
the options in clauses (i) or (ii) hereinabove, Tenant shall be
deemed to have elected the option in clause (ii).
D. First Offer Rent. The Base Rent payable by Tenant for the First
Offer Space (the "First Offer Rent") shall be equal to the greater
of (i) the Base Rent rate per rentable square foot payable by Tenant
for the initial Premises, subject to adjustment at the same time as
and pursuant to the same schedule for the initial Premises as set
forth in Section I.D of the Lease and Section I of this Exhibit E,
or (ii) the Prevailing Market for First Offer Space (defined in
Section II.H below). If Landlord determines in the First Offer
Notice that the First Offer Rent shall be the Prevailing Market for
First Offer Space, then concurrent with Tenant's delivery of
Tenant's Election Notice exercising such right of first offer,
Tenant may object in writing to Landlord's determination of the
Prevailing Market for First Offer Space set forth in the First Offer
Notice, in which case the Prevailing Market for First Offer Space
shall be determined in accordance with the procedures set forth in
Section II.I below. If Tenant does not timely object in writing to
Landlord's determination of the Prevailing Market for First Offer
Space, then Tenant shall be deemed to have accepted such
determination and the procedures in Section II.I below shall not
apply.
E. Construction In First Offer Space. If Tenant leases the First Offer
Space pursuant to the terms of this Section II, Tenant shall take
the First Offer Space in its "as is" condition as of the date of
delivery of such space by Landlord to Tenant, and Tenant may
construct, at Tenant's sole cost and expense, improvements in the
First Offer Space pursuant to the terms of Section IX.C of the
Lease; provided, however, Tenant may receive a tenant improvement
allowance to construct tenant improvements in the First Offer Space
to the extent, if any, included in the definition of "First Offer
Rent", as set forth in Section II.D above.
F. Amendment to Lease. If Tenant timely exercises its right of first
offer, Landlord shall prepare an amendment (the "Right of First
Offer Amendment") adding the applicable First Offer Space to the
Premises on the terms set forth in this Section II. A copy of the
Right of First Offer Amendment shall be sent to Tenant within a
reasonable time after Landlord's receipt of Tenant's Election
Notice, and Tenant shall execute and return the Right of First Offer
Amendment to Landlord within a reasonable time period thereafter,
but an otherwise valid exercise of the right of first offer shall be
fully effective whether or not the Right of First Offer Amendment is
executed. Tenant shall commence payment of Rent for the First Office
Space, and the term of Tenant's lease of the First Offer Space shall
commence upon the date of delivery of the First Offer Space to
Tenant (the "First Offer Commencement Date") and terminate
coterminously with the termination of the Term, as the same may be
extended pursuant to Section I of this Exhibit E, above.
EXHIBIT E
-7-
G. Suspension of Right of First Offer. At Landlord's option, in
addition to its other remedies under the Lease, Tenant shall not
have the right to lease the First Offer Space, as provided in this
Section II, if, as of the date of the attempted exercise of such
right of first offer by Tenant, or as of the scheduled date of
delivery of the First Offer Space to Tenant, (i) there is less than
three (3) years left in the Term, or (ii) Tenant is in default under
the Lease beyond any applicable notice and cure periods. In
addition, and notwithstanding anything to the contrary contained in
this Section II, the rights to lease the First Offer Space contained
in this Section II shall be personal to the Tenant originally named
in the Lease (the "Original Tenant") and the assignee under a
Permitted Transfer by the Original Tenant (the "Permitted
Assignee"), and may only be exercised by the Original Tenant or such
Permitted Assignee, as the case may be (but not by any other
assignee, sublessee or transferee of Tenant's interest in the Lease
or the Premises, or any part thereof) if, at the time of the
attempted exercise of such right of first offer, the Original Tenant
and/or the Permitted Assignee is in physical occupancy and
possession of at least 75% of the then existing Premises.
H. Definition of Prevailing Market for First Office Space. For purposes
of this Section II, "Prevailing Market for First Offer Space" shall
mean the annual rental rate per rentable square foot for space
comparable to the First Offer Space in the Building and the
Comparable Buildings under leases and renewal and expansion
amendments being entered into at or about the time that the
Prevailing Market for First Office Space is being determined, giving
appropriate consideration to tenant concessions, brokerage
commissions, tenant improvement allowances, existing improvements in
the space in question, and the method of allocating operating
expenses and taxes. Notwithstanding the foregoing, space leased
under any of the following circumstances shall not be considered to
be comparable for purposes hereof: (i) the lease term is for less
than the lease term of the applicable First Offer Space, (ii) the
space is encumbered by the option rights of another tenant, or (iii)
the space has a lack of windows and/or an awkward or unusual shape
or configuration. The foregoing is not intended to be an exclusive
list of space that will not be considered to be comparable.
I. Procedure for Determining Prevailing Market for First Offer Space.
If Tenant timely objects to Landlord's determination of the
Prevailing Market for First Offer Space in Tenant's Election Notice,
then Landlord and Tenant shall work together in good faith to agree
upon the Prevailing Market for First Offer Space. Upon agreement
Tenant shall provide Landlord with a written notice and Landlord and
Tenant shall enter into the Right of First Offer Amendment in
accordance with the terms and conditions hereof. Notwithstanding the
foregoing, if Landlord and Tenant are unable to agree upon the
Prevailing Market for First Offer Space within 30 days after the
date on which Tenant provides Landlord with Tenant's Election
Notice, either party, by written notice to the other (the "First
Offer Arbitration Notice") within 5 Business Days after the
expiration of such 30 day period, shall have the right to have the
Prevailing Market for First Offer Space determined in accordance
with the following procedures. If neither party
EXHIBIT E
-8-
exercises its right to arbitrate, Tenant's exercise of such right of
first offer shall be deemed to be null and void and of no further
force and effect. If either party timely provides the other with a
First Offer Arbitration Notice, Landlord and Tenant, within 10 days
after the date of the First Offer Arbitration Notice, shall each
simultaneously submit to the other, in a sealed envelope, its good
faith estimate of the Prevailing Market for First Offer Space
(collectively referred to as the "First Offer Estimates"). If the
higher of such First Offer Estimates is not more than 105% of the
lower of such First Offer Estimates, the Prevailing Market for First
Offer Space shall be the average of the two First Offer Estimates.
If the Prevailing Market for First Offer Space is not resolved by
the exchange of First Offer Estimates, Landlord and Tenant, within
10 days after the exchange of First Offer Estimates, shall each
select an appraiser to determine which of the two applicable First
Offer Estimates most closely reflects the Prevailing Market for
First Offer Space. Each appraiser so selected shall be certified as
an MAI appraiser or as an ASA appraiser and shall have had at least
5 years experience within the previous 10 years as a real estate
appraiser working in the vicinity with working knowledge of current
rental rates and practices. Upon selection, Landlord's and Tenant's
appraisers shall work together in good faith to agree upon which of
the two First Offer Estimates most closely reflects the Prevailing
Market for First Offer Space. The applicable First Offer Estimate
chosen by such appraisers shall be binding on both Landlord and
Tenant as the Prevailing Market for First Offer Space. If either
Landlord or Tenant fails to appoint an appraiser within the 10 day
period referred to above, the appraiser appointed by the other party
shall be the sole appraiser for the purposes hereof. If the two
appraisers cannot agree upon which of the two applicable First Offer
Estimates most closely reflects the Prevailing Market for First
Offer Space, within the 20 days after their appointment, then,
within 10 days after the expiration of such 20 day period, the 2
appraisers shall select a third appraiser meeting the aforementioned
criteria. Once the third appraiser has been selected as provided for
above, then, as soon thereafter as practicable but in any case
within 14 days, the third appraiser shall make his determination of
which of the two applicable First Offer Estimates most closely
reflects the Prevailing Market for First Offer Space and such First
Offer Estimate shall be binding on both Landlord and Tenant as the
Prevailing Market for First Offer Space. If the arbitrator believes
that expert advice would materially assist him, he may retain one or
more qualified persons, provided they have had no dealings with
Landlord or Tenant within the immediately preceding 12 month period,
to provide such expert advice. The parties shall share equally in
the costs of the arbitrator and of any experts reasonably retained
by the arbitrator. Any fees of any appraiser, counsel or experts
engaged directly by Landlord or Tenant, however, shall be borne by
the party retaining such appraiser, counsel or expert. In the event
that the Prevailing Market for First Offer Space has not been
determined by the commencement date of Tenant's lease of the
applicable First Offer Space, Tenant shall pay Rent upon the terms
and conditions in effect for the initial Premises until such time as
the Prevailing Market for First Offer Space has been determined.
Upon such determination, the Base Rent for the First Offer Space
shall be retroactively adjusted, if necessary, to the commencement
of
EXHIBIT E
-9-
Tenant's lease of the applicable First Offer Space, using the
formula set forth in the first sentence of Section II.D above. If
such adjustment results in an underpayment of Base Rent by Tenant,
Tenant shall pay Landlord the amount of such underpayment within 30
days after the determination thereof. If such adjustment results in
an overpayment of Base Rent by Tenant, Landlord shall credit such
overpayment against the next installment of Base Rent due under the
Lease and, to the extent necessary, any subsequent installments
until the entire amount of such overpayment has been credited
against Base Rent, or at Tenant's election, reimburse Tenant within
30 days.
EXHIBIT E
-10-
EXHIBIT F
PARKING AGREEMENT
This Exhibit (the "Parking Agreement") is attached to and made a part of
the Lease by and between [[LANDLORD'S NAME AND ENTITY TYPE TO BE PROVIDED]]
("Landlord") and INKTOMI CORPORATION, A DELAWARE CORPORATION ("Tenant") for
space in the Building located at Bayside Towers.
1. The capitalized terms used in this Parking Agreement shall have the same
definitions as set forth in the Lease to the extent that such capitalized
terms are defined therein and not redefined in this Parking Agreement. In
the event of any conflict between the Lease and this Parking Agreement,
the latter shall control.
2. Landlord hereby grants to Tenant and persons designated by Tenant a right
to use up to four (4) non-reserved parking spaces per each 1,000 rentable
square feet of the Premises (the "Parking Rights") in the surface parking
areas in existence as of September 1, 2002 which service the Building
("Parking Facility") during the Term. The use of such spaces shall be
provided free of charge during the initial term, provided that during the
Option Terms Tenant shall pay the parking rate, if any, determined during
the Prevailing Market determination of the Base Rent for the Premises for
the Option Term, as set forth in Section I of Exhibit E.
3. In exercising the Parking Rights, Tenant shall at all times comply with
all applicable ordinances, rules, regulations, codes, laws, statutes and
requirements of all federal, state, county and municipal governmental
bodies or their subdivisions respecting the use of the Parking Facility.
Landlord reserves the right to adopt, modify and enforce reasonable rules
("Rules") governing the use of the Parking Facility from time to time
including any key-card, sticker or other identification or entrance system
and hours of operation. The Rules set forth herein are currently in
effect. Landlord may refuse to permit any person who violates such Rules
to park in the Parking Facility, and any violation of the Rules shall
subject the car to removal from the Parking Facility.
4. The Parking Rights shall be provided on a non-designated "first-come,
first-served" basis. Tenant acknowledges that Landlord has no liability
for claims arising through acts or omissions of any independent operator
of the Parking Facility. Landlord shall have no liability whatsoever for
any damage to items located in the Parking Facility, nor for any personal
injuries or death arising out of any matter relating to the Parking
Facility, and in all events, Tenant agrees to look first to its insurance
carrier and to require that Tenant's employees look first to their
respective insurance carriers for payment of any losses sustained in
connection with any use of the Parking Facility. Tenant hereby waives on
behalf of its insurance carriers all rights of subrogation against
Landlord or Landlord's agents. Landlord reserves the right to assign
specific parking spaces, and to reserve parking spaces for visitors, small
cars, handicapped persons and for other tenants, guests of tenants or
other parties, which assignment and reservation or spaces may be relocated
as determined by Landlord from time to time, and Tenant and persons
designated by Tenant
EXHIBIT F
-1-
hereunder shall not park in any location designated for such assigned or
reserved parking spaces. Tenant acknowledges that the Parking Facility may
be closed entirely or in part in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the
Parking Facility, or if required by casualty, strike, condemnation, act of
God, governmental law or requirement or other reason beyond the operator's
reasonable control. In such event, Landlord shall refund any prepaid
parking fee hereunder, prorated on a per diem basis.
5. If Tenant shall default under this Parking Agreement, the operator shall
have the right to remove from the Parking Facility any vehicles hereunder
which shall have been involved or shall have been owned or driven by
parties involved in causing such default, without liability therefor
whatsoever. In addition, if Tenant shall default under this Parking
Agreement, Landlord shall have the right to cancel this Parking Agreement
on 10 days' written notice, unless within such 10 day period, Tenant cures
such default. If Tenant defaults with respect to the same term or
condition under this Parking Agreement more than 3 times during any 12
month period, and Landlord notifies Tenant thereof promptly after each
such default, the next default of such term or condition during the
succeeding 12 month period, shall, at Landlord's election, constitute an
incurable default. Such cancellation right shall be cumulative and in
addition to any other rights or remedies available to Landlord at law or
equity, or provided under the Lease (all of which rights and remedies
under the Lease are hereby incorporated herein, as though fully set
forth). Any default by Tenant under the Lease shall be a default under
this Parking Agreement, and any default under this Parking Agreement shall
be a default under the Lease.
RULES
(i) The Parking Facility hours shall be [TO BE REASONABLY PROVIDED BY
LANDLORD] A.M. to [TO BE REASONABLY PROVIDED BY LANDLORD] P.M. on
Business Days and [TO BE REASONABLY PROVIDED BY LANDLORD] A.M. to
[TO BE REASONABLY PROVIDED BY LANDLORD] P.M. on Saturday, however,
subject to the provisions set forth herein, Tenant shall have access
to the Parking Facility on a 24 hour basis, 7 days a week.
Notwithstanding the foregoing, Landlord reserves the right to
establish and change Parking Facility hours from time to time.
Tenant shall not store or permit its employees to store any
automobiles in the Parking Facility without the prior written
consent of the operator. Except for emergency repairs, Tenant and
its employees shall not perform any work on any automobiles while
located in the Parking Facility, or on the Property. If it is
necessary for Tenant or its employees to leave an automobile in the
Parking Facility overnight, Tenant shall provide the operator with
prior notice thereof designating the license plate number and model
of such automobile.
(ii) Cars must be parked entirely within the stall lines painted on the
floor, and only small cars may be parked in areas reserved for small
cars.
(iii) All directional signs and arrows must be observed.
EXHIBIT F
-2-
(iv) The speed limit shall be 5 miles per hour.
(v) Parking spaces reserved for handicapped persons must be used only by
vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
(a) Areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by the operator shall remain the
property of the operator. Such device must be displayed as
requested and may not be mutilated in any manner. The serial number
of the parking identification device may not be obliterated.
Parking passes and devices are not transferable and any pass or
device in the possession of an unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the first day of
each month. Failure to do so will automatically cancel parking
privileges and a charge at the prevailing daily parking rate will
be due. No deductions or allowances from the monthly rate will be
made for days on which the Parking Facility is not used by Tenant
or its designees.
(ix) Parking Facility managers or attendants are not authorized to make
or allow any exceptions to these Rules.
(x) Every xxxxxx is required to park and lock his/her own car.
(xi) Loss or theft of parking pass, identification, key cards or other
such devices must be reported to Landlord and to the Parking
Facility manager immediately. Any parking devices reported lost or
stolen found on any authorized car will be confiscated and the
illegal holder will be subject to prosecution. Lost or stolen
passes and devices found by Tenant or its employees must be
reported to the office of the Parking Facility immediately.
(xii) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited. Parking spaces may be
used only for parking automobiles.
(xiii) Tenant agrees to acquaint all persons to whom Tenant assigns a
parking space with these Rules.
EXHIBIT F
-3-
6. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY
LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO TENANT OR
TENANT'S PROPERTY (INCLUDING, WITHOUT LIMITATIONS, ANY LOSS OR DAMAGE TO
TENANT'S AUTOMOBILE OR THE CONTENTS THEREOF DUE TO THEFT, VANDALISM OR
ACCIDENT) ARISING FROM OR RELATED TO TENANT'S USE OF THE PARKING FACILITY
OR EXERCISE OF ANY RIGHTS UNDER THIS PARKING AGREEMENT, WHETHER OR NOT
SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD'S ACTIVE NEGLIGENCE OR NEGLIGENT
OMISSION. THE LIMITATION ON LANDLORD'S LIABILITY UNDER THE PRECEDING
SENTENCE SHALL NOT APPLY HOWEVER TO LOSS OR DAMAGE ARISING DIRECTLY FROM
LANDLORD'S WILLFUL MISCONDUCT.
7. Without limiting the provisions of Paragraph 6 above, Tenant hereby
voluntarily releases, discharges, waives and relinquishes any and all
actions or causes of action for personal injury or property damage
occurring to Tenant arising as a result of parking in the Parking
Facility, or any activities incidental thereto, wherever or however the
same may occur, and further agrees that Tenant will not prosecute any
claim for personal injury or property damage against Landlord or any of
its officers, agents, servants or employees for any said causes of action.
It is the intention of Tenant by this instrument, to exempt and relieve
Landlord from liability for personal injury or property damage caused by
negligence.
8. The provisions of Article XXI of the Lease are hereby incorporated by
reference as if fully recited.
Tenant acknowledges that Tenant has read the provisions of this Parking
Agreement, has been fully and completely advised of the potential dangers
incidental to parking in the Parking Facility and is fully aware of the legal
consequences of agreeing to this instrument.
EXHIBIT F
-4-
EXHIBIT G
FORM OF LETTER OF CREDIT
------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No.
------------------------
Issuance Date:
-------------
Expiration Date:
------------
Applicant:
------------------
Beneficiary
[Insert Name of Landlord]
[Insert Building management office address]
-----------------------------
-----------------------------
-----------------------------
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of
____________________ U.S. Dollars ($____________________) available for payment
at sight by your draft drawn on us when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by an authorized
signatory or agent reading: "This draw in the amount of
______________________ U.S. Dollars ($____________) under your Irrevocable
Standby Letter of Credit No. ____________________ represents funds due and
owing to us pursuant to the terms of that certain lease by and between
______________________, as landlord, and _____________, as tenant, and/or
any amendment to the lease or any other agreement between such parties
related to the lease."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least 60 days prior to such expiration date or applicable anniversary
thereof, we notify you in writing that we elect not to so renew this Irrevocable
Standby Letter of Credit. A copy of any such notice shall also be sent to:
Equity Office Properties Trust, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Treasury Department. Any such notice shall be
delivered by hand or by recognized overnight courier service and shall be deemed
given upon delivery if by hand or one business day after deposit with such
overnight courier service. In addition to the foregoing, we understand and
agree that you shall be entitled to draw upon this Irrevocable Standby Letter of
Credit in accordance with 1 and 2 above in the event that we elect not to renew
this Irrevocable Standby Letter of Credit and, in addition, you provide us with
a dated statement purportedly signed by an authorized signatory or agent of
Beneficiary stating that the Applicant has failed to provide you with an
acceptable substitute irrevocable standby letter of credit in accordance with
the terms of the above referenced lease. We further acknowledge and agree that:
(a) upon receipt of the documentation required herein, we will honor your draws
against this Irrevocable Standby Letter of Credit without inquiry into the
accuracy of Beneficiary's signed statement and regardless of whether Applicant
disputes the content of such statement; (b) this Irrevocable Standby Letter of
Credit shall permit partial draws and, in the event you elect to draw upon less
than the full stated amount hereof, the stated amount of this Irrevocable
Standby Letter of Credit shall be automatically reduced by the amount of such
partial draw; and (c) you shall be entitled to transfer your interest in this
Irrevocable Standby Letter of Credit from time to time and more than one time
without our approval and without charge. In the event of a transfer, we reserve
the right to require reasonable evidence of such transfer as a condition to any
draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 revision) ICC Publication No.
500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter
of Credit must be addressed to our office located at
______________________________________________ to the attention of
__________________________________, and must be delivered by hand or by a
recognized overnight courier service. Such notice shall be deemed given upon
delivery if delivered by hand or one business day after deposit with such
overnight courier service.
Very truly yours,
-----------------------
[name]
-----------------------
[title]
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EXHIBIT G
-2-
