California-Sunnyvale-460 Oakmead Parkway Lease [Amendment No. 1] - California First Ltd. and Electronic Publishing Resources Inc.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made this 10th day of
August, 1994 by and between CALIFORNIA FIRST, LTD., a Florida a limited
partnership ("Landlord") and ELECTRONIC PUBLISHING RESOURCES, INC., a Delaware
corporation ("Tenant").
R E C I T A L S
A. Tenant currently leases from Landlord that certain premises
commonly known as 460 Oakmead Parkway, Sunnyvale, California (the "Current
Premises") consisting of approximately nine thousand one hundred fifty-nine
(9,159) square feet pursuant to that certain Lease dated April 28, 1994 (the
"Lease"). The Current Premises is outlined in red on Exhibit A attached hereto.
B. Tenant desires to expand the Current Premises by adding that
certain space adjoining the Current Premises commonly known as 462 Oakmead
Parkway, Sunnyvale, California, consisting of approximately six thousand two
hundred fifty (6,250) square feet (the "Expansion Space"). The Expansion Space
is outlined in blue on Exhibit A attached hereto.
C. The Lease provides for an expiration date of May 13, 1997.
Tenant desires to extend the term of the Lease to and including August 31, 1997.
D. Landlord is willing to expand the Current Premises and
extend the term of the Lease on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the above premises and the
mutual covenants and conditions contained herein, the parties hereto agree as
follows:
1. Term. The term of the Lease is hereby extended such that the
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termination date ("Termination Date") shall be the date which is three (3) years
after the Effective Date, as defined in paragraph 2 below. The period
commencing on the Effective Date through the Termination Date is referred to
herein as the "Modified Term". Whenever the term "Initial Term" is used in the
Lease, it shall mean and refer to the original term of the Lease as extended
through the Termination Date by this Amendment and shall include the Modified
Term.
2. Effective Date. As used herein, the "Effective Date" shall be the
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date upon which the earliest of the following occurs:
(a) Substantial completion of all work to be done by Landlord to the
Expansion Space (exclusive of communication systems and punchlist items)
pursuant to the Work Letter Agreement attached hereto as Exhibit B (the "Work
Letter Agreement");
(b) Occupancy of the Expansion Space by any of Tenant's operating
personnel; or
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(c) If Landlord is prevented from or delayed in completing its work
under Exhibit B due to the acts or omissions of Tenant, its agents, employees or
contractors, including but not 1imited to Tenant's failure to comply with the
schedule set forth in Exhibit B, then upon the date by which such work would
have been substantially completed but for such acts or omissions. The scheduled
date for substantial completion of the Tenant Improvements is September 1, 1994.
3. Premises. As of the Effective Date, as defined in paragraph 2
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above, the Expansion Space shall be added to the Current Premises and the total
area leased by Tenant shall be increased to approximately fifteen thousand four
hundred nine (15,409) square feet. From and after the Effective Date, the
"Premises" as used and referred to in the Lease shall include the combined
Current Premises and the Expansion Space.
4. Basic Rent. Commencing on the Effective Date and continuing through
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the Termination Date, the basic rent payable by Tenant shall be increased to
Eleven Thousand One Hundred Seventy-One and 53/100 Dollars ($11,171.53).
5. Direct Expenses. Commencing on the Effective Date, Tenant's
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proportionate share of common area charges, as specified in paragraph 16 of the
Lease, shall be increased from thirty-one and nineteen one hundredths percent
(31.19%) to fifty-two and, forty-seven one hundredths percent (52.47%).
Commencing on the Effective Date, Tenants payment of its estimated share of
direct expenses shall be increased to One Thousand Eight Hundred Sixty-Four and
49/100 Dollars ($1,864.49) per month and such payments shall be reconciled and
adjusted in accordance with paragraph 16 of the Lease. The limitations on
Tenant's proportionate share of common area charges set forth in paragraph 16 of
the Lease shall continue to apply on a per square foot basis per month as
specified therein.
6. Parking. Commencing on the Effective Date, the number of non-
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exclusive parking spaces to which Tenant is entitled under the Lease shall be
increased to sixty-one (61) parking spaces.
7. Reduced Rent. As consideration for Tenant's performance of all
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obligations to be performed by Tenant under the Lease as modified by this
Amendment, and notwithstanding the provisions of paragraph 4(a) of the Lease and
paragraph 4 of this Amendment, Landlord hereby conditionally excuses Tenant from
the payment of a portion of the basic rent allocable to the Expansion Space in
the amount of Four Thousand Five Hundred Thirty-One and 25/100 Dollars
($4,531.25) per month for the first two lease months commencing on the Effective
Date (total for the two month period equals $9,062.50); provided, that Tenant
does not commit a default under the Lease or this Amendment at any time during
the term thereof. Should Tenant at any time during the term be in default than
the total sum of such basic rent so conditionally excused shall become
immediately due and payable by Tenant to Landlord. If at the expiration of the
term of the Lease Tenant has not committed a default under the Lease or this
Amendment, Landlord shall waive any payment of basic rent so conditionally
excused. Landlord and Tenant agree that no portion of the basic rent paid by
Tenant during the portion of the term of the Lease occurring after the
expiration of any period during which such basic rent was abated shall be
allocated for income tax purposes, by Landlord or Tenant to such abatement, nor
is such basic rent intended by the parties to be allocable, for income tax
purposes to any abatement.
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8. Repair and Maintenance. Landlord represents that as of the
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Effective Date, the heating, ventilating and air conditioning system, plumbing
and electrical systems for the Expansion Space shall be in good working order
and repair and subject to Tenant's reasonable use and maintenance thereof,
Landlord hereby warrants that the same will remain in good working order and
repair for a period of one hundred twenty (120) days following the Effective
Date.
9. Security Deposit. Upon execution of this Amendment by Tenant,
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Tenant shall deposit with Landlord the sum of Four Thousand and 00/100 Dollars
($4,000.00), to be held by Landlord as additional security deposit, thereby
increasing the total amount of the security deposit held by Landlord to Ten
Thousand Six Hundred Forty and 28/100 Dollars ($10,640.28).
10. Tenant Improvements. Tenant Improvements ("Tenant Improvements"
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shall be constructed in the Expansion Space in accordance with the terms and
conditions specified in the Work Letter Agreement attached hereto as Exhibit B,
and the terms of the Work Letter Agreement are incorporated herein by this
reference.
11. Option to Extend Term. The option to extend the term of the Lease,
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granted to Tenant pursuant to paragraph 55 of the Lease, shall apply to the
entire Premises as modified by this Amendment.
12. Right of First Refusal on Expansion Space. Tenant's right of first
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refusal granted pursuant to paragraph 56 of the Lease is hereby deemed exercised
and Tenant shall have no further rights thereunder with respect to the future
leases of the Expansion Space.
13. Cancellation of First Right to Lease RFR Space. The first right to
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lease granted to Tenant pursuant to paragraph 57 of the Lease is hereby
cancelled and of no further force or effect.
14. Option to Terminate. Paragraph 58 of the Lease regarding Tenant's
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option to cancel and terminate the Lease is hereby modified by increasing the
amount to be paid by Tenant concurrently with Tenant's notice from Eleven
Thousand Four Hundred Twenty One and 00/100 Dollars ($11,421.00) to Fifteen
Thousand and 00/100 Dollars ($15,000.00).
15. New Right of First Refusal on RFR Space. Landlord hereby grants to
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tenant a right of first refusal on all or any portion of that certain space
located at 464 Oakmead Parkway, Sunnyvale, California consisting of
approximately thirteen thousand nine hundred fifty-nine (13,959) square feet, as
outlined in blue on Exhibit C attached hereto (the "RFR Space"), subject to the
following terms and conditions:
(a) This first right of refusal shall only be effective during the
Modified Term of this lease to Tenant. Upon Landlord's receipt of any lease
proposal/offer to lease all or any portion of the RFR Space from any third party
("Third Party Offer") which is acceptable to Landlord, Landlord, prior to
entering into a lease with such third party, shall provide Tenant with written
notice ("Landlord's Notice") of the terms and conditions of the Third Party
Offer (the "Offer").
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(b) Tenant shall have five (5) business days from receipt of
Landlord's Notice to deliver to Landlord its written unconditional and
irrevocable acceptance of the Offer. If Tenant accepts the Offer, an amendment
to this lease or a new lease covering the RFR Space (or applicable portion
thereof) and incorporating said terms and conditions shall promptly be executed.
If a new lease is executed with Tenant covering the RFR Space (or applicable
portion thereof) such new lease shall provide that any default under this lease
will also constitute a default under such new lease and Tenant agrees that any
default by it under such new lease will also constitute a default under this
lease. In the event Tenant rejects the Offer, or does not answer within the
specified time, or fails for any reason (unless such failure is due to the fault
or delay of Landlord) to execute such amendment or new lease within thirty (30)
days of Tenant's acceptance of the Offer, Landlord shall thereafter be released
from any further obligation with respect to the Offer and be free to negotiate
with said third party making the Third Party Offer and to lease to such third
party (without further obligation to Tenant) the RFR Space (or applicable
portion thereof) upon any terms and conditions substantially similar to those
contained in the Offer. If Landlord is unable to enter into a lease with such
Third Party then this right of first refusal shall again apply to any other
offers relative to the RFR Space.
(c) This first right to lease shall be subordinate to any existing
rights of refusal, rights of expansion, options to extend or renew, and other
rights contained in leases (or amendments to leases) executed prior to the date
of this lease. In addition, this first right to lease shall not apply and Tenant
shall have no rights hereunder in the event any tenant (or its successors or
assigns) that now or hereafter occupies all or any portion of the RFR Space
desires to extend, renew or otherwise modify its lease or desires to expand its
premises to include any portion of the RFR Space, and Landlord shall be free to
extend, renew or modify such lease or amend such lease to add any portion of the
RFR Space without notice to Tenant.
(d) This first right to lease shall be void and of no force and
effect and shall confer no rights on Tenant during any period in which Tenant is
in default under this lease.
(e) Notwithstanding anything in this paragraph to the contrary,
Tenant's exercise of this first right to lease shall be subject to Landlord's
review and approval of Tenant's financial condition (including, without
limitation, Tenants net worth, current ratio and working capital reserves) at
the time Tenant exercises this first right to lease and notwithstanding Tenant's
rights hereunder Landlord shall have no obligation to lease the RFR Space to
Tenant unless Tenant's financial condition at the time of acceptance of the
Offer is equal to or better than as shown on the financial statements dated
December 31, 1993, previously provided to Landlord by Tenant. Landlord agrees
that all information regarding Tenant's financial condition provided pursuant to
this subparagraph 14(e), shall be held by Landlord as strictly confidential, and
shall not be disclosed by Landlord to any third party for any purpose
whatsoever.
(f) All rights granted to Tenant pursuant to this paragraph are
personal to Tenant and may not be transferred or assigned. If Landlord transfers
its ownership interest in the Premises or Project, this first right to lease
shall be binding on the transferee of Landlord's interest.
17. Restatement of Other Lease Terms. Except as specifically modified
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herein, all terms, covenants and conditions of the Lease shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
Landlord: Tenant:
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CALIFORNIA FIRST, LTD., ELECTRONICS PUBLISHING
a Florida limited partnership RESOURCES, INC.,
a Delaware corporation
By: McCandless Partnership, a By: ______________________
California general partnership, (Signature)
a General Partner
__________________________
(Printed Name)
By: _________________________
Birk S. McCandless, as __________________________
Trustee under the Birk S. (Title)
McCandless and Mary
McCandless Inter Vivos __________________________
Trust Agreement dated (Date)
February 17, 1982, a
General Partner
_________________________
(Date)
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EXHIBIT A
Exhibit A is a map of the property located at 460 Oakmead Parkway, Sunnyvale,
California, which graphically depicts the floorplan of the Registrant's leased
space. The floorplan consists of sixty two rooms. Fourteen of the rooms are
labeled as follows: "Open Office," "Stor.," "Lunch Room," "Comp. Room," "File
Room," "Stor," "Phone Room," "Storage," "Conference Room," "Conference Room,"
"Copy Room," "Conference Room," "Lobby" and "Lunch Room."
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EXPANSION SPACE
WORK LETTER AGREEMENT
EXISTING SPACE - TURNKEY
CONSTRUCTION EXHIBIT B
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THIS WORK LETTER AGREEMENT (hereinafter "Exhibit B") is attached to and
forms a part of that certain First Amendment to Lease ("Amendment') amending
that certain lease ("Lease") by and between CALIFORNIA FIRST, LTD., a Florida
limited partnership ("Landlord"), and ELECTRONIC PUBLISHING RESOURCES, a
Delaware corporation ("Tenant"), pursuant to which Landlord leases to Tenant
those certain premises located at 460 Oakmead Parkway, Sunnyvale, California and
consisting of approximately nine thousand one hundred fifty-nine (9,159) square
feet ("Premises"). The Amendment provides for, among other things, the expansion
of the Premises by adding thereto approximately six thousand two hundred fifty
(6,250) square feet ("Expansion Space"). All capitalized terms used herein shall
have the meaning ascribed to them in the Amendment to which this Exhibit B is
made a part thereof unless otherwise defined herein. The Expansion Space shall
be improved in accordance with the following:
1. Existing Improvements:
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Tenant accepts the Expansion Space in its existing condition and the
improvements constructed therewith, and Tenant hereby approves the same as
installed, subject only to such changes as may subsequently be agreed upon by
Landlord and Tenant. Such improvements are hereafter called "Existing
Improvements".
2. Tenant Improvements:
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As used herein, "Tenant Improvements" shall include those items and
specifications shown on the Final Construction Drawings prepared in accordance
with paragraph 3 below, including those specifications (as appropriate) set
forth and described in Exhibit B-1, attached hereto, exclusive of Existing
Improvements. Landlord shall construct Tenant Improvements in accordance with
said Final Construction Drawings, Exhibit B-1 and the provisions of this Exhibit
B. Unless otherwise specifically agreed to by Landlord in writing, the
installation, wiring, maintenance and removal of furniture partition systems,
telephone and other communication systems, data cabling, alarm and/or security
systems and any other systems not specifically set forth on the Final
Construction Drawings, and all cost and expense associated therewith, shall be
the side responsibility of Tenant. In connection with the construction and
installation of the Tenant Improvements, Landlord or Landlord's general
contractor shall have no obligation to move any of Tenant's property located in
or about the Premises or Expansion Space including, but not limited to,
furniture, inventory and trade fixtures, at the time of such construction and
installation. If at the time of construction and installation of the Tenant
Improvements Tenant has property located in or about the Premises or Expansion
Space that inhibits or prevents in any way the construction and installation of
the Tenant Improvements, Tenant shall immediately, upon receipt of notification
therefore from Landlord or Landlord's general contractor, at Tenant's sole cost
and expense, move such property to another location
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within the Premises or Expansion Space or, upon receipt of Landlord's prior
approval, to another location within the Project designated by Landlord in
Landlord's sole discretion; Tenant's failure to immediately move such property
upon receipt of notification therefore from Landlord or Landlord's general
contractor shall be deemed a Tenant caused delay subject to the provisions of
paragraph 6 of this Exhibit B. If at the time of construction and installation
of the Tenant Improvements Tenant has property located in or about the Premises
or Expansion Space, Landlord and Landlord's general contractor shall incur no
liability to Tenant or any other party in the event such property is damaged,
destroyed or stolen during the construction and installation of the Tenant
Improvements.
3. Tenant Improvement Design Schedule:
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The plans and specifications for the Tenant Improvements and any other
improvements shall be completed in accordance with the following:-
(a) Tenant shall approve preliminary floor plan layouts ("Preliminary
Floor Plans") prepared by Landlord by completed. The Preliminary Floor Plans
shall show all walls, doors, and other Tenant Improvements as desired by Tenant
in sufficient detail for Landlord's architect to prepare architectural
construction drawings and related documents ("Architectural Construction
Documents").
(b) Between completed and completed, Landlord's architect and
Tenant's representative shall meet as needed to review and complete the final
details related to the Preliminary Floor Plans, so that on completed, 1994 the
Architectural Construction Documents are subject only to minor changes.
(c) No later than completed, Tenant shall have made the decisions
required and provided to Landlord the information necessary for Landlord's
architect to complete the Architectural Construction Documents in enough detail
for Landlords general contractor to bid the work, select subcontractors and to
proceed toward the design of electrical, mechanical and any other requirements
not included on the Architectural Construction Documents. Upon Landlord's
general contractor's selection of subcontractors, Landlord's general contractor
and subcontractors shall prepare design specifications outlining in reasonable
detail electrical, mechanical and any other requirements not included on the
Architectural Construction Documents "Electrical and Mechanical Drawings").
(d) Upon completion of the Architectural Construction Documents,
Tenant shall approve the same subject to changes, deletions or additions as
provided in paragraphs 4 and 5 of this Exhibit B.
(e) Upon completion of the Electrical and Mechanical Drawings,
Landlord or Landlord's general contractor shall submit the Architectural
Construction Documents and Electrical and Mechanical Drawings (collectively the
"City Ready Plans") to the City to obtain a building permit.
(f) Tenant shall have decided upon carpet selection and all other
color and material specifications by completed, 1994.
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(g) As used herein, "Final Construction Drawings" shall include the
City Ready Plans, as approved by the City, and any subsequent additions,
deletions or changes to the Tenant Improvements permitted or required pursuant
to paragraphs 4 and 5 of this Exhibit B.
4. Changes by Tenant:
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Tenant may request changes, deletions or additions to the Tenant
Improvements; provided, however, that the effectiveness of any such requested
change, deletion or addition shall be subject to written approval by an
authorized representative of Landlord and to obtaining any required governmental
permits or other approvals. If any such change, deletion or addition increases
the cost of construction and installation of the Tenant Improvements, Tenant
shall immediately pay to Landlord the full amount of such increase in the cost
of construction and installation of the Tenant Improvements. In no event shall
work on any change, deletion or addition requested pursuant to this paragraph 4
commence prior to (i) Landlord and Tenant approving, in writing, such change,
deletion or addition, and (ii) Landlords receipt from Tenant of payment of the
full amount of the increase in the cost of construction and installation of the
Tenant Improvements.
5. Changes By Authority:
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Tenant agrees that if any change, deletion or addition to any of the
improvements proposed to be constructed or installed is required by any
governmental authority in connection with obtaining any governmental permit or
approval, or otherwise, then such change, deletion or addition shall promptly be
made at Tenant's expense and Tenant shall, immediately upon receipt of
Landlord's demand therefor, pay such expense to Landlord. Failure to obtain any
required governmental approval or permit for the Tenant Improvements desired by
Tenant shall in no way be cause for Tenant to terminate the Lease or any
amendment to the Lease.
6. Delays Caused by Tenant:
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If the Effective Date is delayed due in any respect to Tenant's
failure to meet the schedule set forth in paragraph 3 of this Exhibit B, or due
to construction delays related to any changes required by Tenant, or due to any
other failures by Tenant to perform its obligations under this Exhibit B or
otherwise under the Lease or the Amendment, then any such delays shall be deemed
Tenant caused delays for purposes of determining the Effective Date pursuant to
paragraph 2 of the Amendment.
7. Punch List:
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Within ten (10) business days after the Effective Date, Tenant shall
deliver to Landlord a list of items ("Punch List") that Tenant believes Landlord
should complete or correct in order for the Expansion Space to be acceptable.
Landlord shall commence to complete or correct the items as soon as possible,
except those items that Landlord contends are not justified. If Tenant does not
deliver the Punch List to Landlord within the ten (10) day period, Tenant shall
be deemed to have accepted the Expansion Space and approved the construction.
Nothing in this paragraph 7 shall delay the Effective Date or Tenant's
obligation to pay rent or to make other payments due Landlord under the Lease or
the Amendment.
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8. Access to Premises:
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Tenant shall permit Landlord ant Landlord's contractor access to the
Premises during normal business hours for construction of the Tenant
Improvements. Tenant acknowledges that some disruption of its business
operations may occur and that such disruption shall not be a basis for denying
Landlord's contractor access to the Premises or otherwise interfering with
construction of the Tenant Improvements. In the event Tenant elects to have
construction of the Tenant Improvements, or any portion thereof, performed at
times other than during normal business hours, Landlord shall provide Tenant
with an estimate of overtime charges before commencement of such work. Tenant
shall be responsible for all actual overtime charges and shall pay to Landlord
as additional rent within ten (10) days of completion of construction of the
Tenant Improvements all such actual overtime charges.
9. Attachments:
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All references in the Amendment to Exhibit B shall be deemed to also
include Exhibit B-1.
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