California-Redwood City-800 Chesapeake Lease - Seaport Centre Associates LLC and Unwired Planet Inc.
LEASE AGREEMENT
between
SEAPORT CENTRE ASSOCIATES, LLC
as "LANDLORD"
and
UNWIRED PLANET, INC.
as "TENANT"
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TABLE OF CONTENTS
SECTION PAGE
------- ----
1. PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. TERM; POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. USE AND COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . 8
6. TENANT IMPROVEMENTS & ALTERATIONS . . . . . . . . . . . . . . . . . . 11
7. MAINTENANCE AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . . 13
8. TENANT'S TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10. EXCULPATION AND INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 16
11. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12. DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . 18
13. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . 21
15. DEFAULT AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 25
16. LATE CHARGE AND INTEREST. . . . . . . . . . . . . . . . . . . . . . . 26
17. WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
18. ENTRY, INSPECTION AND CLOSURE . . . . . . . . . . . . . . . . . . . . 27
19. SURRENDER AND HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . 28
20. ENCUMBRANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS. . . . . . . . . . . . 30
22. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
23. ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
24. QUIET POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
25. SECURITY MEASURES . . . . . . . . . . . . . . . . . . . . . . . . . . 31
26. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
27. RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . 31
28. LANDLORD'S LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . . 32
29. CONSENTS AND APPROVALS. . . . . . . . . . . . . . . . . . . . . . . . 32
30. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
31. RELOCATION OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . 33
32. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
33. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
34. AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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INDEX OF DEFINED TERMS
ADDITIONAL RENT.......................................................... 7
ALTERATIONS.............................................................. 12
AWARD.................................................................... 20
BROKER................................................................... 33
BUILDING................................................................. 4
BUILDING RULES........................................................... 32
BUILDING SYSTEMS......................................................... 9
CLAIMS................................................................... 16
COMMENCEMENT DATE........................................................ 4
CONDEMNATION............................................................. 20
CONDEMNOR................................................................ 20
CONTROLS................................................................. 15
DATE OF CONDEMNATION..................................................... 20
DEVELOPMENT.............................................................. 4
ENCUMBRANCE.............................................................. 29
ENVIRONMENTAL LOSSES..................................................... 10
ENVIRONMENTAL REQUIREMENTS............................................... 9
EVENT OF DEFAULT......................................................... 25
EXPIRATION DATE.......................................................... 4
HANDLED BY TENANT........................................................ 9
HANDLING BY TENANT....................................................... 9
HAZARDOUS MATERIALS...................................................... 9
HVAC..................................................................... 9
INTEREST RATE............................................................ 27
LAWS..................................................................... 5
MORTGAGEE................................................................ 30
OPERATING COSTS.......................................................... 5
PARKING FACILITY......................................................... 4
PERMITTED HAZARDOUS MATERIALS............................................ 10
PREMISES................................................................. 4
PROJECT.................................................................. 4
PROPERTY................................................................. 4
PROPERTY MANAGER......................................................... 17
PROPOSED TRANSFEREE...................................................... 22
RENT..................................................................... 8
RENTAL TAX............................................................... 15
REPRESENTATIVES.......................................................... 9
SECURITY DEPOSIT......................................................... 8
SERVICE FAILURE.......................................................... 16
TAXES.................................................................... 6
TENANT'S SHARE........................................................... 6
TENANT'S TAXES........................................................... 15
TENANT IMPROVEMENTS...................................................... 12
TERM..................................................................... 4
TRADE FIXTURES........................................................... 13
TRANSFER................................................................. 22
TRANSFEREE............................................................... 23
VISITORS................................................................. 9
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BASIC LEASE INFORMATION
LEASE DATE: For identification purposes only, the date of this
Lease is March 10, 1998
LANDLORD: SEAPORT CENTRE ASSOCIATES, LLC, a California limited
liability company
TENANT: UNWIRED PLANET, INC. a Delaware corporation
PROJECT: Seaport Centre Phase Three (East Campus)
DEVELOPMENT: Seaport Centre Phases One, Two and Three, consisting
of 26 buildings, the underlying land and associated
land.
BUILDING ADDRESS: 800 Chesapeake, Building 15
Redwood City, California
RENTABLE AREA OF
BUILDING: Approximately 40,795 square feet
RENTABLE AREA OF
PROJECT: 135,245
PREMISES: Floor: Entire two story building
Building Number: 15
Rentable Area: Approximately 40,795 square feet
TERM: 84 full calendar months (plus any partial month at the
beginning of the Term)
COMMENCEMENT DATE: June 1, 1998
EXPIRATION DATE: The last day of the 84th full calendar month in the
Term
BASE RENT: Months 01-12: $2.55 per rentable square foot per month
Months 13-24: $2.65 per rentable square foot per month
Months 25-36: $2.75 per rentable square foot per month
Months 37-48: $2.85 per rentable square foot per month
Months 49-60: $2.95 per rentable square foot per month
Months 61-72: $3.05 per rentable square foot per month
Months 72-84: $3.15 per rentable square foot per month
MAINTENANCE, This is a "triple net lease" where Tenant is
OPERATING COSTS AND responsible for maintenance, operating costs and taxes,
all in accordance with the
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TAXES: applicable provisions of the Lease.
TENANT'S SHARE: 30.16%
SECURITY DEPOSIT: A Letter of Credit as provided in Section 36 below.
LANDLORD'S ADDRESS Seaport Centre Associates, LLC
FOR PAYMENT OF RENT: Ten Almaden Boulevard, Suite 430
San Jose, CA 95113
LANDLORD'S ADDRESS Seaport Centre Associates, LLC
FOR NOTICES: c/o William Wilson & Associates
Ten Almaden Boulevard, #430
San Jose, CA 95113
with a copy to:
Seaport Centre Associates, LLC
c/o William Wilson & Associates
2929 Campus Drive, Suite 450
San Mateo, CA 94403
Attn: General Counsel
TENANT'S ADDRESS 800 Chesapeake
FOR NOTICES: Redwood City, California
BROKER(S): Wayne Mascia & Associates
GUARANTOR(S): (none)
PROPERTY MANAGER: William Wilson & Associates
ADDITIONAL PROVISIONS: 35. Letter of Credit
36. Parking
37. Extension Option
38. Right of First Offer - Building 14
39. Right of First Offer - Building 19
40. Landlord's Improvements
Exhibits:
---------
Exhibit A: The Premises
Exhibit B: Construction Rider
Exhibit C: Building Rules
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Exhibit D: Additional Provisions
The Basic Lease Information set forth above is part of the Lease. In the
event of any conflict between any provision in the Basic Lease Information and
the Lease, the Lease shall control.
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THIS LEASE is made as of the Lease Date set forth in the Basic Lease
Information, by and between the Landlord identified in the Basic Lease
Information ("LANDLORD"), and the Tenant identified in the Basic Lease
Information ("TENANT"). Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon the terms and subject to the conditions of this Lease, and
subject to covenants, conditions and restrictions recorded in the real estate
records in the county in which the Property is located, the space identified in
the Basic Lease Information as the Premises (the "PREMISES"), in the Building
located at the address specified in the Basic Lease Information (the
"BUILDING"). The approximate configuration and location of the Premises is
shown on Exhibit A. Landlord and Tenant agree that the rentable area of the
Premises for all purposes under this Lease shall be the Rentable Area specified
in the Basic Lease Information. The Building, together with the parking
facilities serving the Building (the "PARKING FACILITY"), and the parcel(s) of
land on which the Building and the Parking Facility are situated (collectively,
the "PROPERTY"), is part of the Project identified in the Basic Lease
Information (the "PROJECT"), which is part of the Development identified in the
Basic Lease Information (the "DEVELOPMENT").
2. TERM; POSSESSION. The term of this Lease (the "TERM") shall commence on
the Commencement Date as described below and, unless sooner terminated, shall
expire on the Expiration Date set forth in the Basic Lease Information (the
"EXPIRATION DATE"). The "COMMENCEMENT DATE" shall be June 1, 1998. The tenant
which previously leased the Building (the "Previous Tenant") has left personal
property, including furniture, in the Building. In accordance with its lease,
and an early lease termination agreement, the Existing Tenant is obligated to
remove such personal property, and repair any damage caused by such removal,
within thirty (30) days after Landlord enters into a replacement lease (such as
this Lease) for the Building. Landlord agrees to use good faith efforts to
cause the Previous Tenant to remove such personal property in a shorter period
of time than such thirty (30) days. Landlord will repair, or cause to be
repaired, any damage to the offices in the Building resulting from the removal
of such personal property.
3. RENT.
3.1 BASE RENT. Tenant agrees to pay Landlord the Base Rent set forth in
the Basic Lease Information, without prior notice or demand, on the first day
of each and every calendar month during the Term, except that Base Rent for the
first full calendar month in which Base Rent is payable shall be paid upon
Tenant's execution of this Lease and Base Rent for any partial month at the
beginning of the Term shall be paid on the Commencement Date. Base Rent for any
partial month at the beginning or end of the Term shall be prorated based on
the actual number of days in the month.
If the Basic Lease Information provides for any change in Base Rent by
reference to years or months (without specifying particular dates), the change
will take effect on the applicable annual or monthly anniversary of the
Commencement Date (which won't necessarily be the first day of a calendar
month).
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3.2 Additional Rent: Operating Costs and Taxes.
(a) Definitions.
(1) "OPERATING COSTS" means all costs of managing, operating,
maintaining and repairing the Project, including all costs, expenditures, fees
and charges for: (A) operation, maintenance and repair of the Project
(including maintenance, repair and replacement of glass, the roof covering or
membrane, and landscaping); (B) utilities and services (including
telecommunications facilities and equipment, recycling programs and trash
removal), and associated supplies and materials; (C) compensation (including
employment taxes and fringe benefits) for persons who perform duties in
connection with the operation, management, maintenance and repair of the
Project, such compensation to be appropriately allocated for persons who also
perform duties unrelated to the Project; (D) property (including coverage for
earthquake and flood if carried by Landlord), liability, rental income and
other insurance relating to the Project, and expenditures for deductible
amounts paid under such insurance; (E) licenses, permits and inspections; (F)
complying with the requirements of any law, statute, ordinance or governmental
rule or regulation or any orders pursuant thereto (collectively "LAWS"); (G)
amortization of capital replacements, repairs or improvements to the Project,
including capital replacements, repairs or improvements required to comply with
Laws, with interest on the unamortized balance at the rate paid by Landlord on
funds borrowed to finance such capital improvements (or, if Landlord finances
such improvements out of Landlord's funds without borrowing, the rate that
Landlord would have paid to borrow such funds, as reasonably determined by
Landlord), over such useful life as Landlord shall reasonably determine in
accordance with generally accepted accounting principles; (H) an office for the
management of the Project, including expenses of furnishing and equipping such
office and the rental value of any space occupied for such purposes; (I)
property management fees reasonably charged by owners of commercial projects in
the geographical area of the Project; (J) accounting, legal and other
professional services incurred in connection with the operation of the Project
and the calculation of Operating Costs and Taxes; (K) a reasonable allowance
for depreciation on machinery and equipment used to maintain the Project and on
other personal property owned by Landlord in the Project (including window
coverings and carpeting in common areas); (L) contesting the validity or
applicability of any Laws that may affect the Project; (M) the Project's share
of any shared or common area maintenance fees and expenses (including costs and
expenses of operating, managing, owning and maintaining the Parking Facility
and the common areas of the Project, any fitness center in the Development, the
fees and charges from the Seaport Centre Owners Association and any other fees
and expenses shared with the Development); and (N) any other cost, expenditure,
fee or charge, whether or not hereinbefore described, which in accordance with
generally accepted property management practices would be considered an expense
of managing, operating, maintaining and repairing the Project. Operating Costs
for any calendar year during which average occupancy of the Project is less
than one hundred percent (100%) shall be calculated based upon the Operating
Costs that would have been incurred if the Project had an average occupancy of
one hundred percent (100%) during the entire calendar year.
Operating Costs shall not include (i) costs of special services rendered
to individual tenants (including Tenant) for which a special charge is made;
(ii) interest and principal payments, including penalties and late charges
thereon, on loans or indebtedness secured by the Building; (iii)
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costs of improvements for Tenant or other tenants of the Project; (v) costs of
services or other benefits of a type which are not available to Tenant but
which are available to other tenants or occupants, and costs for which Landlord
is reimbursed by other tenants of the Project other than through payment of
tenants' shares of Operating Costs and Taxes; (vi) utility charges paid by
Tenant (and other tenants in the Project) directly to the applicable public
utility company; (vii) leasing commissions, attorneys' fees and other expenses
incurred in connection with leasing space in the Project or enforcing such
leases; (viii) depreciation or amortization, other than as specifically
enumerated in the definition of Operating Costs above; and (ix) costs, fines or
penalties incurred due to Landlord's violation of any Law. In no event shall
the Operating Costs used by Landlord in determining Tenant's Share of Operating
Costs exceed one hundred percent (100%) of the actual Operating Costs incurred
by Landlord in connection with the Project, and Landlord shall not recover the
costs of any items more than once.
(4) "TAXES" means: all real property taxes and general, special
or district assessments or other governmental impositions, of whatever kind,
nature or origin, imposed on or by reason of the ownership or use of the
Project; governmental charges, fees or assessments for transit or traffic
mitigation (including area-wide traffic improvement assessments and
transportation system management fees), housing, police, fire or other
governmental service or purported benefits to the Project; personal property
taxes assessed on the personal property of Landlord used in the operation of
the Project; service payments in lieu of taxes and taxes and assessments of
every kind and nature whatsoever levied or assessed in addition to, in lieu of
or in substitution for existing or additional real or personal property taxes
on the Project or the personal property described above; any increases in the
foregoing caused by changes in assessed valuation, tax rate or other factors or
circumstances; and the reasonable cost of contesting by appropriate proceedings
the amount or validity of any taxes, assessments or charges described above.
Taxes shall not include any state and federal personal or corporate income
taxes measured by the income of Landlord from all sources (other than taxes on
rent at the Property), as well as any franchise, inheritance, or estate,
succession, gift tax, or capital levy. Landlord agrees that for the purpose of
this Lease any special assessments or special taxes for public improvements to
the property will be amortized, with interest at the rate payable to the
assessing or taxing authority, over the maximum time Landlord is permitted to
pay such special assessment or special tax without penalty. To the extent paid
by Tenant or other tenants as "Tenant's Taxes" (as defined in Section 8 -
Tenant's Taxes), "Tenant's Taxes" shall be excluded from Taxes.
(5) TENANT'S SHARE" means the Rentable Area of the Premises
divided by the total Rentable Area of the Project, as set forth in the Basic
Lease Information. If the Rentable Area of the Project is changed or the
Rentable Area of the Premises is changed by Tenant's leasing of additional space
hereunder or for any other reason, Tenant's Share shall be adjusted accordingly.
(b) Additional Rent.
(1) Tenant shall pay Landlord as "ADDITIONAL RENT" for each
calendar year or portion thereof during the Term Tenant's Share of the sum of
(x) the amount of Operating Costs, and (y) the amount of Taxes.
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(2) Prior to the Commencement Date and each calendar year
thereafter, Landlord shall notify Tenant of Landlord's estimate of Operating
Costs, Taxes and Tenant's Additional Rent for the following calendar year (or
first partial year following the Commencement Date). Commencing on the
Commencement Date, and in subsequent calendar years, on the first day of January
of each calendar year and continuing on the first day of every month thereafter
in such year, Tenant shall pay to Landlord one-twelfth (1/12th) of the
Additional Rent, as reasonably estimated by Landlord for such full calendar
year. If Landlord thereafter reasonably estimates that Operating Costs or Taxes
for such year will vary from Landlord's prior estimate, Landlord may, by notice
to Tenant, revise the estimate for such year (and Additional Rent shall
thereafter be payable based on the revised estimate).
(3) As soon as reasonably practicable after the end of each
calendar year, Landlord shall furnish Tenant a statement with respect to such
year, showing Operating Costs, Taxes and Additional Rent for the year, and the
total payments made by Tenant with respect thereto. Unless Tenant raises any
objections to Landlord's statement within ninety (90) days after receipt of the
same, such statement shall conclusively be deemed correct and Tenant shall have
no right thereafter to dispute such statement or any item therein or the
computation of Additional Rent based thereon. If Tenant does object to such
statement, then Landlord shall provide Tenant with reasonable verification of
the figures shown on the statement and the parties shall negotiate in good faith
to resolve any disputes. Any objection of Tenant to Landlord's statement and
resolution of any dispute shall not postpone the time for payment of any amounts
due Tenant or Landlord based on Landlord's statement, nor shall any failure of
Landlord to deliver Landlord's statement in a timely manner relieve Tenant of
Tenant's obligation to pay amounts due Landlord based on Landlord's statement.
(4) If Tenant's Additional Rent as finally determined for
any calendar year exceeds the total payments made by Tenant on account thereof,
Tenant shall pay Landlord the deficiency within twenty (20) days of Tenant's
receipt of Landlord's statement. If the total payments made by Tenant on account
thereof exceed Tenant's Additional Rent as finally determined for such year,
Tenant's excess payment shall be credited toward the rent next due from Tenant
under this Lease. For any partial calendar year at the beginning or end of the
Term, Additional Rent shall be prorated on the basis of a 365-day year by
computing Tenant's Share of the Operating Costs and Taxes for the entire year
and then prorating such amount for the number of days during such year included
in the Term. Notwithstanding the termination of this Lease, Landlord shall pay
to Tenant or Tenant shall pay to Landlord, as the case may be, within twenty
(20) days after Tenant's receipt of Landlord's final statement for the calendar
year in which this Lease terminates, the difference between Tenant's Additional
Rent for that year, as finally determined by Landlord, and the total amount
previously paid by Tenant on account thereof.
If for any reason Taxes for any year during the Term are reduced,
refunded or otherwise changed, Tenant's Additional Rent shall be adjusted
accordingly. If taxes are temporarily reduced as a result of space in the
Project being leased to a tenant that is entitled to an exemption from property
taxes or other taxes, then for purposes of determining Additional Rent for each
year in which Taxes are reduced by any such exemption, Taxes for such year
shall be calculated on the basis of the amount the Taxes for the year would
have been in the absence of the exemption. The
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obligations of Landlord to refund any overpayment of Additional Rent and of
Tenant to pay any Additional Rent not previously paid shall survive the
expiration of the Term.
3.3 Payment of Rent. All amounts payable or reimbursable by Tenant
under this Lease, including late charges and interest (collectively, "RENT"),
shall constitute rent and shall be payable and recoverable as rent in the
manner provided in this Lease. All sums payable to Landlord on demand under the
terms of this Lease shall be payable within twenty (20) days after receipt of
notice from Landlord of the amounts due. All rent shall be paid without offset,
recoupment or deduction in lawful money of the United States of America to
Landlord at Landlord's Address for Payment of Rent as set forth in the Basic
Lease Information, or to such other person or at such other place as Landlord
may from time to time designate.
4. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord the amount specified in the Basic Lease Information as the Security
Deposit, if any (the "SECURITY DEPOSIT"), as security for the performance of
Tenant's obligations under this Lease. Landlord may (but shall have no
obligation to) use the Security Deposit or any portion thereof to cure any
Event of Default under this Lease or to compensate Landlord for any damage
Landlord incurs as a result of Tenant's failure to perform any of Tenant's
obligations hereunder. In such event Tenant shall pay to Landlord on demand an
amount sufficient to replenish the Security Deposit. If Tenant is not in
default at the expiration or termination of this Lease, then within thirty (30)
days after Tenant vacates the Premises Landlord shall return to Tenant the
Security Deposit or the balance thereof then held by Landlord and not applied
as provided above. Landlord may commingle the Security Deposit with Landlord's
general and other funds. Landlord shall not be required to pay interest on the
Security Deposit to Tenant.
5. USE AND COMPLIANCE WITH LAWS.
5.1 Use. The Premises shall be used and occupied solely for the
purposes of (a) general business offices, (b) and research and development, and
for no other use or purpose. Tenant shall comply with all present and future
Laws relating to Tenant's use or occupancy of the Premises (and make any
repairs, alterations or improvements as required to comply with all such Laws),
and shall observe the "Building Rules" (as defined in Section 27 -- Rules and
Regulations); provided, however, that the foregoing shall not be interpreted to
require Tenant to perform structural or capital work except to the extent
required as a result of Tenant's specific use of the Premises. Tenant shall not
do, bring, keep or sell anything in or about the Premises that is prohibited
by, or that will cause a cancellation of or an increase in the existing premium
for, any insurance policy covering the Property or any part thereof. Tenant
shall not permit the Premises to be occupied or used in any manner that will
constitute waste or a nuisance, or disturb the quiet enjoyment of or otherwise
annoy other tenants in the Building. Without limiting the foregoing, the
Premises shall not be used to manufacture goods or products (other than
computer software products), for educational activities (other than occasional
training sessions for Tenant's customers), practice of medicine or any of the
healing arts, providing social services, for any governmental use (including
embassy or consulate use), or for personnel agency, customer service office,
studios for radio, television or other media, travel agency or reservation
center operations or uses. Tenant shall not, without the prior consent of
Landlord, (i) bring into the Building or the Premises anything that may cause
substantial noise, odor or vibration, overload the floors in the Premises or
the Building or any
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of the heating, ventilating and air-conditioning ("HVAC"), mechanical,
elevator, plumbing, electrical, fire protection, life safety, security or other
systems in the Building ("BUILDING SYSTEMS"), or jeopardize the structural
integrity of the Building or any part thereof; (ii) connect to the utility
systems of the Building any apparatus, machinery or other equipment other than
typical office equipment; or (iii) connect to any electrical circuit in the
Premises any equipment or other load with aggregate electrical power
requirements in excess of 80% of the rated capacity of the circuit.
Tenant shall honor and comply with the terms of all recorded covenants,
conditions and restrictions relating to the Property.
5.2 Hazardous Materials.
(a) Definitions.
(1) "HAZARDOUS MATERIALS" shall meet any substance: (A) that now
or in the future is regulated or governed by, requires investigation or
remediation under, or is defined as a hazardous waste, hazardous substance,
pollutant or contaminant under any governmental statute, code, ordinance,
regulation, rule or order, and any amendment thereto, including the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq., and the Resource Conservation Recovery Act, 42 U.S.C.
Section 6901 et seq., or (B) that is toxic, explosive, corrosive, flammable,
radioactive, carcinogenic, dangerous or otherwise hazardous, including
gasoline, diesel fuel, petroleum hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, radon and urea formaldehyde foam insulation.
(2) "ENVIRONMENTAL REQUIREMENTS" shall mean all present and
future Laws, orders, permits, licenses, approvals, authorizations and other
requirements of any kind applicable to Hazardous Materials.
(3) "HANDLED BY TENANT" and "HANDLING BY TENANT" shall mean and
refer to any installation, handling, generation, storage, use, disposal,
discharge, release, abatement, removal, transportation, or any other activity
of any type by Tenant or its agents, employees, contractors, licensees,
sublessees, transferees or representatives (collectively, "REPRESENTATIVES") or
its guests, customers, invitees, or visitors (collectively, "VISITORS"), at or
about the Premises in connection with or involving Hazardous Materials.
(4) "ENVIRONMENTAL LOSSES" shall mean all costs and expenses of
any kind, damages, including foreseeable and unforeseeable consequential
damages, fines and penalties incurred in connection with any violation of and
compliance with Environmental Requirement and all losses of any kind
attributable to the diminution of value, loss of use or adverse effects on
marketability or use of any portion of the Premises or Property.
(b) Tenant's Covenants. No Hazardous Materials shall be Handled by
Tenant at or about the Premises or Property without Landlord's prior written
consent, which consent may be granted, denied, or conditioned upon compliance
with Landlord's requirements, all in Landlord's absolute discretion.
Notwithstanding the foregoing, normal quantities and use of those Hazardous
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Materials customarily used in the conduct of general office activities, such as
copier fluids and cleaning supplies ("PERMITTED HAZARDOUS MATERIALS"), may be
used and stored at the Premises without Landlord's prior written consent,
provided that Tenant's activities at or about the Premises and Property and the
Handling by Tenant of all Hazardous Materials shall comply at all times with
all Environmental Requirements. At the expiration or termination of the Lease,
Tenant shall promptly remove from the Premises and Property all Hazardous
Materials Handled by Tenant at the Premises or the Property. Tenant shall keep
Landlord fully and promptly informed of all Handling by Tenant of Hazardous
Materials other than Permitted Hazardous Materials. Tenant shall be responsible
and liable for the compliance with all of the provisions of this Section by all
of Tenant's Representatives and Visitors, and all of Tenant's obligations under
this Section (including its indemnification obligations under paragraph (e)
below) shall survive the expiration or termination of this Lease.
(c) Compliance. Tenant shall at Tenant's expense promptly take all
actions required by any governmental agency or entity in connection with or as
a result of the Handling by Tenant of Hazardous Materials at or about the
Premises or Property, including inspection and testing, performing all cleanup,
removal and remediation work required with respect to those Hazardous
Materials, complying with all disclosure requirements and post-closure
monitoring, and filing all required reports or plans. All of the foregoing work
and all Handling by Tenant of all Hazardous Materials shall be performed in a
good, safe and workmanlike manner by consultants qualified and licensed to
undertake such work and in a manner that will not interfere with any other
tenant's quiet enjoyment of the Property or Landlord's use, operation, leasing
and sale of the Property. Tenant shall deliver to Landlord prior to delivery to
any governmental agency, or promptly after receipt from any such agency, copies
of all permits, manifests, closure or remedial action plans, notices, and all
other documents relating to the Handling by Tenant of Hazardous Materials at or
about the Premises or Property. If any lien attaches to the Premises or the
Property in connection with or as a result of the Handling by Tenant of
Hazardous Materials, and Tenant does not cause the same to be released, by
payment, bonding or otherwise, within twenty (20) days after the attachment
thereof, Landlord shall have the right but not the obligation to cause the same
to be released and any sums expended by Landlord (plus Landlord's
administrative costs) in connection therewith shall be payable by Tenant on
demand.
(d) Landlord's Rights. Landlord shall have the right, but not the
obligation, to enter the Premises at any reasonable time, upon reasonable
notice (and without any notice requirement for any emergency) (i) to confirm
Tenant's compliance with the provisions of this Section 5.2, and (ii) to
perform Tenant's obligations under this Section if Tenant has failed to do so
after reasonable notice to Tenant. Landlord shall have the right to engage
qualified Hazardous Materials consultants to inspect the Premises and review
the Handling by Tenant of Hazardous Materials, including review of all permits,
reports, plans, and other documents regarding same. Tenant shall pay to
Landlord on demand the costs of Landlord's consultants' fees and all costs
incurred by Landlord in performing Tenant's obligations under this Section.
Landlord shall use reasonable efforts to minimize any interference with
Tenant's business caused by Landlord's entry into the Premises, but Landlord
shall not be responsible for any interference caused thereby.
(e) Tenant's Indemnification. Tenant agrees to indemnify, defend,
protect and hold harmless Landlord and its partners or members and its or their
partners, members, directors,
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officers, shareholders, employees and agents from all Environmental Losses and
all other claims, actions, losses, damages, liabilities, costs and expenses of
every kind, including reasonable attorneys', experts' and consultants' fees and
costs, incurred at any time and arising from or in connection with the Handling
by Tenant of Hazardous Materials at or about the Property or Tenant's failure
to comply in full with all Environmental Requirements with respect to the
Premises.
(f) Landlord's Responsibilities. Landlord shall not use any of
the Land or Building for any activities involving the use, generation,
handling, release, threatened release, treatment, storage, discharge, disposal
or transportation of any Hazardous Materials, except in such quantity or
concentration that is customarily used, stored or disposed in the ordinary
course of the business so long as such activity duly complies with applicable
Laws and good business practice. If Landlord violates the foregoing covenant
resulting in an Environmental Claim (as hereinafter defined) with respect to
the Premises, then Landlord agrees to (a) notify Tenant immediately of any such
Environmental claim and (b) clean up any contamination in full compliance with
all applicable Laws. The costs of any Environmental Claim for Hazardous
Materials (x) existing on the Land, or included in the Building, on the
Commencement Date of this Lease, (y) caused by underground flow of Hazardous
Materials shall not be included in Operating Costs. "Environmental Claim" means
any claim, demand, action, cause of action, suit, damage, punitive damage,
fine, penalty, expense, liability, criminal liability, judgment, or
governmental investigation relating to remediation or compliance with
requirements of Laws covering Hazardous Materials. The term "Environmental
Claim" also includes any costs incurred in responding to efforts to require
remediation and any claim based upon any asserted or actual breach or violation
of any requirements of any Laws covering Hazardous Materials.
(g) Third Parties. Except as provided in the immediately
preceding subsection (f), if any third party (other than Landlord or its
representatives, or any other tenant in the Project, or Tenant or its
representatives) places Hazardous Materials on the Property, then Landlord
shall have the right to include the costs of remediation and removal in
Operating Costs, subject to the provisions of Section 3.2 of this Lease.
6. TENANT IMPROVEMENTS & ALTERATIONS.
6.1 Landlord and Tenant shall perform their respective obligations
with respect to design and construction of any improvements to be constructed
and installed in the Premises (the "TENANT IMPROVEMENTS"), as provided in the
Construction Rider. Except for any Tenant Improvements to be constructed by
Tenant as provided in the Construction rider, Tenant shall not make any
alterations, improvements or changes to the Premises, including installation of
any security system or telephone or data communication wiring, ("ALTERATIONS"),
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. Notwithstanding any other provision contained
herein, Tenant shall not be required to obtain Landlord's prior consent for
minor, non-structural Alterations that (a) do not affect any of the Building
Systems, (b) are not visible from the exterior of the Premises, and (c) cost
less than Ten Thousand Dollars ($10,000), so long as Tenant gives Landlord
notice of the proposed Alterations at least ten (10) days prior to commencing
the Alterations and complies with all of the following provisions (except that
Tenant shall not be required to obtain Landlord's approval of any plans or
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specifications therefor). Any such Alterations shall be completed by Tenant at
Tenant's sole cost and expense: (i) with due diligence, in a good and
workmanlike manner, using new materials; (ii) in compliance with plans and
specifications approved by Landlord; (iii) in compliance with reasonable
construction rules and regulations promulgated by Landlord from time to time;
(iv) in accordance with all applicable Laws (including all work, whether
structural or non-structural, inside or outside the Premises, required to comply
fully with all applicable Laws and necessitated by Tenant's work); and (v)
subject to all conditions which Landlord may in Landlord's discretion impose.
Such conditions may include requirements for Tenant to: (i) provide payment or
performance bonds or additional insurance (from Tenant or Tenant's contractors,
subcontractors or design professionals); (ii) use contractors or subcontractors
approved by Landlord, which approval shall not be unreasonably withheld, and use
contractors designated by Landlord for Alterations affecting the structure of
the Building, the Building Systems and the life safety systems of the Building;
and (iii) remove all or part of the Alterations prior to or upon expiration or
termination of the Term, as designated in writing by Landlord at the time Tenant
requests Landlord's consent to the Alteration. If any work outside the Premises,
or any work on or adjustment to any of the Building Systems, is required in
connection with or as a result of Tenant's work, such work shall be performed at
Tenant's expense by contractors designated by Landlord. Landlord's right to
review and approve (or withhold approval of) Tenant's plans, drawings,
specifications, contractors(s) and other aspects of construction work proposed
by Tenant is intended solely to protect Landlord, the Property and Landlord's
interests. No approval or consent by Landlord shall be deemed or construed to
be a representation or warranty by Landlord as the adequacy, sufficiency,
fitness or suitability thereof or compliance thereof with applicable Laws and
other requirements. Except as otherwise provided in Landlord's consent, all
Alterations shall upon installation become part of the realty and be the
property of Landlord.
6.2 Before making any Alterations, Tenant shall submit to Landlord for
Landlord's prior approval reasonably detailed final plans and specifications
prepared by a licensed architect or engineer, a copy of the construction
contract, including the name of the contractor and all subcontractors proposed
by Tenant to make the Alterations and a copy of the contractor's license. Tenant
shall reimburse Landlord upon demand for any reasonable expenses incurred by
Landlord in connection with any Alterations made by Tenant, including reasonable
fees charged by Landlord's contractors or consultants to review plans and
specifications prepared by Tenant and to update the existing as-built plans and
specifications of the Building to reflect the Alterations. Tenant shall obtain
all applicable permits, authorizations and governmental approvals and deliver
copies of the same to Landlord before commencement of any Alterations.
6.3 Tenant shall keep the Premises and the Project free and clear of all
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant. If any such lien attaches to the Premises or the Project,
and Tenant does not cause the same to be released by payment, bonding or
otherwise within twenty (20) days after the attachment thereof, Landlord shall
have the right but not the obligation to cause the same to be released, and any
sums expended by Landlord (plus Landlord's reasonable administrative costs) in
connection therewith shall be payable by Tenant on demand with interest thereon
from the date of expenditure by Landlord at the Interest Rate (as defined in
Section 16.2 - Interest). Tenant shall give Landlord at least ten (10) days'
notice prior to the commencement of any Alterations and cooperate with Landlord
in posting and maintaining notices of non-responsibility in connection
therewith.
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6.4 Subject to the provisions of Section 5 - Use and Compliance with Laws
and the foregoing provisions of this Section, Tenant may install and maintain
furnishings, equipment, movable partitions, business equipment and other trade
fixtures ("TRADE FIXTURES") in the Premises, provided that Trade fixtures do
not become an integral part of the Premises or the Building. Tenant shall
promptly repair any damage to the Premise or the Building caused by any
installation or removal of such Trade Fixtures.
7. MAINTENANCE AND REPAIRS.
7.1 By taking possession of the Premises Tenant agrees that the Premises
are then in a good and tenantable condition. Tenant shall be responsible to
clean, maintain and repair the Premises, including providing janitorial services
and disposal of trash; and to that end, during the Term, Tenant, at Tenant's
expense but under the direction of Landlord, shall repair and maintain the
Premises, including, without limitation, any elevator, the heating, ventilating
and air conditioning system or systems serving the Premises, the electrical and
plumbing systems serving the Premises, including the lighting and plumbing
fixtures, the restrooms serving the Premises, interior stairways in the
Premises, the interior and exterior glass, plate glass skylights, interior
walls, floor coverings, ceiling (ceiling tiles and grid), Tenant Improvements,
Alterations, fire extinguishers, outlets and fixtures, and any appliances
(including dishwashers, hot water heaters and garbage disposers) in the
Premises, in a first class condition, and keep the Premises in an clean, safe
and orderly condition. Prior to the Commencement Date Tenant shall provide
Landlord with a copy of a service contract with a licensed commercial Heating,
Ventilating and Air-conditioning maintenance company (which contract and company
shall be subject to Landlord's prior approval, which shall not be unreasonably
withheld or delayed), to maintain, on an ongoing basis (at least quarterly), the
heating, ventilating and air-conditioning system serving the Premises. Prior to
the Commencement Date Landlord shall (a) re-caulk the Building, (b) repaint the
exterior of the Building, (c) repair and re-coat the roof of the Building, and
(d) cause the following systems (collectively, the "Building Systems") to be
inspected and placed in good working order and repair: (i) electrical, (ii)
plumbing, (iii) heating, ventilating and air-conditioning, and (iv) life safety
systems. If, during the thirty (30) days following the Commencement date, any of
the Building Systems cease being in good working order and repair, and Tenant
gives Landlord written notice of such failure within such thirty (30) days
following the Commencement Date, then Landlord shall cause such Building System
to be placed in good working condition and repair, at no cost to Tenant. Except
for any repairs and maintenance which are the responsibility of Landlord
pursuant to the immediately preceding sentence, Tenant shall be responsible for
all repairs and maintenance of the Building System commencing on the
thirty-first (31st) day following the Commencement Date.
Tenant acknowledges that the sewer piping at the Development is made of ABS
plastic. Accordingly, without Landlord's prior written consent, which consent
may be granted or withheld in Landlord's sole discretion, Tenant shall allow
only ordinary domestic sewage to be placed in the sewer system from the
Premises. UNDER NO CIRCUMSTANCES SHALL TENANT EVER PLACE, OR ALLOW TO BE PLACED,
ANY ESTERS OR KETONES (USUALLY FOUND IN SOLVENTS TO CLEAN UP PETROLEUM PRODUCTS)
IN THE DRAINS OR SEWER SYSTEM, FROM THE PREMISES.
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7.2 Landlord shall (a) maintain or cause to be maintained in reasonably
good order, condition and repair, the structural portions of the roof,
foundations, floors and exterior walls of the Building, and the public and
common areas outside of the Building, (b) that portion of the electrical, water
and sanitary sewer systems serving the Building and located outside the
Building, (c) wash the exterior windows of the Building on a periodic basis, (d)
caulk exterior window joints and concrete slabs and (e) paint the exterior of
the Building, all of which shall be included as a part of Operating Costs,
subject to the terms and conditions contained in Section 3.2 of this Lease;
provided, however, if any maintenance or repair of electrical, water and
sanitary sewer systems outside the Building is caused by Tenant's misuse of such
system, the costs of such maintenance and repair shall not constitute a capital
expenditure for the purposes of Section 3.2 of this Lease. Landlord shall be
under no obligation to inspect the Premises. Tenant shall promptly report in
writing to Landlord any defective condition known to Tenant which Landlord is
required to repair. As a material part of the consideration for this Lease,
Tenant hereby waives any benefits of any applicable existing or future law,
including the provisions of California Civil Code Sections 1932(1), 1941 and
1942, that allows a tenant to make repairs at its landlord's expense.
7.3 Landlord hereby reserves the right, at any time and from time to
time, without liability to Tenant, and without constituting an eviction,
constructive or otherwise, or entitling Tenant to any abatement of rent or to
terminate this Lease or otherwise releasing Tenant from any of Tenant's
obligations under this Lease:
(a) To make alterations, additions, repairs, improvements to or in
or to decrease the size of area of, all or any part of the Building, the
fixtures and equipment therein, and the Building Systems (except that Landlord
shall not have any right under this provision to materially reduce the size of
the Building, or permanently, materially and adversely affect Tenant's access to
and use of the Premises, except only as may be required to comply with Laws or
as a result of any fire or other casualty, or Condemnation);
(b) To change the Building's name or street address;
(c) To install and maintain any and all signs on the exterior and
interior of the Building;
(d) To reduce, increase, enclose or otherwise change at any time
and from time to time the size, number, location, lay-out and nature of the
common areas (including the Parking Facility) and other tenancies and premises
in the Property and to create additional rentable areas through use or enclosure
of common areas; and
(e) If any governmental authority promulgates or revises any Law or
imposes mandatory or voluntary controls or guidelines on Landlord or the
Property relating to the use or conservation of energy or utilities or the
reduction of automobile or other emissions or reduction or management of traffic
or parking on the Property (collectively "CONTROLS"), to comply with such
Controls, whether mandatory or voluntary, or make any alterations to the
Property related thereto.
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(f) In exercising its rights under this Section 7.3, Landlord agrees to
use reasonable efforts to minimize any interruption or disruption of Tenant's
use of the Premises.
8. TENANT'S TAXES. "TENANT'S TAXES" shall mean (a) all taxes, assessments,
license fees and other governmental charges or impositions levied or assessed
against or with respect to Tenant's personal property or Trade Fixtures in the
Premises, whether any such imposition is levied directly against Tenant or
levied against Landlord or the Property, (b) all rental, excise, sales or
transaction privilege taxes arising out of this Lease (excluding, however,
state and federal personal or corporate income taxes measured by the income of
Landlord from all sources) imposed by any taxing authority upon Landlord or
upon Landlord's receipt of any rent payable by Tenant pursuant to the terms of
this Lease ("RENTAL TAX"), and (c) any increase in Taxes attributable to
inclusion of a value placed on Tenant's personal property, Trade Fixtures or
Alterations. Tenant shall pay any Rental Tax to Landlord in addition to and at
the same time as Base Rent is payable under this Lease, and shall pay all other
Tenant's Taxes before delinquency (and, at Landlord's request, shall furnish
Landlord satisfactory evidence thereof). If Landlord pays Tenant's Taxes or any
portion thereof, Tenant shall reimburse Landlord upon demand for the amount of
such payment, together with interest at the Interest Rate from the date of
Landlord's payment to the date of Tenant's reimbursement.
9. UTILITIES.
9.2 Payment for Utilities and Services.
(a) If the temperature otherwise maintained in any portion of the
Premises by the HVAC systems of the Building is affected as a result of any
lights, machines or equipment used by Tenant in the Premises, then Landlord
shall have the right to install any machinery or equipment reasonably necessary
to restore the temperature, including modifications to the standard
air-conditioning equipment. The cost of any such equipment and modifications,
including the cost of installation and any additional cost of operation and
maintenance of the same, shall be paid by Tenant to Landlord upon demand.
(b) Electricity, water, sanitary sewer and any gas will be
separately metered for the Premises. Tenant shall pay prior to delinquency all
charges for water, gas, electricity, telephone and other telecommunication
services, janitorial service, trash pick-up, sewer and all other services
consumed on or supplied to the Premises, and all taxes, levies, fee and
surcharges thereon.
9.3 Interruption of Services. In the event of an interruption in or
failure or inability to provide any services or utilities to the Premises or
Building for any reason (a "SERVICE FAILURE"), such Service Failure shall not,
regardless of its duration, impose upon Landlord any liability whatsoever,
constitute an eviction of Tenant, constructive or otherwise, entitle Tenant to
an abatement of rent or to terminate this Lease or otherwise release Tenant
from any of Tenant's obligations under this Lease. Tenant hereby waives any
benefits of any applicable existing or future Law, including the provisions of
California Civil Code Section 1932(1), permitting the termination of this Lease
due to such interruption, failure or inability.
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10. EXCULPATION AND INDEMNIFICATION.
10.1 Landlord's Indemnification of Tenant. Landlord shall indemnify,
protect, defend and hold Tenant harmless from and against any claims, actions,
liabilities, damages, costs or expenses, including reasonable attorneys' fees
and costs incurred in defending against the same ("CLAIMS") asserted by any
third party against Tenant for loss, injury or damage, to the extent such loss,
injury or damage is caused by the willful misconduct or negligent acts or
omissions of Landlord or its authorized representatives.
10.2 Tenant's Indemnification of Landlord. Tenant shall indemnify,
protect, defend and hold Landlord and Landlord's authorized representatives
harmless from and against Claims arising from (a) the acts or omissions of
Tenant or Tenant's Representatives or Visitors in or about the Property, or
(b) any construction or other work undertaken by Tenant on the Premises
(including any design defects), or (c) any breach or default under this Lease
by Tenant, or (d) any loss, injury or damage, howsoever and by whomsoever
caused, to any person or property, occurring in or about the Premises during
the Term, excepting only Claims described in this clause (d) to the extent they
are caused by the willful misconduct or negligent acts or omissions of Landlord
or its authorized representatives.
10.3 Damage to Tenant and Tenant's Property. Landlord shall not be liable
to Tenant for any loss, injury or other damage to Tenant or to Tenant's
property in or about the Premises or the Property from any cause (including
defects in the Property or in any equipment in the Property; fire, explosion or
other casualty; bursting, rupture, leakage or overflow of any plumbing or
other pipes or lines, sprinklers, tanks, drains, drinking fountains or
washstands in, above, or about the Premises or the Property; or acts of other
tenants in the Property). Tenant hereby waives all claims against Landlord for
any such loss, injury or damage and the cost and expense of defending against
claims relating thereto, including any loss, injury or damage caused by
Landlord's negligence (active or passive) or willful misconduct.
Notwithstanding any other provision of this Lease to the contrary, in no event
shall Landlord or Tenant be liable to the other party for any punitive or
consequential damages or damages for loss of business by Tenant or Landlord
except for any liability which Tenant might have for holding over in the
Premises beyond the expiration of the Term in accordance with the provisions of
Section 19.2 of this Lease.
10.4 Survival. The obligations of the parties under this Section 10 shall
survive the expiration or termination of this Lease.
11. INSURANCE.
11.1 Tenant's Insurance.
(a) Liability Insurance. Tenant shall maintain in full force
throughout the Term, commercial general liability insurance providing coverage
on an occurrence form basis with limits of not less than two Million Dollars
($2,000,000.00) each occurrence for bodily injury and property damage combined,
Two Million Dollars ($2,000,000.00) annual general aggregate, and Two Million
Dollars ($2,000,000.00) products and completed operations annual aggregate.
Tenant's liability insurance policy or policies shall: (i) include premises and
operations liability
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coverage, products and completed operations liability coverage, broad form
property damage coverage including completed operations, blanket contractual
liability coverage including, to the maximum extent possible, coverage for the
indemnification obligations of Tenant under this Lease, and personal and
advertising injury coverage; (ii) provide that the insurance company has the
duty to defend all insureds under the policy; (iii) provide that defense costs
are paid in addition to and to not deplete any of the policy limits; (iv) cover
liabilities arising out of or incurred in connection with Tenant's use or
occupancy of the Premises or the Property; (v) extend coverage to cover
liability for the actions of Tenant's Representatives and Visitors; and (iv)
designate separate limits for the Property. Each policy of liability insurance
required by this Section shall: (i) contain a cross liability endorsement or
separation of insureds clause; (ii) provide that any waiver of subrogation
rights or release prior to a loss does not void coverage; (iii) provide that it
is primary to and not contributing with, any policy of insurance carried by
Landlord covering the same loss; (iv) provide that any failure to comply with
the reporting provisions shall not affect coverage provided to Landlord, its
partners, property managers and Mortgagees; and (v) name Landlord, its partners,
the Property Manager identified in the Basic Lease Information (the "PROPERTY
MANAGER"), and such other parties in interest as Landlord may from time to time
reasonably designate to Tenant in writing, as additional insureds. Such
additional insureds shall be provided at least the same extent of coverage as is
provided to Tenant under such policies. All endorsements effecting such
additional insureds status shall be at least as broad as additional insured
endorsement form number CG 20 11 11 85 promulgated by the Insurance Services
Office.
(b) Property Insurance. Tenant shall at all times maintain in effect with
respect to any Alterations and Tenant's Trade Fixtures and personal property,
commercial property insurance providing coverage, on an "all risk" or "special
form" basis, in an amount equal to at least 90% of the full replacement cost of
the covered property. Tenant may carry such insurance under a blanket policy
provided that such policy provides coverage equivalent to a separate policy.
During the Term, the proceeds from any such policies of insurance shall be used
for the repair or replacement of the Alterations, Trade Fixtures and personal
property so insured. Landlord shall be provided coverage under such insurance to
the extent of its insurable interest and, if requested by Landlord, both
Landlord and Tenant shall sign all documents reasonably necessary or proper in
connection with the settlement of any claim or loss under such insurance.
Landlord will have no obligation to carry insurance on any Alterations or on
Tenant's Trade Fixtures or personal property.
(c) Requirements For All Policies. Each policy of insurance required
under this Section 11.1 shall: (i) be in a form, and written by an insurer,
reasonably acceptable to Landlord, (ii) be maintained at Tenant's sole cost and
expense, and (iii) require at least thirty (30) days' written notice to
Landlord prior to any cancellation, nonrenewal or modification of insurance
coverage. Insurance companies issuing such policies shall have rating
classifications of "A" or better and financial size category ratings of "VII"
or better according to the latest edition of the A.M. Best Key Rating Guide.
All insurance companies issuing such policies shall be admitted carriers
licensed to do business in the state where the Property is located. Any
deductible amount under such insurance shall not exceed $5,000. Tenant shall
provide to Landlord, upon request, evidence that the insurance required to be
carried by Tenant pursuant to this Section, including any endorsement effecting
the additional insured status, is in full force and effect and that premiums
therefor have been paid.
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(d) Updating Coverage. Tenant shall increase the amounts of insurance as
required by any Mortgage, and, not more frequently than once every three (3)
years, as recommended by Landlord's insurance broker, if, in the reasonable
opinion of either of them, the amount of insurance then required under this
Lease is not adequate.
(e) Certificates of Insurance. Prior to occupancy of the Premises
by Tenant, and not less than thirty (30) days prior to expiration of any policy
thereafter, Tenant shall furnish to Landlord a certificate of insurance
reflecting that the insurance required by this Section is in force, accompanied
by an endorsement showing the required additional insureds satisfactory to
Landlord in substance and form. Notwithstanding the requirements of this
paragraph, Tenant shall at Landlord's request provide to Landlord a certified
copy of each insurance policy required to be in force at any time pursuant to
the requirements of this Lease or its Exhibits.
11.2 Landlord's Insurance. During the Term, to the extent such coverages
are available at a commercially reasonable cost, Landlord shall maintain in
effect insurance on the Building with responsible insurers, on an "all risk" or
"special form" basis, insuring the Building and the Tenant Improvements in an
amount equal to at least 90% of the replacement cost thereof, excluding land,
foundations, footings and underground installations. Landlord may, but shall not
be obligated to, carry insurance against additional perils and/or in greater
amounts. Landlord shall maintain in full force throughout the Term, commercial
general liability insurance providing coverage with limits of not less than Two
Million Dollars ($2,000,000.00) each occurrence for bodily injury and property
damage combined covering the Property (the cost of premiums for which shall be
included in Operating costs).
11.3 Mutual Waiver of Right of Recovery & Waiver of Subrogation. Landlord
and Tenant each hereby waive any right of recovery against each other and the
partners, managers, members, shareholders, officers, directors and authorized
representatives of each other for any loss or damage that is covered by any
policy of property insurance maintained by either party (or required by this
lease to be maintained) with respect to the Premises or the Property or any
operation therein, regardless of cause, including negligence (active or passive)
of the party benefiting from the waiver. If any such policy of insurance
relating to this Lease or to the Premises or the Property does not permit the
foregoing waiver or if the coverage under any such policy would be invalidated
as a result of such waiver, the party maintaining such policy shall obtain from
the insurer under such policy a waiver of all right of recovery by way of
subrogation against either party in connection with any claim, loss or damage
covered by such policy.
12. DAMAGE OR DESTRUCTION.
12.1 Landlord's Duty to Repair.
(a) If all or a substantial part of the Premises are rendered
untenantable or inaccessible by damage to all or any part of the Property from
fire or other casualty then, unless either party is entitled to and elects to
terminate this lease pursuant to Sections 12.2 - Landlord's Right to Terminate
and 12.3 - Tenant's Right to Terminate, Landlord shall, at its expense, use
reasonable efforts to repair and restore the Premises and/or the Property, as
the case may be, to substantially their former condition to the extent permitted
by then applicable Laws; provided,
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however, in no event shall Landlord have any obligation for repair or
restoration: (i) beyond the extent of the sum of (x) the insurance proceeds
received by Landlord for such repair or restoration plus (y) $10,000, or (ii)
for any of Tenant's personal property, Trade Fixtures or Alterations.
(b) If Landlord is required or elects to repair damage to the
Premises and/or the Property, this Lease shall continue in effect, but Tenant's
Base Rent and Additional Rent shall be abated with regard to any portion of the
Premises that Tenant is prevented from using by reason of such damage or its
repair from the date of the casualty until substantial completion of Landlord's
repair of the affected portion of the Premises as required under this Lease. In
no event shall Landlord be liable to Tenant by reason of any injury to or
interference with Tenant's business or property arising from fire or other
casualty or by reason of any repairs to any part of the Property necessitated by
such casualty.
12.2 Landlord's Right to Terminate. Landlord may elect to terminate
this Lease following damage by fire or other casualty under the following
circumstances:
(a) If, in the reasonable judgment of Landlord, the Premises
and the Property cannot be substantially repaired and restored under applicable
Laws within one (1) year from the date of the casualty;
(b) If, in the reasonable judgment of Landlord, adequate
proceeds are not, for any reason (except for Landlord's failure to maintain the
insurance coverage required to be maintained by Landlord under this Lease), made
available to Landlord from Landlord's insurance policies (and/or from
Landlord's funds made available for such purpose, at Landlord's sole option) to
make the required repairs;
(c) If the Building is damaged or destroyed to the extent
that, in the reasonable judgment of Landlord, the cost to repair and restore
the Building would exceed twenty-five percent (25%) of the full replacement cost
of the Building, whether or not the Premises are at all damaged or destroyed; or
(d) If the fire or other casualty occurs during the last year
of the Term.
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of
this Section 12.2 occur or arise, Landlord shall give Tenant notice within one
hundred and twenty (120) days after the date of the casualty, specifying whether
Landlord elects to terminate this Lease as provided above and, if not,
Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease.
12.3 Tenant's Right to Terminate. If all or a substantial part of
the Premises are rendered untenantable or inaccessible by damage to all or any
part of the Property from fire or other casualty, and Landlord does not elect
to terminate as provided above, then Tenant may elect to terminate this Lease if
Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease is greater than one (1) year, in which event Tenant
may elect to terminate this Lease by giving Landlord notice of such election to
terminate within thirty (30) days after Landlord's notice to Tenant pursuant to
Section 12.2 - Landlord's Right to Terminate.
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12.4 Waiver. Landlord and Tenant each hereby waive the provisions of
California Civil Code Sections 1932(2), 1933(4) and any other applicable
existing or future Law permitting the termination of a lease agreement in the
event of damage or destruction under any circumstances other than as provided in
Sections 12.2 - Landlord's Right to Terminate and 12.3 - Tenant's Right to
Terminate.
13. CONDEMNATION.
13.1 Definitions.
(a) "AWARD" shall mean all compensation, sums, or anything of value
awarded, paid or received on a total or partial Condemnation.
(b) "CONDEMNATION" shall mean (i) a permanent taking (or a temporary
taking for a period extending beyond the end of the Term) pursuant to the
exercise of the power of condemnation or eminent domain by any public or
quasi-public authority, private corporation or individual having such power
("CONDEMNOR"), whether by legal proceedings or otherwise, or (ii) a voluntary
sale or transfer by Landlord to any such authority, either under threat of
condemnation or while legal proceedings for condemnation are pending.
(c) "DATE OF CONDEMNATION" shall mean the earlier of the date that
title to the property taken is vested in the Condemnor or the date the Condemnor
has the right to possession of the property being condemned.
13.2 Effect on Lease.
(a) If more than one-third (1/3) of the Premises is taken by
Condemnation, this Lease shall terminate as of the Date of Condemnation. If
one-third (1/3) or less of the Premises is taken by Condemnation, this Lease
shall remain in effect; provided, however, that if the portion of the Premises
remaining after the Condemnation will be unsuitable for Tenant's continued use,
then upon notice to Landlord within thirty (30) days after Landlord notifies
Tenant of the Condemnation, Tenant may terminate this Lease effective as of the
Date of Condemnation.
(b) If twenty-five percent (25%) or more of the Project or of the
parcel(s) of land on which the Building is situated or of the Parking Facility
or of the floor area in the Building is taken by Condemnation, or if as a result
of any Condemnation the Building is not longer reasonably suitable for use as an
office building, whether or not any portion of the Premises is taken, Landlord
may elect to terminate this Lease, effective as of the Date of Condemnation, by
notice to Tenant within thirty (30) days after the Date of Condemnation.
(c) If all or a portion of the Premises is temporarily taken by a
Condemnor for a period not extending beyond the end of the Term, this Lease
shall remain in full force and effect.
13.3 Restoration. If this Lease is not terminated as provided in Section
13.2 - Effect on Lease, Landlord, at its expense, shall diligently proceed to
repair and restore the Premises to
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substantially its former condition (to the extent permitted by then applicable
Laws) and/or repair and restore the Building to an architecturally complete
office building; provided, however, that Landlord's obligations to so repair and
restore shall be limited to the amount of any Award received by Landlord and not
required to be paid to any Mortgagee (as defined in Section 20.2 below). In no
event shall Landlord have any obligation to repair or replace any improvements
in the Premises beyond the amount of any Award received by Landlord for such
repair or to repair or replace any of Tenant's personal property, Trade
Fixtures, or Alterations.
13.4 Abatement and Reduction of Rent. If any portion of the Premises is
taken in a Condemnation or is rendered permanently untenantable by repairs
necessitated by the Condemnation, and this Lease is not terminated, the Base
Rent and Additional Rent payable under this Lease shall be proportionally
reduced as of the Date of Condemnation based upon the percentage of rentable
square feet in the Premises so taken or rendered permanently untenantable. In
addition, if this Lease remains in effect following a Condemnation and Landlord
proceeds to repair and restore the Premises, the Base Rent and Additional Rent
payable under this Lease shall be abated during the period of such repair or
restoration to the extent such repairs prevent Tenant's use of the Premises.
13.5 Awards. Any Award made shall be paid to Landlord, and Tenant hereby
assigns to Landlord, and waives all interest in or claim to, any such Award,
including any claim for the value of the unexpired Term; provided, however, that
Tenant shall be entitled to receive, or to prosecute a separate claim for, an
Award for a temporary taking of the Premises or a portion thereof by a Condemnor
where this Lease is not terminated (to the extent such Award relates to the
unexpired Term), or an Award or portion thereof separately designated for
relocation and moving expenses or the interruption of or damage to Tenant's
business or as compensation for Tenant's personal property, Trade Fixtures or
Alterations.
13.6 Waiver. Landlord and Tenant each hereby waive the provisions of
California Code of Civil Procedure Section 1265.130 and any other applicable
existing or future Law allowing either party to petition for a termination of
this Lease upon a partial taking of the Premises and/or the Property.
14. ASSIGNMENT AND SUBLETTING.
14.1 Landlord's Consent Required. Tenant shall not assign this Lease or any
interest therein, or sublet or license or permit the use or occupancy of the
Premises or any part thereof by or for the benefit of anyone other than Tenant,
or in any other manner transfer all or any part of Tenant's interest under this
Lease (each and all a "TRANSFER"), without the prior written consent of
Landlord, which consent (subject to the other provisions of this Section 14)
shall not be unreasonably withheld. If Tenant is a business entity, any direct
or indirect transfer of fifty percent (50%) or more of the ownership interest of
the entity (whether in a single transaction or in the aggregate through more
than one transaction) shall be deemed a Transfer. A public offering of Tenant's
stock shall not constitute a Transfer under the provisions of this Lease.
Notwithstanding any provision in this Lease to the contrary, Tenant shall not
mortgage, pledge, hypothecate or otherwise encumber this Lease or all or any
party of Tenant's interest under this Lease.
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14.2 Reasonable Consent.
(a) Prior to any proposed Transfer, Tenant shall submit in writing
to Landlord (i) the name and legal composition of the proposed assignee,
subtenant, user or other transferee (each a "PROPOSED TRANSFEREE"); (ii) the
nature of the business proposed to be carried on in the premises; (iii) a
current balance sheet, income statements for the last two years and such other
reasonable financial and other information concerning the Proposed Transferee
as Landlord may request; and (iv) a copy of the proposed assignment, sublease
or other agreement governing the proposed Transfer. Within fifteen (15)
Business Days after Landlord receives all such information it shall notify
Tenant whether it approves or disapproves such Transfer or if it elects to
proceed under Section 14.7 - Landlord's Right to Space.
(b) Tenant acknowledges and agrees that, among other circumstances
for which Landlord could reasonably withhold consent to a proposed Transfer, it
shall be reasonable for Landlord to withhold consent where (i) the Proposed
Transferee does not intend itself to occupy the entire portion of the Premises
assigned or sublet, (ii) Landlord reasonably disapproves of the Proposed
Transferee's business operating ability or history, reputation or
creditworthiness or the nature or character of the business to be conducted by
the Proposed Transferee at the Premises, (iii) the Proposed Transferee is a
governmental agency or unit or an existing tenant in the Project, unless, in the
case of an existing tenant, Landlord does not have space available for lease
containing the same or more square feet as is contained in the Premises to
accommodate the existing tenant's expansion or renewal in the Project, (iv) the
proposed Transfer would violate any "exclusive" rights of any tenants in the
Project, (v) Landlord or Landlord's agent has shown space in the Project to the
Proposed Transferee or responded to any inquiries from the Proposed Transferee
or the Proposed Transferee's agent concerning availability of space in the
Project, at any time within the preceding six months, or (vi) Landlord otherwise
determines that the proposed Transfer would have the effect of materially
decreasing the financial value of the Project or increasing the expenses
associated with operating, maintaining and repairing the Project. In no event
may Tenant publicly advertise all or any portion of the Premises for assignment
or sublease at a rental less than that then sought by Landlord for a direct
lease (non-sublease) of comparable space in the Project. Notwithstanding the
foregoing, Tenant may employ a broker who advertises on a commercial multiple
listing service in order to offer the Premises for assignment or sublease.
14.3 Excess Consideration. If Landlord consents to the Transfer, Landlord
shall be entitled to receive as Additional Rent hereunder, fifty percent (50%)
of all "Sublease Profits" (as defined below). "Sublease Profits" shall mean any
consideration paid by the Transferee for the assignment or sublease and, in the
case of a sublease, the excess of the rent and other consideration payable by
the subtenant over the amount of Base Rent and Additional Rent payable
hereunder applicable to the subleased space, less any and all direct,
out-of-pocket expenses and cash concessions, including costs for necessary
Alterations, attorneys' fees (not to exceed One Thousand and 00/100 Dollars
[$1,000.000] in attorneys' fees) and brokerage commission, paid by Tenant to
procure the assignee or subtenant. Tenant shall pay to Landlord as additional
rent, within twenty (20) days after receipt by Tenant, any such excess
consideration paid by any transferee (the "TRANSFEREE") for the Transfer
provided any capital expenditures and brokerage commissions in connection with
any sublease shall be amortized over the term of the sublease.
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14.4 No Release Of Tenant. No consent by Landlord to any Transfer shall
relieve Tenant of any obligations to be performed by Tenant under this Lease,
whether occurring before or after such consent, assignment, subletting or other
Transfer. Each Transferee shall be jointly and severally liable with Tenant (and
Tenant shall be jointly and severally liable with each Transferee) for the
payment of rent (or, in the case of a sublease, rent in the amount set forth in
the sublease) and for the performance of all other terms and provisions of this
Lease. The consent by Landlord to any Transfer shall not relieve Tenant or any
such Transferee from the obligation to obtain Landlord's express prior written
consent to any subsequent Transfer by Tenant or any Transferee. The acceptance
of rent by Landlord from any other person (whether or not such person is an
occupant of the Premises) shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any Transfer.
14.5 Expenses and Attorney's Fees. Tenant shall pay to Landlord on
demand all costs and expenses (including reasonable attorneys' fees not to
exceed One Thousand and 00/100 Dollars [$1,000.00] for each request for
Landlord's consent to a proposed Transfer) incurred by Landlord in connection
with reviewing or consenting to any proposed Transfer (including any request for
consent to, or any waiver of Landlord's rights in connection with, any security
interest in any of Tenant's property at the Premises).
14.6 Effectiveness of Transfer. Prior to the date on which any
permitted Transfer (whether or not requiring Landlord's consent) becomes
effective, Tenant shall deliver to Landlord a counterpart of the fully executed
Transfer document and Landlord's standard form of Consent to Assignment or
Consent to Sublease executed by Tenant and the Transferee in which each of
Tenant and the Transferee confirms its obligations pursuant to this Lease.
Failure or refusal of a Transferee to execute any such instrument shall not
release or discharge the Transferee from liability as provided herein. The
voluntary, involuntary or other surrender of this Lease by Tenant, or a mutual
cancellation by Landlord and Tenant, shall not work a merger, and any such
surrender or cancellation shall, at the option of Landlord, either terminate all
or any existing subleases or operate as an assignment to Landlord of any or all
of such subleases.
14.7 Landlord's Right to Space. Notwithstanding any of the above
provisions of this Section to the contrary, if Tenant notifies Landlord that it
desires to enter into a Transfer, Landlord, in lieu of consenting to such
Transfer, may elect(x) in the case of an assignment or a sublease of the entire
Premises, to terminate this Lease, or (y) in the case of a sublease of less than
the entire Premises, to terminate this Lease as it relates to the space proposed
to be subleased by Tenant. In such event, this Lease will terminate (or the
space proposed to be subleased will be removed from the Premises subject to this
Lease and the Base Rent and Tenant's Share under this Lease shall be
proportionately reduced) on the date the Transfer was proposed to be effective,
and Landlord may lease such space to any party, including the prospective
Transferee identified by Tenant. Landlord acknowledges that within twelve (12)
months following the Commencement Date Tenant intents to sublease up to 15,000
rentable square feet on the ground floor of the Premises, and, notwithstanding
the provisions of this Section 14.7 to the contrary, Landlord shall not have the
right to terminate this Lease as it relates to Tenant subleasing up to 15,000
rentable square feet on the ground floor of the Premises during the initial
twelve (12) months following the Commencement Date. Notwithstanding the
provisions of this Section 14.7 to the contrary, if (i) Tenant proposes to
assign this Lease, or to sublease all or a portion of the Premises, and (ii)
Landlord notifies Tenant
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that Landlord elects to terminate this Lease due to such proposed assignment,
or Landlord elects to terminate this Lease with respect to the space Tenant
proposes to sublease, then Tenant shall have the right to rescind any such
termination by Landlord by giving Landlord written notice ("Tenant's Rescission
Notice") only within five (5) Business Days following Landlord's written notice
of termination pursuant to the provisions of this Section 14.7. Upon Tenant
giving Tenant's Rescission Notice, (iii) this Lease shall remain in full force
and effect in accordance with the provisions contained herein, and (iv) Tenant
shall be deemed to have withdrawn the request for consent to a Transfer, and
the proposed Transfer which was the basis for Landlord's termination under the
provisions of this Section 14.7 shall be void, and of no force and effect.
14.8 Assignment of Sublease Rents. Tenant hereby absolutely and
irrevocably assigns to Landlord any and all rights to receive rent and other
consideration from any sublease and agrees that Landlord, as assignee or as
attorney-in-fact for Tenant solely for purposes of collecting rent and other
consideration from any sublessee, or a receiver for Tenant appointed on
Landlord's application may (but shall not be obligated to) collect such rents
and other consideration and apply the same toward Tenant's obligations to
Landlord under this Lease; provided, however, that Landlord grants to Tenant at
all times prior to occurrence of any breach or default by Tenant a revocable
license to collect such rents (which license shall automatically and without
notice be and be deemed to have been revoked and terminated immediately upon
any Event of Default).
14.9 Transfer to Affiliate. Notwithstanding any provision contained in the
Section 14 to the contrary, Tenant shall have the right, without the consent of
Landlord, upon ten (10) days prior written notice to Landlord, to transfer
Tenant's interest in this Lease to an "Affiliate" of Tenant, and the provisions
of Sections 14.2, 14.3 and 14.7 shall not apply with respect to the transfer to
the Affiliate, but the transfer to the Affiliate shall be subject to all other
terms and conditions of this Lease, including the provisions of this Section
14.9. Tenant shall remain liable under this Lease after any such transfer. For
the purposes of this Article 14, the term "Affiliate" of Tenant shall mean and
refer to any entity controlling, controlled by or under common control with
Tenant or Tenant's parent, as the case may be, or any corporation or other
entity resulting from a merger or consolidation with Tenant, or to any person
or entity which acquires at least ninety percent (90%) of all the assets of
Tenant as a going concern. "Control" as used herein shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of such controlled entity; and the ownership, or
possession of the right to vote, in the ordinary direction of its affairs, of
at least fifty percent (50%) of the voting interest in any entity.
Notwithstanding Tenant's right to Transfer to an Affiliate pursuant to the
provisions of this Section 14.9, Tenant may not, through use of its rights
under this Article 14 in two or more transactions (whether separate
transactions or steps or phases of a single transaction), at one time or over
time, whether by first assigning this Lease to a subsidiary and then merging
the subsidiary into another entity or selling the stock of the subsidiary or by
other means, assign or sublease the Premises, or transfer control of Tenant, to
any person or entity which is not a subsidiary, affiliate or controlling
corporation of the original Tenant, as then constituted, existing prior to the
commencement of such transactions, without first obtaining Landlord's prior
written consent pursuant to the provisions of Section 14.2.
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15. DEFAULT AND REMEDIES.
15.1 Events of Default. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" by Tenant:
(a) Tenant fails to make any payment of rent when due, or
any amount required to replenish the security deposit as provided in Section 4
above, if payment in full is not received by Landlord within three (3) days
after written notice that it is due.
(b) Tenant abandons the Premises, together with Tenant's
failure to pay Rent when due.
(c) Tenant fails timely to deliver any subordination
document, estoppel certificate or financial statement requested by Landlord
within the applicable time period specified in Sections 20 - Encumbrances - and
21 - Estoppel Certificates and Financial Statements - below.
(d) Tenant violates the restrictions on Transfer set forth
in Section 14 - Assignment and Subletting.
(e) Tenant ceases doing business as a going concern; makes
an assignment for the benefit of creditors; is adjudicated an insolvent, files a
petition (or files an answer admitting the material allegations of a petition)
seeking relief under any state or federal bankruptcy or other statute, law or
regulation affecting creditors' rights; all or substantially all of Tenant's
assets are subject to judicial seizure or attachment and are not released within
60 days, or Tenant consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for Tenant or for all or any substantial part of Tenant's
assets.
(f) Tenant fails, within ninety (90) days after the
commencement of any proceedings against Tenant seeking relief under any state or
federal bankruptcy or other statute, law or regulation affecting creditors'
rights, to have such proceedings dismissed, or Tenant fails, within ninety (90)
days after an appointment, without Tenant's consent or acquiescence, of any
trustee, receiver or liquidator for Tenant or for all or any substantial part of
Tenant's assets, to have such appointment vacated.
(g) Tenant fails to perform or comply with any provision of
this Lease other than those described in (a) through (f) above, and does not
fully cure such failure within thirty (30) days after notice to Tenant or, if
such failure cannot be cured within such thirty (30)-day period, Tenant fails
within such thirty (30)-day period to commence, and thereafter diligently
proceed with, all actions necessary to cure such failure as soon as reasonably
possible but in all events within one hundred twenty (120) days of such notice;
provided, however, that if Landlord in Landlord's reasonable judgment determines
that such failure will not be cured by Tenant within such one hundred twenty
(120) days, then such failure shall constitute an Event of Default immediately
upon such notice to Tenant.
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15.2 Remedies. Upon the occurrence of an Event of Default, Landlord shall
have the following remedies, which shall not be exclusive but shall be
cumulative and shall be in addition to any other remedies now or hereafter
allowed by law:
(a) Landlord may terminate Tenant's right to possession of the
Premises at any time by written notice to Tenant. Tenant expressly acknowledges
that in the absence of such written notice from Landlord, no other act of
Landlord, including re-entry into the Premises, efforts to relet the Premises,
relettting of the Premises for Tenant's account, storage of Tenant's personal
property and Trade Fixtures, acceptance of keys to the Premises from Tenant or
exercise of any other rights and remedies under this Section, shall constitute
an acceptance of Tenant's surrender of the Premises or constitute a termination
of this Lease or of Tenant's right to possession of the Premises. Upon such
termination in writing of Tenant's right to possession of the Premises, as
herein provided, this Lease shall terminate and Landlord shall be entitled to
recover damages from Tenant as provided in California Civil Code Section 1951.2
and any other applicable existing or future Law providing for recovery of
damages for such breach, including the worth at the time of award of the amount
by which the rent which would be payable by Tenant hereunder for the remainder
of the Term after the date of the award of damages, including Additional Rent as
reasonably estimated by Landlord, exceeds the amount of such rental loss as
Tenant proves could have been reasonably avoided, discounted at the discount
rate published by the Federal Reserve Bank of San Francisco for member banks at
the time of the award plus one percent (1%).
(b) Landlord shall have the remedy described in California Civil
Code Section 1951.4 (Landlord may continue this Lease in effect after Tenant's
breach and abandonment and recover rent as it becomes due, if Tenant has the
right to sublet or assign, subject only to reasonable limitations).
(c) Landlord may cure the Event of Default at Tenant's expense. If
Landlord pays any sum or incurs any expense in curing the Event of Default,
Tenant shall reimburse Landlord upon demand for the amount of such payment or
expense with interest at the Interest Rate from the date the sum is paid or the
expense is incurred until Landlord is reimbursed by Tenant.
(d) Landlord may remove all Tenant's property from the Premises, and
such property may be stored by Landlord in a public warehouse or elsewhere at
the sole cost and for the account of Tenant. If Landlord does not elect to
store any or all of Tenant's property left in the Premises, Landlord may
consider such property to be abandoned by Tenant, and Landlord may thereupon
dispose of such property in any manner deemed appropriate by Landlord. Any
proceeds realized by Landlord on the disposal of any such property shall be
applied first to offset all expenses of storage and sale, then credited against
Tenant outstanding obligations to Landlord under this Leas, and any balance
remaining after satisfaction of all obligations of Tenant under this Lease
shall be delivered to Tenant.
16. LATE CHARGE AND INTEREST.
16.1 Late Charge. If any payment of rent is not received by Landlord
within five (5) days after written notice from Landlord to Tenant that the
payment is past due, Tenant shall pay to Landlord on demand as a late charge an
additional amount equal to four percent (4%) of the
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overdue payment; provided, however, if Landlord has given Tenant written notice
two (2) or more times in any consecutive twelve (12) month period that a payment
of rent is past due, then Tenant shall pay to Landlord on demand commencing with
the third (3rd) part due payment in any twelve (12) month period, and continuing
with each past due payment thereafter in such twelve (12) month period, as a
late charge an additional amount equal to four percent (4%) of the overdue
payment without any requirement of additional notice that such payment is past
due. A late charge shall not be imposed more than once on any particular
installment not paid when due, but imposition of a late charge on any payment
not made when due does not eliminate or supersede late charges imposed on other
(prior) payments not made when due or preclude imposition of a late charge on
other installments or payments not made when due.
16.2 Interest. In addition to the late charges referred to above, which are
intended to defray Landlord's costs resulting from late payments, any payment
from Tenant to Landlord not paid when due shall at Landlord's option bear
interest from the date due until paid to Landlord by Tenant at the rate of
fifteen percent (15%) per annum or the maximum lawful rate that Landlord may
charge to Tenant under applicable laws, whichever is less (the "INTEREST RATE").
Acceptance of any late charge and/or interest shall not constitute a waiver of
Tenant's default with respect to the overdue sum or prevent Landlord from
exercising any of its other rights and remedies under this Lease.
17. WAIVER. No provisions of this Lease shall be deemed waived by either party
unless such waiver is in a writing signed by the waiving party. The waiver by
either party of any breach of any provision of this Lease shall not be deemed a
waiver of such provision or of any subsequent breach of the same or any other
provision of this Lease. No delay or omission in the exercise of any right or
remedy of either party upon any default by the other party shall impair such
right or remedy or be construed as a waiver. Landlord's acceptance of any
payments of rent due under this Lease shall not be deemed a waiver of any
default by Tenant under this Lease (including Tenant's recurrent failure to
timely pay rent) other than Tenant's nonpayment of the accepted sums, and no
endorsement or statement on any check or on any letter accompanying any check or
payment shall be deemed an accord and satisfaction. The consent to or approval
by either party of any act by the other party requiring the first party's
consent or approval shall not be deemed to waive or render unnecessary the
consenting or approving party's consent to or approval of any subsequent act by
the other party.
18. ENTRY, INSPECTION AND CLOSURE. Upon reasonable oral or written notice to
Tenant (and without notice in emergencies), Landlord and its authorized
representatives may enter the Premises at all reasonable times to: (a) determine
whether the Premises are in good condition, (b) determine whether Tenant is
complying with its obligations under this Lease, (c) perform any maintenance or
repair of the Premises or the Building that Landlord has the right or obligation
to perform, (d) install or repair improvements for other tenants where access to
the Premises is required for such installation or repair, (e) serve, post or
keep posted any notices required or allowed under the provisions of this Lease,
(f) show the Premises to prospective brokers, agents, buyers, transferees, or
Mortgagees, or (g) do any other act or thing necessary for the safety or
preservation of the Premises or the Building. In addition, Landlord shall show
the Premises to prospective tenants upon prior reasonable oral or notice to
Tenant during the last twelve (12) months of the Term. When reasonably necessary
Landlord may temporarily close entrances, doors,
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corridors, elevators or other facilities in the Building without liability to
Tenant by reason of such closure. Landlord shall conduct its activities under
this Section in a manner that will minimize inconvenience to Tenant without
incurring additional expense to Landlord. In no event shall Tenant be entitled
to an abatement of rent on account of any entry by Landlord, and Landlord shall
not be liable in any manner for any inconvenience, loss of business or other
damage to Tenant or other persons arising out of Landlord's entry on the
Premises in accordance with this Section. No action by Landlord pursuant to this
paragraph shall constitute an eviction of Tenant, constructive or otherwise,
entitle Tenant to an abatement of rent or to terminate this Lease or otherwise
release Tenant from any of Tenant's obligations under this Lease.
19. SURRENDER AND HOLDING OVER.
19.1 Surrender. Upon the expiration or termination of this Lease, Tenant
shall surrender the Premises and all Tenant Improvements and Alternations to
Landlord broom-clean and in good condition, except for reasonable wear and tear,
damage from casualty or condemnation and any changes resulting from approved
Alterations; provided, however, that on or before the expiration or termination
of this Lease Tenant shall remove all telephone and other cabling installed in
this Building by Tenant and remove from the Premises all Tenant's personal
property and any Trade Fixtures and all Alternations that Landlord has elected
to require Tenant to remove as provided in Section 6.1 - Tenant Improvements &
Alterations, and repair any damage caused by such removal; provided, however,
upon expiration or termination of this Lease Tenant shall not be obligated to
remove any Hazardous Material from the Property unless Handled by Tenant at the
Property. If such removal is not completed on or before the expiration or
termination of the Term, Landlord shall have the right (but no obligation) to
remove the same, and Tenant shall pay Landlord on demand for all costs of
removal and storage thereof and for the rental value of the Premises for the
period from the end of the Term through the end of the time reasonably required
for such removal. Landlord shall also have the right to retain or dispose of all
or any portion of such property if Tenant does not pay all such costs and
retrieve the property within ten (10) days after notice from Landlord (in which
event title to all such property described in Landlord notice shall be
transferred to and vest in Landlord). Tenant waives all Claims against Landlord
for any damage or loss to Tenant resulting from Landlord's removal, storage,
retention, or disposition of any such property. Upon expiration or termination
of this Lease or of Tenant's possession, whichever is earliest, Tenant shall
surrender all keys to the Premises or any other part of the Building and shall
deliver to Landlord all keys for or make known to Landlord the combination of
locks on all safes, cabinets and vaults that may be located in the Premises.
Tenant's obligations under this Section shall survive the expiration or
termination of this Lease.
19.2 Holding Over. If Tenant (directly or through any Transferee or
other successor-in-interest of Tenant) remains in possession of the Premises
after the expiration or termination of this Lease, Tenant's continued possession
shall be on the basis of a tenancy at the sufferance of Landlord. No act or
omission by Landlord, other than its specific written consent, shall constitute
permission for Tenant to continue in possession of the Premises, and if such
consent is given or declared to have been given by a court judgement, Landlord
may terminate Tenant's holdover tenancy at any time upon seven (7) days written
notice. In such event, Tenant shall continue to comply with or perform all the
terms and obligations of Tenant under this Lease, except that the monthly Base
Rent during Tenant's holding over shall be twice the Base Rent payable in the
last
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<PAGE> 32
full month prior to the termination hereof. Acceptance by Landlord of rent
after such termination shall not constitute a renewal or extension of this
Lease; and nothing contained in this provision shall be deemed to waive
Landlord's right of re-entry or any other right hereunder or at law. Tenant
shall indemnify, defend and hold Landlord harmless from and against all Claims
arising or resulting directly or indirectly from Tenant's failure to timely
surrender the Premises, including (i) any rent payable by or any loss, cost, or
damages claimed by any prospective tenant of the Premises, and (ii) Landlord's
damages as a result of such prospective tenant rescinding or refusing to enter
into the prospective lease of the Premises by reason of such failure to timely
surrender the Premises.
20. ENCUMBRANCES.
20.1 Subordination. This Lease is expressly made subject and subordinate
to any mortgage, deed of trust, ground lease, underlying lease or like
encumbrance affecting any part of the Property or any interest of Landlord
therein which is now existing or hereafter executed or recorded
("ENCUMBRANCE"); provided, however, that such subordination shall only be
effective, as to future Encumbrances, if the holder of the Encumbrance agrees
in writing that this Lease shall survive the termination of the Encumbrance by
lapse of time, foreclosure or otherwise so long as Tenant is not in default
under this Lease beyond any applicable notice and cure period. Provided the
conditions of the preceding sentence are satisfied, Tenant shall execute and
deliver to Landlord, within ten (10) Business Days after written request
therefor by Landlord and in a form reasonably requested by Landlord, any
additional documents evidencing the subordination of this Lease with respect to
any such Encumbrance and the nondisturbance agreement of the holder of any such
Encumbrance. If the interest of Landlord in the Property is transferred
pursuant to or in lieu of proceedings for enforcement of any Encumbrance,
Tenant shall immediately and automatically attorn to the new owner, and this
Lease shall continue to full force and effect as a direct lease between the
transferee and Tenant on the terms and conditions set forth in this Lease.
Landlord agrees to use reasonable good faith efforts to obtain, at Tenant's
cost and expense, within 60 days after execution of this Lease, a
Subordination, Attornment and Non-Disturbance Agreement (the "SNDA") from the
holder of any Encumbrance existing at the date of this Lease pursuant to the
provisions contained above; provided, however, Landlord's failure to obtain an
SNDA shall not affect the validity of this Lease.
20.2 Mortgagee Protection. Tenant agrees to give any holder of any
Encumbrance covering any part of the Property ("MORTGAGEE"), by registered
mail, a copy of any notice of default served upon Landlord, provided that prior
to such notice Tenant has been notified in writing (by way of notice of
assignment of rents and leases, or otherwise) of the address of such Mortgagee.
If Landlord shall have failed to cure such default within thirty (30) days from
the effective date of such notice of default, then the Mortgagee shall have an
additional thirty (30) days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary to cure such default (including the time necessary to foreclose or
otherwise terminate its Encumbrance, if necessary to effect such cure), and
this Lease shall not be terminated so long as such remedies are being
diligently pursued.
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<PAGE> 33
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
21.1 Estoppel Certificates. Within ten (10) Business Days after written
request therefor, Tenant shall execute and deliver to Landlord, in a form
provided by or satisfactory to Landlord, a certificate stating that this Lease
is in full force and effect, describing any amendments or modifications hereto,
acknowledging that this Lease is subordinate or prior, as the case may be, to
any Encumbrance and stating any other information Landlord may reasonably
request, including the Term, the monthly Base Rent, the date to which Rent has
been paid, the amount of any security deposit or prepaid rent, whether either
party hereto is in default under the terms of the Lease, and whether Landlord
has completed its construction obligations hereunder (if any). If Tenant fails
timely to execute and deliver such certificate as provided above, then Landlord
and the addressee of such certificate shall be entitled to rely upon the
information contained in the certificate submitted to Tenant as true, correct
and complete, and Tenant shall be estopped from later denying, contradicting or
taking any position inconsistent with the information contained in such
certificate. Any person or entity purchasing, acquiring an interest in or
extending financing with respect to the Property shall be entitled to rely upon
any such certificate. If Tenant fails to deliver such certificate within ten
(10) Business Days after Landlord's second written request therefor, Tenant
shall be liable to Landlord for any damages incurred by Landlord including any
profits or other benefits from any financing of the Property or any interest
therein which are lost or made unavailable as a result, directly or indirectly,
of Tenant's failure or refusal to timely execute or deliver such estoppel
certificate.
21.2 Financial Statements. Within ten (10) Business Days after written
request therefor, but not more than once a year, Tenant shall deliver to
Landlord a copy of the financial statements (including at least a year end
balance sheet and a statement of profit and loss) of Tenant (and of each
guarantor of Tenant's obligations under this Lease) for each of the two most
recently completed years, prepared in accordance with generally accepted
accounting principles (and, if such is Tenant's normal practice, audited by an
independent certified public accountant), all then available subsequent interim
statements, and such other financial information as may reasonably be requested
by Landlord or required by any Mortgagee. Landlord shall not disclose details of
such financial statements except (x) pursuant to court proceedings, and (y) to
Landlord's (a) directors, (b) shareholders, (c) officers, (d) those employees of
Landlord and of Landlord's agents who have a need to know, (e) accountants, (f)
auditors, (g) lenders and/or Mortgagee, (h) purchasers, (i) potential lenders
and/or Mortgagees and purchasers, and (j) attorneys. Landlord shall use all
reasonable efforts to prevent such persons or employees of such entities from
disclosing details of Tenant's financial statements.
22. NOTICES. Any notice, demand, request, consent or approval that either
party desires or is required to give to the other party under this Lease shall
be in writing and shall be served personally, delivered by messenger or courier
service, or sent by U.S. certified mail, return receipt requested, postage
prepaid, addressed to the other party at the party's address for notices set
forth in the Basic Lease Information. Any notice required pursuant to any Laws
may be incorporated into, given concurrently with or given separately from any
notice required under this Lease. Notices shall be deemed to have been given and
be effective on the earlier of (a) receipt (or refusal of delivery or receipt);
or (b) one (1) day after acceptance by the independent service for delivery, if
sent by independent messenger or courier service, or three (3) days after
mailing if sent by mail in
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<PAGE> 34
accordance with this Section. Either party may change its address for notices
hereunder, effective fifteen (15) days after notice to the other party
complying with this Section. If Tenant sublets the Premises, notices from
Landlord shall be effective on the subtenant when given to Tenant pursuant to
this Section.
23. ATTORNEYS' FEES. In the event of any dispute between Landlord and Tenant
in any way related to this Lease, the non-prevailing party shall pay to the
prevailing party all reasonable attorneys' fees and costs and expenses of any
type incurred by the prevailing party in connection with any action or
proceeding (including any appeal and the enforcement of any judgment or award),
whether or not the dispute is litigated or prosecuted to final judgment. The
"prevailing party" shall be determined based upon an assessment of which
party's major arguments or positions taken in the action or proceeding could
fairly be said to have prevailed (whether by compromise, settlement,
abandonment by the other party of its claim or defense, final decision, after
any appeals, or otherwise) over the other party's major arguments or positions
on major disputed issues.
24. QUIET POSSESSION. Subject to Tenant's full and timely performance of all
of Tenant's obligations under this Lease and subject to the terms of this
Lease, including Section 20 - Encumbrances, Tenant shall have the quiet
possession of the Premises throughout the Term as against any persons or
entities lawfully claiming by, through or under Landlord.
25. SECURITY MEASURES. Tenant shall be responsible for all security measures
for the Premises, such as the registration or search of all persons entering or
leaving the Building, requiring identification for access to the Building,
evacuation of the Building for cause, suspected cause, or for drill purposes,
the issuance of magnetic pass cards or keys for Building or elevator access to
prevent any threat of property loss or damage, bodily injury or business
interruption. Landlord shall have no security responsibility for the Premises
or the Project. Landlord, its agents and employees shall have no liability to
Tenant or its Representatives or Visitors for the implementation or exercise
of, or the failure to implement or exercise, any security measures for the
Premises or the Project, or for any resulting disturbance of Tenant's use or
enjoyment of the Premises.
26. FORCE MAJEURE. If either Landlord or Tenant is delayed, interrupted or
prevented from performing any of its obligations under this Lease (other than,
with respect to Tenant the payment of Base Rent, Additional Rent or any other
charge payable by Tenant to Landlord under this Lease), including Landlord's
obligations under the Construction Rider and such delay, interruption or
prevention is due to fire, act of God, governmental act or failure to act,
labor dispute, unavailability of materials or any cause outside the reasonable
control of Landlord or Tenant, then the time for performance of the affected
obligations of Landlord or Tenant, as the case may be, shall be extended for a
period equivalent to the period of such delay, interruption or prevention. The
inability to pay money shall in no event constitute force majeure.
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the
rules and regulations attached to and made a part of this Lease as Exhibit C to
the extent those rules and regulations are not in conflict with the terms of
this Lease, as well as any reasonable rules and regulations hereafter adopted by
Landlord for all tenants of the Building, upon notice to Tenant thereof
(collectively, the "BUILDING RULES"). Landlord shall not be responsible to
Tenant or to any
-31-
<PAGE> 35
other persons for any violation of, or failure to observe, the Building Rules
by any other tenant or other person.
28. LANDLORD'S LIABILITY. The term "Landlord," as used in this Lease, shall
mean only the owner or owners of the Building at the time in question. In the
event of any conveyance of title to the Building, then from and after the date
of such conveyance, upon such transferee's written recognition of this Lease,
the transferor Landlord shall be relieved of all liability with respect to
Landlord's obligations to be performed under this Lease after the date of such
conveyance. Notwithstanding any other term or provision of this Lease, the
liability of Landlord for its obligations under this Lease is limited solely to
Landlord's interest in the Building as the same may from time to time be
encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord's partners
or members or its or their respective partners, shareholders, members,
directors, officers or managers on account of any of Landlord's obligations or
actions under this Lease.
29. CONSENTS AND APPROVALS.
29.1 Determination in Good Faith. Wherever the consent, approval, judgment
or determination of Landlord is required or permitted under this Lease,
Landlord may exercise its good faith business judgment in granting or
withholding such consent or approval or in making such judgment or
determination without reference to any extrinsic standard of reasonableness,
unless the specific provision contained in this Lease providing for such
consent, approval, judgment or determination specifies that Landlord's consent
or approval is not to be unreasonably withheld, or that such judgment or
determination is to be reasonable, or otherwise specifies the standards under
which Landlord may withhold its consent. If it is determined that Landlord
failed to give its consent where it was required to do so under this Lease,
Tenant shall be entitled to injunctive relief but shall not be entitled to
monetary damages or to terminate this Lease for such failure.
29.2 No Liability Imposed on Landlord. The review and/or approval by
Landlord of any item or matter to be reviewed or approved by Landlord under the
terms of this Lease or any Exhibits or Addenda hereto shall not impose upon
Landlord any liability for the accuracy or sufficiency of any such item or
matter or the quality or suitability of such item for its intended use. Any
such review or approval is for the sole purpose of protecting Landlord's
interest in the Property, and no third parties, including Tenant or the
Representatives and Visitors of Tenant or any person or entity claiming by,
through or under Tenant, shall have any rights as a consequence thereof.
30. BROKERS. Landlord shall pay the fee or commission of the broker or brokers
identified in the Basic Lease Information (the "BROKER") in accordance with
Landlord's separate written agreement with the Broker, if any. Tenant warrants
and represents to Landlord that in the negotiating or making of this Lease
neither Tenant nor anyone acting on Tenant's behalf has dealt with any broker
or finder who might be entitled to a fee or commission for this Lease other
than the Broker. Tenant shall indemnify and hold Landlord harmless from any
claim or claims, including costs, expenses and attorney's fees incurred by
Landlord asserted by any other broker or finder for a fee or commission based
upon any dealings with or statements made by Tenant or Tenant's
Representatives. Landlord shall indemnify and hold Tenant harmless from any
claim or claims,
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<PAGE> 36
including costs, expenses and attorney's fees incurred by Tenant asserted by any
other broker or finder for a fee or commission based upon any dealings with or
statements made by Landlord or Landlord's Representatives.
31. RELOCATION OF PREMISES. [Intentionally Deleted].
32. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda
attached hereto, and the documents referred to herein, if any, constitute the
entire agreement between Landlord and Tenant with respect to the leasing of
space by Tenant in the Building, and supersede all prior or contemporaneous
agreements, understandings, proposals and other representations by or between
Landlord and Tenant, whether written or oral, all of which are merged herein.
Neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises, the Building, the Project or this
Lease except as expressly set forth herein, and no rights, easements or
licenses shall be acquired by Tenant by implication or otherwise unless
expressly set forth herein. The submission of this Lease for examination does
not constitute an option for the Premises and this Lease shall become effective
as a binding agreement only upon execution and delivery thereof by Landlord to
Tenant.
33. MISCELLANEOUS. This Lease may not be amended or modified except by a
writing signed by Landlord and Tenant. Subject to Section 14 - Assignment and
Subletting and Section 28 - Landlord's Liability, this Lease shall be binding
on and shall inure to the benefit of the parties and their respective
successors, assigns and legal representatives. The determination that any
provisions hereof may be void, invalid, illegal or unenforceable shall not
impair any other provisions hereof and all such other provisions of this Lease
shall remain in full force and effect. The unenforceability, invalidity or
illegality of any provision of this Lease under particular circumstances shall
not render unenforceable, invalid or illegal other provisions of this Lease, or
the same provisions under other circumstances. This Lease shall be construed
and interpreted in accordance with the laws (excluding conflict of laws
principles) of the State in which the Building is located. The provisions of
this Lease shall be construed in accordance with the fair meaning of the
language used and shall not be strictly construed against either party, even if
such party drafted the provision in question. When required by the context of
this Lease, the singular includes the plural. Wherever the term "including" is
used in this Lease, it shall be interpreted as meaning "including, but not
limited to" the matter or matters thereafter enumerated. The captions contained
in this Lease are for purposes of convenience only and are not to be used to
interpret or construe this Lease. If more than one person or entity is
identified as Tenant hereunder, the obligations of each and all of them under
this Lease shall be joint and several. Time is of the essence with respect to
this Lease, except as to the conditions relating to the delivery of possession
of the Premises to Tenant. Neither Landlord nor Tenant shall record this Lease.
34. AUTHORITY. If Tenant is a corporation, partnership, limited liability
company or other form of business entity, each of the persons executing this
Lease on behalf of Tenant warrants and represents that Tenant is a duly
organized and validly existing entity, that Tenant has full right and
authority to enter into this Lease and that the persons signing on behalf of
Tenant are authorized to do so and have the power to bind Tenant to this Lease.
Tenant shall provide Landlord upon request with evidence reasonably
satisfactory to Landlord confirming the foregoing representations.
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<PAGE> 37
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of
the date first above written.
TENANT: LANDLORD:
UNWIRED PLANET, INC., SEAPORT CENTRE ASSOCIATES, LLC
a Delaware corporation a California limited liability
company
By: Signature By: OPPORTUNITY CAPITAL
------------------------- PARTNERS IV, LLC,
Name: a California limited
-------------------- liability company Manager
Title:
-------------------
By: By: /s/ William Wilson Jr.
------------------------- ---------------------------
Name: Name:
-------------------- -------------------
Title: Title:
------------------- -------------------
By: Signature
-------------------------
Name:
-------------------
Title:
-------------------
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<PAGE> 38
EXHIBIT A
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 1998
BETWEEN
SEAPORT CENTRE ASSOCIATES, LLC, AS LANDLORD,
AND
UNWIRED PLANET, INC., AS TENANT ("LEASE")
SEAPORT CENTRE III
800 CHESAPEAKE DR., REDWOOD CITY
TWO-STORY OFFICE / R&D BUILDING
[floorplan]
First Floor
[floorplan]
Second Floor
<PAGE> 39
EXHIBIT B
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 1998
BETWEEN
SEAPORT CENTRE ASSOCIATES, LLC, AS LANDLORD,
AND
UNWIRED PLANET, INC., AS TENANT ("LEASE")
CONSTRUCTION RIDER
1. Tenant Improvements. Upon Tenant's written request made at any time
within three (3) years after the Commencement Date of this Lease, and after
completion of Final Construction Documents (as hereinafter defined), Landlord
shall with reasonable diligence through Commercial Interior Contractors ("CIC")
construct and install in the Premises the improvements and fixtures provided
for in this Construction Rider ("TENANT IMPROVEMENTS"). Tenant recognizes and
agrees that CIC is an affiliate of Landlord. Upon request by Landlord, Tenant
shall designate in writing an individual authorized to act as Tenant's
Representative with respect to all approvals, directions and authorizations
pursuant to this Construction Rider.
1.1 Plans. The Tenant Improvements shall be constructed substantially
as shown on the conceptual space plan for the Premises prepared by a space
planner mutually agreeable to Landlord and Tenant, which space planner will be
retained by Tenant (after Tenant's notice pursuant to the provisions of Section
1 above) as the space planner for the Premises ("SPACE PLANNER"), to prepare a
space plan ("SPACE PLAN") reasonably acceptable to Landlord and Tenant.
As soon as may be reasonably practicable after requested by Tenant,
the Space Planner will prepare and deliver to Tenant detailed plans and
specifications sufficient to permit the construction of the Tenant Improvements
by Landlord's contractor ("CONSTRUCTION DOCUMENTS"), Landlord will provide
Tenant with a cost estimate for the work shown in the Construction Documents.
Tenant shall respond to the Construction Documents and cost estimate within
three (3) Business Days after receipt thereof, specifying any changes or
modifications Tenant desires in the Construction Documents. The Space Planner
will then revise the Construction Documents and resubmit them to Tenant for its
approval and Landlord will provide Tenant with a revised cost estimate. Tenant
shall approve or disapprove the same within three (3) Business Days after
receipt. The revised Construction Documents and cost estimate, as approved by
Tenant and Landlord, are hereinafter referred to as the "FINAL CONSTRUCTION
DOCUMENTS" and "FINAL COST ESTIMATE," respectively.
Additional interior decorating services and advice on the furnishing
and decoration of the Premises, such as the selection of fixtures, furnishings
or design of mill work, shall be provided by Tenant at its expense, but shall
be subject to the reasonable approval of Landlord.
Exhibit B, Page 1
<PAGE> 40
1.2 Construction. Upon approval by Landlord and Tenant of the Final
Construction Documents and the Final Cost Estimate, Landlord shall proceed with
reasonable diligence to cause the Tenant Improvements to be Substantially
Completed. CIC will construct the Tenant Improvements at competitive prices,
with a fee not to exceed the market rate for other similar sized and type of
construction contracts in the Redwood City, California area. CIC will
competitively bid subcontracts, using at least three (3) subcontractors for each
proposed subcontract. Tenant may add names to the subcontractor bid list prior
to such subcontracts being put to bid, subject to the reasonable right of CIC
and Landlord to review and approve subcontractors based on their qualifications,
including quality of work, creditworthiness, and experience. Tenant agrees to
cooperate with Landlord and CIC in planning and scheduling the construction of
Tenant Improvements to allow CIC to proceed with construction of Tenant
Improvements in an efficient manner, but Landlord will use, the cause CIC to
use, reasonable efforts to not unreasonably disrupt Tenant's business operations
during construction of Tenant Improvements.
The Tenant Improvements shall be deemed to be "SUBSTANTIALLY COMPLETED"
when they have been completed in accordance with the Final Construction
Documents except for finishing details, minor omissions, decorations and
mechanical adjustments of the type normally found on an architectural "punch
list". (The definition of Substantially Completed shall also define the terms
"SUBSTANTIAL COMPLETION" and "SUBSTANTIALLY COMPLETE.")
Following Substantial Completion of the Tenant Improvements, Landlord and
Tenant shall inspect the Premises and jointly prepare a "punch list" of agreed
items of construction remaining to be completed. Landlord shall cause CIC to
complete the items set forth in the punch list as soon as reasonably possible
using commercially reasonable efforts. Tenant shall cooperate with and
accommodate Landlord and CIC in completing the items on the punch list.
1.3 Cost of Tenant Improvements. Landlord shall contribute up to Two
Hundred Three Thousand Nine Hundred Seventy-Five and 00/100 Dollars
($203,975.00) (the "ALLOWANCE"), based upon $5.00 per rentable square foot in
the Premises toward the cost of the design (including preparation of space plans
and Construction Documents), construction and installation of the Tenant
Improvements. Tenant may use up to Fifty Thousand and 00/100 Dollars
($50,000.00) out of the Allowance for wiring and cabling in the Building. The
balance, if any, of the cost of the Tenant Improvements ("ADDITIONAL COST"),
including, but not limited to, usual markups for overhead, supervision and
profit, shall be paid by Tenant. Tenant shall pay Landlord 50% of the Additional
Cost based upon the Final Cost Estimate prior to the commencement of
construction of the Tenant Improvements. The balance of the actual Additional
Cost shall be paid to Landlord upon Substantial Completion of the Tenant
Improvements, within twenty (20) days after receipt of Landlord's invoice
therefor. Landlord will use reasonable care in preparing the cost estimates, but
they are estimates only and do not limit Tenant's obligation to pay for the
actual Additional Cost of the Tenant Improvements, whether or not it exceeds the
estimated amounts.
Exhibit B, Page 2
<PAGE> 41
1.4. Changes. If Tenant requests any change, addition or alteration in
or to any Final Construction Documents ("CHANGES") Landlord shall cause the
Space Planner to prepare additional Plans implementing such Change. Tenant shall
pay the cost of preparing additional Plans within twenty (20) days after receipt
of Landlord's invoice therefor. As soon as practicable after the completion of
such additional Construction Documents, Landlord shall notify Tenant of the
estimated cost of the Changes. Within three (3) Business Days after receipt of
such cost estimate, Tenant shall notify Landlord in writing whether Tenant
approves the Change. If Tenant approves the Change, Landlord shall proceed with
the Change and Tenant shall be liable for any Additional Cost resulting from the
Change. If Tenant fails to approve the Change within such three (3) Business Day
period, construction of the Tenant Improvements shall proceed as provided in
accordance with the original Construction Documents.
1.5. Delays. Tenant shall be responsible for, and shall pay to
Landlord, any and all costs and expenses incurred by Landlord in connection with
any delay in the commencement or completion of any Tenant Improvements and any
increase in the cost of Tenant Improvements caused by (i) Tenant's failure to
submit information to the Space Planner or approve any Space Plan, Construction
Documents or cost estimates within the time periods required herein, (ii) any
delays in obtaining any items or materials constituting part of the Tenant
Improvements requested by Tenant, (iii) any Changes, or (iv) any other delay
requested or caused by Tenant (collectively, "TENANT DELAYS").
2. Delivery of Premises. [Intentionally Deleted].
3. Access to Premises. Landlord shall allow Tenant and Tenant's
Representatives to enter the Premises prior to the Commencement Date to permit
Tenant to make the Premises ready for its use and occupancy; provided, however,
that prior to such entry of the Premises, Tenant shall provide evidence
reasonably satisfactory to Landlord that Tenant's insurance, as described in
Section 11.1 - Tenant's Insurance of the Lease, shall be in effect as of the
time of such entry. Such permission may be reasonably revoked at any time upon
twenty-four (24) hours' notice, and Tenant and its Representatives shall not
interfere with Landlord or Landlord's contractor in completing Landlord's work
at the Building or the Tenant Improvements.
Tenant agrees that Landlord shall not be liable in any way for any
injury, loss or damage which may occur to any of Tenant's property placed upon
or installed in the Premises prior to the Commencement Date, the same being at
Tenant's sole risk, and Tenant shall be liable for all injury, loss or damage
to persons or property arising as a result of such entry into the Premises by
Tenant or its Representatives.
4. Ownership of Tenant Improvements. All Tenant Improvements, whether
installed by Landlord or Tenant, shall become a part of the Premises, shall be
the property of Landlord and, subject to the provisions of the Lease, shall be
surrendered by Tenant with the Premises, without any compensation to Tenant, at
the expiration or termination of the Lease in accordance with the provisions of
the Lease.
Exhibit B, Page 3
<PAGE> 42
EXHIBIT B, PAGE 4
INITIALS:
Landlord Sig.
-----------
Tenant Sig.
-----------
<PAGE> 43
EXHIBIT C
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 1998
BETWEEN
SEAPORT CENTRE ASSOCIATES, LLC, AS LANDLORD,
AND
UNWIRED PLANET, INC., AS TENANT ("LEASE")
BUILDING RULES
The following Building Rules are additional provisions of the foregoing
Lease to which they are attached. The capitalized terms used herein have the
same meanings as these terms are given in the Lease.
1. Use of Common Areas. Tenant will not obstruct the sidewalks, halls,
passages, exits, entrances, elevators or stairways of the Building ("COMMON
AREAS"), and Tenant will not use the Common Areas for any purpose other than
ingress and egress to and from the Premises. The Common Areas, except for the
sidewalks, are not open to the general public and Landlord reserves the right to
control and prevent access to the Common Areas of any person whose presence, in
Landlord's opinion, would be prejudicial to the safety, reputation and interests
of the Building and its tenants.
2. No Access to Roof. Tenant has no right of access to the roof of the
Building and will not install, repair or replace any antenna, aerial, aerial
wires, fan, air-conditioner or other device on the roof of the Building,
without the prior written consent of Landlord. Any such device installed
without such written consent is subject to removal at Tenant's expense without
notice at any time. In any event Tenant will be liable for any damages or
repairs incurred or required as a result of its installation, use, repair,
maintenance or removal of such devices on the roof and agrees to indemnify and
hold harmless Landlord from any liability, loss, damage, cost or expense,
including reasonable attorneys' fees, arising from any activities of Tenant or
of Tenant's Representatives on the roof of the Building. Notwithstanding the
foregoing, Landlord hereby consents to entry by Tenant's HVAC contractor onto
the roof for service of the HVAC units, subject to reasonable rules and
regulations of Landlord, and provided that such contractor shall be
responsible for any damage such contractor causes to the roof.
3. Signage. Tenant shall have the right, at Tenant's sole cost and
expense, to install a sign upon a monument to be located in front of the
Building, subject to Landlord's reasonable approval, and subject to ordinances,
regulations and any approval from the City of Redwood City. Landlord shall, at
Landlord's sole cost and expense, construct a monument, subject to approval of
the City of Redwood City. No sign, placard, picture, name, advertisement or
notice visible from the exterior of the Premises will be inscribed, painted,
affixed or otherwise displayed by Tenant on or in any part of the Building
without the prior written consent of
Exhibit C, Page 1
<PAGE> 44
Landlord. Landlord reserves the right to adopt and furnish Tenant with general
guidelines relating to signs in or on the Building. All approved signage will be
inscribed, painted or affixed at Tenant's expense by a person approved by
Landlord, which approval will not be unreasonably withheld.
4. Prohibited Uses. The Premises will not be used for manufacturing, for
the storage of merchandise held for sale to the general public, for lodging or
for the sale of goods to the general public. Tenant will not permit any food
preparation on the Premises except that Tenant may use Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar beverages
so long as such use is in accordance with all applicable federal, state and city
laws, codes, ordinances, rules and regulations.
5. Janitorial Services. Tenant will be responsible, at Tenant's expense,
to keep the Premises clean, including daily janitorial service. Tenant shall
enter into an agreement with a janitorial service to clean the Premises during
week-days, which contract and janitorial company shall be subject to Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed.
6. Keys and Locks. Landlord will furnish Tenant, free of charge, two keys
to each door or lock in the Premises. Landlord may make a reasonable charge for
any additional or replacement keys. Tenant will not duplicate any keys, alter
any locks or install any new or additional lock or bolt on any door of its
Premises or on any other part of the Building without the prior written consent
of Landlord, which consent shall not be unreasonably withheld or delayed and, in
any event, Tenant will provide Landlord with a key for any such lock (except for
secure areas designated reasonably by Tenant). On the termination of the Lease,
Tenant will deliver to Landlord all keys to any locks or doors in the Building
which have been obtained by Tenant.
7. Freight. Tenant shall not transport freight in loads exceeding the
weight limitations of any elevator in the Building. Landlord reserves the right
to prescribe the weight, size and position of all equipment, materials,
furniture or other property brought into the Building, and no property will be
received in the Building except along such routes as may be designated by
Landlord. Landlord reserves the right to require that heavy objects will stand
on wood strips of such length and thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage to
any such property from any cause, and Tenant will be liable for all damage or
injuries caused by moving or maintaining such property.
8. Nuisances and Dangerous Substances. Tenant will not conduct itself or
permit Tenant's Representatives or Visitors to conduct themselves, in the
Premises or anywhere on or in the Project in a manner which is offensive or
unduly annoying to any other Tenant or Landlord's property managers. Tenant will
not install or operate any phonograph, radio receiver, musical instrument, or
television or other similar device in any part of the Common Areas and shall not
operate any such device installed in the Premises in such manner as to disturb
or unreasonably annoy other tenants of the Project. Tenant will not use or keep
in the Premises or the Property any kerosene, gasoline, or other combustible
fluid or material other than limited quantities thereof
Exhibit C, Page 2
<PAGE> 45
reasonably necessary for the maintenance of office equipment, or, without
Landlord's prior written approval, use any method of heating or air conditioning
other than that supplied by Landlord. Tenant will not use or keep any foul or
noxious gas or substance in the Premises or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Project by reason of noise, odors or vibrations, or interfere
in any way with other tenants or those having business therein. Tenant will not
bring or keep any animals in or about the Premises or the Project, except for
animals trained to assist, and assisting Tenant's disabled Visitors.
9. Building Name and Address. Without Landlord's prior written consent,
Tenant will not use the name of the Building in connection with or in promoting
or advertising Tenant's business except as Tenant's address.
10. Building Directory. A directory for the Building will be provided for
the display of the name and location of tenants. Landlord reserves the right to
approve any additional names Tenant desires to place in the directory and, if so
approved, Landlord may assess a reasonable charge for adding such additional
names.
11. Window Coverings. No curtains, draperies, blinds, shutters, shades,
awnings, screens or other coverings, window ventilators, hangings, decorations
or similar equipment shall be attached to, hung or placed in, or used in or with
any window of the Building without the prior written consent of Landlord, and
Landlord shall have the right to control all lighting within the Premises that
may be visible from the exterior of the Building.
12. Floor Coverings. Tenant will not lay or otherwise affix linoleum, tile,
carpet or any other floor covering to the floor of the Premises in any manner
except as approved in writing by Landlord. Tenant will be liable for the cost of
repair of any damage resulting from the violation of this rule or the removal
of any floor covering by Tenant or its contractors, employees or invitees.
13. Wiring and Cabling Installations. Landlord will direct Tenant's
electricians and other vendors as to where and how data, telephone, and
electrical wires and cables are to be installed. No boring or cutting for wires
or cables will be allowed without the prior written consent of Landlord. The
location of burglar alarms, smoke detectors, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the written
approval of Landlord, which approval shall not be unreasonably withheld or
delayed.
14. Office Closing Procedure. Tenant will see that the doors of the
Premises are closed and locked and that all water faucets, water apparatus and
utilities are shut off before Tenant or its employees leave the Premises, so as
to prevent waste or damage. Tenant will be liable for all damages or injuries
sustained by other tenants or occupants of the Building or Landlord resulting
from Tenant's carelessness in this regard or violation of this rule. Tenant will
keep the doors to the Building corridors closed at all times except for ingress
and egress.
Exhibit C, Page 3
<PAGE> 46
15. Plumbing Facilities. The toilet rooms, toilets, urinals, wash bowls and
other apparatus shall not be used for any purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
disposed of therein. Tenant will be liable for any breakage, stoppage or damage
resulting from the violation of this rule by Tenant, its employees or invitees.
16. Use of Hand Trucks. Tenant will not use or permit to be used in the
Premises or in the Common Areas any hand trucks, carts or dollies except those
equipped with rubber tires and side guards or such other equipment as Landlord
may approve.
17. Refuse. Tenant shall store all Tenant's trash and garbage within the
Premises or in other facilities designated By Landlord for such purpose. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of removing and disposing of
trash and garbage in the city in which the Building is located without being in
violation of any law or ordinance governing such disposal. All trash and garbage
removal shall be made in accordance with directions issued from time to time by
Landlord, only through such Common Areas provided for such purposes and at such
times as Landlord may designate. Tenant shall be responsible for removing trash
from the Premises. Tenant shall comply with the requirements of any recycling
program adopted by Landlord for the Building.
18. Soliciting. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building are prohibited, and
Tenant will cooperate to prevent the same.
19. Parking. Tenant will use, and cause Tenant's Representatives and
Visitors to use, any parking spaces to which Tenant is entitled under the Lease
in a manner consistent with Landlord's directional signs and markings in the
Parking Facility. Specifically, but without limitation, Tenant will not park, or
permit Tenant's Representatives or Visitors to park, in a manner that impedes
access to and from the Building or the Parking Facility or that violates space
reservations for handicapped drivers registered as such with the California
Department of Motor Vehicles. Landlord may use such reasonable means as may be
necessary to enforce the directional signs and markings in the Parking Facility,
including but not limited to towing services, and Landlord will not be liable
for any damage to vehicles towed as a result of non-compliance with such parking
regulations.
20. Fire, Security and Safety Regulations. Tenant will comply with all
safety, security, fire protection and evacuation measures and procedures
established by Landlord or any governmental agency.
21. Responsibility for Theft. Tenant assumes any and all responsibility for
protecting the Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises closed.
Exhibit C, Page 4
<PAGE> 47
22. Sales and Auctions. Tenant will not conduct or permit to be conducted
any sale by auction in, upon or from the Premises or elsewhere in the Property,
whether said auction be voluntary, involuntary, pursuant to any assignment for
the payment of creditors or pursuant to any bankruptcy or other insolvency
proceeding.
23. Waiver of Rules. Landlord may waive any one or more of these Building
Rules for the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such Building Rules in favor of any
other tenant or tenants nor prevent Landlord from thereafter enforcing these
Building Rules against any or all of the tenants of the Building.
24. Effect on Lease. These Building Rules are in addition to, and shall not
be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Violation of these Building
Rules constitutes a failure to fully perform the provisions of the Lease, as
referred to in Section 15.1 -- "Events of Default".
25. Non-Discriminatory Enforcement. Subject to the provisions of the Lease
(and the provisions of other leases with respect to other tenants), Landlord
shall use reasonable efforts to enforce these Building Rules in a
non-discriminatory manner, but in no event shall Landlord have any liability for
any failure or refusal to do so (and Tenant's sole and exclusive remedy for any
such failure or refusal shall be injunctive relief preventing Landlord from
enforcing any of the Building Rules against Tenant in a manner that
discriminates against Tenant).
26. Additional and Amended Rules. Landlord reserves the right to rescind or
amend these Building Rules and/or adopt any other and reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Building and for the preservation of good order
therein.
INITIALS:
Landlord Signature
----------------------
Tenant Signature
----------------------
Exhibit C, Page 5
<PAGE> 48
EXHIBIT D
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 1998
BETWEEN
SEAPORT CENTRE ASSOCIATES, LLC, AS LANDLORD,
AND
UNWIRED PLANET, INC., AS TENANT ("LEASE")
ADDITIONAL PROVISIONS RIDER
---------------------------
35. LETTER OF CREDIT.
(a) Tenant shall deliver to Landlord a clean, unconditional, irrevocable,
transferable letter of credit (the "Letter of Credit") in form, and issued by a
financial institution ("Issuer") satisfactory to Landlord. The Letter of Credit
shall be provided to Landlord as set forth in Section (b) below, and shall be in
the amount of $800,000.00, name Landlord as the beneficiary thereunder, and
provide that draws thereunder will be honored upon receipt by Issuer of a
written statement signed by Landlord stating that Landlord is entitled to draw
down on the Letter of Credit. Landlord shall be entitled to draw the entire
amount under the Letter of Credit if either (i) Tenant does not deliver to
Landlord a replacement letter of credit from Issuer or another financial
institution satisfactory to Landlord in the amount and form of the initial
Letter of Credit no later than one month before the expiration date of the then
existing Letter of Credit, or (ii) upon a proposed sale or lease of the Building
Tenant does not deliver to any the new landlord a replacement Letter of Credit
pursuant to the provisions of (d) below. If Tenant is in default under the Lease
beyond any applicable notice and cure period, Landlord shall be entitled to draw
under the Letter of Credit only an amount equal to the amount of any monetary
default as defined below (or, only if partial draws are not permitted, the
entire amount of the Letter of Credit). As used herein, "monetary default" means
any delinquent installment of Base Rent, Additional Rent or Rent under this
Lease (as and when Tenant fails to pay the same beyond any applicable notice and
cure period contained in this Lease), plus any damages to which Landlord is
entitled under the Lease. Landlord agrees that the Letter of Credit may also
provide for partial draws by Landlord. To the extent not applied by Landlord
pursuant to the provisions of the Lease any amount drawn under the Letter of
Credit shall be held or applied by Landlord as a Security Deposit, subject to
the terms of Section 4 of this Lease.
(b) The Letter of Credit shall be issued and delivered to Landlord within
fifteen (15) days after complete execution of this Lease by Landlord and Tenant.
If Tenant Fails to deliver to Landlord the Letter of Credit when required, such
failure shall constitute an Event of Default under the Lease.
Exhibit D, Page 1
<PAGE> 49
(c) Provided that (x) there has been no Event of Default under the Lease
within the preceding twelve (12) months, and (y) on the respective following
dates Tenant is not in default under the Lease beyond any applicable notice and
cure period, the amount remaining available to be drawn under the Letter of
Credit shall be reduced in twelve month increments, beginning twelve months
after the Commencement Date, so the amount available to be drawn under the
Letter of Credit shall be as follows:
Months (counting from the Commencement Date Amount Available
through applicable monthly anniversary of Under the Letter of Credit
Commencement Date)
------------------------------------------- --------------------------
01-12 $800,000.00
13-24 685,714.29
25-36 571,428.58
37-48 457,142.87
49-60 342,857.16
61-72 228,571.45
73-end of Term 114,285.74
In addition:
(A) Provided there has been no Event of Default under the Lease during the
eighteen (18) months preceding such request, then if either (i) an initial
public offering of Tenant's stock is made on any public stock exchange and
Tenant's publicly traded common stock has a market value of at least $200
million (as averaged over the first five [5] days of public trading of Tenant's
common stock), or (ii)(1) Tenant is acquired by an entity traded on any public
stock exchange, (2) such acquiring entity has a market value of at least $200
million on the date of such acquisition, and (3) such acquiring entity becomes
liable under this Lease, then the amount available under the Letter of Credit
for the applicable period contained above shall be reduced to the greater of
one-half (1/2) of the applicable amount contained above, or $114,285.74, and
(B) Provided there has been no Event of Default under the Lease during the
eighteen (18) months prior to the last day of the sixtieth (60th) full calendar
month following the Commencement Date, then if prior to the end of the sixtieth
(60th) full calendar month following the Commencement Date either (i) an initial
public offering of Tenant's stock is made on any public stock exchange and
Tenant's publicly traded common stock has a market value of at least $200
million, as averaged over the last five [5] days of public trading of Tenant's
common stock immediately prior to the last day of the sixtieth (60th) full
calendar month following the Commencement Date, or (ii)(1) Tenant is acquired by
an entity traded on any public stock exchange, (2) such acquiring entity has a
market value of at least $200 million on the last day of the sixtieth (60th)
full calendar month following the Commencement Date, and (3) such acquiring
entity becomes liable under this Lease, then effective on the first day after
the last day of the sixtieth (60th) full calendar month following the
Commencement Date, the amount available under the Letter of Credit shall be
reduced to $104,027.00
(d) If Landlord shall be holding the Letter of Credit as security, then,
in the event of a proposed sale or lease of the Building by Landlord, Tenant
will, upon ten (10) Business Days'
Exhibit D, Page 2
<PAGE> 50
notice, at its sole cost and expense, cause the issuing bank to consent to the
assignment or to issue a substitute letter of credit on identical terms except
for the stated beneficiary, from the same issuing bank or another bank
acceptable to Landlord in Landlord's sole discretion, naming the new landlord
as the beneficiary thereof upon delivery by Landlord of the then outstanding
Letter of Credit.
36. PARKING.
(a) Tenant's Parking Rights. Landlord shall provide Tenant, on an
unassigned and non-exclusive basis, for use by Tenant and Tenant's
Representatives and Visitors, at the users' sole risk, one (1) parking space in
the Parking Facility, for each three hundred thirty-three (333) rentable square
feet of space leased to Tenant. The parking spaces to be made available to
Tenant hereunder may contain a reasonable mix of spaces for compact cars and up
to ten percent (10%) of the unassigned spaces may also be designated by
Landlord as Building visitors' parking.
(b) Availability of Parking Spaces. Landlord shall take reasonable actions
to ensure the availability of the parking spaces leased by Tenant, but
Landlord does not guarantee the availability of those spaces at all times
against the actions of other tenants of the Building and users of the Parking
Facility. Access to the Parking Facility may, at Landlord's option, be
regulated by card, pass, bumper sticker, decal or other appropriate
identification issued by Landlord. Landlord retains the right to revoke the
parking privileges of any user of the Parking Facility who violates the rules
and regulations governing use of the Parking Facility (and Tenant shall be
responsible for causing any employee of Tenant or other person using parking
spaces allocated to Tenant to comply with all parking rules and regulations).
(c) Assignment and Subletting. Notwithstanding any other provision of the
Lease to the contrary, Tenant shall not assign its rights to the parking spaces
or any interest therein, or sublease or otherwise allow the use of all or any
part of the parking spaces to or by any other person, except either (i) to a
Permitted Transferee, or (ii) with Landlord's prior written consent, which may
be granted or withheld by Landlord in its sole discretion. In the event of any
separate assignment or sublease of parking space rights that is approved by
Landlord, Landlord shall be entitled to receive, as additional Rent hereunder,
one hundred percent (100%) of any profit received by Tenant in connection with
such assignment or sublease of parking spaces.
(d) Condemnation Damage or Destruction. In the event the Parking Facility
is the subject of a Condemnation, or is damaged or destroyed, and this Lease is
not terminated, and if in such event the available number of parking spaces in
the Parking Facility is permanently reduce, then Tenant's rights to use parking
spaces hereunder may, at the election of Landlord, thereafter be reduced
in proportion to the reduction of the total number of parking spaces in the
Parking Facility. In such event, Landlord reserves the right to reduce the
number of parking spaces to which Tenant is entitled or to relocate some or all
of the parking spaces to which Tenant is entitled to other areas in the Parking
Facility.
Exhibit D, Page 3
<PAGE> 51
37. EXTENSION OPTION
Provided that Unwired Planet has not assigned this Lease or sublet any or
all of the Premises other than to an Affiliate (it being intended that all
rights pursuant to this provision are and shall be personal to the original
Tenant under this Lease and its Affiliates and shall not be transferable or
exercisable for the benefit of any Transferee), and provided Tenant is not in
default under this Lease beyond any applicable notice and cure periods at the
time of exercise or at any time thereafter until the beginning of any extension
of the Term, Tenant shall have the option (the "EXTENSION OPTION") to extend
the Term for one additional consecutive period of five (5)years (the "EXTENSION
PERIOD"), by giving written notice to Landlord of the exercise of any such
Extension Option at least twelve (12) months, but not more than eighteen (18)
months, prior to the expiration of the initial Term. The exercise of any
Extension Option by Tenant shall be irrevocable and shall cover the entire
Premises leased by Tenant pursuant to this Lease. Upon such exercise, the term
of the Lease shall automatically be extended for the applicable Extension
Period without the execution of any further instrument by the parties; provided
that Landlord and Tenant shall, if requested by either party, execute and
acknowledge an instrument confirming the exercise of the Extension Option. Any
Extension Option shall terminate if not exercised precisely in the manner
provided herein. Any extension of the Term shall be upon all the terms and
conditions set forth in this Lease and all Exhibits thereto, except that; (i)
Tenant shall have no further option to extend the Term of the Lease, other than
as specifically set forth herein; (ii) Landlord shall not be obligated to
contribute funds toward the cost of any remodeling, renovation, alteration or
improvement work in the Premises; and (iii) Base Rent for any such Extension
Period shall be the then Fair Market Base Rental (as defined below) for the
Premises for the space and term involved, which shall be determined as set
forth below.
(a) "FAIR MARKET BASE RENTAL" shall mean the "fair market" Base Rent at
the time or times in question for the applicable space, based on the prevailing
rentals then being charged to tenants in the Project and tenants in other
similar type buildings in the general vicinity of the Project of comparable
size, location, quality and age as the Building for leases with terms equal to
the Extension Period, taking into account the creditworthiness and financial
strength of the tenant, the financial guaranties provided by the tenant (if
any), the value of market concessions (including the value of construction,
renovation, moving and other allowances or rent credits), the desirability,
location in the building, size and quality of the space, tenant finish
allowance and/or tenant improvements, included services, operating expenses and
tax and expense stops or other escalation clauses, and brokerage commissions,
for the space in the Building for which Fair Market Base Rental is being
determined and for comparable space in the buildings which are being used for
comparison. Fair Market Base Rental shall also reflect the then prevailing
rental structure for comparable buildings in the general vicinity of the
Property, so that if, for example, at the time Fair Market Base Rental is being
determined the prevailing rental structure for comparable space and for
comparable lease terms includes periodic rental adjustments or escalations,
Fair Market Base Rental shall reflect such rental structure.
(b) Landlord and Tenant shall endeavor to agree upon the Fair Market Base
Rental. If they are unable to so agree within thirty (30) days after receipt by
Landlord of
Exhibit D, Page 4
<PAGE> 52
Tenant's notice of exercise of the Extension Option, Landlord and Tenant shall
mutually select a licensed real estate broker who is active in the leasing of
space similar to the Building in the general vicinity of the Project. Landlord
shall submit Landlord's determination of Fair Market Base Rental and Tenant
shall submit Tenant's determination of Fair Market Base Rental to such broker,
at such time or times and in such manner as Landlord and Tenant shall agree (or
as directed by the broker if Landlord and Tenant do not promptly agree). The
broker shall select either Landlord's or Tenant's determination as the Fair
Market Base Rental, and such determination shall be binding on Landlord and
Tenant. If Tenant's determination is selected as the Fair Market Base Rental,
then Landlord shall bear all of the broker's costs and fees. If Landlord's
determination is selected as the Fair Market Base Rental, then Tenant shall
bear all of the broker's cost and fees.
(c) In the event the Fair Market Base Rental for any Extension
Period has not been determined at such time as Tenant is obligated to pay Base
Rent for such Extension Period, Tenant shall pay as Base Rent pending such
determination, the Base Rent in effect for such space immediately prior to the
Extension Period; provided, that upon the determination of the applicable Fair
Market Base Rental, any shortage of Base Rent paid, together with interest at
the rate specified in the Lease, shall be paid to Landlord by Tenant.
(d) In no event shall the Base Rent during any Extension Period be
less than the Base Rent in effect immediately prior to such Extension Period.
(e) The term of this Lease, whether consisting of the Initial Term
alone or the Initial Term as extended by any Extension Period (if any Extension
Option is exercised), is referred to in this Lease as the "Term."
38. RIGHT OF FIRST OFFER - BUILDING 14.
(a) Provided that Unwired Planet has not assigned this Lease or
sublet any or all of the Premises other than to an Affiliate (it being intended
that all rights pursuant to this provision are and shall be personal to the
original Tenant under this Lease and its Affiliates and shall not be
transferable or exercisable for the benefit of any Transferee), and provided
Tenant is not in default beyond any applicable notice and cure period under this
Lease at the time of the exercise of any such right or at any time thereafter
until delivery of possession of the space to Tenant, and subject to any and all
rights of other tenants in the Project with respect to such space (including
renewal and extension rights and rights of first offer, first negotiation, first
refusal or other expansion rights) existing as of the date of this Lease, Tenant
shall have a one-time right of first offer to lease Building 14 ("Building 14"),
containing approximately 40,897 rentable square feet, located at 900 Chesapeake,
in the Project.
(b) Such right of first offer (i) may only be exercised with
respect to vacant space or space which has been previously leased and as to
which an existing tenant of Building 14 has elected not to extend its lease or
re-lease such space and (ii) may only be exercised with respect to all of
Building 14 being offered by Landlord. If building 14 becomes available,
Landlord
Exhibit D, Page 5
<PAGE> 53
shall offer to lease the entire Building 14 to Tenant at the same rent and on
the same terms that Landlord intends to offer to other prospective tenants.
Tenant shall have ten (10) days following receipt of Landlord's offer with
respect to Building 14 within which to notify Landlord in writing of its
intention to lease Building 14, and such notice, if given by Tenant, shall
constitute an acceptance of Landlord's terms for the lease of such space. If
Tenant exercises such right of first offer, the space to be leased by Tenant
shall be leased on the same terms and conditions as are contained in this Lease
except for the economic and other terms specifically set forth in Landlord's
notice, and the parties shall execute an amendment to this Lease to include
Building 14 in the Premises and otherwise to provide for the leasing of Building
14 on such terms. If Tenant fails so to exercise Tenant's right of first offer
within such ten (10) day period, Landlord may thereafter lease Building 14 to
other prospective tenants.
(c) If Tenant does not lease Building 14 from Landlord when it is
first offered to Tenant by Landlord, then this right of first offer shall
terminate and Tenant shall have no further rights to lease any of Building 14.
39. RIGHT OF FIRST OFFER - BUILDING 19.
(a) Provided that Unwired Planet has not assigned this Lease or
sublet any or all of the Premises other than to an Affiliate (it being intended
that all rights pursuant to this provision are and shall be personal to the
original Tenant under this Lease and its Affiliates and shall not be
transferable or exercisable for the benefit of any Transferee), and provided
Tenant is not in default beyond any applicable notice and cure period under this
Lease at the time of the exercise of any such right or at any time thereafter
until delivery of possession of the space to Tenant, and subject to any and all
rights of other tenants in the Project with respect to such space (including
renewal and extension rights and rights of first offer, first negotiation, first
refusal or other expansion rights) existing as of the date of this Lease, Tenant
shall have a one-time right of first offer to lease Building 19 ("Building 19"),
containing approximately 25,250 rentable square feet, located at 700 Chesapeake,
in the Project.
(b) Such right of first offer (i) may only be exercised with respect
to vacant space or space which has been previously leased and as to which an
existing tenant of Building 19 has elected not to extend its lease or re-lease
such space and (ii) may only be exercised with respect to all of Building 19
being offered by Landlord. If Building 19 becomes available, Landlord shall
offer to lease the entire Building 19 to Tenant at the same rent and on the same
terms that Landlord intends to offer to other prospective tenants. Tenant shall
have ten (10) days following receipt of Landlord's offer with respect to
Building 19 within which to notify Landlord in writing of its intention to lease
building 19, and such notice, if given by Tenant, shall constitute an acceptance
of Landlord's terms for the lease of such space. If Tenant exercises such right
of first offer, the space to be leased by Tenant shall be leased on the same
terms and conditions as are contained in this Lease except for the economic and
other terms specifically set forth in Landlord's notice, and the parties shall
execute an amendment to this Lease to include Building 19 in the Premises and
otherwise to provide for the leasing of Building 19 on such terms. If Tenant
fails so to exercise Tenant's right of first offer within such ten (10) day
period, Landlord may thereafter lease Building 19 to other prospective tenants.
Exhibit D, Page 6
<PAGE> 54
(c) If Tenant does not lease Building 19 from Landlord when it is first
offered to Tenant by Landlord, then this right of first offer shall terminate
and Tenant shall have no further rights to lease any of Building 19.
40. LANDLORD'S IMPROVEMENTS.
Notwithstanding any provision in the Lease to the contrary, Landlord shall,
at Landlord's sole cost and expense, (a) repair the Parking Facility in the
vicinity of the Building, and (b) if required by applicable Law, (i) install two
(2) ramps to the Building, and (ii) bring in to compliance or, if necessary,
replace up to five (5) exterior doors at the Building. Landlord shall use
commercially reasonable efforts to promptly complete such work, although the
parties hereto agree that the repairs of the Parking Facility will probably not
be completed by the Commencement Date of this Lease. Throughout the Term of the
Lease Landlord shall maintain such Parking Facility, the costs of which
maintenance shall be included in Operating Costs in accordance with the
provisions of Section 3.2 of this Lease.
INITIAL:
Landlord Sig.
-----------
Tenant Sig.
-----------
Exhibit D, Page 7
<PAGE> 55
EXHIBIT A
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 1998
BETWEEN
SEAPORT CENTRE ASSOCIATES, LLC, AS LANDLORD,
AND
UNWIRED PLANET, INC., AS TENANT ("LEASE")
SEAPORT CENTRE III
800 CHESAPEAKE DR., REDWOOD CITY
TWO-STORY OFFICE / R&D BUILDING
[floorplan]
First Floor
[floorplan]
Second Floor
EXHIBIT B- PREMISES
<PAGE> 56
EXHIBIT C -- SUBLEASED PREMISES
[FLOORPLAN]
SUBTENANT SPACE: 14,035 SF
1st FLOOR RESTROOMS: 817 SF (1/2 ALLOCATED TO TENANT)
<PAGE> 57
SCHEDULE I
[floorplan]
SUBTENANT SPACE: 14,035 SF
1ST FLOOR RESTROOMS: 817 SF (1/2 ALLOCATED TO TENANT)
<PAGE> 58
SCHEDULE 2
LIST OF FURNITURE
(to be provided)