Lease Amendment – Commercial Real Estate – LinkedIn Corp.
SIXTH AMENDMENT TO LEASE
This SIXTH AMENDMENT TO LEASE (“Amendment“) is made and
entered into as of October 25, 2011 (the “Reference Date“), by
and between BRITANNIA HACIENDA VIII LLC, a Delaware limited liability company
(“Landlord“), and LINKEDIN CORPORATION a Delaware corporation
(“Tenant“).
R E C I T A L
S :
A. Landlord and Tenant are parties to that certain Lease dated as of March
20, 2007 (the “Original Lease“), as amended by (i) a First
Amendment to Lease dated September 28, 2007 (the “First
Amendment“), (ii) a Second Amendment to Lease dated June 25, 2008 (the
“Second Amendment“), (iii) a Third Amendment to Lease dated
December 18, 2009 (the “Third Amendment“), (iv) a Fourth
Amendment to Lease dated March 3, 2010 (the “Fourth
Amendment“), and (v) a Fifth Amendment to Lease dated December 17, 2010
(the “Fifth Amendment“) (the Original Lease and the five (5)
amendments shall be referred to herein collectively as the
“Lease“), pertaining to the Britannia Shoreline Technology Park
in Mountain View, California (the “Project“).
B. Pursuant to the Lease Tenant leases certain premises currently containing
approximately 144,843 rentable square feet of space (all of such space,
collectively, the “Existing Premises“), currently consisting of
the following:
(i) approximately 40,004 rentable square feet of space constituting the
entire building located at 2025 Stierlin Court (the “2025
Building“),
(ii) approximately 35,921 rentable square feet of space constituting the
entire building located at 2027 Stierlin Court (the “2027
Building“), and
(iii) approximately 68,918 rentable square feet of space in the building
located at 2029 Stierlin Court (the “2029 Building“).
C. Tenant also subleases, pursuant to a sublease dated February 18, 2010
(“LinkedIn Sublease“) with Microsemi Corporation
(“Microsemi“), successor in interest to Actel Corporation,
certain premises containing approximately 44,930 rentable square feet of space
located primarily on the second floor of a building in the Project located at
2051 Stierlin Court (the “2051 Building“), but including the
lobby area on the southeast side of the first floor of the 2051 Building, the
stairwell located on the east side of the 2051 Building and the stairwell
located on the west side of the 2051 Building.
D. Tenant desires to further expand the Existing Premises by the addition of:
(i) two (2) existing buildings in the Project, the first being the entirety
of the 2051 Building (containing approximately 92,256 rentable square feet of
space), and the second being the entirety of the existing building in the
Project located at 2061 Stierlin Court (containing approximately 66,096 rentable
square feet of space) (the total 158,352 rentable square feet in such two (2)
buildings hereinafter collectively, the “Expansion Premises“),
which Expansion Premises is currently leased to Microsemi pursuant to a lease
dated as of February 7, 2003 (the “Microsemi Lease“), and
(ii) all of a new building to be constructed by Landlord at 2019 Stierlin
Court, which will contain approximately 70,000 rentable square feet of space
(the “New Building Premises“).
E. Landlord and Tenant desire to provide for the addition of the Expansion
Premises to the Existing Premises upon the termination of the Microsemi Lease
and the LinkedIn Sublease, to provide for the addition of the New Building
Premises to the Existing Premises, and to make other modifications to the Lease,
and in connection therewith, Landlord and Tenant desire to amend the Lease as
hereinafter provided.
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. Capitalized Terms. All capitalized terms when used
herein shall have the same meaning as is given such terms in the Lease unless
expressly superseded by the terms of this Amendment.
2. Modification of Premises.
2.1. Expansion Premises. Subject to the provisions of
Section 18 below, effective as of January 1, 2012 (the “Expansion
Commencement Date“) Landlord shall deliver and lease the Expansion
Premises to Tenant, and Tenant shall lease the Expansion Premises from Landlord.
Effective as of such date the Existing Premises, together with the Expansion
Premises, shall be the “Premises” under the Lease and shall
contain approximately 303,195 rentable square feet. Landlord acknowledges and
agrees that, commencing on the Expansion Commencement Date, Tenant intends to
sublease (pursuant to that certain “Temporary Space Sublease“)
a portion of the Expansion Premises back to Microsemi so that Microsemi may
vacate the Expansion Premises in phases. Concurrently herewith, Landlord, Tenant
and Microsemi have entered into that certain Consent of Master Landlord to
Sublease pursuant to which Landlord has consented to the Temporary Space
Sublease.
2.2. New Building Premises. Effective as of the date
(the “New Building Commencement Date“) that the New Building
Premises are delivered to Tenant with the Tenant Improvements (as defined in the
Workletter attached hereto as Exhibit B) substantially
complete (provided that in any event the New Building Commencement Date shall
not be later than the date that is one hundred forty (140) days after the
substantial completion of the Warm Shell Work, subject to Landlord Delays and
Unavoidable Delays, all as defined in the Workletter), Tenant shall lease from
Landlord and Landlord shall lease to Tenant the New Building Premises. The
period of time commencing on the New Building Commencement Date and ending on
the New Expiration Date (as defined below) is referred to herein as the
“New Building Term“. Effective as of the New Building
Commencement Date, the Existing Premises, together with the Expansion Premises
and New Building Premises shall be the “Premises” under the
Lease, and shall contain approximately 373,195 rentable square feet.
Notwithstanding the foregoing, following the substantial completion of the Warm
Shell Work and the Landlord TI Work, Landlord shall cause its architect to
certify the actual rentable square footage of the New Building Premises,
calculated on the basis of the measurement standard utilized by Landlord within
its office and research and development real estate portfolio, and, to the
extent the square footage is different than that set forth in Recital B, all
applicable amounts set forth in this Amendment that are based on the square
footage of the New Building Premises (including, without limitation, the minimum
monthly rental applicable to the New Building Premises, the Center-Wide Share,
the Improvement Allowance, and the New Building Security Deposit) shall be
appropriately adjusted.
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3. Lease Term. The term of Tenant153s Lease is
currently scheduled to expire on April 30, 2015. Notwithstanding the foregoing,
the term of Tenant153s Lease, with respect to the Existing Premises, the Expansion
Premises and the New Building Premises, is hereby extended to, and shall expire
on, the date (the “New Expiration Date“) that is ten (10) years
after the New Building Commencement Date. The period of time commencing on the
Expansion Commencement Date and terminating on the New Expiration Date shall be
referred to herein as the “Extended Term.”
4. Minimum Rental.
4.1. Existing Premises. Tenant shall continue to pay
minimum monthly rental for the Existing Premises in accordance with the terms of
the Lease.
4.2. Existing Premises and Expansion Premises.
Commencing on the Expansion Commencement Date and continuing throughout the
Extended Term, Tenant shall pay to Landlord minimum monthly rental for the
Existing Premises and Expansion Premises, containing approximately 303,195
rentable square feet in the aggregate, as follows:
|
Calendar Year |
Monthly |
Minimum Monthly |
||||||
|
2012 |
$ |
803,466.75 |
$ |
2.6500 |
||||
|
2013 |
$ |
831,603.25 |
$ |
2.7428 |
||||
|
2014 |
$ |
860,679.65 |
$ |
2.8387 |
||||
|
2015 |
$ |
890,817.23 |
$ |
2.9381 |
||||
|
2016 |
$ |
921,985.68 |
$ |
3.0409 |
||||
|
2017 |
$ |
954,275.94 |
$ |
3.1474 |
||||
|
2018 |
$ |
987,657.71 |
$ |
3.2575 |
||||
|
2019 |
$ |
1,022,221.94 |
$ |
3.3715 |
||||
|
2020 |
$ |
1,057,998.95 |
$ |
3.4895 |
||||
|
2021 |
$ |
1,095,049.38 |
$ |
3.6117 |
||||
|
2022 |
$ |
1,133,373.23 |
$ |
3.7381 |
||||
|
2023 |
$ |
1,173,031.14 |
$ |
3.8689 |
||||
On or before the Expansion Commencement Date, Tenant shall pay to Landlord
the minimum monthly rental payable for the Expansion Premises for the first full
month of the Expansion Term.
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4.3. New Building Premises. Commencing on the New
Building Commencement Date, and continuing throughout the New Building Term,
Tenant shall pay to Landlord minimum monthly rental for the New Building
Premises in accordance with the following chart. As used therein, the term “Year
of New Building Term” shall mean each consecutive twelve (12) month period
commencing on the New Building Commencement Date.
|
Year of New Building Term |
Monthly |
Minimum Monthly |
||||||
|
1 |
$ |
252,000.00 |
$ |
3.6000 |
||||
|
2 |
$ |
260,820.00 |
$ |
3.7260 |
||||
|
3 |
$ |
269,948.70 |
$ |
3.8564 |
||||
|
4 |
$ |
279,396.18 |
$ |
3.9914 |
||||
|
5 |
$ |
289,176.93 |
$ |
4.1311 |
||||
|
6 |
$ |
299,298.20 |
$ |
4.2757 |
||||
|
7 |
$ |
309,774.00 |
$ |
4.4253 |
||||
|
8 |
$ |
320,612.98 |
$ |
4.5802 |
||||
|
9 |
$ |
331,835.49 |
$ |
4.7405 |
||||
|
10 |
$ |
343,449.22 |
$ |
4.9064 |
||||
5. Tenant153s Operating Cost Share. Effective as of the
Expansion Premises Commencement Date, and continuing through the Expansion Term,
Tenant153s Operating Cost Share under the Lease shall be amended to be the
following amounts: (i) in the case of Operating Expenses that are reasonably
allocable solely to any Building, including the New Building, one hundred
percent (100%) of such Operating Expenses (as after the Expansion Premises
Commencement Date Tenant will be leasing 100% of each Building it occupies), and
(ii) after the Expansion Premises Commencement Date (but prior to the New
Building Commencement Date) in the case of Operating Expenses that are
determined and allocated on a Center-wide basis, forty-one and ninety-five
one-hundredths percent (41.95%) of such Operating Expenses (the
“Center-Wide Share“). Following the New Building Commencement
Date, the Center-Wide Share shall be appropriately amended based on the finally
determined square footage of the New Building Premises.
6. Improvements.
6.1. Existing Premises and Expansion Premises
Improvements. Landlord hereby grants Tenant an improvement
allowance in the amount of $10.00 per rentable square foot of the Existing
Premises and the Expansion Premises (i.e., $3,031,950.00) (the
“Improvement Allowance“) to be used by Tenant in connection
with the construction of improvements or alterations in the Existing Premises
and Expansion Premises (the “Improvements“), with the
Improvement Allowance allocable between the Existing and Expansion Premises in
Tenant153s sole discretion. Upon expiration or termination of the Lease, as it may
be extended, Tenant shall not be required to remove any Improvements to the
Existing Premises and/or the Expansion Premises to which Landlord has consented.
Notwithstanding the
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foregoing, however, upon the expiration or termination of the Lease, as it
may be extended, Tenant shall at Tenant153s expense remove all cabling installed
in any portion of the Existing Premises, the Expansion Premises and the New
Building Premises, except to the extent Landlord in its discretion agrees in
writing at the time of such expiration or termination that all or any specified
portion of such cabling may be left in place.
6.2. Disbursement of Improvement Allowance. Landlord
shall disburse the Improvement Allowance to Tenant in connection with the
construction and completion of the Improvements, and in accordance with
Landlord153s reasonable and customary disbursement procedures, as set forth
herein. The funding of the Improvement Allowance shall be made on a monthly
basis or at other convenient intervals mutually approved by Landlord and Tenant,
and in all other respects shall be based on such commercially reasonable
disbursement conditions and procedures as Landlord reasonably may prescribe
(which conditions may include, without limitation, delivery of invoices,
architect153s certificates and/or other evidence reasonably satisfactory to
Landlord that expenses have been incurred for the design and construction of
alterations and improvements to the Existing Premises and/or Expansion Premises,
and delivery of conditional or unconditional lien releases from all parties
performing the actual work). Notwithstanding the foregoing, any amount of the
Improvement Allowance that has not been allocated or disbursed on or before
December 31, 2012, shall revert to Landlord and Tenant shall have no further
rights thereto. Landlord shall not charge a supervisory or construction
management fee relating to the Improvements, but Landlord shall be permitted to
recover from Tenant or deduct from the Improvement Allowance Landlord153s actual
out-of-pocket fees paid by Landlord to third party consultants or service
providers (including third party project managers) which Landlord determines
reasonably necessary to facilitate its review and approval of the Improvements.
The Improvement Allowance shall not be used by Tenant for moving or relocation
expenses, furniture, fixtures or other personal property, or for exterior
improvements or signage. Except as specifically set forth in this Section
6, Landlord shall not be obligated to provide or pay for any improvement
work or services related to the improvement of the Existing Premises or the
Expansion Premises pursuant to this Amendment.
6.3. Delivery; “As-Is”. Tenant shall accept the
Expansion Premises from Landlord on the Expansion Commencement Date in its then
existing, “as-is” condition, and, other than the Improvement Allowance and
except as set forth in this Section 6.3, Landlord shall have no
obligation to pay for or make any improvements to the Expansion Premises
(subject, however, to Landlord153s obligations for maintenance and repair as set
forth in the Lease). Landlord hereby represents and warrants to Tenant that in
connection with the termination of the Microsemi Lease, Microsemi is required to
surrender the Expansion Premises to Landlord clear of all hazardous materials,
and with Microsemi153s hazardous materials closure plan approved and signed of on
by all applicable governmental agencies.
6.3.1 Condition of Expansion Premises. Within thirty
(30) days after the Expansion Commencement Date, Landlord, at no cost to Tenant,
shall cause (i) the roof, roof membrane, foundations, structural elements and
windows of the Expansion Premises, and (ii) the sprinkler and fire/life safety
systems serving the Expansion Premises to be in good working condition.
Thereafter, the repair and maintenance obligations of the respective parties
with respect to the Expansion Premises shall be governed by the applicable
provisions of the Lease, except that Tenant shall have until ninety (90) days
after the Expansion Commencement Date to ascertain that all such elements and
systems were in good working condition as of the date that was thirty (30) days
after the Expansion Commencement Date, and to notify Landlord in writing of any
respects in which such elements and systems were not in the required condition,
in which event Landlord, at no cost to Tenant, shall be responsible for any
maintenance, repair or replacement (as reasonably and mutually determined by
Landlord and Tenant) necessary to put the applicable systems in the required
condition. Landlord shall provide Tenant with any physical inspection reports in
Landlord153s possession covering the Expansion Premises, including any such
reports pertaining to the roof and/or mechanical (HVAC) systems. Except as
otherwise specifically provided in this Amendment, Tenant shall be solely
responsible, at Tenant153s own expense, for any and all tenant improvements and
alterations required by Tenant for its occupancy and use of the Expansion
Premises.
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6.3.2 “Tenant Improvements”. Solely for purposes of
applying the insurance provisions in Section 10.1 of the Original Lease
(specifically including, but not limited to, Section 10.1(e) and (f) and the
final sentence of Section 10.1(d)), from and after the Expansion Commencement
Date (i) the terms “Tenant Improvements” and “Tenant Improvements constructed by
Tenant pursuant to the Workletter” as used in such Section 10.1 shall be
construed to include any alterations, additions or improvements constructed in
the Expansion Premises by Tenant pursuant to this Amendment, and (ii) the term
“Tenant Improvement Allowance” as used therein shall be construed to include the
Improvement Allowance. In addition, Tenant153s contractors and subcontractors (in
connection with work contracted directly by Tenant and not by Landlord) shall be
required to carry (1) Commercial General Liability Insurance in an amount not
less than $1,000,000 per occurrence and otherwise in accordance with the
requirements of Article 10 of this Lease and such commercial general liability
insurance shall name Landlord as an additional insured, and (2) Workers
compensation.
6.4. New Building Improvements. Landlord shall
construct the New Building and the Tenant Improvements in the New Building in
accordance with the terms set forth in the Workletter attached hereto as
Exhibit B. Tenant shall be permitted to use the New
Building for all uses permitted by Section 9 of the Original Lease.
6.5. Tenant153s Maintenance and Repair Obligations. For
avoidance of doubt, Tenant shall be responsible for the maintenance and repair
of the mechanical, electrical and plumbing systems serving the entire Premises
(i.e., the Existing Premises, the Expansion Premises and the New Building
Premises), as they are constituted from time to time during the Term, as
extended.
7. Option to Extend. Section 4 of the Third
Amendment, as modified by the terms of this Section 7, shall be
applicable to the entire Premises (i.e., the Existing Premises, Expansion
Premises, and New Building Premises, without any right to extend the Term as to
less than the entire Premises as then constituted).
7.1. Section 4(b) of the Third Amendment is hereby amended to provide
that Tenant shall have two (2) options to further extend the term of the Lease
for a period of five (5) years each, and the terms “Extended Term”, “Second
Extended Term”, and “Extended Term Expiration Date” shall be deemed to refer to
the then applicable term of the Lease or prior term or option term, as the case
may be. All other terms of the Lease relating to Tenant153s right to extend the
term of the Lease (including, without limitation, Section 7 of the Fifth
Amendment) are superseded by this Section 7.
7.2. The first sentence of Section 4(c) of the Third Amendment is
hereby deleted and replaced by the following: “If Tenant properly exercises its
option to extend the term of this Lease for the Second Extended Term pursuant to
paragraph (b) above, then the initial monthly minimum rental for the Premises
during the Second Extended Term shall be equal to the greater of (i) 103.5% of
the average monthly minimum rental applicable to the Premises immediately prior
to the expiration of the prior term of the Lease, and (ii) the fair market
rental (as defined below) for the Premises, determined as of the commencement of
the Second Extended Term in accordance with this paragraph; minimum monthly
rental shall thereafter increase on each anniversary of the commencement of the
initial option term to equal 103.5% of the prior year153s minimum monthly rental.
8. Brokers. Landlord and Tenant hereby warrant to
each other that they have had no dealings with any real estate broker or agent
in connection with the negotiation of this Amendment other than CB Richard Ellis
and Cornish & Carey Commercial Newmark Knight Frank (the
“Brokers“), and
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that they know of no other real estate broker or agent who is entitled to a
commission in connection with this Amendment. Each party agrees to indemnify and
defend the other party against and hold the other party harmless from any and
all claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including, without limitation, reasonable attorneys153 fees) with
respect to any leasing commission or equivalent compensation alleged to be owing
on account of the indemnifying party153s dealings with any real estate broker or
agent, other than the Brokers. Landlord shall be responsible for payment of any
brokerage commission due in connection with the Existing Premises, the Expansion
Premises and the New Building as set forth in a separate agreement or
agreements. The terms of this Section 8 shall survive the expiration or
earlier termination of this Amendment.
9. Security Deposit. In connection with Tenant153s
lease of the New Building Premises, the security deposit held by Landlord under
the Lease shall be increased by an amount equal to two (2) months of minimum
monthly rental payable with respect to the last two (2) months of the Extended
Term (i.e., $686,898.41 based on the estimated 70,000 rentable square feet in
the New Building Premises) (the “New Building Security
Deposit“).
10. Parking. Tenant153s rights to use the unreserved
surface parking areas in the Common Areas, as provided in Section 17.20
of the Original Lease, shall be increased as of the Expansion Premises
Commencement Date to include 3.0 automobile parking stalls per 1,000 rentable
square feet of the Expansion Premises. Tenant153s right to use the unreserved
surface parking areas in the Common Areas also shall be increased as of the New
Building Commencement Date to include an additional 210 stalls in connection
with the New Building. Commencing (i) on the Expansion Commencement Date, Tenant
shall have the right throughout the remainder of the Term, as extended, to
designate up to ten (10) parking spaces for Tenant153s visitor parking for the
Expansion Premises, and (ii) on the New Building Commencement Date, Tenant shall
have the right through the remainder of the Term, as extended, to designate up
to five (5) parking spaces for Tenant153s visitor parking for the New Building
Premises, which designated spaces shall be located as mutually agreed upon by
Landlord and Tenant, and may be changed by Tenant from time to time (at Tenant153s
expense for any restriping or re-designation of spaces). As provided in Section
17.20 of the Original Lease, there shall be no cost or charge to Tenant for the
nonexclusive use of parking spaces in the Center by Tenant and its employees and
invitees.
11. Transportation Management. Tenant shall fully
comply with all present or future programs mandated by the City of Mountain View
intended to manage parking, transportation or traffic in and around the Project
and/or the Building, and in connection therewith, Tenant shall take responsible
action for the transportation planning and management of all employees located
at the Premises by working directly with Landlord, any governmental
transportation management organization or any other transportation-related
committees or entities. Such programs may include, without limitation: (i)
restrictions on the number of peak-hour vehicle trips generated by Tenant; (ii)
increased vehicle occupancy; (iii) implementation of an in-house ridesharing
program and an employee transportation coordinator; (iv) working with employees
and any Project, Building or area-wide ridesharing program manager; (v)
instituting employer-sponsored incentives (financial or in-kind) to encourage
employees to rideshare; and (vi) utilizing flexible work shifts for employees.
12. New Building Confirmations. At any time following
the New Building Commencement Date, Landlord may deliver to Tenant a notice in
the form as set forth in Exhibit C, attached hereto, as
a confirmation only of the information set forth therein, which Tenant shall
execute and return to Landlord within ten (10) days after receipt.
13. Applicability of Certain Provisions. For
avoidance of doubt, the provisions of Sections 9 and 15 of the Third Amendment
hereby are made applicable to the Expansion Premises and the New Building
Premises, including, without limitation, the provisions of Section 9(e) thereof.
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14. Signage. In connection with Tenant153s improvement
and occupancy of the Expansion Premises and the New Building Premises, Tenant
shall have the right to install building signage (including building “eyebrow”
signage) and additional monument signage substantially consistent with the size,
quality and nature of existing signage on buildings occupied by Tenant, subject
to (i) Landlord153s prior approval as to location, size, design and composition of
such signage (which approval shall not be unreasonably withheld, conditioned or
delayed), (ii) Landlord153s established sign criteria or signage program for the
Center, consistent with other tenant signage programs in the Center, (iii) all
restrictions and requirements imposed by applicable law and/or by applicable
governmental authorities, and (iv) any additional restrictions and requirements
set forth in the Lease regarding signage. All signage costs (including, without
limitation, costs of installation, maintenance, removal and restoration) shall
be at Tenant153s sole expense, and Tenant shall be solely responsible for
obtaining (at Tenant153s sole expense) all necessary governmental approvals and
permits in connection with Tenant153s signage requests.
15. Environmental Conditions. Not later than thirty
(30) days after the Reference Date, Landlord shall provide to Tenant copies of
all third-party studies and reports, if any, in Landlord153s possession regarding
the environmental condition of the Expansion Premises and that portion of the
Project upon which the New Building shall be constructed, as set forth in
Section 9.6(b)(xi) of the Original Lease. If Landlord does not have in its
possession studies or reports for the Expansion Premises or that portion of the
Project upon which the New Building will be constructed, Landlord shall so
notify Tenant in writing within such thirty (30)- day period. Landlord
acknowledges that its indemnification obligations under Section 9.6(c) of the
Original Lease shall be effective (i) with respect to the Expansion Premises
from and after the Expansion Commencement Date (but shall be inapplicable to
matters arising as a result of Tenant153s actions in the Expansion Premises during
the term of the LinkedIn Sublease); and (ii) with respect to New Building and
that portion of the Project upon which the New Building will be constructed from
and after the New Building Commencement Date.
16. Absence of Certain Encumbrances. Reaffirming and
updating the representation contained in the final sentence of Section 15.1 of
the Original Lease, Landlord represents and warrants to Tenant that as of the
Reference Date, neither the Premises nor the Center nor the Expansion Premises
nor that portion of the Project upon which the New Building will be constructed
is subject to any existing ground lease, mortgage, deed of trust, sale/leaseback
transaction or any other hypothecation for security.
17. Damage and Destruction. From and after the
Reference Date, the provisions of Section 13.1(a) of the Original Lease hereby
is revised to state in its entirety as follows:
(a) If the Premises or any portion of the Building or Common Areas of the
Center reasonably necessary for Tenant153s access to or use and occupancy of the
Premises is damaged or destroyed in whole or in any substantial part during the
term of this Lease, Landlord shall obtain from Landlord153s architect, as soon as
practicable (and in all events within forty-five (45) days) following the damage
or destruction, (i) the architect153s reasonable, good faith estimate of the time
within which repair and restoration of the Premises, Building and Common Areas
(if applicable) can reasonably be expected to be completed to the extent
necessary to enable Tenant to resume its full business operations in the
Premises without material impairment, and (ii) the architect153s reasonable, good
faith opinion as to whether repair and restoration to that extent will be
permitted under applicable governmental laws, regulations and building codes
then in effect (collectively, the “Architect153s Estimate”). If the damage or
destruction materially impairs Tenant153s ability to conduct its business
operations in the Premises, and if either (A) the estimated repair time
specified in the Architect153s Estimate exceeds nine (9) months (or, in the case
of an occurrence during the final year of the term of this Lease, ninety (90)
days), or (B) the Architect153s Estimate states that repair and restoration of the
affected areas to the extent necessary to enable Tenant to resume its full
business operations in the Premises without material impairment will not
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be permitted under applicable governmental laws, regulations and building
codes then in effect, then in either such event either Landlord or Tenant may
terminate this Lease as of the date of the occurrence by giving written notice
to the other party within thirty (30) days after the date of the occurrence or
fifteen (15) days after delivery of the Architect153s Estimate, whichever is
later. In addition, Landlord shall have a similar termination right if the
damage or destruction arises from a risk that is not required to be insured
against (and is not actually insured against) by Landlord under this Lease and
if Landlord153s architect reasonably estimates that the uninsured cost to restore
the portions of the Premises and Building for which Landlord is responsible to
the condition required above would exceed five percent (5%) of the then
applicable replacement cost of the entire Premises; provided, however, that if,
within thirty (30) days after the date of Landlord153s election to terminate,
Tenant elects by written notice to Landlord to pay the cost of the restoration
in excess of the five percent (5%) cap and provides Landlord with reasonable
evidence of its ability to do so, Landlord153s termination election shall be
deemed rescinded, the parties shall proceed as otherwise provided in this
paragraph and this Lease shall continue in full force and effect. If the
circumstances creating a termination right under the parties preceding two
sentences do not exist, or if such circumstances exist but neither party timely
exercises any applicable termination right, then this Lease shall remain in full
force and effect and (x) Landlord, as to the Common Areas of the Center and as
to the shell of the Building and the alterations, additions and improvements
that Landlord is required to insure under Section 10.1(d) above, and (y) Tenant,
as to the alterations, additions and improvements that Tenant is required to
insure under Section 10.1 (e) above, shall respectively commence and complete,
with all due diligence and as promptly as is reasonably practicable under the
conditions then existing, the repair and restoration of such respective portions
of the Property and Premises to a condition substantially comparable to that
which existed immediately prior to the damage or destruction; provided, however,
that Tenant in its discretion may elect not to repair, rebuild or replace any or
all of the items which would otherwise be Tenant153s responsibility under clause
(y) of this sentence to the extent such items were constructed or installed at
Tenant153s sole expense and without any use of funds from the Tenant Improvement
Allowance. Notwithstanding anything to the contrary contained in the foregoing
provisions of this paragraph, if Landlord is required to repair and restore any
part of the Premises, Building and/or Common Areas pursuant to this paragraph
(a) and such repair and restoration has not been substantially completed (i.e.,
completed to the extent necessary to enable Tenant to resume its full business
operations in the Premises without material impairment) within one (1) year
after the date of the casualty or other event requiring such repair or
restoration, then Tenant in its discretion may (but shall not be obligated to)
terminate this Lease by giving written notice of such termination to Landlord at
any time after expiration of such one- year period and prior to Landlord153s
substantial completion of the required repair or restoration; provided, however,
that such termination shall not be effective if Landlord thereafter
substantially completes such repair and restoration within thirty (30) days
after receipt of Tenant153s notice of termination.
18. Conditions Precedent. This Amendment is
conditioned upon the execution and delivery by the proper parties thereto of (i)
a written agreement terminating the Microsemi Lease (“Microsemi Lease
Termination Agreement“); (ii) a written agreement terminating the
LinkedIn Sublease (including Landlord153s written consent thereto
(“LinkedIn Sublease Termination Agreement“), and (iii) the
Temporary Space Sublease (collectively the “Related
Agreements“). If, for any reason whatsoever, each of the Related
Agreements is not fully executed and delivered by all parties by December 31,
2011, then this Amendment with respect to both the Expansion Premises
and the New Building Premises shall be deemed null and void and of no further
force and effect, and the Existing Lease shall remain unmodified and in full
force and effect.
-9-
19. Notices. Notwithstanding any contrary provision
of the Lease, as hereby amended, as of the date of this Amendment, any notices
to Landlord must be sent, transmitted or delivered, as the case may be, to the
following addresses:
BRITANNIA HACIENDA VIII, LLC
c/o HCP, Inc.
3760 Kilroy Airport Way, Suite 300
Long Beach, CA 90806-2473
Attention: Legal Department
with a copy to:
HCP Life Science Estates
400 Oyster Point boulevard, Suite 409
South San Francisco, CA 94080
Attn: Jon Bergschneider
and with courtesy copies to:
Allen Matkins Leck Gamble Mallory & Natsis LLP
1901 Avenue of the Stars, Suite 1800
Los Angeles, California 90067
Attention: Anton N. Natsis, Esq.
20. Execution and Delivery. This Amendment may be
executed in one or more counterparts and by separate parties on separate
counterparts, effective when each party has executed at least one such
counterpart or separate counterpart, but each such counterpart shall constitute
an original and all such counterparts together shall constitute one and the same
instrument. Signatures transmitted by facsimile or by electronic mail in PDF
format shall be binding upon the party transmitting same and shall have the same
effect as original signatures, provided that such party thereafter delivers
corresponding original signatures to the receiving party within five (5)
business days after such initial transmission of signatures by facsimile or
electronic mail.
21. No Further Modification. Except as set forth in
this Amendment, all of the terms and provisions of the Lease shall apply with
respect to the Expansion Premises and the New Building Premises and shall remain
unmodified and in full force and effect.
-10-
IN WITNESS WHEREOF, this Amendment has been executed as of the day and year
first above written.
|
“LANDLORD” |
“TENANT” |
|||||||
|
BRITANNIA HACIENDA VIII LLC, |
LINKEDIN CORPORATION, |
|||||||
|
a Delaware limited liability company |
a Delaware corporation |
|||||||
|
By: HCP Estates USA Inc., |
By: /s/ Jeff Weiner |
|||||||
|
a Delaware corporation |
Name: Jeff Weiner |
|||||||
|
Title: CEO |
||||||||
|
By: /s/ Jonathan M. Bergschneider |
||||||||
|
Jonathan M. Bergschneider |
||||||||
|
Executive Vice President |
||||||||
-11-
EXHIBIT A
OUTLINE OF EXPANSION PREMISES
[image omitted by Findlaw]
EXHIBIT B
NEW BUILDING PREMISES WORKLETTER
This Workletter (“Workletter”) constitutes part of the Sixth Amendment to
Lease dated as of October , 2011 (the “Amendment”) between BRITANNIA HACIENDA
VIII LLC, a Delaware limited liability company (“Landlord”), and LINKEDIN
CORPORATION a Delaware corporation (“Tenant”). The terms of this Workletter are
incorporated in the Amendment for all purposes.
1. Defined Terms. As used in this Workletter, the
following capitalized terms have the following meanings:
(a) Approved Plans: Plans and specifications prepared
by Tenant and the applicable Architect (under contract to Landlord) for the
Tenant Improvements and approved by Landlord and Tenant in accordance with
Paragraph 2 of this Workletter, subject to further modification from time to
time to the extent provided in and in accordance with such Paragraph 2.
(b) Architect: A licensed, qualified architect
designated by, and contracted with, Landlord and subject to Tenant153s reasonable
approval. Landlord hereby approves AP+I as the Architect for the Tenant
Improvements. Tenant shall work with Architect in good faith and with all due
diligence as set forth in this Workletter to provide Architect with such
information and approvals as are required in a timely fashion.
(c) Building. The “New Building”, as defined in the
Amendment, to be constructed by Landlord pursuant to the terms of this
Workletter.
(c) Tenant Change Request: See definition in
Paragraph 2(c)(ii) hereof.
(d) Final Working Drawings: See definition in
Paragraph 2(a) hereof.
(e) General Contractor: A licensed, qualified general
contractor designated by Landlord. Landlord hereby designates Hathaway Dinwiddie
Construction Company as the General Contractor for the Tenant Improvements and
for the Warm Shell Work. Tenant shall have no right to direct or control such
General Contractor.
(f) Contract: The construction contract to be entered
into between Landlord and the General Contractor as set forth in Section
4(d), below.
(h) Premises: As used in this Workletter, the term
“Premises” shall be deemed to refer only to the “New Building Premises” as
defined in the Amendment.
(i) Project Manager: Project Management Advisors,
Inc., or any other project manager designated by Landlord in its reasonable
discretion from time to time to act in a supervisory, oversight, project
management or other similar capacity on behalf of Landlord in connection with
the design and/or construction of the Tenant Improvements.
(j) Punch List Work: Minor corrections of
construction or decoration details, and minor mechanical adjustments, that are
required in order to cause the Warm Shell Work and any applicable portion of the
Tenant Improvements as constructed to conform to the Approved Plans in all
material respects and that do not materially interfere with Tenant153s use or
occupancy of the Building and the Property.
(k) Schedule: That certain project timeline setting
forth the anticipated dates for approvals and completion of certain items of
work as set forth on Schedule B-1 attached hereto, which may be modified
from time to time as reasonably agreed by Landlord and Tenant.
(l) Substantial Completion Certificate: See
definition in Paragraph 3(a) hereof.
(m) Tenant Delay: Any of the following types of delay
in the completion of construction of Tenant Improvements (but in each instance,
only to the extent that any of the following has actually and proximately caused
substantial completion of Tenant Improvements to be delayed):
(i) Any delay resulting from Tenant153s failure to furnish, in a timely manner,
information reasonably requested by Landlord or by Landlord153s Project Manager in
connection with the design or construction of Tenant Improvements, or from
Tenant153s failure to approve in a timely manner any matters requiring approval by
Tenant;
(ii) Any delay resulting from Tenant Change Requests initiated by Tenant,
including any delay resulting from the need to revise any drawings or obtain
further governmental approvals as a result of any such Tenant Change Request;
(iii) Any delay caused by Tenant (or Tenant153s contractors, agents or
employees) materially interfering with the performance of Tenant Improvements,
provided that Landlord shall have given Tenant prompt notice of such material
interference; or
(iv) Any delay caused by the requirement that the General Contractor install
equipment on behalf of Tenant, which equipment is not a part of the Tenant
Improvements.
A Tenant Delay as set forth in items (i), (ii), (iii), and (iv), or as
otherwise defined in this Workletter, shall not be deemed to have commenced
until such time as Landlord has delivered written notice to Tenant specifying
the circumstances that constitute a Tenant Delay.
(n) Tenant Improvements. The improvements to be
constructed in the Building by Landlord as described more fully in Schedule
B-3. The term “Tenant Improvements” does not include the Warm Shell Work.
The Tenant Improvements shall be designed and constructed to achieve LEED Gold
certification upon completion.
(o) Unavoidable Delays: Delays due to acts of God,
acts of public agencies (including delays in the permitting process), labor
disputes, strikes, fires, freight embargoes, inability (despite the exercise of
due diligence) to obtain supplies, materials, fuels or permits, delays due to
local utility providers, or other causes or contingencies (excluding financial
inability) beyond the reasonable control of Landlord or Tenant, as applicable.
Landlord and Tenant shall use reasonable efforts to provide each other with
prompt notice of any Unavoidable Delays.
(p) Warm Shell Work. The construction by Landlord of
the Building foundation, shell and systems as set forth in Section 2a of
this Tenant Work Letter, and as described more fully in Schedule B-2.
(q) Landlord Delays: Any delay in the completion of
construction of Tenant Improvements (but in each instance, only to the extent
that any of the following such delay has actually
-14-
and proximately caused substantial completion of Tenant Improvements to be
delayed) caused by Landlord153s failure to act in accordance with the terms of
this Workletter, provided that a Landlord Delay shall not be deemed to have
commenced until such time as Tenant has delivered written notice to Landlord
specifying the circumstances that constitute a potential Landlord Delay.
(r) Capitalized terms not otherwise defined in this Workletter shall have the
definitions set forth in the Amendment or Lease.
2. Plans and Construction.
(a) Warm Shell Work. At Landlord153s sole cost and
expense, and without deduction from the Tenant Improvement Allowance, Landlord
shall construct the base, shell, and core of the Building substantially in
accordance with the plans and specifications referenced in Schedule B-2
to this Workletter (the “New Building Plans“). Landlord
reserves the right to modify the New Building Plans as reasonably deemed
necessary by Landlord (provided, however, that if any such modification causes
any actual delay in the substantial completion [as defined below] of the Tenant
Improvements beyond March 1, 2013, such modification shall be deemed a Landlord
Delay), or as required to comply with applicable laws. Following the substantial
completion of the Warm Shell Work (or, to the extent elected by Landlord,
concurrent with the Warm Shell Work), Landlord shall construct the Tenant
Improvements in the Building, at Tenant153s cost, subject to (but not limited by)
the Tenant Improvement Allowance, and otherwise in accordance with the terms of
this Workletter.
(b) Approved Plans and Working Drawings for Tenant
Improvements. Not later than April 16, 2012, Landlord153s Architect
shall prepare, in conjunction with Tenant, to the extent required, preliminary
plans (the “Landlord153s Preliminary Plan“) in order to allow for
the construction by Landlord of the Tenant Improvements. Landlord shall submit
the Landlord153s Preliminary Plan to Tenant for Tenant153s approval and information.
Within seven (7) business days after Tenant has received Landlord153s Preliminary
Plan, Tenant shall either approve Landlord153s Preliminary Plan or set forth in
writing with particularity any changes necessary to bring the Preliminary Plan
into a form which will be reasonably acceptable to Tenant. In the event the
parties cannot reach agreement and resolve all disputed matters relating to the
Landlord153s Preliminary Plan, representatives of both parties shall promptly make
themselves available to discuss and resolve any such disputed matters, and
Landlord153s Preliminary Plan shall promptly be revised by Landlord to incorporate
any agreed upon changes. In the event the parties cannot reach agreement and
resolve all disputed matters relating to the Landlord153s Preliminary Plan, any
delay shall be an Unavoidable Delay. Within seven (7) days after the parties
have approved Landlord153s Preliminary Plan, Landlord shall prepare or cause to be
prepared (assuming timely delivery by Tenant of all information and decisions
reasonably required to be furnished or made by Tenant in order to permit
preparation of Landlord153s Final Working Drawings, and subject to Tenant Delays
and Unavoidable Delays), final detailed working drawings and specifications for
the Tenant Improvements constituting Tenant Improvements, including (as
applicable) structural, fire protection, life safety, mechanical, electrical and
plumbing working drawings, and final architectural drawings (collectively,
“Landlord153s Final Working Drawings“). Landlord153s Final Working
Drawings shall be based on and consistent with Landlord153s Preliminary Plan in
all material respects (except as otherwise mutually approved by the parties in
their respective discretion). Within seven (7) days after receipt of the
Landlord153s Final Working Drawings, Tenant shall promptly and diligently either
approve Landlord153s Final Working Drawings or set forth in writing with
particularity any changes necessary to bring the aspects of such proposed plans
and specifications or Landlord153s Final Working Drawings into a form which will
be reasonably acceptable to Tenant. In the event the parties cannot reach
agreement and resolve all disputed matters relating to the Landlord153s Final
Working Drawings, representatives of both parties shall promptly make themselves
available to discuss and resolve any such disputed matters, and the Landlord153s
Final Working Drawings shall promptly be revised by Landlord to incorporate any
agreed upon changes. In the event the parties
-15-
cannot reach agreement and resolve all disputed matters relating to the
Landlord153s Final Working Drawings, any delay shall be an Unavoidable Delay.
Notwithstanding any other provisions of this paragraph, if Tenant objects to any
aspect of Landlord153s Final Working Drawings (including, but not limited to, any
subsequently proposed changes therein from time to time) that is (i) materially
consistent with the Landlord153s Preliminary Plan, (ii) necessitated by applicable
law or as a condition of any governmental or other third-party approvals or
consents that are required to be obtained in connection with Tenant
Improvements, or (iii) that is required as a result of unanticipated conditions
encountered in the course of construction of Tenant Improvements, then any
delays in the completion of the Landlord TI Work resulting from such objection
or Landlord153s Final Working Drawings resulting from such objection, shall be a
Tenant Delay.
(c) Construction of Tenant Improvements. Following
completion of Landlord153s Final Working Drawings as approved by Landlord and
Tenant, and finalization of the Contract, Landlord shall apply for and use
commercially reasonable, good faith efforts to obtain the necessary permits and
approvals to allow construction of the Tenant Improvements. Upon receipt of such
permits and approvals, Landlord shall construct and complete the Tenant
Improvements in accordance with the Landlord153s Approved Plans, subject to
Unavoidable Delays and Tenant Delays (if any). Such construction shall be
performed in a neat, good and workmanlike manner and shall conform to all
applicable laws, rules, regulations, codes, ordinances, requirements, covenants,
conditions and restrictions applicable thereto in force at the time such work is
completed, using new materials and equipment of good quality. Landlord shall use
good faith efforts to diligently prosecute the construction of the Tenant
Improvements in accordance with the Schedule.
(d) Changes.
(i) If Landlord reasonably determines at any time that changes in any aspect
of the Landlord153s Approved Plans are required as a result of applicable law or
governmental requirements, or are required at the insistence of any other third
party whose approval is required with respect to the Tenant Improvements, or are
required as a result of unanticipated conditions encountered in the course of
construction, then Landlord shall promptly (A) advise Tenant of such
circumstances, and consult with Tenant with regard to the manner in which such
changes are instituted, and (B) cause revised Landlord153s Final Working Drawings
to be prepared by Landlord153s Architect and submitted to Tenant, for Tenant153s
approval, which shall not be unreasonably withheld. Failure of Tenant to deliver
to Landlord written notice of disapproval and specification of such required
changes within five (5) business days after delivery thereof to Tenant, shall
constitute and be deemed to be a Tenant Delay.
(ii) If Tenant at any time desires any changes, alterations or additions to
the Landlord153s Approved Plans, Tenant shall submit a detailed written request to
Landlord specifying such changes, alterations or additions (a “Tenant Change
Request”). Upon receipt of any such request, Landlord shall notify Tenant of (A)
whether the matters proposed in the Tenant Change Request are approved by
Landlord (which approval shall not be unreasonably withheld, conditioned or
delayed by Landlord), (B) Landlord153s estimate of the number of days of delay, if
any, which shall be caused in Tenant Improvements by such Tenant Change Request
if implemented (including, without limitation, delays due to the need to obtain
any revised plans or drawings and any governmental approvals), and (C)
Landlord153s estimate of the change, if any, which shall occur in the cost of the
Tenant Improvements affected by such Tenant Change Request if such Tenant Change
Request is implemented (including, but not limited to, any costs of compliance
with laws or governmental regulations that become applicable because of the
implementation of the Tenant Change Request). Landlord shall so notify Tenant
within five (5) business days of Landlord153s receipt of the Tenant Change
Request, provided that such period shall
-16-
be extended by up to two (2) additional business days if because of the
nature of the proposed changes, alterations or additions, Landlord cannot
reasonably respond within a five (5) business day period. If Landlord approves
the Tenant Change Request and Tenant notifies Landlord in writing, within five
(5) business days after receipt of such notice from Landlord, of Tenant153s
approval of the Tenant Change Request (including the estimated delays and cost
increases, if any, described in Landlord153s notice), then Landlord shall cause
such Tenant Change Request to be implemented, and any actual delays resulting
therefrom shall be deemed to be a Tenant Delay, and any actual change in costs
incurred shall be a part of the Total Project Cost. If Tenant fails to notify
Landlord in writing of Tenant153s approval of such Tenant Change Request within
said five (5) business day period, then such Tenant Change Request shall be
deemed to be withdrawn and shall be of no further effect.
(e) Project Management. Unless and until revoked by
Landlord by written notice delivered to Tenant, Landlord hereby (i) delegates to
Project Manager the authority to exercise all approval rights, supervisory
rights and other rights or powers of Landlord under this Workletter with respect
to the design and construction of the Tenant Improvements, and (ii) requests
that Tenant work with Project Manager with respect to any logistical or other
coordination matters arising in the course of construction of the Tenant
Improvements, including monitoring Tenant153s compliance with its obligations
under this Workletter and under the Lease with respect to the design and
construction of the Tenant Improvements. Tenant acknowledges the foregoing
delegation and request, and agrees to cooperate reasonably with Project Manager
as Landlord153s representative pursuant to such delegation and request.
3. Completion.
(a) When Landlord receives written certification from Architect that
construction of the Warm Shell Work and Tenant Improvements in the Building has
been completed in accordance with the Landlord153s Approved Plans (except for
Punch List Work), Project Manager or other representatives of Landlord shall
conduct one or more “walkthroughs” of the Building with Tenant and Tenant153s
representatives, to mutually identify any items of Punch List Work that may
require correction and to prepare a joint punch list reflecting any such items.
Landlord shall prepare and deliver to Tenant a certificate signed by both
Landlord and Architect (the “Substantial Completion Certificate”), in accordance
with the AIA standard form, (i) certifying that the construction of the Warm
Shell Work and the Tenant Improvements in the Building has been substantially
completed in a good and workmanlike manner in accordance with the Landlord153s
Approved Plans in all material respects, subject only to completion of Punch
List Work, and that all governmental approvals necessary for Tenant153s legal
occupancy of the Building have been issued, and specifying the date upon which
both of those conditions have been satisfied, (ii) certifying that the Warm
Shell Work and Tenant Improvements comply with all laws, rules, regulations,
codes, ordinances, requirements, covenants, conditions and restrictions
applicable thereto at the time of such delivery, and setting forth the Punch
List Work. Upon receipt by Tenant of the Substantial Completion Certificate and
tender of possession of the Premises by Landlord to Tenant, Tenant Improvements
in the Building will be deemed delivered to Tenant and the New Building
Commencement Date for all purposes of the Lease (subject to Landlord153s
continuing obligations with respect to any Punch List Work, and to any other
express obligations of Landlord under the Lease or this Workletter with respect
to such Tenant Improvements) shall be deemed to have occurred.
(b) Promptly following delivery of the Substantial Completion Certificate for
the Warm Shell Work and Tenant Improvements in the Building, Landlord shall
diligently complete the Punch List Work reflected in such joint punch list
within thirty (30) days. Tenant acknowledges that depending on the nature and
scope of the punch list items, certain work may extend beyond such 30-day
period. Promptly after Landlord provides Tenant with the Substantial Completion
Certificate and completes all applicable Punch List Work for the Building,
Landlord shall cause the recordation of a
-17-
Notice of Completion (as defined in Section 3093 of the California Civil
Code) with respect to the Warm Shell Work and Tenant Improvements in the
Building. Landlord shall conduct at least one (1) additional “walkthrough” with
Tenant and Tenant153s representatives after the date which is ten (10) months
following the delivery of the Substantial Completion Certificate to identify any
defects in construction or required repairs that might be covered by a warranty
or guaranty obtained in connection with the construction of the Warm Shell Work
and Tenant Improvements.
(c) All construction, product and equipment warranties and guaranties
obtained by Landlord with respect to the Warm Shell Work and Tenant Improvements
shall, to the extent reasonably obtainable, include a provision that such
warranties and guaranties shall also run to the benefit of Tenant, and Landlord
shall cooperate with Tenant in a commercially reasonable manner to assist in
enforcing all such warranties and guaranties for the benefit of Tenant, whether
or not such warranties and guaranties expressly run to the benefit of Tenant.
(d) Notwithstanding any other provisions of this Workletter or of the Lease,
if Landlord is delayed in substantially completing any of Tenant Improvements as
a result of any Tenant Delay, then notwithstanding any other provisions of the
Lease to the contrary, the Tenant Improvements shall be deemed to have been
substantially complete on the date the Tenant Improvements would have been
substantially complete absent such Tenant Delay. The number of days of any
Landlord Delays or Unavoidable Delays shall be credited against the number of
days of any Tenant Delays, however.
4. Payment of Costs. Subject to Landlord153s provision
of the Tenant Improvement Allowance, Tenant shall pay all of the Total Project
Cost, as defined in Section 4(b), below.
(a) Tenant Improvement Allowance. Tenant shall be
entitled to a one-time improvement allowance (the “Tenant Improvement
Allowance“) in the amount of $50.00 per rentable square foot of the
Premises (i.e., $3,500,000.00) for the costs relating to the initial design and
construction of the Tenant Improvements.
(b) Cost Proposal; Contract; Allowance Election.
After Landlord and Tenant have approved the Landlord153s Final Working Drawings,
Landlord shall cause General Contractor to solicit subcontractor bids based on
Landlord153s Final Working Drawings. Landlord, Tenant and the General Contractor
shall mutually review the bids and discuss the same with the bidding
subcontractors, and shall mutually agree upon the subcontractors. After the
subcontractors have been selected based on such bidding process, Landlord shall
cause the General Contractor to enter into a construction contract (the
“Contract“). In connection with the foregoing, if Tenant shall
fail to respond to any request by Landlord with respect to approvals of the cost
proposal or final Contract price within seven (7) business days after Landlord153s
request (provided that, if the dates upon which such approvals are requested
deviate significantly from the dates for such actions as set forth in the
Schedule for any reason other than a Landlord Delay or an Unavoidable Delay,,
such time period shall be extended to be ten (10) business days), any delay as a
result of such failure shall be deemed to be a Tenant Delay. As used herein the
“Total Project Cost” shall be equal to the sum of (i) the cost
of the preparation of all of the plans and specifications for the Tenant
Improvements (including the Preliminary Plan and the Landlord153s Final Working
Drawings, and Landlord153s Approved Plans), and (ii) all other amounts to be
expended in connection with the construction of the Tenant Improvements, as
included in project budget documentation provided by Landlord to Tenant from
time to time for which Landlord will be holding the contracts or making payments
(e.g., design costs and permit fees). Total Project Cost shall not include items
or work for which Tenant contracts directly.
-18-
(c) Over Allowance Amount. The amount by which the
Total Project Cost exceeds the amount of the Tenant Improvement Allowance
remaining as of the commencement of construction of the Tenant Improvements is
referred to herein as the “Over Allowance Amount“. During the
course of construction of the Tenant Improvements, Tenant shall pay a fraction
of each amount to be disbursed by Landlord or otherwise paid pursuant to the
terms of this Tenant Work Letter (the “Over Allowance
Payments“), the numerator of which fraction shall equal the projected
Over Allowance Amount, and the denominator of which fraction shall equal the
projected Total Project Cost, and such payment by Tenant shall be a condition to
Landlord153s obligation to pay any amounts of the Tenant Improvement Allowance. To
the extent the projected Total Project Cost changes during the course of design
and construction of the Tenant Improvements, including as the result of any
Tenant Change Requests, the Over Allowance Payments shall be appropriately
adjusted. Any delays in the construction of the Tenant Improvements resulting
from Tenant153s failure to make any Over Allowance Payments shall be a Tenant
Delay.
(d) Disbursement. Except as otherwise set forth in
this Work Letter, the Tenant Improvement Allowance shall be disbursed by
Landlord (each of which disbursements shall be made pursuant to Landlord153s
disbursement process, including, without limitation, Landlord153s receipt of
invoices for all costs and fees described herein) for costs related to the
design, permitting, supervision and construction of the Tenant Improvements,
including any changes to the existing Building condition required in connection
therewith. Landlord shall provide Tenant with a copy of each applicable draw
request. Tenant shall approve such draw request (which approval shall not be
unreasonably withheld, and shall not be withheld if the draw request is within
the approved budget, or is otherwise within the previously approved Total
Project Cost), and provide Landlord with any required Over Allowance Payments
within thirty (30) days after Tenant153s receipt of such draw request. Tenant153s
failure to respond to a request for approval within such 30-day period shall be
deemed to constitute Tenant153s approval of such request (but such deemed approval
shall not be deemed to be Tenant153s agreement that the work to which such payment
relates has been performed satisfactorily in accordance with the Landlord153s
Approved Plans, or to waive Tenant153s ability to require any deficiencies in such
work to be corrected at a later date). In addition, Landlord shall submit to
Tenant monthly during the performance of the Tenant Improvements a report
setting forth in detail: (i) a computation of the Total Project Costs incurred
during the prior month (including all requested and approved Change Orders); and
(ii) the cumulative Total Project Costs incurred through the end of such month.
Such report shall be submitted by the fifteenth (15th) day of each month and
shall be accompanied by invoice back-ups and conditional or unconditional lien
releases as received by Landlord. All Total Project Costs and Tenant153s share (if
any) thereof shall be subject to audit, verification, and correction, if
necessary, by Tenant and/or its authorized representatives (who shall have
access to the relevant portions of the Landlord153s books and records for such
purpose) without either party being prejudiced by any payment thereunder.
(e) Project Manager Fees. Landlord shall receive a
reimbursement of fees payable to its Project Manager in the amount of $2.06 per
rentable square foot of the Premises (the “PMA Fee”), which shall be deducted
from the Tenant Improvement Allowance. If the Total Project Cost exceeds $100.00
per rentable square foot of the Premises (i.e., $7,000,000), then the PMA Fee
shall be increased by an amount equal to 2.9% of such overage.
(f) Unused Portion of Tenant Improvement Allowance.
Any amounts of the Tenant Improvement Allowance not disbursed or allocated by
the date that is one (1) year after the substantial completion of the Tenant
Improvements shall revert to Landlord and Tenant shall have no further rights
with respect thereto; provided, however, that the one (1)- year deadline shall
be extended if the Tenant Improvement Allowance has not been disbursed for
allocated as a result of the failure of the Contractor or any subcontractor,
materialman or other party providing equipment, materials or services in
connection with the construction of the Tenant Improvements to timely submit
invoices therefor.
-19-
(g) Notwithstanding the foregoing or anything to the contrary in this
Workletter, the Total Project Costs shall not include, the Tenant Improvement
Allowance shall not be used for, and Landlord shall bear all costs with respect
to: (i) any work to the Building, or Premises or Center other than the Tenant
Improvements (other than work contracted by or on behalf of Tenant directly, and
not as a part of the Tenant Improvements); (ii) premiums or the incremental
portion thereof for insurance policies required under the Lease to be procured
by Landlord (other than Builder153s All Risk or similar insurance reasonably
procured with respect to the construction of the Tenant Improvements); (iii)
charges and expenses for changes to the Approved Plans that have not been
approved by Tenant, have not been required by applicable law; (iv) wages, labor
and overhead for over-time and premium time (unless approved in writing by
Tenant); (v) additional costs and expenses incurred by Landlord on account of
any contractor153s or subcontractor153s default or construction defects; (vi)
principal, interest and fees for construction and permanent financing; (vii)
except for the PMA Fee or other costs as expressly set forth in this Workletter,
fees or charges for construction management, supervision, profit, overhead or
general conditions by Landlord or any third party other than the contractors who
are performing the Tenant Improvements; (viii) costs for which Landlord receives
reimbursement from others, including, without limitation, insurers and
warrantors (Landlord shall use commercially reasonable efforts to maximize the
amount of all reimbursements to which it is entitled); (ix) restoration costs in
excess of insurance proceeds as a consequence of casualties; (x) penalties and
late charges attributable to Landlord153s failure to pay the Total Project Costs;
(xi) attorneys153, experts153 and other fees and costs in connection with contracts
and disputes; and (xii) costs arising from or in connection with the presence of
Hazardous Substances on the Premises or Center not introduced by Tenant.
5. No Agency. Nothing contained in this Workletter
shall make or constitute Tenant as the agent of Landlord.
6. Miscellaneous. All references in this Workletter
to a number of days shall be construed to refer to calendar days, unless
otherwise specified herein. If any item requiring approval is disapproved by
Landlord or Tenant (as applicable) in a timely manner, the procedure for
preparation of that item and approval shall be repeated.
7. Delays in Warm Shell Work, Tenant Improvements.
Notwithstanding anything to the contrary contained in this Workletter or the
6th Amendment, if (i) substantial completion of the Warm Shell Work
is not completed by the date set forth in the Schedule due to any Landlord Delay
or Unavoidable Delay, and as a result of such Landlord Delay or Unavoidable
Delay substantial completion of the Tenant Improvements is delayed beyond March
1, 2013, or (ii) if substantial completion of the Tenant Improvements is delayed
beyond March 1, 2013, due to any Landlord Delay or Unavoidable Delay, then,
subject to any Tenant Delay, the New Building Commencement Date shall be delayed
day for day by the same number of days of Landlord Delay and Unavoidable Delays.
-20-
SCHEDULE B-1
ANTICIPATED SCHEDULE DATES
[image omitted by Findlaw]
-21-
SCHEDULE B-2
DESCRIPTION OF WARM SHELL WORK
The “Base Building” or “Warm Shell Work” as used in the Lease
to which this Schedule B-2 is attached and in the Workletter described
therein shall consist of the following:
GENERAL
|
1. |
Base Building design and permitting fees, except as specifically included in |
|
2. |
Core and Shell designed and constructed with intent of obtaining LEED Gold CS |
SITE
|
1. |
Exterior hardscape and landscape, including site lighting, except as |
|
2. |
Exterior bike racks |
|
3. |
Service yard foundations, structure, enclosure for Tenant-provided emergency |
|
4. |
Loading area, including coiling door at Building service entrance |
ARCHITECURAL
|
1. |
Building structure, envelope and waterproofing, except as specifically |
|
2. |
Polyethylene vapor barrier under grade level slab |
|
3. |
Floor designed for 80 PSF uniform live load (non-reducible) |
|
4. |
Building lobby, including lighting, HVAC and standard wall and floor |
|
5. |
Code required Building entrances and exits |
|
6. |
Two steel stairways including rated enclosures (taped and sanded; finishes by |
|
7. |
Interior columns furred. Exterior furring, insulation and firesafing by |
|
8. |
One freight and one passenger hydraulic, single-door elevator, including |
|
9. |
Restroom Core: Two sets of Restrooms and one set of showers, including shower |
-22-
|
10. |
Concrete mechanical equipment pads on the roof for shell-provided HVAC |
|
11. |
Rooftop visual screens for rooftop equipment. |
MEP/FP
|
1. |
Building domestic water service and plumbing distribution to Restroom Core, |
|
2. |
Building storm and overflow drainage systems, including site underground |
|
3. |
Building sanitary sewer service and sanitary piping distribution to Restroom |
|
4. |
Wet fire protection (risers, loops, branches and heads) for “ordinary hazard” |
|
5. |
Firesafing at Landlord-provided vertical piping penetrations. Firesafing at |
|
6. |
Empty conduit stubs at building entrances up to ceiling cavity for Tenant |
|
7. |
Electrical service to Restroom Core and Lobby, including lighting fixtures |
|
8. |
Site underground conduits for telecommunications to main point of entry |
|
9. |
Main gas service including site underground piping from gas main, main meter |
|
10. |
Heating, Ventilation, Air-Conditioning System (all roof-mounted equipment) |
|
a. |
HVAC system designed to be single duct VAV terminal boxes with reheat and |
|
b. |
Gas-fired boilers w/ pumps provided for hot water space heating with piping |
|
c. |
HVAC system to be monitored and controlled through a DDC based Building |
|
d. |
Total building cooling loads limited to 300 tons. |
-23-
SCHEDULE B-3
DESCRIPTION OF TENANT IMPROVEMENTS
The “Tenant Improvements” to be performed in the Building pursuant to
the Lease to which this Schedule B-3 is attached and the Workletter
described therein shall include, but not necessarily be limited to, the
following, to be constructed from Tenant Improvement Allowance funds or
otherwise at Tenant153s expense:
GENERAL
|
1. |
All tenant construction, design fees, fixtures, furnishings, etc. to support |
|
2. |
All TI design fees and reimbursable expenses |
|
3. |
All other “soft” costs, including TI permit/development fees, utility |
|
4. |
All testing and inspection of TI construction |
|
5. |
Builders risk insurance for TI construction, including earthquake coverage |
|
6. |
All general contractor preconstruction services costs related to TI |
|
7. |
Construction lift for contractor safety, access and stocking of materials, if |
|
8. |
Landlord-provided or Tenant-provided management of TI design and construction |
|
9. |
Design and construction to achieve LEED Gold CI certification. |
SITE
|
1. |
Outdoor lounge and eating area |
|
2. |
Tenant Improvements shall not include the design and/or construction of |
ARCHITECTURAL
|
1. |
Exterior Building skin modifications to support Tenant Improvement systems |
|
2. |
Modification of structure for openings at floors and roof |
|
3. |
Enhancement of structure for live loading above 80 PSF or vibration control |
|
4. |
Addition of structure fireproofing resultant from Tenant Improvement |
|
5. |
Custom finishes beyond those provided by Landlord under Schedule B-2 |
|
6. |
Wallboard capture trim, furring and firesafing at exterior window wall, not |
|
7. |
Shaft walls or other fire separations required by code for the Tenant |
|
8. |
Skylights, including curbs, roof patching, etc. |
|
9. |
Additional elevators by Tenant. |
-24-
MEP/FP
|
1. |
All process utility systems, such as Compressed Dry Air, Vacuum, Nitrogen, |
|
2. |
Modifications/enhancements to wet fire protection required by TI design |
|
3. |
Modifications/enhancements to fire alarm system required by TI design |
|
4. |
Building Security System and/or upgrades to exterior doors |
|
5. |
All electrical and telecommunications wire and service not specifically |
|
6. |
All HVAC System additions/modifications/enhancements not specifically |
-25-
EXHIBIT C
NEW BUILDING CONFIRMATION NOTICE
|
TO: |
||
|
Re: |
SIXTH AMENDMENT TO LEASE (“Amendment“) dated October , 2011, |
Gentlemen:
In accordance with the referenced Amendment we wish to advise you and/or
confirm as follows:
|
1. |
The New Building Commencement Date shall occur on or has occurred on . |
|
2. |
The exact number of rentable/usable square feet within the New Building |
|
3. |
Base Rent payable with respect to the New Building Premises is as follows: |
|
4. |
If the New Building Commencement Date is other than the first day of the |
|
5. |
Your rent checks should be made payable to at . |
EXHIBIT C
-26-
|
6. |
Tenant153s Center Wide Share as adjusted based upon the exact number of usable |
|
LANDLORD: |
||||||||
|
BRITANNIA HACIENDA VIII LLC, a Delaware limited liability company |
||||||||
|
By: |
HCP Estates USA Inc., a Delaware corporation |
|||||||
|
By: |
||||||||
|
Jonathan M. Bergschneider |
||||||||
|
Executive Vice President |
||||||||
|
Agreed to and Accepted as of , 20 . |
||
|
LINKEDIN CORPORATION, |
||
|
a Delaware corporation |
||
|
By: |
||
|
Name: |
||
|
Title: |
||
EXHIBIT C
-27-
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