California-Redwood City-405 Broadway Sublease - Broadvision Inc. and RealNames Corp.
SUBLEASE
THIS SUBLEASE ("Sublease"), dated September 1, 1999 for reference
purposes only, is entered into by and between BROADVISION, INC., a Delaware
corporation ("Broadvision") and REALNAMES CORPORATION, a Delaware corporation
("Subtenant").
RECITALS
A. Broadvision leases certain premises consisting of an industrial
building containing approximately 55,282 square feet, located at 405
Broadway, Redwood City, California, pursuant to that certain Lease dated
February 10, 1999, between Martin/Campus Associates No. 4, L.P., a Delaware
limited partnership, as landlord (the "Master Landlord") and Broadvision, as
tenant (the "Master Lease"), as more particularly described therein (the
"Master Premises"). Capitalized terms used but not defined herein have the
same meanings as they have in the Master Lease. A copy of the Master Lease is
attached hereto as EXHIBIT A.
B. Broadvision desires to sublease a portion of the Premises to
Subtenant, and Subtenant desires to sublease a portion of the Premises from
Broadvision on the terms and provisions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Broadvision and Subtenant covenant and agree as follows:
AGREEMENT
1. PREMISES. On and subject to the terms and conditions below,
Broadvision hereby leases to Subtenant, and Subtenant hereby leases from
Broadvision, the entire second floor of the Master Premises which contains
approximately 25,891 rentable square feet, and as more particularly described
in Exhibit B.
2. TERM. This Sublease shall commence on Broadvision's delivery of
possession (the "Commencement Date"), provided Broadvision has theretofore
obtained the consent of Master Landlord, and shall expire May 31, 2000,
unless sooner terminated pursuant to any provision hereof.
3. POSSESSION.
(a) Broadvision shall use commercially reasonable efforts to deliver
possession of the Premises to Subtenant by October 1, 1999. If for any reason
Broadvision cannot deliver possession of the Premises to Subtenant by October
1, 1999, Broadvision shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Sublease or the obligations of
Subtenant hereunder or extend the term hereof, provided that no rent shall be
due hereunder until possession of the Premises has been delivered to
Subtenant.
(b) In addition to the foregoing, Broadvision shall use commercially
reasonable efforts to deliver the "Office" portion of the Premises to
Subtenant by September 15, 1999. If such portion of the Premises shall be
delivered to Subtenant prior to delivery of the entire Premises, then
Subtenant's occupancy shall be subject to all of the terms and conditions of
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this Sublease except that Subtenant shall pay rent to Broadvision for such
space in the amount of $1,531.88 per day (representing one half of the Rent
as pro-rated on a daily basis).
4. Rent.
(a) Commencing on the Commencement Date and continuing throughout the
term of this Sublease, Subtenant shall pay monthly rent ("Rent") to
Broadvision in the amount of ninety-one thousand nine-hundred thirteen and
05/100 Dollars ($91,913.05). Such Rent is "full-service" which shall include
without limitation, all operating expenses for the premises, Building and the
Project, and all costs for a commercially reasonable amount of utilities,
building security and janitorial services provided to Subtenant as more
particularly described in Exhibit E; However, to the extent that there are
any increases in Additional Rent (as such term is defined in the Master
Lease) due to any acts or omissions of Subtenant hereunder, then Subtenant
shall be liable to Broadvision for such increases and shall pay such
increases to Broadvision upon request.
(b) If the Commencement Date does not fall on the first day of a
calendar month, Rent for the first month shall be prorated on a daily basis
based upon a calendar month. Rent shall be payable to Broadvision in lawful
money of the United States, in advance, without prior notice, demand, or
offset, on or before the first day of each calendar month during the term
hereof. All Rent shall be paid to Broadvision at the address specified for
notices to Broadvision in SECTION 14, below.
(c) Subtenant recognizes that late payment of any Rent will result in
administrative expenses to Broadvision, the extent of which additional
expenses are extremely difficult and economically impractical to ascertain.
Subtenant therefore agrees that if any Rent shall remain unpaid five (5) days
after such amounts are due, the amount of such Rent shall be increased by a
late charge to be paid to Broadvision by Subtenant in an amount equal to ten
percent (10%) of the amount of the delinquent Rent.
(d) Upon execution of this Sublease, Subtenant shall deliver to
Broadvision the sum of ninety-one thousand nine hundred thirteen and 05/100
Dollars ($91,913.05), representing the first month's Base Rent.
(e) In the event of any casualty, or condemnation affecting the
Premises, Rent payable by Subtenant shall be abated hereunder, but only to
the extent that Rent under the Master Lease is abated Furthermore, Subtenant
shall have the right to terminate this Sublease, in connection with a
casualty or condemnation, in the event that Subtenant's ability to utilize
the Premises is materially interfered with for a period of more than 30 days.
5. SECURITY DEPOSIT. Upon execution of this Sublease, Subtenant shall
deposit with Broadvision the sum of ninety-one thousand nine-hundred thirteen
and 05/100 Dollars ($91,913.05) as a security deposit ("Security Deposit").
If Subtenant fails to pay Rent or other charges when due under this Sublease,
or fails to perform any of its other obligations hereunder, Broadvision may
use or apply all or any portion of the Security Deposit for the payment of
any Rent or other amount then due hereunder and unpaid, for the payment of
any other sum for which Broadvision may become obligated by reason of
Subtenant's default or breach, or for any
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loss or damage sustained by Broadvision as a result of Subtenant's default or
breach. If Broadvision so uses any portion of the Security Deposit, Subtenant
shall restore the Security Deposit to the full amount originally deposited
within ten (10) days after Broadvision's written demand. Broadvision shall
not be required to keep the Security Deposit separate from its general
accounts, and shall have no obligation or liability for payment of interest
on the Security Deposit. The Security Deposit, or so much thereof as had not
theretofore been applied by Broadvision, shall be returned to Subtenant
within thirty (30) days of the expiration or earlier termination of this
Sublease, provided Subtenant has vacated the Premises.
6. CONDITION OF PREMISES. Subtenant has used due diligence in
inspecting the Premises and agrees to accept the Premises in "as-is"
condition and with all faults as of the date of Subtenant's execution of this
Sublease, without any representation or warranty of any kind or nature
whatsoever, or any obligation on the part of Broadvision to modify, improve
or otherwise prepare the Premises for Subtenant's occupancy, except as
otherwise provided in Exhibit C and SECTION 7 hereof. By entry hereunder,
Subtenant accepts the Premises in their present condition and without
representation or warranty of any kind by Broadvision. Subtenant hereby
expressly waives the provisions of subsection 1 of Section 1932 and Sections
1941 and 1942 of the California Civil Code and all rights to make repairs at
the expense of Broadvision as provided in Section 1942 of said Civil Code.
7. CONDITION OF THE PREMISES UPON COMMENCEMENT.
(a) Broadvision, at its sole cost and expense shall build out the
Premises according to the attached floor plan, and install partitioned
furniture systems, general office furniture, and Enhanced Cat-5 computer
network wiring all as more particularly described in Exhibits C and D hereto.
Broadvision shall use commercially reasonable efforts to complete such work
by October 1, 1999.
(b) The Premises shall be delivered by Broadvision secured by
electronic key card access locks and in full compliance with the Americans
with Disabilities Act respecting Subtenants permitted use. Broadvision shall
provide Subtenant with up to ___ ( ) card keys at a cost of $15.00 per key.
(c) Subtenant shall install at its sole cost and expense their own
independent phone switch.
8. USE. Subtenant may use the Premises only for the purposes as
allowed in the Master Lease, and for no other purpose. Subtenant shall
promptly comply with all applicable statutes, ordinances, roles, regulations,
orders, restrictions of record, and requirements in effect during the term of
this Sublease governing, affecting and regulating the Premises, including but
not limited to the use thereof. Subtenant shall not use or permit the use of
the Premises in a manner that will create waste or a nuisance, interfere with
or disturb other tenants in the Building or violate the provisions of the
Master Lease.
9. PARKING. Subtenant shall have its proportionate share of such
parking rights as Broadvision may have in connection with the Premises
pursuant to the Master Lease.
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10. INCORPORATION OF SUBLEASE.
(a) All of the terms and provisions of the Master Lease, except as
provided in subsection (b) below, are incorporated into and made a part of
this Sublease and the rights and obligations of the parties under the Master
Lease are hereby imposed upon the parties hereto with respect to the
Premises, Broadvision being substituted for the "Lessor" in the Master Lease,
and Subtenant being substituted for the "Lessee" in the Master Lease. It is
further understood that where reference is made in the Master Lease to the
"Premises," the same shall mean the Premises as defined herein; where
reference is made to the "Commencement Date," the same shall mean the
Commencement Date as defined herein; and where reference is made to the
"Lease," the same shall mean this Sublease.
(b) The following Paragraphs of the Master Lease are not
incorporated herein: Lease Summary; Sections: 1, 2, 3.F., 3.Q., 3.T., 3.W.,
3.Y., 3.DD, 3.HH., 4, 5, 6, 7, 9, 10, 11.C, 12, the last paragraph of 13.A.,
14, 15.A, 15.C., 16, 17.A., 20, 21.C., 23, 24, 27, 28, the first sentence of
33, 34, 35, 36, and 40; and all Exhibits.
(c) Subtenant hereby assumes and agrees to perform for
Broadvision's benefit, during the term of this Sublease, all of Broadvision's
obligations with respect to the Premises under the Master Lease, except as
otherwise provided herein. Subtenant shall not commit or permit to be
committed any act or omission which violates any term or condition of the
Master Lease. Except as otherwise provided herein, this Sublease shall be
subject and subordinate to all of the terms of the Master Lease.
11. INSURANCE. Subtenant shall be responsible for compliance with the
insurance provisions of the Master Lease. Such insurance shall insure the
performance by Subtenant of its indemnification obligations hereunder and
shall name Master Landlord and Broadvision as additional insureds. All
insurance required under this Sublease shall contain an endorsement requiring
thirty (30) days written notice from the insurance company to Subtenant and
Broadvision before cancellation or change in the coverage, insureds or amount
of any policy. Subtenant shall provide Broadvision with certificates of
insurance evidencing such coverage prior to the commencement of this Sublease.
12. UTILITIES. The Rent payable pursuant to SECTION 4(a) hereunder is
inclusive of a commercially reasonable amount of utilities. If Broadvision
reasonably determines that Subtenant has used in excess of a commercially
reasonable amount, then Subtenant shall be liable for any costs incurred by
Broadvision and shall pay such costs upon demand therefore as additional Rent
hereunder.
13. DEFAULT. In addition to defaults contained in the Master Lease,
failure of Subtenant to make any payment of any sums when due hereunder,
shall constitute an event of default hereunder.
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14. NOTICES. The addresses specified in the Master Lease for receipt of
notices to each of the parties are deleted and replaced with the following:
TO BROADVISION AT: BROADVISION, INC.
585 Broadway
Redwood City, California 94063
Attn: Sharon Paul
WITH COPY TO: COOLEY GODWARD LLP
5 Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Attn: J. Derek Boswell
TO SUBTENANT AT: At the Premises
15. SIGNAGE. Signage shall be as mutually agreed upon between Master
Landlord, Broadvision and Subtenant. All signage shall be subject to the
Master Lease and all applicable laws, codes and ordinances and shall be
installed at the sole cost and expense of Subtenant.
16. ACCESS. Following no less that five (5) business days advance prior
notice (except in the case of emergency) Broadvision agrees to provide
Subtenant reasonable periodic access to the Master Premises for the
installation and repair of wiring to the Premises. Subtenant shall use its
best efforts during any such access not to interfere with Broadvision's use
of the Master Premises
17. BROADVISION'S OBLIGATIONS.
(a) To the extent that the provision of any services or the
performance of any maintenance or any other act respecting the Premises or
Building is the responsibility of Master Landlord (collectively "Master
Landlord Obligations"), upon Subtenant's request, Broadvision shall make
reasonable efforts to cause Master Landlord to perform such Master Landlord
Obligations, provided, however, that in no event shall Broadvision be liable
to Subtenant for any liability, loss or damage whatsoever in the event that
Master Landlord should fail to perform the same, nor shall Subtenant be
entitled to withhold the payment of Rent or terminate this Sublease. It is
expressly understood that the services and repairs which are incorporated
herein by reference, including but not limited to the maintenance of exterior
walls, structural portions of the roof, and foundations will in fact be
furnished by Master Landlord and not by Broadvision, except to the extent
otherwise provided in the Master Lease. In addition, Broadvision shall not be
liable for any maintenance, restoration (following casualty or destruction)
or repairs in or to the Building or Premises, other than its obligation
hereunder to use reasonable efforts to cause Master Landlord to perform its
obligations under the Master Lease.
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(b) Except as otherwise provided herein, Broadvision shall have no
other obligations to Subtenant with respect to the Premises or the
performance of the Master Landlord Obligations.
18. EARLY TERMINATION OF SUBLEASE. If, without the fault of
Broadvision, the Master Lease should terminate prior to the expiration of
this Sublease, Broadvision shall have no liability to Subtenant on account of
such termination. To the extent that the Master Lease grants Broadvision any
discretionary right to terminate the Master Lease, whether due to casualty,
condemnation, or otherwise, Broadvision shall be entitled to exercise or not
exercise such right in its complete and absolute discretion.
19. CONSENT OF MASTER LANDLORD AND BROADVISION. If Subtenant desires to
take any action which requires the consent or approval of the Master Landlord
pursuant to the terms of the Master Lease, prior to taking such action,
including, without limitation, making any alterations, then, notwithstanding
anything to the contrary herein, (a) Broadvision shall have the same rights
of approval or disapproval as Master Landlord has under the Master Lease, and
(b)Subtenant shall not take any such action until it obtains the consent of
Broadvision and Master Landlord, as may be required under this Sublease or
the Master Lease. This Sublease shall not be effective unless and until any
required written consent of the Master Landlord, respecting this Sublease and
the improvements contemplated by section 7 hereof, shall have been obtained.
20. BROKERS. Each party hereto represents and warrants that it has
dealt with no broker in connection with this Sublease and the transactions
contemplated herein, except Cornish & Carey Commercial/ONCOR International.
Each party shall indemnify, protect, defend and hold the other party harmless
from all costs and expenses (including reasonable attorneys' fees) arising
from or relating to a breach of the foregoing representation and warranty.
21. SURRENDER OF PREMISES. Upon the expiration or earlier termination
of this Sublease, Subtenant shall surrender the Premises (including all
improvements, furniture systems, general office furniture and anything
installed or made available pursuant to Section 7 hereof at the expense of
Broadvision) in good operating condition, except for ordinary wear and tear,
with all wiring in place and functioning properly.
22. NO THIRD PARTY RIGHTS. The benefit of the provisions of this
Sublease is expressly limited to Broadvision and Subtenant and their
respective permitted successors and assigns. Under no circumstances will any
third party be construed to have any rights as a third party beneficiary with
respect to any of said provisions.
23. COUNTERPARTS. This Sublease may be signed in two or more
counterparts, each of which shall be deemed an original and all of which
shall constitute one agreement.
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the
date first written above.
BROADVISION REALNAMES CORPORATION
By: /s/ By: /s/
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Its: CFO Its: Controller
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Date: 9/24/99 Date: 9/20/99
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By: By: /s/
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Its: Its: VP Human Resources
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Date: Date: 9/20/99
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LEASE
1. PARTIES.
THIS LEASE (the "LEASE"), dated as of January ______ , 1999, is
entered into by and between MARTIN/CAMPUS ASSOCIATES NO. 4, L.P., a Delaware
limited partnership ("LANDLORD"), whose address is 100 Bush Street, San
Francisco, California 94104, and BROADVISION, INC., a Delaware corporation
("TENANT"), whose address is 585 Broadway, Redwood City, California 94063.
2. PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those certain premises consisting of a total area of approximately
Fifty-Five Thousand Two Hundred Eighty-Two (55,282) square feet, which
comprises all of the Rentable Area (as defined below) of that certain
building commonly known as 405 Broadway (the "BUILDING"), in the City of
Redwood City, County of San Mateo, State of California, as more particularly
shown on EXHIBITS A-1 AND A-2 (the "PREMISES"). On or before the Commencement
Date, Landlord shall measure the Rentable Area of the Premises to the outside
of all exterior walls, and to the middle of the interior demising wall, that
form the boundaries of the Premises, and Landlord and Tenant shall amend this
Lease if necessary to reflect any discrepancy in the size of the Premises
disclosed by Landlord's measurement of the Premises by Landlord's architect.
The Premises also includes the appurtenant right to use in common with other
tenants of the Project (as defined below) the Common Area (as defined below)
of the Project owned by Landlord.
3. DEFINITIONS.
The following terms shall have the following meanings in this Lease:
A. AFFILIATE. Any Person that controls, or is controlled by or is
under common control with, Landlord or Tenant. No Person shall be deemed in
control of another simply by virtue of being a partner, director, officer or
holder of voting securities of any Person. For purposes of this PARAGRAPH
3.A, "control" shall mean the ownership of, and/or the right vote, stock,
partnership interests, membership interests, or
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other indicia of ownership possessing at least fifty-one percent (51%) of
either the total combined interests in a Person, or the voting power of all
classes of a Person's capital stock, partnership interests, membership
interests, or other indicia of ownership, that have been issued, outstanding,
and (if applicable) are entitled to vote.
B. ALTERATIONS. Any alterations, additions or improvements made
in, on or about the Premises after the substantial completion of the
Improvements, including, but not limited to, lighting, heating, ventilating,
air conditioning, electrical, partitioning, drapery and carpentry
installations.
C. BUILDING. The term "Building" shall have the meaning set forth
in PARAGRAPH 2.A above.
D. CAPITAL IMPROVEMENT. Those certain improvements to the
Building to be constructed by Landlord pursuant to PARAGRAPH 10.A and the
Work Letter Agreement attached to this Lease as EXHIBIT B (the "WORK
LETTER").
E. CC&RS. Any declaration of conditions, covenants and/or
restrictions, or similar instrument, that now encumbers, or may in the future
encumber the Project or the Premises, as adopted by Landlord or its
successors in interest from time to time, and any modifications or amendments
thereto.
F. COMMENCEMENT DATE. The Commencement Date of this Lease shall
be the first day of the Term determined in accordance with PARAGRAPH 4.A.
G. COMMON AREA. All areas and facilities within the Project not
appropriated to the exclusive occupancy of tenants, including the Parking
Area, the sidewalks, pedestrian ways, driveways, signs, pools, ponds, service
delivery facilities, common storage areas, common utility facilities and all
other areas in the Project established by Landlord and/or its successors for
non-exclusive use. Landlord may, by written notice to Tenant, elect in its
sole discretion to increase and/or decrease the Common Area from time to time
during the Term for any reason whatsoever (including without limitation an
election by Landlord and/or it's successors in their sole discretion to make
changes to the buildings situated in the Project, and/or to subdivide, sell,
exchange, dispose of, transfer, or change the configuration of all or any
portion of the Common Area from time
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to time), so long as Landlord neither unreasonably interferes with ingress to
or egress from the Building, nor reduces the number of parking spaces
available for Tenant's use below the minimum requirements set forth in
PARAGRAPH 37 for a period of sixty (60) consecutive days or more. No such
subdivision, sale, exchange, disposition, transfer, or change to the
configuration of all or any portion of the Common Area shall cause the Common
Area to be increased or decreased unless and until Landlord has given Tenant
written notice of such increase or decrease. However, Landlord shall make no
changes which have a material adverse effect upon Tenant's use and enjoyment
of the Premises or the accessibility of parking thereto.
H. COMMON AREA MAINTENANCE COSTS. The total of all costs and
expenses paid or incurred by Landlord in connection with the operation,
maintenance, ownership and repair of the Common Area, and the performance of
Landlord's obligations under PARAGRAPHS 17.A, and the exercise of Landlord's
rights under PARAGRAPH 17.D. Without limiting the generality of the
foregoing, Common Area Maintenance Costs include all costs of and expense
for: (i) maintenance and repairs of the Common Area; (ii) resurfacing,
resealing, remarking, painting, repainting, striping or restriping the
Parking Area; (iii) maintenance and repair of all public or common
facilities; (iv) maintenance, repair and replacement of sidewalks, curbs,
paving, walkways, Parking Area, Project signs, landscaping, planting and
irrigation systems, trash facilities, loading and delivery areas, lighting,
drainage and common utility facilities, directional or other signs, markers
and bumpers, and any fixtures, equipment and personal property located on the
Common Area; (v) wages, salaries, benefits, payroll burden fees and charges
of personnel employed by Landlord and the charges of all independent
contractors retained by Landlord (to the extent that such personnel and
contractors are utilized by Landlord) for the maintenance, repair, management
and/or supervision of the Project, and of any security personnel retained by
Landlord in connection with the operation and maintenance of the Common Area
(although Landlord shall not be required to obtain security services); (vi)
maintenance, repair and replacement of security systems and alarms installed
by Landlord (if any); (vii) depreciation or amortization (or in lieu thereof,
rental payments) on all tools, equipment and machinery used in the operation
and maintenance of the Common Area; (viii) premiums for Comprehensive General
Liability Insurance or Commercial General Liability Insurance, casualty
insurance, workers' compensation
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insurance or other insurance on the Common Area, or any portion thereof or
interest therein, and any deductibles payable with respect to such insurance
policies; (ix) all personal property or real property taxes and assessments
levied or assessed on the Project, or any portion thereof or interest
therein, including without limitation the Real Property Taxes for the
Project, if applicable under PARAGRAPH 15 A; (x) cleaning, collection,
storage and removal of trash, rubbish, dirt and debris, and sweeping and
cleaning the Common Area; (xi) legal, accounting and other professional
services for the Project, including costs, fees and expenses of contesting
the validity or applicability of any law, ordinance, rule, regulation or
order relating Co the Building, and of contesting, appealing or otherwise
attempting to reduce any Real Property Taxes assessed against the Project;
(xii) any alterations, additions or improvements required to be made to the
Common Area in order to reduce Common Area Maintenance Costs or to protect
the health or safety of occupants of the Project, but only to the extent of
any actual cost savings realized thereby (provided that if the cost of any
such alterations, additions or improvements during any year exceeds the
amount of cost savings realized thereby for that year, Landlord may in its
sole discretion elect to include such excess amounts in Common Area
Maintenance Costs for the following year, but only to the extent of any
actual cost savings realized during such year by reason of such alterations,
additions or improvements); (xiii) all costs and expenses of providing,
creating, maintaining, repairing, managing, operating, and supervising an
amenity center for the Project, which may include without limitation a dining
facility (provided, however, that Landlord shall not be required to provide
or create such an amenity center), which costs and expenses may include
without limitation rent charged by Landlord for the space occupied by such
amenity center; (xiv) all costs and expenses incurred by Landlord in
performing its obligations under PARAGRAPHS 17 A or exercising its rights
under PARAGRAPH 17 D, including without limitation all costs and expenses
incurred in performing any alterations, additions or improvements required to
be made to the Building in order to comply with applicable laws, ordinances,
rules, regulations and orders (to the extent that such laws, ordinances,
rules, regulations and orders are either enacted after, or become applicable
to the Building due to an amendment thereto that becomes effective after, the
Commencement Date) and all capital improvements required to made in
connection with the operation, maintenance and repair of the Building,
provided that the cost of any such alterations, additions, improvements or
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capital improvements, together with interest at the Interest Rate, shall be
amortized over the useful life of the alteration, addition, improvement or
capital improvement in question and included in Common Area Maintenance Costs
for each year over which such costs are amortized; (xv) all costs and
expenses incurred in performing any alterations, additions or improvements
required to be made to the Common Area in order to comply with applicable
laws, ordinances, rules, regulations and orders and all capital improvements
required to made in connection with the operation, maintenance and repair of
the Common Area, provided that the cost of any such alterations, additions,
improvements or capital improvements, together with interest at the Interest
Rate, shall be amortized over the useful life of the alteration, addition,
improvement or capital improvement in question and included in Common Area
Maintenance Costs for each year over which such costs are amortized; and
(xvi) any and all payments due and owing on behalf of the Project or any
portion thereof with respect to any CC&Rs, including without limitation any
and all assessments and association dues. However, notwithstanding the
foregoing or anything to the contrary in this Lease, Common Area Maintenance
Costs shall not include the cost of or expenses for the following. (A)
leasing commissions, attorneys' fees or other costs or expenses incurred in
connection with negotiations or disputes with other tenants of the Project;
(B) depreciation of buildings in the Project; (C) payments of principal,
interest, late fees, prepayment fees or other charges on any debt secured by
a mortgage covering the Project, or rental payments under any ground lease or
underlying lease; (D) any penalties incurred due to Landlord's violation of
any governmental rule or authority (but not excluding the cost of compliance
therewith, if such cost is chargeable to Tenant pursuant to this Lease); (E)
any Real Property Taxes or costs for which Landlord is separately and
directly reimbursed by Tenant or any other tenant of the Project which are
assessed against the Premises or the premises leased by such other tenant(s);
(F) items for which Landlord is reimbursed by insurance; (G) all costs
associated with the operation of the business of the entity which constitutes
"Landlord" (as distinguished from the costs of operations, the costs
described in clause (v) of this PARAGRAPH 3.H, and the property management
fee described in PARAGRAPH 5.C below), including, but not limited to, costs
of partnership accounting and legal matters, costs of defending any lawsuits
with any mortgagee (except as the actions of Tenant may be in issue), costs
of selling, syndicating, financing, mortgaging, or hypothecating any of the
Landlord's interest in the Project and/or Common Area, or any portion
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thereof, costs of any disputes between Landlord and its employees, costs of
disputes of Landlord with Building management or costs paid in connection
with disputes with Tenant or any other tenants; (H) all costs (including
permit, license and inspection fees) incurred in renovating or otherwise
improving or decorating, painting or redecorating space for other tenants in
the Project; (I) the creation of any reserves for equipment or capital
replacement (but not the expenditure of any funds from such reserves); (J)
all costs arising from monitoring, cleaning up and otherwise remediating any
release of Hazardous Materials at the Premises to the extent that either (1)
Landlord (who shall use reasonable efforts to obtain reimbursement) is
actually reimbursed by third parties for such costs (but not the costs of
collection incurred by Landlord, unless such costs of collection are also
reimbursed by third parties), or (2) such release of Hazardous Materials
occurred prior to the Commencement Date and did not arise from Tenant's early
occupancy of the Premises pursuant to PARAGRAPH 40 below; (K) all costs and
expenses incurred in performing any alterations, additions or improvements
required to be made to the Building in order to comply with applicable laws,
ordinances, rules, regulations and orders, to the extent that such laws,
ordinances, rules, regulations and orders are enacted before the Commencement
Date (unless any such law, ordinance, rule, regulation or order becomes
applicable to the Building due to an amendment that becomes effective after
the Commencement Date, in which event such costs and expenses shall be
includable in Common Area Maintenance Costs); and (L) all costs and expenses
incurred in removing asbestos-containing materials from, or encapsulating
asbestos-containing materials within, the Premises.
Notwithstanding anything to the contrary in the definition of Common
Area Maintenance Costs set forth in this Lease, Common Area Maintenance Costs
shall not include the following:
1. any depreciation on the Building and Project;
2. interest, principal, points and fees on debt or
amortization on any mortgages and deeds of trust or other debt instruments
secured by the Building or the Project or any underlying ground lease;
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3. costs of repairs and general maintenance paid from
insurance proceeds but excluding the amount of any deductibles paid by
Landlord;
4. repairs and replacements covered by warranties or
guaranties (to the extent actually collected by Landlord);
5. costs of special services rendered to individual tenants
(including Tenant) for which a special charge is made;
6. costs of improvements for other tenants in the Building
or Project;
7. costs of the Landlord for which a tenant is obligated to
reimburse Landlord, including, for example, taxes and property insurance
premiums on improvements for tenants of the Building and Project that are
above the building standard;
8. costs incurred by Landlord due to violations of any of
the terms and conditions of any lease in the Building: or Project (other than
this Lease);
9. Marketing costs including without limitation, leasing
commissions, attorneys' fees, space planning costs and other costs and
expenses incurred in connection with the leasing of the Building; and
10. Overhead and profit increment paid to Landlord and
Landlord's subsidiaries for goods and/or services in or to the Building or
Project to the extent the same exceeds the costs of such goods and/or
services rendered by unaffiliated third parties on a competitive basis.
I. EXISTING BUILDINGS. Those buildings currently situated within
the Project and commonly known as 405 Broadway, 425 Broadway, 475 Broadway,
555 Broadway, and 575-585 Broadway, provided, however, that if at any time
Landlord sells, exchanges, disposes of, or otherwise transfers its interest
in any such building, then effective upon the date of such sale, exchange,
disposition, or other transfer, the building shall cease to be an Existing
Building for the purposes of this Lease; and provided further, that if at any
time Landlord demolishes any Existing Building, neither the demolished
building nor any new building constructed on or about the location of the
demolished building
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(even if such new building uses the same address as the demolished building)
shall be considered to be an Existing Building for the purposes of this Lease.
J. EXISTING PROJECT SPACE. All Rentable Area located within the
Existing Buildings.
K. FINAL PLANS. As defined in the Work Letter.
L. HVAC. Heating, ventilating and air conditioning.
M. IMPOSITIONS. Taxes, assessments, charges, excises and levies,
business taxes, license, permit, inspection and other authorization fees,
transit development fees, assessments or charges for housing funds, service
payments in lieu of taxes and any other fees or charges of any kind at any
time levied, assessed, charged or imposed by any federal, state or local
entity, (i) upon, measured by or reasonably attributable to the cost or value
of Tenant's equipment, furniture, fixtures or other personal property located
in the Premises, or the cost or value of any Alterations; (ii) upon, or
measured by, any Rent payable hereunder, including any gross receipts tax;
(iii) upon, with respect to or by reason of the development, possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises, or any portion thereof; or (iv) upon
this Lease transaction, or any document to which Tenant is a party creating
or transferring any interest or estate in the Premises. Impositions do not
include franchise, transfer, inheritance or capital stock taxes, or income
taxes measured by the net income of Landlord from all sources, except to the
extent any such taxes are levied or assessed against Landlord as a substitute
for, in whole or in part, any item that would otherwise be deemed an
Imposition under this PARAGRAPH 3.M. Impositions also do not include any
increases in the taxes, assessments, charges, excises and levies assessed
against the Project due solely to the construction or installation of tenant
improvements or other alterations by tenants of the Project other than Tenant
and any other tenants or occupants of the Building; provided, however, that
if any Impositions are imposed or increased due to the construction or
installation of tenant improvements or other alterations in the Building,
such Impositions shall be equitably prorated in Landlord's reasonable
judgment between Tenant and any other tenants of the Building.
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N. IMPROVEMENTS. Collectively, the Tenant Improvements and the
Capital Improvements.
O. INTEREST RATE. Either (i) the greater of (a) eleven percent (11%)
per annum, or (b) the reference rate, or succeeding similar index, announced
from time to time by the Bank of America's main San Francisco office, plus two
percent (2%) per annum; or (ii) the maximum rate of interest permitted by law,
whichever is less.
P. LANDLORD'S AGENTS. Landlord's authorized agents, partners,
subsidiaries, directors, officers, and employees.
Q. MONTHLY RENT. The rent payable pursuant to PARAGRAPHS 4.D AND
5.A., as adjusted from time to time pursuant to the terms of this Lease.
R. PARKING AREA. All Common Area (except sidewalks and service
delivery facilities) now or hereafter designated by Landlord for the parking or
access of motor vehicles, including roads, traffic lanes, vehicular parking
spaces, landscaped areas and walkways, and including any parking structure
constructed during the Term. Landlord and/or its successors may, by written
notice to Tenant, elect in their sole discretion to increase and/or decrease the
Parking Area from time to time during the Term for any reason whatsoever
(including without limitation an election by Landlord and/or its successors in
their sole discretion to make changes to the buildings situated in the Project,
and/or to subdivide, sell, exchange, dispose of, transfer, or change the
configuration of all or any portion of the Parking Area from time to time), so
long as such changes to the Parking Area do not reduce the number of parking
spaces available for Tenant's use below the minimum requirements set forth in
PARAGRAPH 37 for a period of sixty (60) consecutive days or more. No such
subdivision, sale, exchange, disposition, transfer, or change to the
configuration of all or any portion of the Parking Area shall cause the Parking
Area to be increased or decreased unless and until Landlord has given Tenant
written notice of such increase or decrease.
S. PERSON. Any individual, partnership, firm, association,
corporation, limited liability company, trust, or other form of business or
legal entity.
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T. PREMISES The term "Premises" shall have the meaning set forth in
PARAGRAPH 2 above.
U. PROJECT. That certain real property shown on EXHIBIT C, upon
which are currently located the Building and four (4) other buildings, currently
consisting of a total building square footage of approximately Four Hundred
Eleven Thousand Three Hundred Five and 00/100 (411,305) square feet of Rentable
Area. Landlord and/or its successors may, by written notice to Tenant, elect in
their sole discretion to increase and/or decrease the number of buildings and/or
the amount of Rentable Area situated in the Project from time to time during the
Term for any reason whatsoever.
V. REAL PROPERTY TAXES. Taxes, assessments and charges now or
hereafter levied or assessed upon, or with respect to, the Project, or any
personal property of Landlord used in the operation thereof or located therein,
or Landlord's interest in the Project or such personal property, by any federal,
state or local entity, including: (i) all real property taxes and general and
special assessments; (ii) charges, fees or assessments for transit, housing, day
care, open space, art, police, fire or other governmental services or benefits
to the Project, including assessments, taxes, fees, levies and charges imposed
by governmental agencies for such purposes as street, sidewalk, road, utility
construction and maintenance, refuse removal and for other governmental
services; (iii) service payments in lieu of taxes; (iv) any tax, fee or excise
on the use or occupancy of any part of the Project, or on rent for space in the
Project; (v) any other tax, fee or excise, however described, that may be levied
or assessed as a substitute for, or as an addition to, in whole or in part, any
other Real Property Taxes; and (vi) reasonable consultants' and attorneys' fees
and expenses incurred in connection with proceedings to contest, determine or
reduce Real Property Taxes. Real Property Taxes do not include: (A) franchise,
transfer, inheritance or capital stock taxes, or income taxes measured by the
net income of Landlord from all sources, unless any such taxes are levied or
assessed against Landlord as a substitute for, in whole or in part, any Real
Property Tax; (B) Impositions and all similar amounts payable by tenants of the
Project under their leases; and (C) penalties, fines, interest or charges due
for late payment of Real Property Taxes by Landlord. If any Real Property Taxes
are payable, or may at the option of the taxpayer be paid, in installments, such
Real Property Taxes shall, together with any interest that would
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otherwise be payable with such installment, be deemed to have been paid in
installments, amortized over the maximum time period allowed by applicable law.
If the tax statement from a taxing authority does not allocate Real Property
Taxes to the Building, Landlord shall make the determination of the proper
allocation of such Real Property Taxes based, to the extent possible, upon
records of the taxing authority and, if not so available, then on an equitable
basis. Real Property Taxes also do not include any increases in the taxes,
assessments, charges, excises and levies assessed against the Project due solely
to the construction or installation of tenant improvements or other alterations
by tenants of the Project other than Tenant and any other tenants or occupants
of the Building; provided, however, that if any Real Property Taxes are imposed
or increased due to the construction or installation of tenant improvements or
other alterations in the Building, such Real Property Taxes shall be equitably
prorated in Landlord's reasonable judgment between Tenant and any other tenants
of the Building.
W. RENT. Monthly Rent plus the Additional Rent as defined in
PARAGRAPH 5.E.
X. RENTABLE AREA. The aggregate square footage in any one or more
buildings in the Project, as appropriate, as reasonably determined by Landlord's
architect from time to time.
Y. SECURITY DEPOSIT. That amount paid by Tenant pursuant to
PARAGRAPH 7.
Z. SUBLET. Any transfer, sublet, assignment, license or concession
agreement, change of ownership, mortgage, or hypothecation of this Lease or the
Tenant's interest in the Lease or in and to all or a portion of the Premises. As
used herein, a Sublet includes the following: (i) if Tenant is a partnership or
a limited liability company, a transfer, voluntary or involuntary, of all or any
part of any interest in such partnership or limited liability company, or the
dissolution of the partnership or limited liability company, whether voluntary
or involuntary; (ii) if Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the transfer, either by a
single transaction or in a series of transactions, of a controlling percentage
of the stock of Tenant (except that a Sublet shall not include any such transfer
of a controlling percentage of the stock of Tenant occurring at a time when the
stock of Tenant is publicly traded on a nationally
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recognized stock exchange or over the counter), or the sale, by a single
transaction of or series of transaction, within any one (1) year period, of
corporate assets equaling or exceeding twenty percent (20%) of the total value
of Tenant's assets (except in connection with an initial public offering of the
stock of Tenant on a nationally recognized stock exchange or over the counter);
(iii) if Tenant is a trust, the transfer, voluntarily or involuntarily, of all
or any part of the controlling interest in such trust; and (iv) if Tenant is any
other form of entity, a transfer, voluntary or involuntary, of all or any part
of any interest in such entity. As used herein, the phrases "controlling
percentage" and "controlling interest" means the ownership of, and/or the right
to vote, stock, partnership interests, membership interests, or other indicia of
ownership possessing at least fifty-one percent (51%) of either the total
combined interests in Tenant, or the voting power of all classes of Tenant's
capital stock, partnership interests, membership interests, or other indicia of
ownership, that have been issued, outstanding, and (if applicable) are entitled
to vote.
AA. SUBRENT. Any consideration of any kind received or to be
received, by Tenant from a subtenant if such sums are related to Tenant's
interest in this Lease or in the Premises.
BB. SUBTENANT. The person or entity with whom a Sublet agreement is
proposed to be or is made.
CC. TENANT DELAY. Any delay that Landlord may encounter in the
performance of Landlord's obligations under the Lease because of any act or
omission of any nature by Tenant or its agents or contractors, including without
limitation any (i) delay attributable to the postponement of any Improvements at
the request of Tenant; (ii) delay by Tenant in the submission of information or
the giving of authorizations or approvals within the time limits set forth in
the Lease or the Work Letter; (iii) delay attributable to the failure of Tenant
to pay, when due, any amounts required to be paid by Tenant pursuant to the
Lease or the Work Letter; and (iv) delay resulting from any change order request
initiated or requested by Tenant.
DD. TENANT IMPROVEMENTS. Those certain improvements to the Premises
to be constructed by Landlord pursuant to EXHIBIT B, other than the Capital
Improvements. The Tenant Improvements shall at all times be the property of
Landlord and shall not be deemed Tenant's Personal Property.
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EE. TENANT'S BUILDING SHARE. The ratio (expressed as a percentage) of
the total Rentable Area of the Premises to the total Rentable Area of the
Building as determined by Landlord from time to time, which as of the
Commencement Date shall equal one hundred percent (100%). Tenant's Building
Share shall be recalculated any time that the amount of Rentable Area contained
in Premises is adjusted, or there is a change in the total Rentable Area of the
Building.
FF. TENANT'S PERCENTAGE SHARE. The ratio (expressed as a percentage)
of the total Rentable Area of the Premises to the total Rentable Area of all of
the buildings at the Project owned by Landlord from time to time, which as of
the Commencement Date shall equal Thirteen and 44/100ths percent (13.44%) (i.e.,
the Rentable Area of the Premises divided by the Rentable Area of the buildings
at the Project owned by Landlord as of the date of this Lease). Tenant's
Percentage Share shall be recalculated any time that the amount of Rentable Area
contained in Premises is adjusted, or there is a change in the total Rentable
Area of those buildings in the Project owned by Landlord, or Landlord sells,
exchanges, or otherwise transfers any or all of the buildings situated in the
Project (including without limitation the Building). The parties acknowledge and
agree that the total Rentable Area of all of the buildings in the Project owned
by Landlord may increase and/or decrease from time to time during the Term,
since Landlord may elect in its sole discretion to sell a building or buildings
or to make changes to the buildings it owns in the Project.
GG. TENANT'S PERSONAL PROPERTY. Tenant's trade fixtures, furniture,
equipment and other personal property in the Premises.
HH. TERM. The Term of this Lease set forth in PARAGRAPH 4.A., as it
may be extended hereunder pursuant to any options to extend granted herein.
4. LEASE TERM.
A. TERM. The Term shall commence on the date that Landlord has
substantially completed the Improvements (the "COMMENCEMENT DATE"), and shall
terminate December 4, 2007. For the purposes of this Lease, Landlord shall be
deemed to have substantially completed the Improvements at such time as the
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building inspector and fire marshall or the City of Redwood City has granted
temporary occupancy of the Improvements.
B. DELAYS IN COMPLETION. Landlord shall diligently prosecute the
completion of the Improvements in accordance with the schedule attached to
EXHIBIT B-3. Tenant agrees that if Landlord, for any reason whatsoever, is
unable to substantially complete the Improvements on or before the Estimated
Commencement Date (as defined below), Landlord shall not be liable to Tenant
for any loss or damage therefrom, nor shall this Lease be void or voidable.
Landlord and Tenant estimate that the Commencement Date shall be August 26,
1999 (the "Estimated COMMENCEMENT DATE"). Upon the establishment of the
actual Commencement Date, Landlord and Tenant shall execute a Commencement
Date Memorandum in the form set forth in EXHIBIT D. No delay in Landlord's
completion of the Improvements caused by any Tenant Delay shall delay the
commencement of Monthly Rent or the commencement of the Term hereunder. In
the event of a delay caused by any Tenant Delay, Landlord shall set the
"Commencement Date" by written notice to Tenant as the date the Improvements
would have been substantially completed without such delay as reasonably
determined by Landlord. Landlord shall then subsequently deliver the Premises
to Tenant upon substantial completion as hereinabove defined. Such right of
Landlord to reset the Commencement Date shall not be determined if the delay
in Landlord's completion of the Improvements is due to any delay caused by
Landlord or by the City of Redwood City provided a Tenant has timely
submitted its plans in accordance with the schedule attached to EXHIBIT B-3
Tenant shall pay any and all costs and expenses incurred by Landlord which
result from any Tenant Delay, including, without limitation, any and all
costs and expenses attributable to increases in the cost of labor or
materials. Notwithstanding the foregoing, if Landlord is delayed in the
performance of the Improvements because of acts of any other party, actions
of the elements, acts of nature, war, riots, strikes, lockouts, labor
disputes, inability to procure or general shortage of labor or materials in
the normal channels of trade, or delay in governmental action or inaction
where action is required (collectively, "Force Majuere Delays") then the
Commencement Date shall be extended by the period of the delay, and the
period for Landlord's performance of the Improvements shall be extended for a
period equivalent, to the period of such delay. Notwithstanding anything to
the contrary contained herein, if (i) Landlord has not delivered the Premises
substantially completed to Tenet on or before the date that is sixty (60)
day's after the
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Estimated Commencement Date for any reason other than Tenant Delay or Force
Majeure Delays, or (ii) Landlord has not delivered the Premises substantially
completed to Tenant on or before the date that is ninety (90) days after the
Estimated Commencement Date for any reason, including but not limited to Force
Majeure Delays, then in either such event Tenant shall have the right thereafter
to cancel this Lease, and upon such cancellation, Landlord shall return all sums
theretofore deposited by Tenant with Landlord, and neither party shall have any
further liability to the other; provided, however, in the event of cancellation
pursuant to clause (ii) above, Landlord shall not be required to return to
Tenant the expended portion of the Set Aside Funds as defined in EXHIBIT B.
C. OPTION TO EXTEND.
(i) GRANT OF OPTION. Landlord hereby grants to Tenant one (1)
option ("OPTION TO EXTEND") to extend the Term of this Lease for an additional
term of five (5) years. The five-year option term (the "EXTENDED TERM") shall
commence upon the expiration of the initial Term. The Option to Extend is
expressly conditioned upon Tenant's not being in default under any term or
condition of this Lease after notice from Landlord and the expiration of any
applicable cure period granted by this Lease, either at the time the Option to
Extend is exercised or at the time the Extended Term would commence. The Option
to Extend shall be personal to the Tenant originally named in this Lease, and
shall not be assigned, sold, conveyed or otherwise transferred to any other
party, except to an Affiliate or a Permitted Transferee in accordance with
PARAGRAPH 25.G below (including without limitation any assignee or sublessee of
such Tenant) without the prior written consent of Landlord, which consent may be
Withheld in Landlord's sole discretion. The Option to Extend shall be
exercisable only so long as the Lease remains in full force and effect and shall
be an interest appurtenant to and not separable from Tenant's estate under the
Lease. Under no circumstances shall Landlord be required to pay any real estate
commission to any party with respect to Tenant's exercise of the Option to
Extend.
(ii) MANNER OF EXERCISE. Tenant may exercise the Option to
Extend only by giving Landlord written notice not less than one (1) year prior
to the expiration of the Term. If Tenant fails to exercise the Option to Extend,
then the Option to Extend
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automatically shall lapse and thereafter Tenant shall have no right to exercise
the Option to Extend.
(iii) TERMS AND RENT. The initial Monthly Rent for the
Premises for the Extended Term shall be equal to the greater of (x) one hundred
percent (100%) of the fair market rent, as determined below, for the Premises as
of the commencement of the Extended Term, or (x) an amount equal to the Monthly
Rent payable during the last year of the Term, multiplied by one hundred three
and one fourth percent (103.25%). All other terms and conditions of the Lease,
as amended from time to time by the parties in accordance with the provisions of
the Lease, shall remain in full force and effect and shall apply during the
Extended Term; provided, however, that neither the Option to Extend nor
Landlord's obligations under the Work Letter shall be of any force or effect
during the Extended Term.
(iv) DETERMINATION OF RENT. For the purposes of calculating the
Monthly Rent for the Extended Term, the fair market rent shall be equal to the
net effective rent per rentable square foot being charged for leases executed
within the preceding twelve (12) months for comparable space at either the
Project (if any), or if there are none, for comparable space in office and
research and development complexes located in the Redwood Shores area or the
Menlo Oaks Business Park (located in Menlo Park, California), with terms
comparable to the terms contained in this Lease, taking into consideration
relevant factors such as the presence or absence of tenant improvement
contributions by the lessor (but excluding the value of any tenant improvements
paid for by Tenant), and incorporating increases in the Rent during the Extended
Term, if appropriate. Any value added to the Premises by the Tenant Improvements
and any Alterations paid for by Tenant shall not be considered or included in
the determination of the fair market rent. The fair market rent shall be
determined by mutual agreement of the parties or, if the parties are unable to
agree within forty-five (45) days after Tenant's exercise of the Option to
Extend, then fair market rent shall be determined pursuant to the procedure set
forth in PARAGRAPHS 4.C. (v) and 4.C. (vi). The determination of the Monthly
Rent for the Extended Term for the Premises shall take into account the fact
that the Premises shall be leased in its shell condition with a tenant
improvement allowance of Ten and 00/100 Dollars ($10.00)per square foot.
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(v) LANDLORD'S INITIAL DETERMINATION. If the parties are
unable mutually to agree upon the fair market rent pursuant to PARAGRAPH 4.C.
(iv), then the fair market rent initially shall be determined by Landlord by
written notice ("LANDLORD'S NOTICE") given to Tenant promptly following the
expiration of the 45-day period set forth in PARAGRAPH 4.C. (iv). If Tenant
disputes the amount of fair market rent set forth in Landlord's Notice, then,
within thirty (30) days after the date of Landlord's Notice, Tenant shall send
Landlord a written notice ("TENANT'S NOTICE") which specifically (a) disputes
the fair market rent set forth in Landlord's Notice, (b) demands arbitration
pursuant to PARAGRAPH 4.C. (vi), and (c) states the name and address of the
person who shall act as arbitrator on Tenant's behalf. Tenant's Notice shall be
deemed defective, and not given to Landlord, if it fails to substantially comply
with the requirements or fails to strictly comply with the time period set forth
above. If Tenant does not send Tenant's Notice within thirty (30) days after the
date of Landlord's Notice, or if Tenant's Notice fails to contain all of the
required information, then Tenant shall be deemed to have rejected Landlord's
Notice. If Tenant is deemed to have rejected Landlord's Notice, and Landlord
thereafter gives Tenant a written notice ("LANDLORD'S SECOND NOTICE") demanding
that Tenant respond to Landlord's Notice, and Tenant does not send Tenant's
Notice within five (5) days of the date of Landlord's Second Notice, then the
Monthly Rent for the Extended Term shall equal one hundred percent (100%) of the
fair market rent specified in Landlord's Notice. If Tenant sends Tenant's Notice
in the proper form within thirty (30) days after the date of Landlord's Notice,
then the Monthly Rent for the Extended Term shall be determined by arbitration
pursuant to PARAGRAPH 4.C(vi) below. If the arbitration is not concluded prior
to the commencement of the Extended Term, then Tenant shall pay Monthly Rent
equal to one hundred twenty-five percent (125%) of the Monthly Rent payable
immediately prior to the commencement of the Extended Term. If the fair market
rent determined by arbitration differs from that paid by Tenant pending the
results of arbitration, then any adjustment required to adjust the amount
previously paid shall be made by payment by the appropriate party within ten
(10) days after the determination of fair market rent.
(vi) ARBITRATION. The arbitration shall be conducted in the
City of San Francisco in accordance with the then prevailing rules of the
American Arbitration Association (or its successor) for the arbitration of
commercial disputes, except
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that the procedures mandated by such rules shall be modified as follows:
(a) Each arbitrator must be a real estate appraiser with at
least five (5) years of full-time commercial appraisal experience who is
familiar with the fair market rent of office and research and development
complexes located in the vicinity of the Premises. Within ten (10) business days
after receipt of Tenant's Notice, Landlord shall notify Tenant of the name and
address of the person designated by Landlord to act as arbitrator on Landlord's
behalf.
(b) The two arbitrators chosen pursuant to PARAGRAPH 4.C.
(vi)(a) shall meet within ten (10) business days after the second arbitrator is
appointed and shall either agree upon the fair market rent or appoint a third
arbitrator possessing the qualifications set forth in PARAGRAPH 4.C. (vi)(a). If
the two arbitrators agree upon the fair market rent within such ten (10)
business day period, the Monthly Rent for the Extended Term shall equal one
hundred percent (100%) of such fair-market rent. If the two arbitrators are
unable to agree upon the fair market rent and are unable to agree upon the third
arbitrator within five (5) business days after the expiration of such ten (10)
business day period, the third arbitrator shall be selected by the parties
themselves. If the parties do not agree on the third arbitrator within five (5)
business days after the expiration of such five (5) business day period, then
either party, on behalf of both, may request appointment of the third arbitrator
by the Association of South Bay Brokers. The three arbitrators shall decide the
dispute, if it has not been previously resolved, by following the procedures set
forth in PARAGRAPH 4.C. (vi)(c). Each party shall pay the fees and expenses of
its respective arbitrator and both shall share the fees and expenses of the
third arbitrator. Each party shall pay its own attorneys' fees and costs of
witnesses.
(c) The three arbitrators shall determine the fair market rent
in accordance with the following procedures. Each of Landlord's arbitrator and
Tenant's arbitrator shall state, in writing, his or her determination of the
fair market rent, supported by the reasons therefor, and shall make counterpart
copies for the other arbitrators. All of the arbitrators shall arrange for a
simultaneous exchange of the proposed resolutions within ten (10) business days
after appointment of the third arbitrator. If any arbitrator fails to
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deliver his or her own determination to the other arbitrators within such ten
(10) business day period, then the fair market rent shall equal the average of
the resolutions submitted by the other arbitrators. If all three (3) arbitrators
deliver their determinations to the other arbitrators within such ten (10)
business day period, then the two (2) closest determinations of the arbitrators
shall be averaged, and the resulting quotient shall be the fair market rent, and
the Monthly Rent for the Extended Term shall equal one hundred percent (100%) of
such fair market rent; provided, however, that if the determination of one (1)
of the arbitrators (the "AVERAGE DETERMINATION") is equal to the average of the
determinations of the other two (2) arbitrators, then the Average Determination
shall be the fair market rent. However, the arbitrators shall not attempt to
reach a mutual agreement of the fair market rent; each arbitrator shall
independently arrive at his or her proposed resolution.
(d) The arbitrators shall have the right to consult experts
and competent authorities for factual information or evidence pertaining to a
determination of fair market rent, but any such consultation shall be made in
the presence of both parties with full right on their part to cross-examine. The
arbitrators shall render the decision and award in writing with counterpart
copies to each party. The arbitrators shall have no power to modify the
provisions of this Lease. In the event of a failure, refusal or inability of any
arbitrator to act, his or her successor shall be appointed by him or her, but in
the case of the third arbitrator, his or her successor shall be appointed in the
same manner as that set forth herein with respect to the appointment of the
original third arbitrator.
5. RENT AND ADDITIONAL CHARGES.
A. MONTHLY RENT. Tenant shall pay to Landlord, in lawful money of
the United States, Monthly Rent as follows. commencing on the Commencement Date,
and continuing throughout the balance of the Term (subject to adjustment
pursuant to PARAGRAPH 5.B), the Monthly Rent shall equal Two and 25/100ths
Dollars ($2.25) multiplied by the number of square feet of Rentable Area
situated within the Premises, as determined by Landlord under PARAGRAPH 2.
Monthly Rent shall be paid in advance, on the first day of each calendar month
during the Term, without abatement, deduction, claim, offset, prior notice or
demand. The sum of One
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[page missing]
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before the first day of each month during the ensuing calendar year, Tenant
shall pay to Landlord one-twelfth (1/12th) of such estimated amounts, provided
that if such notice is not given in December, Tenant shall continue to pay on
the basis of the prior year's estimate until the month after such notice is
given. If at any time or times it appears to Landlord, in its reasonable
judgment, that the amounts payable under this PARAGRAPH 5.D. (i) for the current
calendar year will vary from its then current estimate by more than five percent
(5%), Landlord may, in its sole discretion, by notice to Tenant, showing in
reasonable detail the basis for such variance, revise its estimate for such
year, in which case subsequent payments by Tenant for such year shall be based
upon such revised estimate. Landlord's election not to give the notice described
in the foregoing sentence shall not affect Landlord's ability to charge Tenant
for, nor Tenant's liability to pay for, any shortfall in the estimated payments
for such calendar year previously made by Tenant, as set forth in PARAGRAPH 5.D.
(ii).
(ii) ADJUSTMENT. Within one hundred twenty (120) days after
the close of each calendar year or as soon after such 120-day period as
reasonably practicable, Landlord shall deliver to Tenant a reasonably detailed
statement of Common Area Maintenance Costs for such calendar year, certified by
Landlord or its property manager, subject to Tenant's right to audit as
hereinafter provided. At that time, Landlord shall also deliver to Tenant a
statement, certified as correct by Landlord, of the adjustments to be made
pursuant to PARAGRAPH 5.D. (i) above. If Landlord's statement shows that Tenant
owes an amount that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall refund such excess to Tenant within
thirty (30) days after delivery of the statement. If such statement shows that
Tenant owes an amount that is more than the estimated payments for such calendar
year previously made by Tenant, Tenant shall pay the deficiency to Landlord
within thirty (30) days after delivery of the statement.
(iii) LAST YEAR. If this Lease shall terminate on a day other
than the last day of a calendar year, the adjustment in Rent applicable to the
calendar year in which such termination shall occur shall be prorated on the
basis which the number of days from the commencement of such calendar year to
and including such termination date bears to three hundred sixty (360). The
termination of this Lease shall not affect the
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obligations of Landlord and Tenant pursuant to PARAGRAPH 5.D. (ii) to be
performed after such termination.
(iv) AUDIT. Within one hundred eighty (180) days after receipt
of Landlord's statement of Common Area Maintenance Costs as provided in
PARAGRAPH 5.D. (ii), Tenant or its designee, on not less than five (5) days'
prior written notice to Landlord, shall have the right to, at Tenant's sole cost
and expense, audit, examine and copy Landlord's books and records with respect
to the Common Area Maintenance Costs for the year for which the Landlord's
statement pertains. If Tenant fails to give such written notice to Landlord
within such 180-day period, Tenant shall be deemed to have forever waived its
right to audit the Common Area Maintenance Costs for the year for which the
Landlord's statement pertains. Landlord shall cooperate with Tenant in any such
examination of its books and records. Tenant shall have the right to audit at
Landlord's local offices, at Tenant's expense, Landlord's accounts and records
relating to Common Area Maintenance Costs and Impositions. If such audit reveals
to the reasonable satisfaction of Landlord and Tenant that Landlord has
overcharged Tenant, the amount overcharged shall be paid to Tenant within thirty
(30) days after the audit: is concluded. If such audit reveals to the reasonable
satisfaction of Landlord and Tenant that Landlord has undercharged Tenant, the
amount undercharged shall be paid to Landlord within thirty (30) days after the
audit is concluded. In addition, if the audit reveals to the reasonable
satisfaction of Landlord and Tenant that Landlord's statement exceeds the actual
Common Area Maintenance Costs and Impositions which should have been charged to
Tenant by more than seven percent (7%), the cost of the audit shall be paid by
Landlord. If Tenant retains or utilizes a third party to perform such an audit
of the Common Area Maintenance Costs and Impositions, Tenant shall not
compensate such third party on anything other than an hourly basis.
E. ADDITIONAL RENT. All monies required to be paid by Tenant under
this Lease, including, without limitation, the Tenant Improvement costs pursuant
to EXHIBIT B, the management fee described in PARAGRAPH 5.D, Tenant's share of
Common Area Maintenance Costs pursuant to PARAGRAPH 5.D, Real Property Taxes and
Impositions pursuant to PARAGRAPH 15, and the monthly cost of insurance premiums
required pursuant to PARAGRAPH 21.C, shall be deemed Additional Rent.
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F. PRORATIONS. If the Commencement Date is not the first (1st) day
of a month, or if the termination date of this Lease is not the last day of a
month, a prorated installment of Monthly Rent based on a 30-day month shall be
paid for the fractional month during which such date occurs or the Lease
terminates.
G. INTEREST. Any amount of Rent or other charges provided for under
this Lease due and payable to Landlord which is not paid within five (5) days
after written notice from Landlord shall bear interest at the Interest Rate from
(i) the date such Rent is due until such Rent is paid, or (ii) the date that is
ten (10) days after Tenant receives written notice from Landlord that any other
charge provided for under this Lease (other than Rent) is due and payable, until
such other charge is paid.
6. LATE PAYMENT CHARGES.
Tenant acknowledges that late payment by Tenant to Landlord of Rent
and other charges provided for under this Lease will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult or impracticable to fix. Therefore, if any installment of
Rent or any other charge due from Tenant is not received by Landlord within five
(5) days after Landlord gives Tenant notice that such Rent or other charge is
due, Tenant shall pay to Landlord an additional sum equal to seven percent (7%)
of the amount overdue as a late charge for every month or portion thereof that
the Rent or other charges remain unpaid. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Landlord will incur
by reason of the late payment by Tenant.
INITIALS:
______________________________ ______________________________
Landlord Tenant
7. SECURITY DEPOSIT.
A. DEPOSIT REQUIRED. Tenant shall deposit with Landlord upon the
execution of this Lease by Landlord and Tenant, the sum of Four Hundred
Ninety-Seven Thousand Five Hundred
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Thirty-Eight and 00/100 Dollars ($497,538.00) (i.e., an amount equal to four (4)
installments of Monthly Rent) as the "SECURITY DEPOSIT" for the full and
faithful performance of every provision of this Lease to be performed by Tenant.
At Tenant's option, the Security Deposit may be in the form of an irrevocable
standby letter of credit ("L-C") Landlord shall not be required to segregate
the Security Deposit from Landlord's general funds; Landlord's obligations with
respect to the Security Deposit shall be those of a debtor and not a trustee,
and Tenant shall not be entitled to any interest on the Security Deposit.
Invocation by Landlord of its rights hereunder shall not constitute a waiver of
nor relieve Tenant from any liability or obligation for any default by Tenant
under this Lease.
(i) REDUCTION OR REPLACEMENT. So long as Tenant has not
committed any default under this Lease, which default is continuing after notice
from Landlord and the expiration of any applicable grace period provided for in
this Lease, (a) as of each of the second (2nd) anniversary of the Lease
Commencement Date and the fourth (4th) anniversary of the Lease Commencement
Date, Tenant may reduce the Security Deposit in the amount of One Hundred
Twenty-Four Thousand Three Hundred Eighty-Four and 50/100 Dollars ($124,384.50)
on each such anniversary date; or (b) if Tenant is profitable for a period of
eight (8) consecutive quarters commencing after the Commencement Date, then
Tenant may elect to reduce the Security Deposit to the sum equal to two (2)
installments of the initial Monthly Rent. For the purposes of this PARAGRAPH 7,
in order for Tenant to demonstrate that it has been profitable for the calendar
quarter in question, Tenant must at a minimum deliver to Landlord an audited
financial statement of Tenant, showing that Tenant has earned a net profit for
each calendar quarter in question. In no event shall Tenant be entitled to
reduce the Security Deposit below an amount equal to two (2) installments of the
initial Monthly Rent
If Tenant is entitled to and does elect to reduce the amount of the
Security Deposit pursuant to this PARAGRAPH 7.A. (i), and Tenant delivers to
Landlord written notice of its election to so reduce the amount of the Security
Deposit and the financial statements described in the foregoing paragraph, then
if the Security Deposit is in the form of cash, Landlord shall pay to Tenant the
excess amount of the Security Deposit, without interest, within thirty (30) days
after Landlord's receipt of such notice and statements; or if the Security
Deposit is in the form of an L-C, then Tenant may, not less than ten (10) days
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after Landlord's receipt of such notice and statement, replace the L-C with an
L-C in an amount equal to the reduced amount of the Security Deposit.
(ii) CONSEQUENCES OF DEFAULT. If Tenant defaults with
respect to any provision of this Lease, after notice from Landlord and the
expiration of any applicable cure or grace periods expressly provided for in
this Lease, Landlord may apply all or any part of the Security Deposit for
the payment of any Rent or other sum in default, the repair of such damage to
the Premises or the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default to the full extent permitted by law. If any portion of a
cash Security Deposit is so applied, or any portion of an L-C posted as the
Security Deposit, if applicable, is drawn upon, by Landlord for such
purposes, Tenant shall either, within ten (10) days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount or deposit a replacement L-C with
Landlord in the amount of the original L-C. The Security Deposit or any
balance thereof remaining after Landlord cures any default of Tenant
hereunder shall be returned to Tenant within thirty (30) days of termination
of the Lease.
(iii) FORM OF L-C. If at any time Tenant elects to deposit an
L-C as the Security Deposit, the L-C shall be issued by a bank reasonably
acceptable to Landlord, shall be issued for a term of at least twelve (12)
months and shall be in a form and with such content acceptable to Landlord in
its sole discretion. Tenant shall either replace the expiring L-C with an L-C
in an amount equal to the original L-C or renew the expiring L-C, in any
event no later than thirty (30) days prior to the expiration of the term of
the L-C then in effect. If Tenant fails to deposit a replacement L-C or renew
the expiring L-C, Landlord shall have the right to draw upon the expiring L-C
for the full amount thereof and hold the same as the Security Deposit;
provided, however, that if Tenant provides a replacement L-C that meets the
requirements of this PARAGRAPH 7,A, then Landlord shall return to Tenant
promptly in cash that amount of the L-C that had been drawn upon by Landlord.
Drawing upon the L-C shall be conditioned upon notice to Tenant of Landlord's
intention to draw upon the L-C and the presentation to the issuer of the L-C
of a certified statement executed by a general partner of Landlord
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that (i) Tenant is in default under the Lease, which default is continuing
after notice to Tenant and the expiration of any applicable grace period
provided for herein, and Landlord is exercising its right to draw upon so
much of the L-C as is necessary to cure Tenant's default, or (ii) Tenant has
not renewed or replaced an expiring L-C as required by this Lease and
Landlord is authorized to draw upon the L-C prior to its expiration. The L-C
shall not be mortgaged, assigned or encumbered in any manner whatsoever by
Tenant without the prior written consent of Landlord. The use, application or
retention of the L-C, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease or
by law, it being intended that Landlord shall not first be required to
proceed against the L-C, and such use, application or retention shall not
operate as a limitation on any recovery to which Landlord may otherwise be
entitled.
8. HOLDING OVER.
If Tenant remains in possession of all or any part of the Premises
after the expiration of the Term, with the express or implied consent of
Landlord, such tenancy shall be at sufferance only, and shall not constitute a
renewal or extension for any further term. If Tenant remains in possession after
the expiration of the Term, without Landlord's consent, Rent shall be payable at
a rental equal to one hundred fifty percent (150%) of the Monthly Rent payable
during the last month of the Term (which rental shall be due and payable at the
same time as Monthly Rent is due under this Lease), and any other sums due under
this Lease shall be payable in the amount and at the times specified in this
Lease. If Tenant remains in possession after the expiration of the Term with
Landlord's consent, Rent shall be payable at a rental equal to one hundred
percent (100%) of the Monthly Rent payable during the last month of the Term
(which rental shall be due and payable at the same time as Monthly Rent is due
under this Lease), and any other sums due under this Lease shall be payable in
the amount and at the times specified in this Lease. Any such holdover tenancy
(with or without Landlord's consent) shall be subject to every other term,
condition, and covenant contained herein; provided, however, that Landlord's
obligations under the Work Letter shall not be of any force or effect during any
such holdover tenancy.
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9. TENANT IMPROVEMENTS.
Landlord agrees to construct the Tenant Improvements pursuant to the
terms of EXHIBIT B.
10. CONDITION. OF PREMISES.
A. CAPITAL IMPROVEMENTS. Prior to the Commencement Date, Landlord
shall complete the Capital Improvements to the Premises in accordance with the
terms of EXHIBIT B. Except for its obligation to perform the Capital
Improvements and the Tenant Improvements as set forth in this Lease and the Work
Letter, Landlord shall have no obligation whatsoever to do any work or perform
any improvements whatsoever to any portion of the Premises or the Building.
B. ACCEPTANCE OF PREMISES. Within ten (10) days after completion
of the Tenant Improvements, Tenant shall conduct a walk-through inspection of
the Premises with Landlord and complete a punch list of items needing
additional work. Other than the items specified in the punch list, if any,
and latent defects in the Capital Improvements that could not have been
discovered by a reasonably thorough visual inspection of the Capital
Improvements, and subject to Landlord's representations and warranties
described below, by taking possession of the Premises, Tenant shall be deemed
to have accepted the Premises in good, clean and completed condition and
repair, subject to all applicable laws, codes and ordinances. Any damage to
the Premises caused by Tenant's move-in shall be repaired or corrected by
Tenant, at its sole cost and expense. Tenant acknowledges that neither
Landlord nor Landlord's Agents have made any representations or warranties as
to the suitability or fitness of the Premises for the conduct of Tenant's
business or for any other purpose, nor has Landlord or Landlord's Agents
agreed to undertake any Alterations or construct any Improvements to the
Premises except as expressly provided in this Lease. If Tenant fails to
submit a punch list to Landlord within such 10-day period, it shall be deemed
that there are no Improvement items needing additional work or repair.
Landlord's contractor shall complete all reasonable punch-list items within
thirty (30) days after the walk-through inspection; provided, however, that
if such punch-list items cannot reasonably be completed within the 30-day
period, Landlord's contractor shall commence such performance within the
30-day period and diligently thereafter prosecute the same to completion.
Upon completion of such
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punch-list items, Tenant shall approve such completed items in writing to
Landlord. If Tenant fails to approve such items within fourteen (14) days of
completion, such items shall be deemed approved by Tenant.
C. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents and
warrants (the "Condition Warranties") to Tenant that as of the Commencement
Date the following portions of the Building shall be in good condition (i.e.
in an operable (but not new) state of repair, free of defects that would
adversely affect Tenant's operation of its business in the Premises). (i) the
HVAC system serving the Premises, (ii) the roof of the Building, (iii) the
main electrical supply to a main distribution point in the Building, (iv) the
working sanitary sewer lines to the Building, and (v) water service to the
Building. The Condition Warranties shall terminate on a date one hundred
eighty (180) days after the Commencement Date, except to the extent that
Tenant has delivered to Landlord within such 180-day period a written notice
specifying in detail any defaults by Landlord under the Condition Warranties
(a "Violation Notice"), and Landlord shall thereafter have absolutely no
liability to Tenant for the inaccuracy of any Condition Warranty, except to
the extent set forth in a Violation Notice. Landlord's liability for the
correction of any defects described in a Violation Notice shall be subject to
Landlord's reasonable right to dispute the claims set forth in any Violation
Notice. Landlord's sole liability with respect to any breach of any Condition
Warranty that is properly set forth in a timely delivered Violation Notice
shall be to promptly correct such defect; Landlord shall have no liability
for any other loss, cost, damage, expense or lost profit in connection with
such breach, and Tenant shall have no right to any abatement or offset of
Rent in connection with such breach.
D. LANDLORD'S ADDITIONAL REPRESENTATION AND WARRANTY. Landlord
represents and warrants (the "Environmental Warranty") to Tenant that to the
best of Landlord's knowledge, as of the Commencement Date, no
asbestos-containing materials (other than asbestos-containing materials that
are fully encapsulated or that are within the transite panels of the curtain
wall of the Building) shall be present in the Premises. Landlord's sole
liability with respect to any breach of the Environmental Warranty shall be
to promptly correct such defect; Landlord shall have no liability for any
other loss, cost, damage, expense or lose profit in connection with such
breach, and Tenant shall have
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no right to any abatement or offset of Rent in connection with such breach.
11. USE OF THE PREMISES AND COMMON AREA.
A. TENANT'S USE. Tenant shall use the Premises only for general
office, administration, research and development, manufacturing, warehousing
and any other legal use related to such activities and consistent with any
CC&Rs. Tenant shall not use the Premises or suffer or permit anything to be
done in or about the Premises which will in any way conflict with any law,
statute, zoning restriction, ordinance or governmental law, rule, regulation
or requirement of public authorities now in force or which may hereafter be
in force, relating to or affecting the condition, use or occupancy of the
Premises. Tenant shall not commit any public or private nuisance or any other
act or thing which might or would disturb the quiet enjoyment of any other
tenant of Landlord or any occupant of nearby property. Tenant shall place no
loads upon the floors, walls or ceilings in excess of the maximum designed
load determined by a licensed structural engineer or which endanger the
structure; nor place any harmful liquids in the drainage systems; nor dump or
store waste materials or refuse or allow waste materials or refuse to remain
outside the Building proper, except in the enclosed trash areas provided.
Tenant shall not store or permit to be stored or otherwise placed any other
material of any nature whatsoever outside the Building, except on a temporary
basis.
B. HAZARDOUS MATERIALS.
(i) HAZARDOUS MATERIALS DEFINED. As used herein, the term
"HAZARDOUS MATERIALS" shall mean any wastes, materials or substances (whether
in the form of liquids, solids or gases, and whether or not air-borne), which
are or are deemed to be (a) pollutants or contaminants, or which are or are
deemed to be hazardous, toxic, ignitable, reactive, corrosive, dangerous,
harmful or injurious, or which present a risk to public health or to the
environment, or which are or may become regulated by or under the authority
of any applicable local, state or federal laws, judgments, ordinances,
orders, rules, regulations, codes or other governmental restrictions,
guidelines or requirements, any amendments or successor(s) thereto,
replacements thereof or publications promulgated pursuant thereto, including,
without limitation, any such items or substances which are or may become
regulated by any of the Environmental Laws (as hereinafter
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defined); (b) listed as a chemical known to the State of California to cause
cancer or reproductive toxicity pursuant to Section 25249.8 of the California
Health and Safety Code, Division 20, Chapter 6.6 (Safe Drinking Water and
Toxic Enforcement Act of 1986); or (c) a pesticide, petroleum, including
crude oil or any fraction thereof, asbestos or any asbestos-containing
material, a polychlorinated biphenyl, radioactive material, or urea
formaldehyde.
(ii) ENVIRONMENTAL LAWS DEFINED. In addition to the laws
referred to in PARAGRAPH 11.B. (i) above, the term "ENVIRONMENTAL LAWS" shall
be deemed to include, without limitation, 33 U.S.C. Section 1251 ET SEQ., 42
U.S.C. Section 6901 ET SEQ., 42 U.S.C. Section 7401 ET SEQ., 42 U.S.C.
Section 9601 ET SEQ., and California Health and Safety Code Section 25100 ET
SEQ., and 25300 ET SEQ., California Water Code, Section 13020 ET SEQ., or any
successor(s) thereto, all local, state and federal laws, judgments,
ordinances, orders, rules, regulations, codes and other governmental
restrictions, guidelines and requirements, any amendments and successors
thereto, replacements thereof and publications promulgated pursuant thereto,
which deal with or otherwise in any manner relate to, air or water quality,
air emissions, soil or ground conditions or other environmental matters of
any kind.
(iii) USE OF HAZARDOUS MATERIALS. Tenant agrees that during
the Term of this Lease, Tenant shall not use, or permit the use of, nor
store, generate, treat, manufacture or dispose of Hazardous Materials on,
from or under the Premises (individually and collectively, "HAZARDOUS USE")
except to the extent that, and in accordance with such conditions as,
Landlord may have previously approved in writing in its sole and absolute
discretion. Notwithstanding the foregoing, Tenant shall be entitled to use
and store only those Hazardous Materials which are (a) set forth in a list
prepared by Tenant and approved in writing by Landlord, which shall be deemed
given with respect to the Approved Hazardous Materials (hereinafter defined),
(b) necessary for Tenant's business, but then only in the amounts and for the
purposes previously disclosed in writing to and approved in writing by
Landlord, and (c) in full compliance with Environmental Laws, and all
judicial and administrative decisions pertaining thereto. All Hazardous
Materials approved in writing by Landlord as provided in the preceding
sentence shall collectively be referred to as the "APPROVED HAZARDOUS
MATERIALS". Within thirty (30) days after request by Landlord,
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Tenant shall deliver to Landlord a list of the Approved Hazardous Materials.
Tenant shall nor. be entitled to install any tanks under, on or about the
Premises for the storage of Hazardous Materials without the express written
consent of Landlord, which may be given or withheld in Landlord's sole
discretion. For the purposes of this PARAGRAPH 11.B. (iii), the term
Hazardous Use shall include Hazardous Use(s) on, from or under the Premises
by Tenant, any Subtenant occupying all or any portion of the Premises during
the Term, or any of their directors, officers, employees, shareholders,
partners, invitees, agents, contractors or occupants (collectively, "Tenant's
Parties"), whether known or unknown to Tenant, occurring during the Term of
this Lease. The term "TENANT'S PARTIES" shall not include any tenants of the
Project other than Tenant, except that the term "TENANT'S PARTIES" shall
include any Subtenant occupying all or any portion of the Premises during the
Term. Notwithstanding anything herein to the contrary, Tenant may use normal
amounts of cleaning supplies and office products customarily used by office
tenants without Landlord's prior consent thereto.
(iv) HAZARDOUS MATERIALS REPORT; WHEN REQUIRED. Tenant shall
submit to Landlord a written report with respect to Hazardous Materials
("REPORT") in the form prescribed in PARAGRAPH 11.B. (v) below on the
following dates:
(a) At any time within ten (10) days after written
request by Landlord, and
(b) At any time when there has been a violation of any
Environmental Law, or in connection with any proposed request for Landlord's
consent to any change in the list of Approved Hazardous Materials or for an
increase in the intensity of usage or storage of such Approved Hazardous
Materials.
(v) HAZARDOUS MATERIALS REPORT; CONTENTS. The Report shall
contain, without limitation, the following information:
(a) Whether on the date of the Report and (if
applicable) during the period since the last Report there has been any
Hazardous Use on, from or under the Premises, other than the use of Approved
Hazardous Materials.
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(b) If there was. such Hazardous Use, the exact identity
of the Hazardous Materials (other than the Approved Hazardous Materials), the
dates upon which such materials were brought upon the Premises, the dates
upon which such Hazardous Materials were removed therefrom, and the quantity,
location, use and purpose thereof.
(c) If there was such Hazardous Use, any governmental
permits maintained by Tenant with respect to such Hazardous Materials, the
issuing agency, original date of issue, renewal dates (if any) and expiration
date. Copies of any such permits and applications therefor shall be attached.
(d) If there was such Hazardous Use, any governmental
reporting or inspection requirements with respect to such Hazardous
Materials, the governmental agency to which reports are made and/or which
conducts inspections, and the dates of all such reports and/or inspections
(if applicable) since the last Report. Copies of any such Reports shall be
attached.
(e) If there was such Hazardous Use, identification of
any operation or business plan prepared for any government agency with
respect to Hazardous Use.
(f) Any liability insurance carried by Tenant with
respect to Hazardous Materials, if any, the insurer, policy number, date of
issue, coverage amounts, and date of expiration. Copies of any such policies
or certificates of coverage shall be attached.
(g) Any notices of violation of Environmental Laws,
written or oral, received by Tenant from any governmental agency since the
last Report, the date, name of agency, and description of violation. Copies
of any such written notices shall be attached.
(h) Any knowledge, information or communication which
Tenant has acquired or received relating to (x) any enforcement, cleanup,
removal or other governmental or regulatory action threatened or commenced
against Tenant or with respect to the Premises pursuant to any Environmental
Laws; (y) any claim made or threatened by any person or entity against Tenant
or the Premises on account of any alleged loss or injury claimed to result
from any alleged Hazardous Use on or about the Premises; or (z) any report,
notice or complaint made to or filed
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with any governmental agency concerning any Hazardous Use on or about the
Premises. The Report shall be accompanied by copies of any such claim,
report, complaint, notice, warning or other communication that is in the
possession of or is available to Tenant.
(i) Such other pertinent information or documents as are
reasonably requested by Landlord in writing.
(vi) RELEASE OF HAZARDOUS MATERIALS; NOTIFICATION AND CLEANUP.
(a) At any time during the Term, if Tenant knows or
believes that any release of any Hazardous Materials has come or will come to
be located upon, about or beneath the Premises, then Tenant shall
immediately, either prior to the release or following the discovery thereof
by Tenant, give verbal and follow-up written notice of that condition to
Landlord.
(b) At its sole cost and expense, Tenant covenants to
investigate, clean up and otherwise remediate any release of Hazardous
Materials which were caused or created by Tenant or any of Tenant's Parties.
Such investigation, clean-up and remediation shall be performed only after
Tenant has obtained, if practicable, Landlord's written consent, which shall
not be unreasonably withheld; provided, however, that Tenant shall be
entitled to respond immediately to an emergency without first obtaining
Landlord's written consent. All clean-up and remediation shall be done in
compliance with Environmental Laws and to the reasonable satisfaction of
Landlord; provided, however, that Landlord shall not require Tenant to
perform any clean-up or remediation work in excess of that work required to
return the property affected by such release of Hazardous Materials to the
condition it was in prior to the date of such release.
(c) Notwithstanding the foregoing, Landlord shall have
the right, but not the obligation, in Landlord's sole and absolute
discretion, exercisable by written notice to Tenant, to undertake within or
outside the Premises all or any portion of any reasonable investigation,
clean-up or remediation with respect to any Hazardous Use of such Hazardous
Materials by Tenant or any of Tenant's Parties (or, once having undertaken
any of such work, to cease same, in which case Tenant shall perform the
work), all at Tenant's sole cost and expense, which shall be
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paid by Tenant as Additional Rent within ten (10) days after receipt of
written request therefor by Landlord (and which Landlord may require to be
paid prior to commencement of any work by Landlord; provided, however, that
Tenant's obligation to pay for such work shall only be applicable if Tenant
fails to perform its obligations under this PARAGRAPH 11 (including without
limitation the obligations described in PARAGRAPH 11.B. (vi)(b)). No such
work by Landlord shall create any liability on the part of Landlord to Tenant
or any other party in connection with such Hazardous Materials by Tenant or
any of Tenant's Parties or constitute an admission by Landlord of any
responsibility with respect to such Hazardous Materials.
(d) It is the express intention of the parties hereto
that Tenant shall be liable under this PARAGRAPH 11.B, (vi) for any and all
conditions covered hereby which were or are caused or created by Tenant or
any of Tenant's Parties, whether occurring (x) on or after the Commencement
Date, or (y) prior to the Commencement Date (to the extent that such
condition or conditions occurring prior to the Commencement Date arise from
Tenant's early occupancy of the Premises pursuant to PARAGRAPH 40 below).
Tenant shall not enter into any settlement agreement, consent decree or other
compromise with respect to any claims relating to any Hazardous Materials in
any way connected to the Premises without first (A) notifying Landlord of
Tenant's intention to do so and affording Landlord the opportunity to
participate in any such proceedings, and (B) obtaining Landlord's written
consent, which shall not be unreasonably withheld.
(vii) INSPECTION AND TESTING BY LANDLORD. Landlord shall have
the right at all times during the Term of this Lease to (a) inspect the
Premises, as well as such of Tenant's books and records pertaining to the
Premises and the conduct of Tenant's business therein, and to (b) conduct
tests and investigations to determine whether Tenant is in compliance with
the provisions of this PARAGRAPH 11.B. Except in case of emergency, Landlord
shall give reasonable notice to Tenant before conducting any inspections,
tests, or investigations in accordance with PARAGRAPH 19, shall provide
Tenant with a work plan describing any testing that shall be performed at the
Premises, and shall use reasonable efforts to minimize interference with the
conduct of Tenant's business at the Premises caused by any such inspections,
tests, or investigations. The cost of all such inspections, tests and
investigations shall be borne by Tenant if Landlord reasonably
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concludes on the basis of such investigation that Tenant has failed to comply
with its obligations under this PARAGRAPH 11.B. Neither any action nor
inaction on the part of Landlord pursuant to this PARAGRAPH 11.B. (vii) shall
be deemed in any way to release Tenant from, or in any way modify or alter,
Tenant's responsibilities, obligations, and liabilities incurred pursuant to
PARAGRAPH 11.B hereof.
(viii) INDEMNITY. Tenant shall indemnify, defend, protect,
hold harmless, and, at Landlord's option (with such attorneys as Landlord may
approve in advance and in writing), defend Landlord, Landlord's Agents, and
Landlord's officers, directors, shareholders, partners, employees,
contractors, property managers, agents and mortgagees and other lien holders,
from and against any and all Losses (as defined below), whenever such Losses
arise, arising from or related to:(a) any violation or alleged violation by
Tenant or any of Tenant's Parties of any of the requirements, ordinances,
statutes, regulations or other laws referred to in this PARAGRAPH 11.B,
including, without limitation, the Environmental Laws, whether such violation
or alleged violation occurred prior to (but only to the extent that such
violation or alleged violation arises from Tenant's early occupancy of the
Premises pursuant to PARAGRAPH 40 below), on, or after the Commencement Date,
(b) any breach of the provisions of this PARAGRAPH 11.B by Tenant or any of
Tenant's Parties, or (c) any Hazardous Use on, about or from the Premises by
Tenant or any of Tenant's Parties of any Hazardous Materials (whether or not
approved by Landlord under this Lease), whether such Hazardous Use occurred
prior to, on, or after the Commencement Date. The term "LOSSES" shall mean
all claims, demands, expenses, actions, judgments, damages (whether
consequential, direct or indirect, known or unknown, foreseen or unforeseen),
penalties, fines, liabilities, losses of every kind and nature (including,
without limitation, property damage, diminution in value of Landlord's
interest in the Premises, damages for the loss of restriction on use of any
space or amenity within the Premises, damages arising from any adverse impact
on marketing space in the Premises, sums paid in settlement of claims and any
costs and expenses associated with injury, illness or death to or of any
person), suits, administrative proceedings, costs and fees, including, but
not limited to, reasonable attorneys' and consultants' fees and expenses, and
the costs of cleanup, remediation, removal and restoration, that are in any
way related to any matter covered by the foregoing indemnity.
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(ix) SURVIVAL. The provisions of this PARAGRAPH 11.B shall
survive the expiration or earlier termination of this Lease.
C. SPECIAL PROVISIONS RELATING TO THE AMERICANS WITH DISABILITIES
ACT OF 1990.
(i) ALLOCATION OF RESPONSIBILITY TO LANDLORD. As between
Landlord and Tenant, Landlord shall be responsible for assuring that the
Common Area owned by Landlord and the exterior of the Building comply with
the requirements of Title III of the Americans with Disabilities Act of 1990
(42 U.S.C. 12181, et seq., The Provisions Governing Public Accommodations and
Services Operated by Private Entities), and all regulations promulgated
thereunder, and all amendments, revisions or modifications thereto now or
hereafter adopted or in effect in connection therewith (hereinafter
collectively referred to as the "ADA"), and to take such actions and make
such alterations and improvements as are necessary for such compliance;
provided, however, that to the extent such requirements arise from the
construction of any Alterations to the Premises made by or on behalf of
Tenant, then as between Landlord and Tenant, Tenant shall be responsible that
the Common Area complies with the requirements of the ADA, and to take such
actions and make such alterations and improvements as are necessary for such
compliance.
(ii) ALLOCATION OF RESPONSIBILITY TO TENANT. Except as
expressly provided in the Work Letter, as between Landlord and Tenant,
Tenant, at its sole cost and expense, shall be responsible for assuring that
the Premises (and all modifications made by Tenant of access to the Premises
from the street), and all alterations and improvements in the Premises
(including without limitation the Tenant Improvements), and Tenant's use and
occupancy of the Premises, and Tenant's performance of its obligations under
this Lease, comply with the requirements of the ADA, and to take such actions
and make such alterations and improvements as are necessary for such
compliance; provided, however, that Tenant shall not make any such
alterations or improvements except upon Landlord's prior written consent
(which shall not be unreasonably withheld) pursuant to the terms and
conditions of this Lease. If Tenant fails diligently to take such actions or
make such alterations or improvements as are necessary for such compliance,
Landlord may, but shall not be obligated to, take such actions and make such
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alterations and improvements and may recover all of the costs and expenses of
such actions, alterations and improvements from Tenant as Additional Rent.
Tenant shall be entitled to utilize the Tenant Improvements Allowance to pay
for the cost of any improvements required by ADA that are triggered by the
construction of the Tenant Improvements.
(iii) GENERAL. Notwithstanding anything in this Lease
contained to the contrary, no act or omission of either party, including any
approval, consent or acceptance by it or its agents, employees or other
representatives, shall be deemed an agreement, acknowledgment, warranty, or
other representation by it that the other party has complied with the ADA as
provided under PARAGRAPHS 11.C. (i) or 11.C. (ii) or that any action,
alteration or improvement by it complies or will comply with the ADA as
provided under PARAGRAPHS 11.C. (i) or 11.C. (ii) or constitutes a waiver by
it of the other party's obligations to comply with the ADA under PARAGRAPHS
11.C. (i) or 11.C. (ii) of this Lease or otherwise. Any failure of either
party to comply with its obligations of the ADA under PARAGRAPHS 11.C, (i) or
11.C. (ii) shall not relieve such party from any obligations under this Lease
or in the case of Landlord's failure to comply under PARAGRAPH 11.C. (i),
constitute or be construed as a constructive or other eviction of Tenant or
disturbance of Tenant's use and possession of the Premises.
D. USE AND MAINTENANCE OF COMMON AREA. Tenant and its employees
and invitees shall have the non-exclusive right to use the Common Area in
common with other persons during the Term of this Lease, subject to the CC&Rs
and such reasonable rules and regulations as may from time to time be deemed
necessary or advisable in Landlord's reasonable discretion for the proper and
efficient operation and maintenance of the Common Area. Such rules and
regulations may include, among other things, the hours during which the
Common Area shall be open for use. Landlord shall maintain and operate the
Common Area from time to time owned by Landlord in good condition, provided
that any damage thereto, other than normal wear and tear, occasioned by the
negligence of Tenant or its employees or invitees shall be paid by Tenant
upon demand by Landlord.
12. QUIET ENJOYMENT.
Landlord covenants that Tenant, upon performing the terms,
conditions and covenants of this Lease, shall have quiet
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and peaceful possession of the Premises as against any person claiming the
same by, through or Under Landlord.
13. ALTERATIONS.
A. ALTERATION RIGHTS. After the Commencement Date, Tenant shall not
make or permit any Alterations in, on or about the Premises, without the
prior written consent of Landlord, and according to plans and specifications
approved in writing by Landlord, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing Tenant shall not, without the prior
written consent of Landlord, make any.
(i) Alterations to the exterior of the Building;
(ii) Alterations to the roof of the Building; and
(iii) Alterations visible from outside the Building, to which
Landlord may withhold Landlord's consent on wholly aesthetic grounds.
Notwithstanding anything to the contrary herein, Tenant may make alterations
to the Premises without Landlord's prior consent (but with notice to
Landlord) provided the same do not cost in excess of Twenty-Five Thousand
Dollars ($25,000) in each instance (and that Tenant has not performed
alterations to the Premises during any period of twelve (12) consecutive
months that in the aggregate cost in excess of Seventy-Five Thousand Dollars
($75,000)), are not structural in nature, do not affect Building systems or
the exterior of or the roof of the Building, and are not visible from the
outside of the Building.
B. PERFORMANCE OF ALTERATIONS. All Alterations shall be installed at
Tenant's sole expense, in compliance with all applicable laws, by a licensed
contractor, shall be done in a good and workmanlike manner conforming in
quality and design with the Premises existing as of the Commencement Date,
and shall not diminish the value of either the Building or the Premises. All
Alterations made by Tenant shall be and become the property of Landlord upon
installation and shall not be deemed Tenant's Personal Property, and Tenant
shall not remove any Alterations from the Premises unless Tenant has first
obtained Landlord's written consent to such removal. Landlord may require
Tenant to remove, at Tenant's expense, any Alterations from the Premises au
the expiration or earlier termination of this Lease; provided,
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however, that at the time any Alterations are constructed, Tenant shall have
the right to request Landlord's written approval (which shall not be
unreasonably withheld or delayed) that Landlord will not require the removal
of such Alterations at the expiration or earlier termination of this Lease.
Notwithstanding any other provision of this Lease, Tenant shall be solely
responsible for the maintenance and repair of any and all Alterations made by
it to the Premises. Tenant shall give Landlord written notice of Tenant's
intention to perform work on the Premises at least ten (10) days prior to the
commencement of such work to enable Landlord to post and record a Notice of
Nonresponsibility or other notice deemed proper before the commencement of
any such work. Notwithstanding anything to the contrary contained herein,
Tenant shall not be required to remove (i) any of the initial Tenant
Improvements constructed by or on behalf of Tenant, and (ii) any alterations,
additions or improvements for which Tenant has obtained Landlord's consent,
but only if at the time Tenant requested Landlord's consent thereto, Tenant
gave Landlord a written request that Landlord identify in writing which, if
any, of Tenant's alterations, additions or improvements must in Landlord's
sole discretion be removed upon the expiration of the Term, and Landlord did
not notify Tenant within twenty (20) days after Landlord's receipt of such
notice that such alterations, additions or improvements must be removed upon
the expiration of the Term.
14. SURRENDER OF THE PREMISES.
Upon the expiration or earlier termination of the Term, Tenant
shall surrender the Premises to Landlord in its condition existing as of the
date of substantial completion of the Improvements, normal wear and tear and
fire or other casualty excepted, with all interior walls repaired if damaged,
all broken, marred or nonconforming acoustical ceiling tiles replaced, all
windows washed, the plumbing and electrical systems and lighting in good
order and repair, including replacement of any burned out or broken light
bulbs or ballasts, the HVAC equipment serviced and repaired by a reputable
and licensed service firm, and all floors cleaned, all to the reasonable
satisfaction of Landlord. Tenant shall remove from the Premises all of
Tenant's Alterations required to be removed pursuant to PARAGRAPH 13, and all
of Tenant's Personal Property, and repair any damage and perform any
restoration work caused by such removal. If Tenant fails to remove such
Alterations and Tenant's Personal Property, and such failure continues after
the
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expiration or earlier termination of this Lease, Landlord may, to the extent
permitted by law, retain such Alterations and Tenant's Property and all
rights of Tenant with respect to it shall cease, or Landlord may place all or
any portion of such Alterations and Tenant's Property in public storage for
Tenant's account. Tenant shall be liable to Landlord for costs of removal of
any such Alterations and Tenant's Personal Property and storage and
transportation costs of same, and the cost of repairing and restoring the
Premises, together with interest at the Interest Rate from the date of
expenditure by Landlord. If the Premises are not so surrendered at the
expiration or earlier termination of this Lease, Tenant shall indemnify
Landlord and Landlord's Agents against all loss or liability, including
reasonable attorneys' fees and costs, resulting from delay by Tenant in so
surrendering the Premises.
Normal wear and tear, for the purposes of this Lease, shall be
construed to mean wear and tear caused to the Premises by a natural aging
process which occurs in spite of prudent application of good standards for
maintenance, repair and janitorial practices. It is not intended, nor shall
it be construed, to include items of neglected or deferred maintenance which
would have or should have been attended to during the Term of the Lease if
good standards had been applied to properly maintain and keep the Premises at
all times in good condition and repair.
15. IMPOSITIONS AND REAL PROPERTY TAXES.
A. PAYMENT BY TENANT. Tenant shall pay all Impositions prior to
delinquency. If billed directly, Tenant shall pay such Impositions and
concurrently present to Landlord satisfactory evidence of such payments. If
any Impositions are billed to Landlord or included in bills to Landlord for
Real Property Taxes, then Tenant shall pay to Landlord all such amounts not
less than five (5) days prior to the date such Imposition would be
delinquent. If applicable law prohibits Tenant from reimbursing Landlord for
an Imposition, but Landlord may lawfully increased the Monthly Rent to
account for Landlord's payment of such Imposition, the Monthly Rent payable
to Landlord shall be increased so that the amount of such increased Monthly
Rent, together with any accompanying increases in the Real Property Taxes
payable by Tenant with respect to such Imposition, are sufficient to net to
Landlord the same return without reimbursement of such Imposition as would
have been received by
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Landlord with reimbursement of such Imposition. In addition, on or before April
10 and December 10 of each year of the Term, Tenant shall pay directly to the
San Mateo County assessor the Real Property Taxes for the Premises as set forth
on the assessor's tax bill for the Premises. If, however, the Premises are not a
separate parcel for tax purposes but constitute a portion of a larger tax parcel
or parcels, the Real Property Taxes payable by Tenant under this Lease shall be
a percentage of the Real Property Taxes payable for such parcel or parcels,
which percentage shall be determined by dividing the Rentable Area of the
Premises by the total Rentable Area of all buildings on such parcel or parcels
and multiplying the result by 100, which Real Property Taxes shall be payable by
Tenant to Landlord monthly as part of the Common Area Maintenance Costs. Tenant,
at its cost, shall have the right at any time to seek a reduction in or
otherwise contest any Real Property Taxes for which it is obligated to reimburse
Landlord pursuant to this PARAGRAPH 15, by action or proceeding against the
entity with authority to assess or impose the same. Landlord shall not be
required to join in any proceeding or action brought by Tenant unless the
provisions of applicable regulations require that such proceeding or action be
brought by or in the name of Landlord, in which event Landlord shall join in
such proceeding or action or permit it to be brought in Landlord's name,
provided that Tenant shall protect, indemnify, defend, and hold Landlord free
and harmless from and against any and all loss, liability, cost, damage, claim
or expense in connection with such proceeding or contest. Tenant shall continue,
during the pendency of such proceeding or action, to pay the Real Property Taxes
due as determined by landlord pursuant to this PARAGRAPH 15. If Tenant is
successful in such action or proceeding, Landlord shall reimburse to Tenant its
prorata share of the reduction in Real Property Taxes realized by Tenant in such
Contest or proceeding within ten (10) days after the amount of such reduction
has been determined.
(i) TAX PARCELS. If Landlord determines in its reasonable
discretion that the configuration of tax parcels within the Project (including
without limitation the tax parcel on which the Premises is situated) causes the
allocation of Real Property Taxes between the affected tax parcels to be unfair
or inequitable, Landlord reserves the right to internally reallocate the Real
Property Taxes assessed against such affected tax parcels in a manner that
reasonably addresses such unfairness or inequity. If Landlord effects any such
reallocation, then the
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Real Property Taxes payable by Tenant under this Lease shall be those Real
Property Taxes allocated to the Premises pursuant to this PARAGRAPH 15 A. (i).
(ii) PAYMENT. Promptly following payment of the Real Property
Taxes, Tenant shall provide Landlord with copies of paid receipts or other
documentary evidence that the Real Property Taxes have been paid by Tenant. If
Tenant fails to pay the Real Property Taxes on or before April 10 and December
10, respectively, or if Tenant fails to pay its share of Real Property Taxes as
part of the Common Area Maintenance Costs, Tenant shall pay to Landlord any
penalty incurred by such late payment. In addition, Tenant shall pay any Real
Property Tax not included within the county tax assessor's tax bill within ten
(10) days after being billed for same by Landlord. The foregoing dates are based
on the dates established by the county as the dates on which Real Property Taxes
become delinquent if not paid. If such delinquency dates change, the dates on
which Tenant must pay the Real Property Taxes for the Premises shall be at least
ten (10) days prior to the new delinquency dates. Assessments, taxes, fees,
levies and charges may be imposed by governmental agencies for such purposes as
fire protection, street, sidewalk, road, utility construction and maintenance,
refuse removal and for other governmental services which may formerly have been
provided without charge to property owners or occupants. It is the intention of
the parties that all new and increased assessments, taxes, fees, levies and
charges are to be included within the definition of Real Property Taxes for the
purposes of this Lease.
B. TAXES ON TENANT IMPROVEMENTS AND PERSONAL PROPERTY. Tenant shall
pay any increase in Real Property Taxes resulting from any and all Alterations
and Tenant Improvements of any kind whatsoever placed in, on or about the
Premises for the benefit of, at the request of, or by Tenant. Tenant shall pay
prior to delinquency all taxes assessed or levied against Tenant's Personal
Property in, on or about the Premises or elsewhere. When possible, Tenant shall
cause its Personal Property to be assessed and billed separately from the
Premises and the real property or Personal Property of Landlord.
C. PRORATION. Tenant's liability to pay Real Property Taxes shall be
prorated on the basis of a 360-day year to account for any fractional portion of
a fiscal tax year included at the commencement or expiration of the Term. With
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respect to any assessments which may be levied against or upon the Premises or
all or any portion of the Project, or which under the laws then in force may be
evidenced by improvements or other bonds or may be paid in annual installments,
only the amount of such annual installment (with appropriate proration for any
partial year) and interest due thereon shall be included within the computation
of the annual Real Property Taxes levied against the Premises or such portion of
the Project, as applicable.
16. UTILITIES AND SERVICES.
Tenant shall be responsible for and shall pay promptly all charges for
water, gas, electricity, telephone, refuse pick-up, janitorial service and all
other utilities, materials and services furnished directly to or used by Tenant
in, on or about the Premises during the Term, together with any taxes thereon.
If any utility, material or service is not separately charged or metered to any
portion of the Premises, Tenant shall pay to Landlord, within ten (10) days
after written demand therefor, Tenant's pro rata share of the total cost thereof
as may be determined by Landlord. Landlord shall not be liable in damages or
otherwise for any failure or interruption of any utility service or other
service furnished to the Premises, except that resulting from the gross
negligence or willful misconduct of Landlord. Tenant shall have the right to
contract directly with vendors for janitorial and maintenance services, provided
such vendors must be approved in advance by Landlord, which approval shall not
be unreasonably withheld; and provided further, that Tenant shall have no right
to contract with any vendor to maintain the Building's HVAC system, which shall
be the sole responsibility of Landlord as set forth in PARAGRAPH 17.A.
17. REPAIR AND MAINTENANCE.
A. LANDLORD'S OBLIGATIONS. Landlord shall keep in good order,
condition and repair the structural parts of the Building, which structural
parts consist only of the foundation, subflooring, exterior walls (excluding the
interior of all walls and the exterior and interior of all windows, doors,
ceilings, and plate glass), and roof of the Building, and all plumbing and
electrical facilities leading up to (but not situated within) the Building,
except for any damage thereto caused by the negligence or willful acts or
omissions of Tenant or of Tenant's agents, employees or invitees, or by reason
of the failure of Tenant to perform or comply with any terms of this Lease, or
caused by
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Alterations made by Tenant or by Tenant's agents, employees or contractors. It
is an express condition precedent to all obligations of Landlord to repair and
maintain that Tenant shall have notified Landlord of the need for such repairs
or maintenance. Tenant waives the provisions of Sections 1941 and 1942 of the
California Civil Code and any similar or successor law regarding Tenant's right
to make repairs and deduct the expenses of such repairs from the Rent due under
this Lease. Landlord shall keep in good order, condition, repair and maintenance
the Building's HVAC system and roof, and shall maintain an HVAC system
preventive maintenance service contract from a qualified vendor at a competitive
price for the purpose of maintaining the Building's HVAC system, and a roof
maintenance service contract from a qualified vendor for the purpose Of
maintaining the Building's roof. Landlord shall determine in its sole discretion
whether any such vender is qualified. Any and all costs of any maintenance or
repair of the HVAC system or the roof (including without limitation the cost of
maintaining HVAC system preventative maintenance contracts and roof maintenance
service contracts) shall be included in the Common Area Maintenance Costs
payable by Tenant for the year in which such cost is incurred. Landlord may
elect, in its sole discretion, to paint the exterior of the Building and/or to
replace or perform capital improvements to any area or aspect of the Building
which Landlord is required keep in good order, condition and repair. Subject to
the provisions of PARAGRAPH 17.A(i) below, if Landlord decides, in its sole
discretion, to replace the roof of the Building or make other capital
improvements or replacements to the Building or its systems during the Term,
then the cost of so replacing the roof or performing such replacement, together
with interest at the Interest Rate, shall be amortized on a straight-line basis
over the useful life of the roof or capital improvement or replacement (as
determined by Landlord in its sole discretion) (the "USEFUL LIFE"), and the
entire amount of such amortized costs and interest allocable to each month,
multiplied by Tenant's Building Share, shall be included in the monthly Common
Area Maintenance Costs payable by Tenant during the entire period over which
such costs are amortized, until Tenant has paid to Landlord that proportion of
the total amount of such amortized costs equal to (a) the number of months
remaining during the Term as of the date such roof replacement was completed,
divided by (b) the number of months of the Useful Life, multiplied by (c)
Tenant's Building Share. For. the purposes of example only and not by way of
limitation, if the Building's roof is replaced twenty-four (24) months before
the end of the Term, at a cost of
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Fifty Thousand Dollars ($50,000.00), and the Useful Life is one hundred twenty
(120) months, then (a) the cost of such replacement shall be amortized at the
rate of Four Hundred Sixteen and 67/100ths Dollars ($416.67) per month, with
interest at the Interest Rate, and (b) the amount to be included in the monthly
Common Area Maintenance Costs payable solely by Tenant for the balance of the
Term shall equal Two Hundred Ninety-One and 67/100ths Dollars ($291.67), with
interest at the Interest Rate, until Tenant has paid to Landlord a total
aggregate amount of Seven Thousand Dollars ($7,000.00), together with interest
at the Interest Rate, towards such amortized costs (i.e., Fifty Thousand Dollars
($50,000.00) multiplied by [Twenty-Four (24) months divided by One Hundred
Twenty (120) months]) multiplied by Tenant's Building Share. If Tenant exercises
the Option to Extend, the total length of the Term (i.e., the initial Term and
the Extended Term) shall be utilized to calculate the maximum amount of such
amortized costs that shall be includable in the monthly Common Area Maintenance
Costs payable solely by Tenant pursuant to this PARAGRAPH 17.A.
It is the express intent of the parties that except as specifically
set forth in this PARAGRAPH 17.A, Landlord shall have no obligation whatsoever
to repair or maintain the Premises or the Building, and that Tenant shall be
responsible for performing all repair, operation, and maintenance of the
Premises except for those tasks specifically described in this PARAGRAPH 17.A.
If Tenant gives Landlord written notice ("DEFECT NOTICE") that there is a defect
or other problem with the Capital Improvements that may be covered by a warranty
issued by Contractor (as defined in EXHIBIT B) or any subcontractor that
performed any of the Capital Improvements, Landlord shall (i) assign to Tenant
the benefit of those warranties (if any) held by Landlord that are applicable to
the defects described in the Defect Notice, (ii) at no cost or expense to
Landlord, take such actions as may be reasonably requested by Tenant to assist
Tenant's efforts to enforce any such warranties.
It is also, the express intent of the parties that if Landlord for any
reason fails to complete all of the Capital Improvements before the Commencement
Date, Landlord shall complete the construction of the Capital Improvements at
its sole cost and expense, and shall have no right to include the cost of
completing the Capital Improvements in Common Area Maintenance Costs or
otherwise seek reimbursement from Tenant for the cost of completing the Capital
Improvements.
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(i) The parties acknowledge and agree that as part of the Capital
Improvements, Landlord will install a new roof on the Building, that the roof
will be covered by one or more warranties (collectively, the "Roof Warranties"),
and that the roof has an estimated useful life of ten (10) years.
Notwithstanding anything to the contrary set forth above in this PARAGRAPH 17.A,
if Landlord elects to replace the roof of the Building within ten (10) years
from the date such roof was originally installed, and the cost of so replacing
the roof exceeds any amounts covered or paid for under the Roof Warranties, then
(i) the amount of any such excess shall be collectively called the "Excess Roof
Replacement Costs"; (ii) the cost of the initial roof installation (as
reasonably determined by Landlord) shall be amortized on a straight-line basis,t
over the ten (10) year useful life of such roof, determined as of the date the
roof replacement commences, and the unamortized portion of such costs shall
hereafter be called the "Unamortized Roof Costs"; and (iii) only those Excess
Roof Replacement Costs that exceed the Unamortized Roof Costs (if any) shall be
includable in Common Area Maintenance Costs in the manner set forth above in
this PARAGRAPH 17.A.
B. TENANT'S OBLIGATIONS. Tenant shall at all times and at its sole
cost and expense clean, keep and maintain in good order, condition and repair
(and replace, if necessary) every part of the Premises which is not within
Landlord's obligation pursuant to PARAGRAPH 17.A. Tenant's repair and
maintenance obligations shall include without limitation all plumbing and
electrical facilities situated within the Premises, fixtures, interior walls and
ceiling, floors, windows, window frames, doors, entrances, plate glass,
showcases, skylights, all lighting fixtures, lamps, fans and any exhaust
equipment and systems, all mechanical systems (but not the HVAC system), any
automatic fire extinguisher equipment within the Premises, all security systems
and alarms, all electrical motors and all other appliances and equipment of
every kind and nature located in, upon or about the Premises. Tenant shall also
be responsible for all pest control within the Premises.
C. CONDITIONS APPLICABLE TO REPAIRS. All repairs, replacements and
reconstruction made by or on behalf of Tenant or any person claiming through or
under Tenant shall be made and performed (i) at Tenant's sole cost and expense,
in a good and workmanlike manner and at such time and in such manner as Landlord
may reasonably designate, (ii) by contractors approved
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in advance by Landlord, (iii) so that the repairs, replacements or
reconstruction shall be at least equal in quality, value and utility to the
original work or installation, (iv) in accordance with such reasonable
requirements as Landlord may impose with respect to insurance and bonds to be
obtained by Tenant in connection with the proposed work (provided that Tenant
shall not be required to post a bond if the total cost of any such repair,
replacement or reconstruction work is equal to or less than Twenty-Five Thousand
Dollars ($25,000.00)), and (v) in accordance with any rules and regulations for
the Building as may be. adopted by Landlord from time to time and in accordance
with all applicable laws and regulations of governmental authorities having
jurisdiction over the Premises.
D. LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's
obligations under PARAGRAPH 17.B, Landlord may in its sole discretion give
Tenant notice of such work as is reasonably required to fulfill such
obligations. If Tenant fails to commence the work within thirty (30) days after
receipt of such notice and diligently prosecute the work to completion, then
Landlord shall have the right (but not the obligation) to do such acts or expend
such funds at the expense of Tenant as are reasonably required to perform such
work. Any amount so expended by Landlord shall be paid by Tenant to Landlord
promptly after demand with interest at the Interest Rate. Landlord shall have no
liability to Tenant for any damage to, or interference with Tenant's use of, the
Premises, or inconvenience to Tenant as a result of performing any such work.
E. COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Tenant shall, at its
sole cost and expense, comply with, including the making by Tenant of any
Alteration to the Premises, all present and future regulations, rules, laws,
ordinances, and requirements of all governmental authorities (including, without
limitation state, municipal, county and federal governments and their
departments, bureaus, boards and officials) applicable to the Premises.
Notwithstanding the foregoing or anything to the contrary contained in this
Lease, Tenant shall not be responsible for compliance with any regulations,
rules, laws, ordinances, or requirements of all governmental authorities where
such compliance is not related specifically to Tenant's use and occupancy of the
Premises. For example, if any governmental authority should require the Building
or the Premises to be structurally strengthened against earthquake, or should
require the removal of asbestos from the Premises and such measures are
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imposed as a general requirement applicable to all tenants rather than as a
condition to Tenant's specific use or occupancy of the Premises, such work shall
be performed by and at the sole cost of Landlord, subject to contribution by
Tenant to the extent included in Common Area Maintenance Costs.
18. LIENS.
Tenant shall keep the Building and the Premises free from any liens
arising out of any work performed, materials furnished, or obligations incurred
by or on behalf of Tenant, and free from any liens arising out of any effort by
Tenant to reduce or contest Impositions, or Tenant's exercise of its rights
under Paragraph 39 below, and Tenant hereby agrees to indemnify, defend, protect
and hold Landlord and Landlord's Agents harmless from and against any and all
loss, claim, damage, liability, cost and expense, including attorneys' fees and
costs, in connection with or arising out of any such lien or claim of lien.
Tenant shall cause any such lien imposed to be released of record by payment or
posting of a proper bond acceptable to Landlord within ten (10) days after
written request by Landlord. Tenant shall give Landlord written notice of
Tenant's intention to perform work on the Premises which might result in any
claim of lien at least ten (10) days prior to the commencement of such work to
enable Landlord to post and record a Notice of Nonresponsibility or any such
other notice(s) as Landlord may deem appropriate. If Tenant fails to so remove
any such lien within the prescribed ten 10-day period, then Landlord may do so
at Tenant's expense and Tenant shall reimburse Landlord for such amounts upon
demand. Such reimbursement shall include all costs incurred by Landlord
including Landlord's reasonable attorneys' fees with interest thereon at the
Interest Rate.
19. LANDLORD'S RIGHT TO ENTER THE PREMISES.
Tenant shall permit Landlord and Landlord's Agents to enter the
Premises at all reasonable times with reasonable notice, except for emergencies
in which case no notice shall be required, to inspect the same, to post Notices
of Nonresponsibility and similar notices, and real estate "For Sale" signs, to
show the Premises to interested parties such as prospective lenders and
purchasers, to make necessary repairs, to discharge Landlord's obligations under
this Lease, to discharge Tenant's obligations under this Lease when Tenant has
failed to do so within a reasonable time after written notice from
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Landlord, and to place upon the Building ordinary "For Lease" signs and to show
the Premises to prospective tenants (provided that so long as Tenant is not in
default under any term or condition of this Lease after notice from Landlord and
the expiration of any applicable cure period granted by this Lease, Landlord
shall only be permitted to show the Premises to prospective tenants during the
last twelve (12) months of the Term).
20. SIGNS.
Subject to Tenant obtaining all necessary approvals from the City of
Redwood City and subject to Landlord's review and approval of plans and
specifications for any proposed signage, which approval may be withheld only in
Landlord's commercially reasonable judgment, Tenant shall have the exclusive
right to install identification signage with its name and logo near the north
entry on the exterior of the Building in the location depicted on EXHIBIT B-1 so
long as such signage complies with Landlord's project sign program. Tenant shall
have no right to maintain any Tenant identification sign in any other location
in, on or about the Building or the Premises and shall not display or erect any
other Tenant identification sign, display or other advertising material that is
visible from the exterior of the Building. Any changes to the size, design,
color or other physical aspects of Tenant's identification sign(s) shall be
subject to the Landlord's prior written approval, which shall not be
unreasonably withheld, and any appropriate municipal or other governmental
approvals. The cost of Tenant's sign(s) and their installation, maintenance and
removal shall be Tenant's sole cost and expense. If Tenant fails to maintain its
sign(s), or, if Tenant fails to remove its sign(s) upon termination of this
Lease, Landlord may do so at Tenant's expense and the amounts expended by
Landlord in doing so shall be immediately payable by Tenant to Landlord as
Additional Rent.
21. INSURANCE.
A. Indemnification. Tenant shall indemnify, defend,
protect and hold Landlord harmless of and from any and all loss, liens,
liability, claims, causes of action, damage, injury, cost or expense arising out
of or in connection with, or related to (i) the negligent making of Alterations,
or (ii) injury to or death of persons or damage to property occurring or
resulting directly or indirectly from: (A) the use or occupancy of, or the
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conduct of business in, the Premises; (B) any other occurrence or condition in
or on the Premises; and (C) acts or omissions of Tenant, its officers,
directors, agents, employees, invitees or licensees in or about any portion of
the Project. Tenant's indemnity obligation includes reasonable attorneys' fees
and costs, investigation costs and all other reasonable costs and expenses
incurred by Landlord. If Landlord reasonably disapproves the legal counsel
proposed by Tenant for the defense of any claim indemnified against hereunder,
Landlord shall have the right to appoint its own legal counsel, the reasonable
fees, costs and expenses of which shall be included as part of Tenant's
indemnify obligation hereunder. The indemnification contained in this PARAGRAPH
21.A shall extend to the officers, directors, shareholders, partners, employees,
agents and representatives of Landlord. The obligations assumed by Tenant herein
shall survive this Lease. Notwithstanding the foregoing, Landlord shall have the
right, in its sole discretion, but without being required to do so, to defend,
adjust, settle or compromise any claim, obligation, debt, demand, suit or
judgment against Landlord arising out of or in connection with the matters
covered by the foregoing indemnity and, in such event, Tenant shall reimburse
Landlord for all reasonable charges and expenses incurred by Landlord in
connection therewith, including reasonable attorneys' fees; provided, however,
that Landlord shall not undertake any unilateral action or settlement so long as
Tenant or an insurance company, at its or their sole expense, is contesting in
good faith, diligently and with continuity such claim, action, obligation,
demand or suit, and so long as such claim, action, obligation, demand or suit
does not have or threaten to have a material adverse impact on Landlord's
assets, reputation or business affairs.
Notwithstanding anything to the contrary in this PARAGRAPH 21.A:
(i) Tenant shall not be required to indemnify, defend or hold
Landlord harmless from or against loss, liens, liability, claims, causes of
action, damage, injury, cost or expense to the extent arising out of: (a) the
breach by Landlord or Landlord's Agents of any covenant, representation or
warranty under this Lease, or (b) any negligence or willful misconduct of
Landlord or Landlord's Agents.
(ii) Landlord shall indemnify, defend, protect and hold Tenant
harmless of and from any and all loss, liens,
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liability, claims, causes of action, damage, injury, cost or expense arising out
of or in connection with, or related to the acts or omissions of Landlord or
Landlord's Agents, except to the extent arising out of: (a) the breach by Tenant
or Tenant's officers, directors, agents, employees, invitees, licensees or
contractors of any covenant, representation or warranty under this Lease, or (b)
any negligence or willful misconduct of Tenant or Tenant's officers, directors,
agents, employees, invitees, licensees or contractors. Landlord's
indemnification shall extend to the officers, directors, shareholders, partners,
employees, agents and representatives of Tenant.
B. TENANT'S INSURANCE. Tenant agrees to maintain in full force and
effect at all times during the Term, at its sole cost and expense, for the
protection of Tenant and Landlord, as their interests may appear, policies of
insurance issued by a responsible carrier or carriers acceptable to Landlord
which afford the following coverages.
(i) Commercial general liability insurance in an amount not
less than Three Million Dollars ($3,000,000) combined single limit for both
bodily injury and property damage, with a limit of not less than One Million
Dollars ($1,000,000) per occurrence and not less than Two Million Dollars
($2,000,000) in excess liability coverage, which includes blanket contractual
liability broad form property damage, personal injury, completed operations, and
products liability, which policy shall name Landlord and Landlord's Agents as
additional insureds and shall contain a provision that "the insurance provided
Landlord hereunder shall be primary and non-contributing with any other
insurance available to Landlord with respect to any damage, loss, liability or
expense covered by Tenant's indemnity obligations under PARAGRAPH 21.A of the
Lease."
(ii) Causes of loss-special form property insurance (including,
without limitation, vandalism, malicious mischief, inflation endorsement, and
sprinkler leakage endorsement) on Tenant's Personal Property located on or in
the Premises. Such insurance shall be in the full amount of the replacement
cost, as the same may from time to time increase as a result of inflation or
otherwise. As long as this Lease is in effect, the proceeds of such policy shall
be used for the repair and replacement of such items so insured. Landlord shall
have no interest in the insurance proceeds on Tenant's Personal Property.
Notwithstanding the foregoing, Tenant shall have the right, at
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its election, to self-insure with respect to any loss or damage to Tenant's
Personal Property.
(iii) Boiler and machinery insurance, including steam pipes,
pressure pipes, condensation return pipes and other pressure vessels and HVAC
equipment, including miscellaneous electrical apparatus, in an amount
satisfactory to Landlord.
(iv) Workers compensation insurance in the manner and to the
extent required by applicable law and with limits of liability not less than the
minimum required under applicable law, covering all employees of Tenant having
any duties or responsibilities in or about the Premises.
Any policy required to be maintained by Tenant under this Lease may be
maintained under a so-called "blanket policy" insuring other parties and/or
other locations, so long as the amount of insurance and type of coverage
required to be provided hereunder is not thereby diminished, changed or
adversely affected.
C. BUILDING INSURANCE. During the Term Landlord shall maintain
causes of loss-special form property insurance (including inflation endorsement,
sprinkler leakage endorsement, and, at Landlord's option, earthquake and flood
coverage; provided, however, that Landlord shall not be entitled to pass through
to Tenant the cost of earthquake insurance unless such insurance is obtained at
commercially reasonable rates) on the Building, excluding coverage of all
Tenant's Personal Property located on or in the Premises, but including the
Tenant Improvements; such insurance shall be for the full replacement value of
the Building, if such full replacement coverage is available from insurers, and
at commercially reasonable rates, reasonably acceptable to Landlord. Such
insurance shall also include insurance against loss of rents, including, at
Landlord's option, coverage for earthquake and flood, in an amount equal to the
Monthly Rent and Additional Rent, and any other sums payable under the Lease,
for a period of at least twelve (12) months commencing on the date of loss. Such
insurance shall name Landlord and Landlord's Agents as named insureds and
include a lender's loss payable endorsement in favor of Landlord's lender (Form
438 BFU Endorsement). Tenant shall reimburse Landlord monthly, as Additional
Rent, for Tenant's Building Share of one-twelfth (12th) of the annual cost of
such insurance on the first day of each calendar month of the Term, prorated for
any partial month, or on such other periodic basis as Landlord shall
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elect. If the insurance premiums are increased after the Commencement Date for
any reason, including without limitation due to an increase in the value of the
Building or its replacement cost, Tenant shall pay Tenant's Building Share of
such increase within ten (10) days of notice of such increase; provided,
however, that if any increase in such insurance premiums is due to any action or
failure to act of Tenant, including without limitation Tenant's use of the
Premises or any improvements installed by Tenant at the Premises, Tenant shall
pay the entire amount of such increase within ten (10) days of notice of such
increase. Landlord may, in its sole discretion, maintain the insurance coverage
described in this PARAGRAPH 21.C as part of an umbrella insurance policy
covering other properties owned by Landlord.
D. INCREASED COVERAGE. Upon demand, Tenant shall provide Landlord,
at Tenant's expense, with such increased amount of existing insurance, and such
other insurance as Landlord or Landlord's lender may reasonably require,
consistent with prudent industry practice, to afford Landlord and Landlord's
lender adequate protection.
E. FAILURE TO MAINTAIN. If Tenant fails to maintain any insurance
coverage that Tenant is required to maintain under this PARAGRAPH 21, and
Landlord incurs any liability to its insurance carrier arising out of Tenant's
failure to so maintain such insurance coverage, then any and all loss or damage
Landlord shall sustain by reason thereof, including attorneys' fees and costs,
shall be borne by Tenant and shall be immediately paid by Tenant upon its
receipt of a bill therefor and evidence of such loss. Nothing contained in this
PARAGRAPH 21.E shall be deemed to limit or affect any other remedies or rights
available to Landlord under this Lease that arise from Tenant's failure to so
maintain such insurance coverage.
F. INSURANCE REQUIREMENTS. All insurance shall be in a form
satisfactory to Landlord and shall be carried in companies that have a general
policy holder's rating of not less than "A" and a financial rating of not less
than Class "X" in the most current edition of BEST'S INSURANCE REPORTS; and
shall provide that such policies shall not be subject to material alteration or
cancellation except after at least thirty (30) days' prior written notice to
Landlord. The policy or policies, or duly executed certificates for them,
together with satisfactory evidence of payment of the premiums thereon shall be
deposited
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with Landlord prior to the Commencement Date, and upon renewal of such policies,
not less than thirty (30) days prior to the expiration of the term of such
coverage. If Tenant fails to procure and maintain the insurance it is required
to maintain under this PARAGRAPH 21, Landlord may, but shall not be required to,
order such insurance at Tenant's expense and Tenant shall reimburse Landlord
therefor. Such reimbursement shall include all costs incurred by Landlord in
obtaining such insurance including Landlord's reasonable attorneys' fees, with
interest thereon at the Interest Rate.
G. WAIVER AND RELEASE. Except to the extent due to the negligence or
willful misconduct of Landlord, Landlord shall not be liable to Tenant or
Tenant's employees, agents, contractors, licenses or invitees for, and Tenant
waives as against and releases Landlord and Landlord's Agents from, all claims
for loss or damage to any property or injury, illness or death of any person in,
upon or about the Premises and/or any other portion of the Project, arising at
any time and from any cause whatsoever (including without limitation any claim
cause in whole or in part by the act, omission, or neglect of other tenants,
contractors, licensees, invitees or other occupants of the Project or their
agents or employees; and any claim arising from any construction activities
taking place in, upon or about the Premises and/or any other portion of the
Project). Landlord and Landlord's Agents shall not be liable for any latent
defect in the Premises.
22. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against
the other on account of loss or damage occasioned by such waiving party to its
property or the property of others under its control, to the extent that such
loss or damage would be covered by any causes of loss-special form policy of
insurance or its equivalent required to be or actually carried under Paragraph
21. Tenant and Landlord shall, upon obtaining policies of insurance required
hereunder, give notice to the insurance carrier that the foregoing mutual waiver
of subrogation is contained in this Lease and Tenant and Landlord shall cause
each insurance policy obtained by such party to provide that the insurance
company waives all right of recovery by way of subrogation against either
Landlord or Tenant in connection with any damage covered by such policy.
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23. DAMAGE OR DESTRUCTION.
A. LANDLORD'S OBLIGATION TO REBUILD. If all or any part of the
Premises or the Building is damaged or destroyed, Landlord shall promptly and
diligently repair the same unless it has the right to terminate this Lease as
provided herein and it elects to so terminate.
B. RIGHT TO TERMINATE. Landlord shall have the right to terminate
this Lease in the event any of the following events occur:
(i) insurance proceeds from the insurance Landlord is required
to carry pursuant to PARAGRAPH 21.C, or that Landlord actually carries, are not
available to pay one hundred percent (100%) of the cost of such repair,
excluding any applicable deductibles, for which Tenant shall be responsible;
provided, however, that if Tenant pays to Landlord, in immediately available
funds, within thirty (30) days after such casualty, any shortfall in such
insurance proceeds, as reasonably determined by Landlord, then Landlord shall
have no right to terminate the Lease pursuant to this item (i); provided
further, that if insurance proceeds are not available to pay one hundred percent
(100%) of the cost of such repair due solely to the fact that Landlord has
failed to carry the insurance described in PARAGRAPH 21.C, then Landlord shall
not have the right to terminate this Lease pursuant to this PARAGRAPH 23.B(i).
Notwithstanding anything to the contrary set forth above, if (a) all or any part
of the Premises or the Building is damaged or destroyed by a casualty event that
is covered by the insurance Landlord is required to carry pursuant to PARAGRAPH
21.C, or that Landlord actually carries, (b) proceeds from such insurance are
not available to pay one hundred percent (100%) of the cost of such repair,
excluding any applicable deductibles, (c) Landlord terminates the Lease pursuant
to its rights under this PARAGRAPH 23.B(i), (d) Landlord eventually receives
proceeds from such insurance due to such casualty event, and (e) a subsequent
tenant of the Premises that occupies the Premises prior to the tenth (10th)
anniversary of the Commencement Date elects to utilize the Tenant Improvements,
then Landlord shall pay to Tenant an amount equal to the present value of the
lesser of (x) the cost savings enjoyed by Landlord during the
originally-scheduled ten (10) year term of this Lease due to the use of the
Tenant Improvement by such subsequent tenant (with the amount of such savings to
be reasonably determined by Landlord), and (y) the unamortized
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Tenant Improvement Costs (as defined in EXHIBIT B) for the initial Tenant
Improvements, as of the date such subsequent tenant opens for business in the
Premises, with the Tenant Improvement Costs being amortized on a straight-line
basis over a period of ten (10) years, commencing on the Commencement Date and
ending as of the date that is the mid-way point between the date this Lease is
terminated and the date on which such subsequent tenant opens for business in
the Premises;
(ii) either the Premises or the Building cannot, with
reasonable diligence, be fully repaired by Landlord within three hundred sixty
(360) days after the date of the damage or destruction; or
(iii) either the Premises or the Building cannot be safely
repaired because of the presence of hazardous factors, including, but not
limited to, earthquake faults, radiation, Hazardous Materials and other similar
dangers.
If Landlord elects to terminate this Lease, Landlord may tie Tenant written
notice of its election to terminate within thirty (30) days after such damage or
destruction, and this Lease shall terminate fifteen (15) days after the date
Tenant receives such notice and both Landlord and Tenant shall be released of
all further liability under this Lease (except to the extent any provision of
this Lease expressly survives termination). If Landlord elects not to terminate
the Lease, subject to Tenant's termination right set forth below, Landlord shall
promptly commence the process of obtaining necessary permits and approvals and
repair of the Premises or Building as soon as practicable, and this Lease will
continue in full force and affect. All insurance proceeds from insurance under
PARAGRAPH 21, excluding proceeds for Tenant's Personal Property, shall be
disbursed and paid to Landlord. Tenant shall be required to pay to Landlord an
amount equal to that portion of any deductibles payable in connection with any
insured casualties that is allocable to the Premises, unless the casualty was
caused by the sole negligence or willful misconduct of Landlord.
Tenant shall have the right to terminate this Lease if the Premises
cannot, with reasonable diligence, be fully repaired within two hundred seventy
(270) days from the date of damage or destruction. The determination of the
estimated repair periods in this PARAGRAPH 23 shall be made by an independent,
licensed contractor or engineer within thirty (30) days after such damage
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or destruction. Landlord shall deliver written notice of the repair period to
Tenant after such determination has been made and Tenant shall exercise its
right to terminate this Lease, if at all, within ten (10) days of receipt of
such notice from Landlord. Upon such termination both Landlord and Tenant
shall be released of all further liability under this Lease (except to the
extent any provision of this Lease expressly survives termination).
C. LIMITED OBLIGATION TO REPAIR. Landlord's obligation, should it
elect or be obligated to repair or rebuild, shall be limited to the basic
portion of the Building in which the Premises are situated and the Tenant
Improvements, and shall not include any Alterations made by Tenant.
D. ABATEMENT OF RENT. Rent shall be temporarily abated
proportionately, during any period when, by reason of such damage or
destruction, Tenant's use of the Premises is impaired. Such abatement of Rent
shall be proportional to the extent of such impairment (with the extent of
such impairment to be reasonably determined by Landlord), and shall commence
upon such damage or destruction and end upon substantial completion by
Landlord of the repair or reconstruction which Landlord is obligated or
undertakes to perform. Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the Premises, damage to Tenant's
Personal Property or any inconvenience occasioned by such damage, repair or
restoration. Tenant hereby waives the provisions of Section 1932, Subdivision
2, and Section 1933, Subdivision 4, of the California Civil Code, and the
provisions of any similar law hereinafter enacted.
E. DAMAGE NEAR END OF TERM. Anything herein to the contrary
notwithstanding, if the Premises is destroyed or materially damaged during
the last twelve (12) months of the Term (unless Tenant has properly exercised
the option to Extend), then either Landlord or Tenant may, at its option,
cancel and terminate this Lease as of the date of the occurrence of such
damage, by delivery of written notice to the other party and, in such event,
upon such termination both Landlord and Tenant shall be released of all
further liability under this Lease (except to the extent any provision of
this Lease expressly survives termination). If neither Landlord nor Tenant
elects to terminate this Lease, the repair of such damage shall be governed
by PARAGRAPHS 23.A and 23.B.
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24. CONDEMNATION.
If title to all of the Premises is taken for any public or
quasi-public use under any statute or by right of eminent domain, or so much
thereof is so taken so that reconstruction of the Premises will not, in
Landlord's sole discretion, result in the Premises being reasonably suitable
for Tenant's continued occupancy for the uses and purposes permitted by this
Lease, this Lease shall terminate as of the date that possession of the
Premises or part thereof is taken, and upon such termination both Landlord
and Tenant shall be released of all further liability under this Lease
(except to the extent any provision of this Lease expressly survives
termination). A sale by Landlord to any authority having the power of eminent
domain, either under threat of condemnation or while condemnation proceedings
are pending, shall be deemed a taking under the power of eminent domain for
all purposes of this PARAGRAPH 24.
If any part of the Premises is taken and the remaining part is
reasonably suitable for Tenant's continued occupancy for the purposes and
uses permitted by this Lease, this Lease shall, as to the part so taken,
terminate as of the date that possession of such part of the Premises is
taken, and upon such termination both Landlord and Tenant shall be released
of all further liability under this Lease with respect to that portion of the
Premises that is taken (except to the extent any provision of this Lease
expressly survives termination). The Rent and other sums payable hereunder
shall be reduced in the same proportion that Tenant's use and occupancy of
the Premises is reduced. If any portion of the Common Area is taken, Tenant's
Rent shall be reduced only if such taking materially interferes with Tenant's
use of the Common Area and then only to the extent that the fair market
rental value of the Premises is diminished by such partial taking. If the
parties disagree as to the amount of Rent reduction, the matter shall be
resolved by arbitration and such arbitration shall comply with and be
governed by the California Arbitration Act, Sections 1280 through 1294.2 of
the California Code of Civil Procedure. Each party hereby waives the
provisions of Section 1265.130 of the California Code of Civil Procedure
allowing either party to petition the Superior Court to terminate this Lease
in the event of a partial taking of the Premises.
All compensation or damages awarded or paid for any taking hereunder
shall belong to and be the property of Landlord, whether such compensation or
damages are awarded or paid as
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compensation for diminution in value of the leasehold, the fee or otherwise,
except that Tenant shall be entitled to any award allowed to Tenant for the
taking of Tenant's Personal Property, for the interruption of Tenant's
business, for its moving costs, or for the loss of its good will, and for
that portion of the unamortized cost of any tenant improvements to the
Premises paid for by Tenant, including but not limited to the initial Tenant
Improvements, that is allocable to the remainder of the Term as of the date
of such taking. Except for the foregoing allocation, no award for any partial
or entire taking of the Premises shall be apportioned between Landlord and
Tenant, and Tenant assigns to Landlord its interest in the balance of any
award which may be made for the taking or condemnation of the Premises,
together with any and all rights of Tenant arising in or to the same or any
part thereof.
25. ASSIGNMENT AND SUBLETTING.
A. LANDLORD'S CONSENT. Subject to the provisions of PARAGRAPH
25.G below, Tenant shall not enter into a Sublet without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Any
attempted or purported Sublet without Landlord's prior written consent shall
be void and confer no rights upon any third person and, at Landlord's
election, shall terminate this Lease. Each Subtenant shall agree in writing,
for the benefit of Landlord, to assume, to be bound by, and to perform the
terms, conditions and covenants of this Lease to be performed by Tenant, as
such terms, conditions and covenants apply to the Sublet premises.
Notwithstanding anything contained herein, Tenant shall not be released from
liability for the performance of each term, condition and covenant of this
Lease by reason of Landlord's consent to a Sublet unless Landlord
specifically grants such release in writing.
B. TENANT'S NOTICE. If Tenant desires at any time to Sublet all
or any portion of the Premises, Tenant shall first notify Landlord in writing
of its desire to do so.
C. INFORMATION TO BE FURNISHED. If Tenant desires at any time to
Sublet all or any portion of the Premises, then Tenant shall submit in writing
to Landlord. (i) the name of the proposed Subtenant; (ii) the nature of the
proposed Subtenant's business to be carried on in the Premises; (iii) the terms
and provisions of the proposed Sublet and a copy of the proposed form of Sublet
agreement containing a description of the subject
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premises; and (iv) such financial information, including financial
statements, as Landlord may reasonably request concerning the proposed
Subtenant.
D. LANDLORD'S ALTERNATIVES. At any rime Within ten (10) days
after Landlord's receipt of the information specified in PARAGRAPH 25.C.,
Landlord may, by written notice to Tenant, elect. (i) to consent to the
Sublet by Tenant; or (ii) to refuse its consent to the Sublet. If Landlord
consents to the Sublet, Tenant may thereafter enter into a valid Sublet of
the Premises or applicable portion thereof, upon the terms and conditions and
with the proposed Subtenant set forth in the information furnished by Tenant
to Landlord, subject, however, at Landlord's election, to the condition that
fifty percent (50%) of any excess of the Subrent (the "Excess Subrent") over
the Rent required to be paid by Tenant under this Lease (or, if only a
portion of the Premises is Sublet, the pro rata share of the Rent
attributable to the portion of the Premises being Sublet) less (v) reasonable
attorneys' fees, (w) leasing commissions (which shall not include the cost of
any trade fixtures, equipment or personal property, (x) that portion of the
unamortized Tenant Improvement Costs (as defined in EXHIBIT B) for the
initial Tenant Improvements allocable to the portion of the Premises being
Sublet (for the purposes of this clause (x), the Tenant Improvement Costs
shall be amortized over a period of ten (10) years, at a per annum interest
rate equal to the reference rate, or succeeding similar index, announced from
time to time by the Bank of America's main San Francisco office, plus one
percent (1%), (y) the cost of any tenant improvements (other than the initial
Tenant Improvements) paid for by Tenant and installed in the portion of the
Premises being Sublet for the specific purpose of carrying out such Sublet,
and (z) other reasonable subletting costs paid by Tenant on the Sublet, shall
be paid to Landlord.
E. PRORATION. If a portion of the Premises is Sublet, the pro
rata share of the Rent attributable to such partial area of the Premises
shall be determined by Landlord by dividing the Rent payable by Tenant
hereunder by the total square footage of the Premises and multiplying the
resulting quotient (the per square foot rent) by the number of square feet of
the Premises which are Sublet.
F. PARAMETERS OF LANDLORD'S CONSENT. Except as otherwise provided
herein, Landlord shall have the right to base its consent to any Sublet
hereunder upon such factors and
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considerations as Landlord reasonably deems relevant or material to the
proposed Sublet and the best interests of the Project's operations. Without
limiting the generality of the foregoing, Tenant acknowledges that it shall
be reasonable for Landlord to withhold its consent to any Sublet hereunder if
Tenant has not demonstrated that: (i) the proposed Subtenant is financially
responsible, with sufficient net worth and net current assets, properly and
successfully to operate its business in the Premises and meet the financial
and other obligations of this Lease; (ii) the proposed Subtenant possesses
sound and good business judgment, reputation and experience, and proven
management skills in the operation of a business or businesses substantially
similar to the uses permitted in the Premises under PARAGRAPH 11.A, and (iii)
the use of the Premises proposed by such Subtenant conforms to the permitted
uses specified under PARAGRAPH 11.A, and involves either no Hazardous Use or
only such Hazardous Use as shall be acceptable to Landlord in its sole
discretion.
G. PERMITTED TRANSFERS. Notwithstanding the provisions of PARAGRAPH
25.A above, Tenant shall have the right to enter into a Sublet, and Landlord
shall not withhold its consent thereto (provided that all of the conditions set
forth in clauses (A), (B) and (C) below shall be met), if such Sublet is one of
the following "Permitted Transfers". (i) a Sublet to the surviving entity of a
merger or consolidation involving the corporate entity constituting the Tenant
under this Lease; or (ii) a Sublet to any subsidiary or Affiliate of the Tenant
originally named in this Lease. However, the foregoing Permitted Transfers shall
be exempt from the requirement of Landlord's consent only if all of the
following conditions shall be met. (A) there shall be no change in the use or
operation of the Premises; (B) Tenant shall have provided to Landlord all
information to allow Landlord to determine, and Landlord shall have determined,
that the proposed transfer is a Permitted Transfer which is exempt from the
requirement of Landlord's consent; and (C) as of the effective date of such
Sublet, the proposed Subtenant has a net worth and net current assets equal to
or greater than those of the original Tenant under this Lease as of the date of
this Lease. No Sublet of the type described in this PARAGRAPH 25.G, nor any
other transfer of all or any portion of Tenant's interest in the Lease or the
Premises, shall release Tenant of its obligations under this Lease. In addition,
any sale or transfer of the capital stock of Tenant shall be deemed a Permitted
Transfer if (1) such sale or transfer occurs in connection with
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any bona fide financing or capitalization for the benefit of Tenant, or (2)
Tenant becomes a publicly traded corporation, or (3) such sale or transfer is
made to any publicly traded corporation. Notwithstanding the provisions of
PARAGRAPH 25.D, Landlord shall not be entitled to any Excess Subrent in
connection with any Permitted Transfer.
In addition, Tenant shall have the right to sublease to one or more
subtenants one entire floor of the Premises with Landlord's prior written
consent, which shall not be unreasonably withheld, and without payment of any
Excess Subrent to Landlord as provided in PARAGRAPH 25.D in connection with
such sublease, provided (w) there shall be no change in the use or operation
of the Premises, (x) Tenant is not in default of its obligations hereunder,
which default is continuing after notice and the expiration of any applicable
grace period, at the time of entering into any such sublease, (y) Tenant is
in possession of the remainder of the Premises and remains primarily liable
for all of its obligations hereunder, and (z) no such sublease shall have a
term that expires beyond the thirty-sixth (36th)month following the
Commencement Date. Landlord acknowledges that the foregoing right is a
material inducement for Tenant to enter into this Lease. Tenant acknowledges
that this grammatical paragraph shall not apply to any assignment or
attempted assignment of all or any portion of its interest in this Lease, nor
to any sublease of all or any portion of the Premises by Tenant for a term
that expires beyond the thirty-sixth (36th) month following the Commencement
Date. The rights described in this grammatical paragraph are personal to the
Tenant originally named in this Lease, and shall not be exercised by any
assignee or successor of such Tenant.
26. DEFAULT.
A. TENANT'S DEFAULT. A default under this Lease by Tenant shall
exist if any of the following occurs.
(i) If Tenant fails to pay, within five (5) days after
written notice from Landlord, any Rent or any other sum required to be paid
hereunder when due, including, without limitation, any Tenant Improvement
Costs payable by Tenant under EXHIBIT B; or
(ii) If Tenant fails to perform any term, covenant or condition
of this Lease except those requiring the
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payment of money, and Tenant fails to cure such breach withint thirty (30)
days after written notice from Landlord where such breach could reasonably be
cured within such 30-day period; provided, however, that where such failure
could not reasonably be cured within the 30-day period, that Tenant shall not
be in default if it commences such performance within the 30-day period and
diligently thereafter prosecutes the same to completion; or
(iii) If Tenant assigns its assets for the benefit of its
creditors; or
(iv) If the sequestration or attachment of or execution on
any material part of Tenant's Personal Property essential to the conduct of
Tenant's business occurs, and Tenant fails to obtain a return or release of
such Tenant's Personal Property within thirty (30) days thereafter, or prior
to sale pursuant to such sequestration, attachment or levy, whichever is
earlier; or
(v) If Tenant abandons the Premises; or
(vi) If a court makes or enters any decree or order other
than under the bankruptcy laws of the United States adjudging Tenant to be
insolvent; or approving as properly filed a petition seeking reorganization
of Tenant; or directing the winding up or liquidation of Tenant and such
decree or order shall have continued for a period of sixty (60) days.
(vii) If, at any time that Landlord or its Affiliate is also
the owner of the premises leased by Tenant under that certain Lease between
Martin/Campus Associates No. 2, L.P. and Tenant dated February 5, 1997, as
amended by that certain First Amendment to Lease dated December 3, 1997 (the
"575-595 Broadway Lease"), Tenant is in default under the 575-595 Broadway
Lease beyond any applicable notice and cure period.
B. REMEDIES. Upon a default, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by law or
Otherwise provided in this Lease, to which Landlord may resort cumulatively
or in the alternative.
(i) Landlord may continue this Lease in full force and effect,
and this Lease shall continue in full force and effect as long as Landlord does
not terminate this Lease, and Landlord shall have the right to collect Rent when
due. Without
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limiting the foregoing, Landlord has the remedy set forth in Section 1951.4
of the California Civil Code.
(ii) Landlord may terminate Tenant's right to possession of
the Premises at any time by giving written notice to that effect, and relet
the Premises or any part thereof. Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in reletting the Premises or any part
thereof, including, without limitation, broker's commissions, expenses of
cleaning and redecorating the Premises required by the reletting and like
costs. Reletting may be for a period shorter or longer than the remaining
Term of this Lease. No act by Landlord other than giving written notice of
termination to Tenant shall terminate this Lease. Neither acts of
maintenance, nor efforts to relet the Premises, nor the appointment of a
receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. On
termination, Landlord has the right to remove all Tenant's Personal Property
and store the same at Tenant's sole cost and expense and to recover from
Tenant as damages.
(a) The worth at the time of award of the unpaid Rent
and other sums due and payable which had been earned at the time of
termination; plus
(b) The worth at the time of award of the amount by
which the unpaid Rent and other sums due and payable which would have been
payable after termination until the time of award exceeds the amount of such
Rent loss that Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by
which the unpaid rent and other sums due and payable for the balance of the
Term after the time of award exceeds the amount of such Rent loss that Tenant
proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which, in the ordinary course of things, would
be likely to result therefrom, including, without limitation, any costs or
expenses incurred by Landlord. (i) in retaking possession of the Premises; (ii)
in maintaining, repairing, preserving, restoring, replacing, cleaning, altering
or rehabilitating the Premises or
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any portion thereof, including such acts for reletting to a new tenant or
tenants; (iii) for leasing commissions; or (iv) for any other costs necessary
or appropriate to relet the Premises; plus
(e) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time
by the laws of the State of California.
The "worth at the time of award" of the amounts referred to in
PARAGRAPHS 26.B (ii) (a) and 26.B.(ii)(b) is computed by allowing interest at
the Interest Rate on the unpaid rent and other sums due and payable from the
termination date through the date of award. The "worth at the time of award"
of the amount referred to in PARAGRAPH 26.B(ii)(c) is computed by discounting
such amount at the discount rate of the Federal Reserve Bank of San Francisco
at the time of award plus one percent (1%). Tenant waives redemption or
relief from forfeiture under California Code of Civil Procedure Sections 1174
and 1179, or under any other present or future law, in the event Tenant is.
evicted or Landlord takes possession of the Premises by reason of any default
of Tenant hereunder.
(iii) Landlord may, with or without terminating this Lease,
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant. No reentry or taking possession of
the Premises by Landlord pursuant to this PARAGRAPH 26.B. (iii) shall be
construed as an election to terminate this Lease unless a written notice of
such intention is given to Tenant.
C. LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default
in the performance of any obligation required to be performed by it hereunder
unless and until it has failed to perform such obligation within thirty (30)
days after receipt of written notice by Tenant to Landlord specifying the nature
of such default; provided, however, that if the nature of Landlord's obligation
is such that more than thirty (30) days are required for its performance, then
Landlord shall not be deemed to be in default if it shall commence such
performance within such 30-day period and thereafter diligently prosecute the
same to completion.
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27. SUBORDINATION.
A. SUBORDINATION. This Lease is or may become subject and
subordinate to underlying leases, mortgages, deeds of trust, easements, and
CC&Rs (collectively, "ENCUMBRANCES") which may now or hereafter affect the
Premises, and to all renewals, amendments, modifications, consolidations,
replacements and extensions thereof; provided, however, if the holder or
holders of any such Encumbrance (collectively, "HOLDER") shall require that
this Lease be prior and superior thereto, within fifteen (15) days of written
request of Landlord to Tenant, Tenant shall execute, have acknowledged and
deliver any and all documents or instruments, in the form presented to
Tenant, which Landlord or Holder deems reasonably necessary or desirable for
such purposes. Subject to PARAGRAPH 27.C below, Landlord shall have the right
to cause this Lease to be and become and remain subject and subordinate to
any and all Encumbrances which are now or may hereafter be executed covering
the Premises or any renewals, modifications, consolidations, replacements or
extensions thereof, for the full amount of all advances made or to be made
thereunder and without regard to the time or character of such advances,
together with interest thereon and subject to all the terms and provisions
thereof; provided only, that in the event of termination of any such lease or
upon the foreclosure of any such mortgage or deed of trust, so long as Tenant
is not in default, Holder agrees to recognize Tenant's rights under this
Lease as long as Tenant shall pay the Rent and observe and perform all the
provisions of this Lease to be observed and performed by Tenant. Within
fifteen (15) days after Landlord's written request, Tenant shall execute any
and all documents reasonably required by Landlord or the Holder to make this
Lease subordinate to any lien of the Encumbrance (including, without
limitation, subordination to all CC&Rs), including without limitation a
Subordination, Non-Disturbance and Attornment Agreement in the fore attached
hereto as EXHIBIT E ("SNDA"). Subject to PARAGRAPH 27.C below, if Tenant
fails to do so, such failure shall constitute a default under this Lease, and
it shall be deemed that this Lease is subordinated to such Encumbrance.
B. ATTORNMENT. Notwithstanding anything to the contrary set forth in
this PARAGRAPH 27, Tenant hereby attorns and agrees to attorn to any entity
purchasing or otherwise acquiring the Premises at any sale or other proceeding
or pursuant to the exercise of any other rights, powers or remedies under such
Encumbrance.
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C. NON-DISTURBANCE. Notwithstanding anything to the contrary in
this Lease, if an Encumbrance, other than any CC&R's, is created after the
execution of this Lease, as a condition to the subordination of this Lease
thereto under PARAGRAPH 27.A above, Landlord shall obtain from the Holder of
such Encumbrance, other than CC&R's, a SNDA in a commercially reasonable form
or in a form reasonably acceptable to Tenant. Without in any way limiting the
type or form of SNDA that may be required by such Holder, Tenant hereby
agrees that a SNDA in the form attached to this Lease as EXHIBIT E shall be
reasonable. Only upon Landlord's delivery of a SNDA in the form of EXHIBIT E
or in a commercially reasonable form or in a form reasonably acceptable to
Tenant, shall this Lease be automatically subject and subordinate to such
Encumbrance, other than CC&R's. Within fifteen (15) business days after full
execution of this Lease, Landlord shall use reasonable efforts to provide
Tenant with a SNDA in the form attached to this Lease as EXHIBIT E from each
Holder of any Encumbrance in effect as of the date of this Lease, confirming
that the existence of the "automatic subordination" language contained in
PARAGRAPH 27.A above shall not (without the occurrence of some other act or
event that constitutes a default by Tenant under the Lease constitute a
default by Tenant under this Lease). If Landlord fails to deliver the
required SNDA(s) within the 15-day period, then, as Tenant's sole and
exclusive remedy, Tenant shall have the right to terminate this Lease by
giving Landlord a written notice of termination within five (5) business days
after expiration of such 15-day period, upon which Landlord shall promptly
return to Tenant any Rent paid in advance and the Security Deposit. If Tenant
does not exercise such termination right within such 5-business day period,
then Tenant shall have no further right to terminate this Lease pursuant to
this PARAGRAPH 27.C and Tenant shall have no other rights or remedies with
respect to Landlord's failure to deliver such SNDA(s).
28. NOTICES.
Any notice or demand required or desired to be given under this Lease
shall be in writing and shall be personally served or in lieu of personal
service may be given by certified mail, facsimile, or overnight courier service.
All notices or demands under this Lease shall be deemed given, received, made or
communicated on the date personal delivery is effected; or, if sent by certified
mail, on the delivery date or attempted delivery date shown on the return
receipt; or, if sent by
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facsimile, on the date sent by the sender; or, if sent by overnight courier
service, on the delivery date or attempted delivery date shown on such
service's records. At the date of execution of this Lease, the addresses of
Landlord and Tenant are as set forth in PARAGRAPH 1. After the Commencement
Date, the address of Tenant shall be the address of the Premises. Either
party may change its address by giving notice of same in accordance with this
PARAGRAPH 28.
29. ATTORNEYS' FEES.
If either party brings any action or legal proceeding for damages
for an alleged breach of any provision of this Lease, to recover Rent, or
other sums due, to terminate the tenancy of the Premises or to enforce,
protect or establish any term, condition or covenant of this Lease or right
of either party, the prevailing party shall be entitled to recover as a part
of such action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and costs, including without limitation
any and all costs and expenses arising from (i) collection efforts, (ii) any
appellate proceedings, and (iii) any bankruptcy, insolvency or arbitration
proceedings.
30. ESTOPPEL CERTIFICATES.
A. TENANT ESTOPPEL. Tenant shall within fifteen (15) days
following written request by Landlord.
(i) Execute and deliver to Landlord any documents, including
estoppel certificates, in the form prepared by Landlord (a) certifying that this
Lease is unmodified and in full force and effect or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect and the date to which the Rent and other charges are
paid in advance, if any, and (b) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord, or, if there are
uncured defaults on the part of the Landlord, stating the nature of such uncured
defaults, (c) evidencing the status of the Lease as may be required either by a
lender making a loan to Landlord to be secured by deed of trust or mortgage
covering the Premises or a purchaser of the Premises from Landlord, and (d) such
other matters as may be reasonably requested by Landlord. Tenant's failure to
deliver an estoppel certificate within fifteen (15) days after delivery of
Landlord's written request therefor shall be conclusive upon Tenant (a) that
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this Lease is in full force and effect, without modification except as may be
represented by Landlord, (b) that there are now no uncured defaults in
Landlord's performance, and (c) that no Rent has been paid in advance. If
Tenant fails to so deliver a requested estoppel certificate within the
prescribed time it shall be conclusively presumed that this Lease is
unmodified and in full force and effect except as represented by Landlord.
(ii) Deliver to Landlord the current financial statements of
Tenant, and financial statements of the two (2) years prior to the current
financial statements year, with an opinion of a certified public accountant,
including a balance sheet and profit and loss statement for the most recent
prior year, all prepared in accordance with generally accepted accounting
principles consistently applied.
B. LANDLORD ESTOPPEL. Landlord shall, within fifteen (15) days
following written request by Tenant, execute and deliver to Tenant an
estoppel certificate, in the form prepared by Tenant, (a) certifying that
this Lease is unmodified and in full force and effect or, if modified,
stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect and the date to which the Rent and
other charges are paid in advance, if any, and (b) acknowledging that there
are not, to Landlord's knowledge, any uncured defaults on the part of Tenant,
or, if there are uncured defaults on the part of the Tenant, stating the
nature of such uncured defaults, and (c) such other matters as may be
reasonably requested by Tenant. Landlord's failure to deliver an estoppel
certificate within fifteen (15) days after delivery of Tenant's written
request therefor shall be conclusive upon Landlord (a) that this Lease is in
full force and effect, without modification except as may be represented by
Tenant, (b) that there are now no uncured defaults in Tenant's performance,
and (c) that no Rent has been paid in advance. If Landlord fails to so
deliver a requested estoppel certificate within the prescribed time it shall
be conclusively presumed that this Lease is unmodified and in full force and
effect except as represented, by Tenant.
31. TRANSFER OF THE PREMISES BY LANDLORD.
In the event of any conveyance of the Premises and assignment by
Landlord of this Lease, Landlord shall be and is hereby entirely released from
all liability under any and all of its covenants and obligations contained in or
derived from this
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Lease occurring after the date of such conveyance and assignment, and Tenant
agrees to attorn to such transferee provided such transferee assumes
Landlord's obligations under this Lease.
32. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.
If Tenant shall at any time fail to make any payment or perform any
other act on its part to be made or performed under this Lease, and such
failure shall continue after the expiration of any applicable grace or cure
periods provided in this Lease, Landlord may, but shall not be obligated to
(and without waiving or releasing Tenant from any obligation of Tenant under
this Lease), make such payment or perform such other act to the extent
Landlord may deem desirable, and in connection therewith, pay expenses and
employ counsel. All sums so paid by Landlord and all penalties, interest,
expenses and costs in connection therewith shall be due and payable by Tenant
on the next day after any such payment by Landlord, together with interest
thereon at the Interest Rate from such date to the date of payment by Tenant
to Landlord, plus collection costs and attorneys' fees. Landlord shall have
the same rights and remedies for the nonpayment thereof as in the case of
default in the payment of Rent.
33. TENANT'S REMEDY.
Landlord shall never be personally liable under this Lease, and Tenant
shall look solely to the net cash flow received by Landlord from its ownership
of the Building, for recovery of any damages for breach of this Lease by
Landlord or on any judgment in connection therewith. None of the persons or
entities comprising or representing Landlord (whether partners, shareholders,
officers, directors, trustees, employees, beneficiaries, agents or otherwise)
shall ever be personally liable under this Lease or for any such damages or
judgment, and Tenant shall have no right to effect any levy of execution against
any assets of such persons or entities on account of any such liability or
judgment. Any lien obtained by Tenant to enforce any such judgment, and any levy
of execution thereon, shall be subject and subordinate to all Encumbrances as
specified in PARAGRAPH 27 above.
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34. MORTGAGEE PROTECTION.
If Landlord defaults under this Lease, Tenant shall give written
notice of such default to any beneficiary of a deed of trust or mortgagee of
a mortgage covering the Premises, and offer such beneficiary or mortgagee a
reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or a judicial foreclosure, if
such should prove necessary to effect a cure.
35. BROKERS.
Landlord and Tenant acknowledge and agree that they have utilized
the services of real estate brokers (with Cornish and Carey Commercial
representing Tenant, and BT Commercial representing Landlord) with respect to
the transactions between Landlord and Tenant that are represented by this
Lease. Tenant warrants and represents that it has had no dealings with any
other real estate broker or agent in connection with the negotiation of this
Lease, and that it knows of no other real estate broker or agent who is or
might be entitled to a commission in connection with this Lease.
36. ACCEPTANCE.
This Lease shall only become effective and binding upon full
execution hereof by Landlord and delivery of a signed copy to Tenant. This
Lease shall not be recorded. Upon execution of this Lease, the parties shall
execute and acknowledge a Memorandum of Lease in the fore attached hereto as
EXHIBIT F, which may be recorded by either Landlord or Tenant at such party's
sole expense. Upon the expiration or earlier termination of this Lease,
Tenant shall upon Landlord's request execute and acknowledge any and all
documents that in Landlord's discretion may be required in order to terminate
the Memorandum of Lease or otherwise remove the lien of the Memorandum of
Lease from the Building.
37. PARKING.
Tenant shall have the non-exclusive right, in common with any other
tenants or occupants of the Project, to use up to 3.33 unassigned parking spaces
per each one thousand (1,000) square feet of Rentable Area in the Premises, upon
terms and conditions, as may from time to time be reasonably established by
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Landlord. Should parking charges or surcharges of any kind be imposed on the
parking facilities by a governmental agency, Tenant shall reimburse Landlord
for such charges and/or surcharges or, if possible, shall pay such charges
and/or surcharges directly to the governmental agency and, in such event,
Tenant shall provide Landlord with proof that such charges and/or surcharges
have been paid by Tenant.
38. GENERAL.
A. CAPTIONS. The captions and headings used in this Lease are for
the purpose of convenience only and shall not be construed to limit or extend
the meaning of any part of this Lease.
B. EXECUTED COPY. Any fully executed copy of this Lease shall be
deemed an original for all purposes.
C. TIME. Time is of the essence for the performance of each term,
condition and covenant of this Lease.
D. SEPARABILITY. If one or more of the provisions contained
herein, except for the payment of Rent, is for any reason held invalid,
illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Lease, but this
Lease shall be construed as if such invalid, illegal or unenforceable
provision had not been contained herein.
E. CHOICE OF LAW. This Lease shall be construed and enforced in
accordance with the laws of the State of California. The language in all
parts of this Lease shall in all cases be construed as a whole according to
its fair meaning and not strictly for or against either Landlord or Tenant.
F. GENDER; SINGULAR, PLURAL. When the context of this Lease
requires, the neuter gender includes the masculine, the feminine, a
partnership or corporation or joint venture, and the singular includes the
plural.
G. BINDING EFFECT. The covenants and agreement contained in this
Lease shall be binding on the parties hereto and on their respective
successors and assigns to the extent this Lease is assignable.
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H. WAIVER. The waiver by Landlord of any breach of any term,
condition or covenant, of this Lease shall not be deemed to be a waiver of
such provision or any subsequent breach of the same or any other term,
condition or covenant of this Lease. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach at the time of acceptance of such payment. No covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord
unless such waiver is in writing and signed by Landlord. The waiver by Tenant
of any breach of any term, condition or covenant, of this Lease shall not be
deemed to be a waiver of such provision or any subsequent breach of the same
or any other term, condition or covenant of this Lease. No covenant, term or
condition of this Lease shall be deemed to have been waived by Tenant unless
such waiver is in writing and signed by Tenant.
I. ENTIRE AGREEMENT. This Lease is the entire agreement between
the parties, and there are no agreements or representations between the
parties except as expressed herein. Except as otherwise provided herein, no
subsequent change or addition to this Lease shall be binding unless in
writing and signed by the parties hereto.
J. AUTHORITY. If Tenant is a corporation or a partnership, each
individual executing this Lease on behalf of said corporation or partnership,
as the case may be, represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said entity in accordance with
its corporate bylaws, statement of partnership or certificate of limited
partnership, as the case may be. Landlord, at its option, may require a copy
of such written authorization to enter into this Lease.
K. EXHIBITS. All exhibits, amendments, riders and addenda
attached hereto are hereby incorporated herein and made a part hereof.
L. LEASE SUMMARY. The Lease Summary attached to this Lease is
intended to provide general information only. In the event of any
inconsistency between the Lease Summary and the specific provisions of this
Lease, the specific provisions of this Lease shall prevail.
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39. EQUIPMENT LEASING/LANDLORD'S LIEN.
Notwithstanding anything herein to the contrary, Landlord waives
any and all rights, title and interest Landlord now has, or hereafter may
have, whether statutory or otherwise, to Tenant's inventory, equipment,
furnishings, trade fixtures, books and records, and personal property paid
for by Tenant located at the Premises (singly and/or collectively, the
"COLLATERAL"). Landlord acknowledges that Landlord has no lien, right, claim,
interest or title in or to the Collateral. Landlord further agrees that
Tenant shall have the right, at its discretion, to mortgage, pledge,
hypothecate or grant a security interest in the Collateral as security for
its obligations under any equipment lease or other financing arrangement
related to the conduct of Tenant's business at the Premises. Landlord further
agrees to execute and deliver within three (3) business days any UCC filing
statement or other documentation required to be executed by Landlord in
connection with any such lease or financing arrangement, including but not
limited to a Landlord's Waiver and Consent form.
40. RIGHT OF EARLY ENTRY.
Tenant shall have the right to enter the Premises prior to the
commencement of the Term to take reasonable preparatory measures for its
occupancy of the Premises including, without limitation, the installation of
its trade fixtures, furnishings, and telephone, telecommunications and
computer equipment, so long as Tenant does not materially interfere with the
construction of the Improvements by Landlord and Landlord's contractor. Such
entry shall be subject to all of the terms and conditions of this Lease,
except that Tenant shall not be required to pay any Rent on account thereof.
Tenant shall indemnify, defend, protect, and hold harmless Landlord from and
against any and all losses, costs, damages, liability, claims and expenses
arising from any such entry onto the Premises by Tenant.
THIS LEASE is effective as of the date the last signatory necessary
to execute the Lease shall have executed this Lease.
[SIGNATURES FOLLOW ON NEXT PAGE]
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TENANT:
BROADVISION, INC.,
a Delaware corporation
By:
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Its:
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Date:
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By:
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Its:
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Date:
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LANDLORD:
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P., a California limited
partnership
Its General Partner
By: TMG Redwood LLC,
a California limited liability company
Its General Partner
By: The Martin Group
of Companies, Inc.
a California corporation
Its General Partner
By:
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Its:
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Date:
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By:
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Its:
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Date:
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75
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Exhibit A-1
Floor Plan
Of Premises
<PAGE>
Exhibit A-2
Floor Plan
of Premises
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EXHIBIT B
WORK LETTER AGREEMENT
THIS WORK LETTER ("Agreement") is made and entered into by and
between Landlord and Tenant as of the date of the Lease. This Agreement shall
be deemed a part of the Lease to which it is attached. Capitalized terms
which are used herein and defined in the Lease shall have the meanings given
in the Lease.
1. GENERAL.
1.1. CAPITAL IMPROVEMENTS. Prior to the Commencement Date, at
Landlord's sole cost and expense, Landlord shall do the following (collectively,
the "CAPITAL IMPROVEMENTS").
- Remove all existing interior improvements in the Premises with the
exception of two (2) existing elevators, but including all existing
restrooms.
- Remove all existing HVAC equipment currently located on roof.
- Remove all existing fire sprinkler improvements back to the fire riser
except the main line which penetrates the steel beams. Landlord
covenants that the fire riser shall be in working condition. Any
repairs to the main line shall be a Tenant improvement Cost. tenant
shall pay for fire monitoring equipment and connection costs.
- Provide 150 tons of new HVAC equipment to be located on the roof of
the Building. As part of the Capital Improvements, the supply and
return ducting shall be run from the HVAC equipment onto each floor of
the Premises. All other ducting, distribution, and controls shall be
part of the Tenant Improvements.
- Provide 2000 amp, 480 volt electrical service to the Building. The
Capital Improvements will include a transformer to be located on a pad
on the exterior of the Building with the PG&E pull section into the
main electric room. All conduit, wiring devices and controls
downstream of the main
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panel and any walls or ceiling needed for the electric room shall be
part of the Tenant Improvements. Electrical conduit and wiring to the
main HVAC equipment will be a Capital Improvement.
- Remove the existing roof and replace it with a three-ply built-up
roof with a mineral-surfaced cap sheet.
- Perform any exterior ADA and exterior code-related work required
by the City of Redwood City in connection with the initial
construction of the Premises per the site plan as shown in
EXHIBIT B-2 attached hereto.
- Remove all interior friable and non-friable asbestos within the
Building and basement areas (excluding transite panels on curtain
wall of the Building).
- Remove the security screen around the perimeter of the Building
and change the existing vision glass as shown on EXHIBIT B-1.
Repaint the exterior of the Building.
- Provide two (2), four-inch (4") empty telephone conduits from an
area on the street designated by the utility company to the
electric room in the Building.
- Modify the area adjacent to the Building in substantial
conformity with the site plan as shown in EXHIBIT B-2.
- On the north elevation of the Building, construct a new canopy at
the Building's main entry and install slate on the existing sheer
wall element as shown on the attached EXHIBIT B-1. Any and all
Tenant signage shall be a part of the Tenant Improvements.
- Any insulation required for Title 24 compliance shall be part of
the Tenant Improvements.
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- Install one hydraulic passenger elevator 2,500 pound capacity
(may be holeless or not holeless) in the approximate location as
shown on the floor plans attached hereto as EXHIBIT A, in
accordance with all applicable laws, including but not limited to
the ADA (as defined in the Lease).
- Landlord intends to abandon in place the electrical and
mechanical equipment currently housed in the basement of the
Building.
- Tenant will be permitted to install a back-up generator on the
exterior of the Building in a mutually agreed-upon location. All
of the costs associated with the generator, including screening
will be part of the Tenant Improvements.
- Leave the slab, walls and roof deck in good, clean condition.
Notwithstanding Landlord's agreement to construct the Capital Improvements at
its sole cost, Landlord and Tenant agree to share equally the cost of any
necessary filling in or leveling of the interior concrete floor deck provided
that the cost thereof does not exceed Fifty Thousand and 00/100 Dollars
($50,000.00). If the cost does exceed Fifty Thousand and 00/100 Dollars
($50,000.00), Landlord shall pay such excess cost. Tenant shall pay its
proportionate share of such costs within thirty (30) days after receipt of
Landlord's statement therefor. Landlord shall exercise commercially
reasonable judgment pursuant to industry building standards in determining
the amount of leveling to be done in the Premises.
Except for its obligation to perform the Capital Improvements and the Tenant
Improvements as set forth in this Lease and the Work Letter, Landlord shall have
no obligation whatsoever to do any work or perform any improvements whatsoever
to any portion of the Premises or the Building; provided, however, that the
Tenant Improvements shall be performed at the sole cost and expense of Tenant.
Landlord shall cause Contractor (as defined below) to perform all initial
leasehold improvements, in accordance with the approved Final Plans and as
otherwise may be required to comply with applicable law (collectively, the
"TENANT IMPROVEMENTS"). The parties acknowledge and agree that the Capital
Improvements and the Tenant Improvements constitute all
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of the work required to enable Tenant to occupy, and operate its business in,
the Premises. If Landlord materially alters the current landscape, parking
and lighting plans for the Project before the Commencement Date, then
Landlord shall consult with Tenant's regarding such modification, but Tenant
shall have no approval rights regarding such modification. Landlord shall (i)
cause, through Contractor, the Capital Improvements to be performed in a good
and workmanlike manner using new materials and in accordance with all
applicable legal requirements, and (ii) use its best efforts to cause,
through Contractor, the Improvements to be performed in accordance with the
schedule attached hereto as EXHIBIT B-3 the ("Schedule"); provided, however,
that Landlord's obligation to use reasonable efforts to cause the Tenant
Improvements to be performed in accordance with the Schedule shall be subject
to and dependent upon Tenant's compliance with the Schedule and the terms of
this Agreement and to Force Majeure Delays as defined in PARAGRAPH 4.B of the
Lease. Landlord, at its sole cost, shall obtain all premises, licenses and
authorizations required in connection with the Capital Improvements. All
Landlord design work for the shell condition shall be designed and submitted
to the City of Redwood City for permit prior to Tenant submitting its plans
for the Tenant Improvements to the City for permit.
1.2. TENANT IMPROVEMENT COSTS. The cost of performing the
Tenant Improvements, including without limitation the costs described in
PARAGRAPH 6 below (collectively, the "TENANT'S IMPROVEMENT COSTS") shall be
paid by Tenant in the manner set forth in PARAGRAPH 5 below.
2. APPROVAL OF PLANS FOR TENANT IMPROVEMENTS.
2.1. ARCHITECT. Tenant has selected HPC Architecture
("ARCHITECT") for the design and preparation of plans for the Tenant
Improvements. Tenant shall retain Architect's administrative services
throughout the performance of the Tenant Improvements.
2.2. SUBMITTAL OF PLANS.
2.2.1. PRELIMINARY Plans. Tenant shall cause Architect
to prepare preliminary plans (the "PRELIMINARY PLANS") for the Tenant
Improvements to be performed at the Premises. Tenant shall cause Architect to
deliver the Preliminary Plans to Landlord in accordance with the Schedule
attached as EXHIBIT B-3.
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Within five (5) days after Landlord's receipt of the Preliminary Plans,
Landlord shall either approve or disapprove the Preliminary Plans, which
approval shall not be unreasonably withheld. Failure of Landlord to approve
or disapprove the Preliminary Plans within such five-day period shall be
deemed to constitute Landlord's approval of the Preliminary Plans. If
Landlord disapproves the Preliminary Plans, then Landlord shall state in
reasonable detail the changes which Landlord requires to be made thereto.
Tenant shall submit to Landlord revised Preliminary Plans within five (5)
days after Tenant's receipt of Landlord's disapproval notice. Following
Landlord's receipt of the revised Preliminary Plans from Tenant, Landlord
shall have the right to review and approve the revised Preliminary Plans
pursuant to this PARAGRAPH 2.2.1. Landlord shall give Tenant written notice
of its approval or disapproval of the revised Preliminary Plans within five
(5) days after the date of Landlord's receipt thereof. Failure of Landlord to
approve or disapprove the Preliminary Plans within such five-day period shall
be deemed to constitute Landlord's approval of the revised Preliminary Plans.
If Landlord disapproves the revised Preliminary Plans, then Landlord and
Tenant shall continue to follow the procedures set forth in this PARAGRAPH
2.2.1 until Landlord and Tenant approve the Preliminary Plans in accordance
with this PARAGRAPH 2.2.1.
2.2.2. PRELIMINARY BUDGET. Landlord intends to retain
Devcon Construction ("CONTRACTOR") as the general contractor for the
construction of the Tenant Improvements, Air Systems for the mechanical
design-build work and Frank Electric for the electrical design-build work.
Within the time period provided in the Schedule attached as EXHIBIT B-3,
Contractor shall prepare a preliminary budget for the Tenant Improvements
based upon the approved Preliminary Plans, which Contractor shall submit to
Tenant for its review and approval. Within the time period provided in the
Schedule attached as EXHIBIT B-3, Tenant and Landlord shall review and
approve or disapprove the Preliminary Plans and the preliminary budget.
2.2.3 FINAL PLANS. Within the time period provided in
the Schedule attached as EXHIBIT B-3, Tenant shall cause Architect to
commence preparing complete plans, specifications and working drawings which
incorporate and are consistent with the approved Preliminary Plans and
preliminary budget, and which show in detail the intended design,
construction and finishing of all portions of the Tenant
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Improvements described in the Preliminary Plans (collectively, the "FINAL
PLANS"). Tenant shall cause Architect to deliver the Final Plans to Landlord,
for Landlord's review and approval within the time period provided in the
Schedule attached as EXHIBIT B-3. Within five (5) days after Landlord's
receipt of the Final Plans, Landlord shall either approve or disapprove the
Final Plans, which approval shall not be unreasonably withheld. Landlord's
failure to approve or disapprove the Final Plans within such five-day period
shall be deemed to constitute Landlord's approval of the Final Plans. If
Landlord disapproves the Final Plans, then Landlord shall state in reasonable
detail the changes which Landlord requires to be made thereto. Tenant shall
submit to Landlord revised Final Plans within five (5) days after Tenant's
receipt of Landlord's disapproval notice. Following Landlord's receipt of the
revised Final Plans from Tenant, Landlord shall have the right to review and
approve the revised Final Plans pursuant to this PARAGRAPH 2.2.3. Landlord
shall give Tenant written notice of its approval or disapproval of the
revised Final Plans within five (5) days after the date of Landlord's receipt
thereof. Landlord's failure to approve or disapprove the Final Plans within
such five-day period shall be deemed to constitute Landlord's approval of the
revised Final Plans. If Landlord disapproves the revised Final Plans, then
Landlord and Tenant shall continue to follow the procedures set forth in this
PARAGRAPH 2.2.3 until Landlord and Tenant reasonably approve such Final Plans
in accordance with this PARAGRAPH 2.2.3.
3. CONSTRUCTION BUDGET. Upon approval by Landlord and Tenant of the
Final Plans, Landlord shall instruct Contractor to obtain competitive bids
for the Tenant Improvements from at least three (3) qualified subcontractors
for each of the major subtrades (excluding the mechanical, electrical and
fire sprinkler trades, which shall be on a design/build basis, unless
Landlord elects to competitively bid these trades) and to submit the same to
Tenant for its review and approval. Upon selection of the subcontractors and
approval of the bids, Contractor shall prepare a cost estimate for the Tenant
Improvements described in such Final Plans, based upon the bids submitted by
the subcontractors selected. Within the time period provided in the Schedule
attached as EXHIBIT B-3, Contractor shall submit such cost estimate to Tenant
for its review and approval. Tenant may approve or reject such cost estimate
in its reasonable sole discretion. If Tenant rejects such cost estimate,
Tenant shall resolicit bids based on such Final Plans, in accordance with the
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procedures specified above. Following any resolicitation of bids by Tenant
pursuant to this PARAGRAPH 3, Tenant shall again follow the procedures set
forth in this PARAGRAPH 3 with respect to the submission and reasonable
approval of the cost estimate from Contractor; provided, however, that Tenant
shall only be permitted to resolicit bids once following Tenant's rejection
of the cost estimate and Tenant shall select from the bids received in the
second solicitation of bids.
4. LANDLORD TO CONSTRUCT. Landlord shall cause Contractor to construct
the Tenant Improvements in a good and workmanlike manner, in accordance with
the approved Final Plans and in compliance with all applicable laws.
Architect shall be responsible for obtaining all necessary building permits
and approvals and other authorizations from governmental agencies required in
connection with the Tenant Improvements. The cost of all such permits and
approvals, including inspection and other building fees required to obtain
the permits for the Tenant Improvements, shall be included as part of the
Tenant Improvement Costs. Tenant shall have the benefit of any warranties
provided by Contractor, the subcontractors and suppliers in connection with
the Tenant Improvements.
5. PAYMENT FOR TENANT IMPROVEMENTS. The Tenant Improvement Costs
shall be paid solely by Tenant as follows.
5.1. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide funds, to
be used for the payment of Tenant Improvement Costs, in an amount not to
exceed Ten and 00/100 Dollars per square foot of Rentable Area (the "Tenant
Improvement Allowance"). Tenant shall pay all of the Tenant Improvement Costs
in excess of the Tenant Improvement Allowance (the "Excess Costs") in
accordance with PARAGRAPH 5.2.
5.2. SET-ASIDE FUNDS. Within five (5) days after Tenant has
approved the cost estimate for the Tenant Improvements pursuant to PARAGRAPH
3 above, Tenant shall deposit into a separate account with any financial
institution designated by Landlord, subject to restrictions in favor of such
financial institution, an amount (the "SET-ASIDE FUNDS") equal to the Excess
Costs, based on the assumption that the cost of the Tenant Improvements shall
equal the Tenant Improvement Allowance and the Excess Cost estimate. Landlord
shall instruct such financial institution to hold the Set-Aside Funds in a
separate interest-bearing account with interest to accrue for Tenant's
account, and
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shall utilize the Set-Aside Funds to pay for the Tenant Improvement Costs in
the manner set forth in this PARAGRAPH 5.
5.3. PAYMENT. As and when any Excess Costs become due and payable,
and so long as Landlord has delivered to Tenant copies of unconditional lien
releases from Contractor and the major subcontractors covering the work for
which such Tenant Improvement Costs are payable, Landlord shall request such
financial institution to utilize the remaining Set-Aside Funds to pay any
amount of Excess Costs; provided, however, that if at any time there are
insufficient Set-Aside Funds to pay any amount of the Excess Costs, Tenant
shall pay any and all such Excess Costs to Landlord within ten (10) days
after the date of Tenant's receipt of Landlord's written request therefor;
and provided further, that Landlord shall use reasonable efforts to provide
for commercially reasonable holdbacks, with respect to the payment of the
Tenant Improvement Costs. Any failure by Tenant to pay any Excess Costs as
and when required under this Agreement shall constitute a default by Tenant
under the Lease.
5.4. PENALTIES. To the extent that any contractor or subcontractor
working on the Tenant Improvements imposes upon Landlord any penalty or late
charge due to Tenant's failure to pay to Landlord any amount due under this
PARAGRAPH 5.4 as and when such amount is due, Tenant shall be solely
responsible for paying such penalty or late charge.
6. TENANT IMPROVEMENT COSTS. The Tenant Improvement Costs shall
include all reasonable costs incurred in connection with the Tenant
Improvements (but not the Capital Improvements), as determined by Landlord in
its reasonable discretion, including the following:
(a) All costs of space plans and other architectural and
engineering plans and specifications for the Tenant Improvements, including
engineering costs associated with completion of the State of California
energy utilization calculations under Title 24 legislation required in
connection with the Tenant Improvements and the base Building mechanical;
(b) All costs of obtaining building permits and other necessary
authorizations from the City of Redwood City;
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(c) All costs of interior design and finish schedule plans and
specifications, including as-built drawings by Architect;
(d) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not
limited to, the construction fee of four and one-half percent (4 1/2%) payable
to the Contractor for overhead and profit, and the cost of all on-site
supervisory and administrative staff, office, equipment and temporary
services rendered by Contractor in connection with construction of the Tenant
Improvements;
(e) All fees payable to Architect and Landlord's engineering firm
if they are required by Tenant to redesign any portion of the Tenant
Improvements following Tenant's approval of the Final Plans;
(f) Sewer connection fees (if any);
(g) All direct and indirect construction costs associated with
complying with Title 24 legislation and ADA compliance for all interior
improvements;
(h) All direct and indirect construction costs associated with
complying with Title 24 legislation and ADA compliance resulting from changes
to the exits from the Building; and
(i) A construction management fee payable to Landlord equal to
Forty Thousand and 00/100 Dollars ($40,000.00).
In no event shall the Tenant Improvement Costs include any costs of
procuring, constructing or installing in the Premises any of Tenant's
Personal Property, trade fixtures, equipment, inventory, computer network,
communications system, promotional materials, signage or related expenses.
7. CHANGE REQUESTS. No revisions to the approved Final Plans shall be
made by either Landlord or Tenant unless approved in writing by both parties.
Landlord agrees to make all changes (i) required by any public agency to
conform with governmental regulations, or (ii) requested in writing by Tenant
and approved in writing by Landlord, which approval shall not be unreasonably
withheld. Any costs related to such changes shall be added to
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the Tenant Improvement Costs and shall be paid for in accordance with
PARAGRAPH 5. The billing for such additional costs shall be accompanied by
evidence of the amounts billed as is customarily used in the business. Costs
related to changes shall include, without limitation, any architectural,
structural engineering, or design fees, and the Contractor's price for
effecting the change. Any change order which may extend the date of
substantial completion of the Tenant Improvements may be disapproved by
Landlord unless Tenant agrees that for all purposes under this Lease, the
Tenant Improvements shall be deemed to have been substantially completed on
that date on which such Tenant Improvements would have been substantially
completed without giving effect to the change order in question.
[SIGNATURES FOLLOW ON NEXT PAGE]
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Exhibit B-1
Midpoint Technology Park
405 Broadway, Redwood City
[IMAGE]
A project of THE MARTIN GROUP
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EXHIBIT B-2
Site Plan
MidPoint Technology Park
405 Broadway
[IMAGE]
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Exhibit C
MidPoint Technology Park
Master Plan
[IMAGE]
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EXHIBIT D
COMMENCEMENT DATE MOMENTUM
LANDLORD: Martin/Campus Associates No. 4, L.P.
TENANT: Broadvision, Inc.
LEASE DATE: January , 1999
PREMISES: 405 Broadway, Redwood City, California
Pursuant to PARAGRAPH 4.A. of the above referenced Lease, the commencement date
is hereby established for 405 Broadway, Redwood City, CA 94063. The Commencement
Date as defined in PARAGRAPH 4.A shall be ______________________, 1999.
TENANT:
BROADVISION, INC.,
a Delaware corporation
By:
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Its:
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Date:
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By:
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Its:
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Date:
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[SIGNATURES FOLLOW ON NEXT PAGE]
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LANDLORD:
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P., a California
limited partnership
Its General Partner
By. TMG Redwood LLC,
a California limited liability company
Its General Partner
By. The Mart: in Group
of Companies, Inc.
a California corporation
Its General Partner
By:
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Its:
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Date:
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By:
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Its:
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Date:
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Exhibit E
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Fremont Investment & Loan
175 N. Riverview Drive
Anaheim, California 92808
Attention: Commercial Real Estate
Loan No.: 950113100
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NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS NONDISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement") is made as
of by and among MARTIN/CAMPUS ASSOCIATES NO. 4, L.P., a Delaware limited
partnership (Landlord whose address is 100 Bush Street, 25th Floor, San
Francisco, California 94104 whose address is
and FREMONT INVESTMENT & LOAN, a California
Industrial loan association ("Lender"), whose address is 175 N. Riverview Drive,
Anaheim, California 92808, Attn: Commercial Real Estate Department, Loan No.
950113100, with respect to the following Recitals:
RECITALS
A. Landlord is the owner of the real property described on EXHIBIT A
attached hereto, together with the improvements now or hereafter located thereon
(collectively, the "Project").
B. Landlord and Lender are the parties to that certain Loan and Security
Agreement of even date herewith (the "Loan Agreement"), pursuant to the terms of
which Lender has agreed to make a loan of up to Sixteen Million Five Hundred
Thousand Dollars ($16,500,000) (the "Loan") to Landlord. The Loan is evidenced
by that certain Secured Promissory Note of even date herewith, in the original
principal amount of the Loan, executed by Landlord in favor of Lender (the
"Note"). The Note is secured, INTER ALIA by that certain Deed of Trust and
Fixture Filing of even date herewith executed by Landlord, as trustor, to the
trustee named therein, in favor of Lender, as beneficiary (the "Deed of Trust")
encumbering the Project, recorded concurrently herewith in the Official Records
of San Mated County, California
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(the "Official Records"), and by that certain Assignment of Rents and Leases
of even date herewith executed by Landlord in favor of Lender (the
"Assignment of Rents") encumbering the Project, recorded concurrently
herewith in the Official Records. The Loan Agreement, the Note, the Deed of
Trust, the Assignment of Rents and all other documents securing, or executed
in connection with the Loan, together with all renewals, substitutions,
extensions, modifications or replacements thereof, are collectively referred
to herein as the "Loan Documents."
C. Tenant and Landlord are the current parties to that certain lease
dated between Tenant and
between Tenant and Martin/Campus (as amended, the "Lease"), pursuant to
which Landlord is leasing to Tenant a portion of the Project more particularly
described in the Lease (the Leased Premises").
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NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. LOAN DISBURSEMENTS.
Tenant agrees and acknowledges that in making disbursements of the Loan,
Lender is under no obligation or duty, nor has Lender represented that it
will, see to the application of the Loan proceeds by the person or persons to
whom Lender disburses the Loan proceeds, and any application or use of the
Loan proceeds for purposes other than those provided for in the Loan
Documents shall not defeat in whole or In part the agreements set forth
herein.
2. NONDISTURBANCE AND ATTORNMENT.
If the interest of Landlord under the Lease is transferred by reason of any
foreclosure of the Deed of Trust or by deed in lieu or in aid thereof Purchaser
(as hereinafter defined) shall be bound to Tenant, and Tenant shall be bound to
Purchaser, under all or the terms, covenant and conditions or the Lease (except
as provided in SECTION 5 hereof) for the balance of the term thereof, with the
same force and effect as if Purchaser were the original landlord under the
Lease, Tenant does hereby attorn to Purchase as the landlord under the Lease,
which attornment shall be effective and self-operate (notwithstanding whether
Tenant is then in default under the Lease) without the execution of any further
instruments upon Purchaser's succeeding to the interest of the landlord under
the Lease; provided, however, that nothing set forth herein shall (i) give or
be construed to have given Tenant the right to asset that the foregoing
nondisturbance and attornment agreements are not effective in the event Tenant
is in default under the Lease, whether or not any applicable notice and cure
periods specifically provided far under the Lease with respect to Tenant's
default have expired, and/or (ii) waive or be deemed a waiver by Purchaser of
its rights under the Lease upon Tenant's defaults thereunder beyond any
applicable notice and cure periods, regardless of when such default occurred.
Without limiting the generality of this SECTION 2, within fifteen (15) calendar
days after the request of Landlord, Lender or any Purchaser, Tenant shall
execute and deliver such documents as are reasonably requested by such party to
reflect such attornment. Within twenty (20) calendar days after the request of
any Purchaser or Tenant, such parties shall enter into a new lease of
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the Leased Premises for the balance of the then remaining term of the Lease
and upon the same terms and conditions as are then contained in the Lease. As
used herein, "Purchaser" shall mean a transferee (including, without,
limitation, Lender and its affiliates and subsidiaries) which acquires the
Interest of Landlord in the Leased Premises through a foreclosure of the Deed
of Trust or a deed In lieu or in aid thereof, and its successors and assigns.
3. TENANT AGREEMENTS.
TENANT AGREES THAT:
A. Pursuant to SECTION 34 of the Lease, Tenant shall send a copy of any
notice of a default by Landlord under the Lease to Lender at the same time such
notice is sent to Landlord; and
B. without Lender's prior written consent, Tenant shall not (i) pay any
rent (however denominated) or other charges under the Lease more than one (1)
month in advance or (ii) cancel, terminate or surrender the Lease, except at the
normal expiration of the Lease term or as expressly provided in the Lease or
pursuant to applicable law. Any amendment or modification to the Lease entered
into without Lender's prior written consent to the extent such consent is
required under the Loan Document shall not be binding upon Lender or any
Purchaser; and
C. Upon the occurrence of any event of default by Landlord under the Loan
Documents and the expiration of any applicable cure periods expressly provided
For under the Loan Documents, Lender, at all
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times, independent of Landlord, shall have the standing and right to enforce,
by injunction or otherwise, all or any provisions in the Lease as though
Lender originally was a party thereto.
4. ASSIGNMENT OF RENTS.
Tenant agrees to recognize the assignment from Landlord to Lender of the
Lease and the amounts payable thereunder pursuant to the Assignment of Rents
and, in the event of any default by Landlord under the Loan Documents and the
expiration of any applicable cure period expressly set forth therein, Tenant
shall pay to Lender, as such assignee, the rents and other amounts which are or
become due under the Lease from and after the date on which Lender gives Tenant
notice that such rent and other amounts are to be paid to Lender pursuant to the
Assignment or Rents. In complying with the Provisions of this SECTION 4. Tenant
shall be entitled to rely solely upon the notices given by Lender pursuant to
the Assignment of Rent and Landlord hereby indemnifies and agrees to defend and
hold Tenant, harmless from and against any and all expenses, loss, claims,
damage or liability arising out of Tenants compliance with such notice or
performance of the obligations under the Lease by the Tenant made in good faith
in reliance on and pursuant to such notice, Tenant shall be entitled to full
credit under the Lease for any rents paid to Lender in accordance with the
provisions hereof. Any dispute between Lender (or any other Purchaser) and
Landlord as to the existence or nature of a default by Landlord under the terms
or the Loan Documents or with respect to the foreclosure of the Deed of Trust,
shall be dealt with and adjusted solely between Lender (or such other Purchaser)
and Landlord, and Tenant shall be made a party thereto (unless joinder is
required by law).
5. LENDER'S OBLIGATIONS.
Nothing in this Agreement and no action taken by Lender to enforce any
provision in the Lease shall be deemed or construed to constitute an agreement
by Lender to perform or assume any covenant of Landlord as landlord under the
Lease unless and until Lender obtains title to the Leased Premises by
foreclosure of the Deed of Trust or a deed in lieu or in aid thereof. Without
limiting any of Tenant's rights against Landlord under the Lease, in the event
Lender acquires title to the Leased Premises, Lender shall:
A. be liable only for any damages or other relief attributable to any
act or omission during Lender's period of
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ownership of the Leased Premises, regardless of whether such act or omissions
commenced prior to such period or ownership. For example, if the Lease
provides that the failure of the Landlord to repair a hole in the roof
occurred 60 days prior to Lender's acquisition of title and was not repaired
for another 30 days thereafter, Tenant would only be entitled to offset
against its rental obligations owed to Lender 30 days rental and would retain
a claim against Landlord for 60 days rental;
B. only be responsible for representations, warranties and covenants of
Landlord the extent that such representations, warranties and covenants apply to
the Project and relate to the operation of the Project during Lender's period of
ownership of the Leased Premises;
C. be liable only for any security deposit actually delivered to Lender;
and
D. have its obligations and liabilities limited to the then
interest, if any, of Lender in the Project, without consideration of any
mortgage liens placed on the Project by Lender. Tenant's shall look exclusively
to such interest of Lender, if any, in the Project (including any insurance
proceeds thereof and the proceeds of the sale thereof) the payment and discharge
of any obligations imposed upon Lender hereunder or under the Lease and Tenant
releases Lender from any ether liability hereunder and under the Lease.
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Nothing contained In this Section shall be deemed to limit or affect Tenant's
claims against Landlord for any breaches of the Landlord's obligations under
the Lease, or for any breaches of Landlord's representations, warranties and
covenants under the Lease, or for return of any security deposit under the
Lease, and no transfer of the Project to Lender shall release Landlord from
any of its Lease obligations, notwithstanding anything to the contrary in the
Lease.
6. ESTOPPEL CERTIFICATE.
Pursuant to SECTION 30 of the Lease, Tenant agrees, from time to time,
within fifteen (15) days after Lender's request, to execute and deliver to
Lender or Lenders designee, any estoppel certificate reasonably requested by
Lender, stating that the Lease is in full force and effect, to date to which
rent has been paid, that Landlord is not in default under the Lease (or
specifying in detail the nature at Landlord's default), and such other matters
relating to the Lease as may be reasonably requested by Lender,
7. NO MERGER.
The parties agree that, without Lenders prior written torment, Landlord's
estate in and to the Project and the leasehold estate created by the Lease shall
not merge but shall remain separated and distinct, notwithstanding the union of
such estates in Landlord, Tenant or any third party by purchase, assignment or
otherwise.
8. ENTIRE AGREEMENT.
This Agreement shall be the whole and only agreement with regard to the
matters set forth herein and shall supersede and cancel any prior agreements
with respect thereto, including, without limitation, any provisions contained in
the Lease relating thereto.
9. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. Signature and acknowledgment pages may be detached from the
counterparts and attached to a single copy of this Agreement to physically form
one document, which may be recorded.
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10. MODIFICATIONS, SUCCESSORS AND ASSIGNS.
This Agreement may only be modified in writing signed by all of the parties
hereto or their respective successors in interest. This Agreement, Including
without limitation, the provisions of SECTION 5, shall inure to the benefit of,
and be binding upon, the parties hereto and their respective successors and
assigns.
11. ATTORNEYS' FEES.
If any lawsuit or other proceeding Is commenced which arises out of, or
which relates to this Agreement, including any alleged tort, action, the
prevailing party shall be entitled to recover from each other party such sums as
the court or other party presiding over such action or proceeding may adjudge to
be reasonable attorneys' fees and cost in the action or proceeding, In addition
to cost and expenses otherwise allowed by law. Any such attorneys' fees and case
incurred by any party in enforcing a judgment in its favor under this Agreement
shall be recoverable separately from and in addition to any other amount
included in such judgement and shall survive and not be merged into any such
judgment.
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The obligation to pay such attorneys' fees and casts is intended to be severable
from the other provisions of this Agreement.
12. GOVERNING LAW.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
13. NOTICES.
Any notice, or other document or demand required or permitted under this
Agreement shall be in writing addressed to the appropriate address set forth
above and shall be deemed delivered on the earliest of (a) actual receipt, (b)
the next business day after the date when sent by recognized overnight courier,
or (c) the second business day after the date when sent by registered or
certified mail, postage prepaid. Any party may, from time to time, change the
address at, which such written notices or other document or demands are to be
sent, by giving the other parties written notice of such change in the manner
hereinabove provided.
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EXHIBIT F
MEMORANDUM OF LEASE
RECORDING REQUESTED BY, AND:
WHEN RECORDED, RETURN TO:
-------------------------
-------------------------
-------------------------
-------------------------
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MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE ("Memorandum"), dated as of the _____ day of
____, 1999, is made and entered into by and between MARTIN/CAMPUS ASSOCIATES
NO. 4, L.P., a Delaware limited partnership ("Landlord"),and BROADVISION,
INC., a Delaware corporation ("Tenant").
RECITALS
This Memorandum is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. Landlord and Tenant have entered into that certain Lease
Agreement dated as of January _____, 1999 (collectively, together with any
and all amendments and supplements thereto, hereinafter referred to as the
"Lease"). Pursuant to the terms, covenants and conditions of the Lease,
Tenant has leased from Landlord a portion of that certain real property (the
"Real Property") and all improvements thereon, as more particularly described
in EXHIBITS A-1 AND A-2 hereto. That portion of the Real Property being
leased by Tenant is hereafter called the "Premises", and is more particularly
described in EXHIBIT B hereto. A copy of the Lease is being held by Tenant at
its office at the Premises.
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B. Landlord and Tenant desire to enter into this Memorandum which
is to be recorded in order that third parties may have notice of the estate
of Tenant in the Premises.
NOW THEREFORE, in consideration of the mutual covenants and
promises of the parties, the parties hereto agree as follows.
1. LEASE OF PREMISES. Landlord leases the Premises to Tenant and
Tenant hires the Premises from Landlord, on the terms, covenants and
conditions set forth in the Lease, for the Term, defined in the Lease.
2. TERM. The term of the Lease shall commence on the Lease
Commencement Date, as defined in the Lease, and shall terminate on December
4, 2007, subject to extension by Tenant for one (1) period of five (5) years,
pursuant to PARAGRAPH 4 of the Lease (collectively, the "Term").
3. COVENANTS RUN WITH THE LAND. All of the provisions,
agreements, rights, powers, covenants, conditions and obligations contained
in the Lease shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, successors (by merger, consolidation or
otherwise) and assigns, devisees, administrators, representatives, lessees,
and all other persons acquiring the Premises, or any portion thereof, or any
interest therein, whether by operation of law or in any manner whatsoever,
unless and until modified as provided in the Lease. All of the provisions of
the Lease, for the Term of the Lease, including any permitted hold-over
period, shall be covenants running with the land pursuant to applicable law.
It is expressly acknowledged that each covenant to do or refrain from doing
some act on the Premises is for the benefit of the Premises and is a burden
upon the Premises, runs with the Premises, and shall benefit or be binding
upon each successive owner during its ownership of the Premises, or any
portion thereof, and each person having an interest therein derived in any
manner through any owner thereof, or any portion thereof.
4. LEASE TO CONTROL. All of the terms, conditions, provisions and
covenants of the Lease are incorporated in this Memorandum by reference as
though written out at length herein and both the Lease and this Memorandum
shall be deemed to constitute a single instrument or document. If any
inconsistency shall exist between the Lease and this Memorandum, the Lease
shall control. This Memorandum and the Lease, and the covenants
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and agreements herein and therein contained, shall bind and inure to the
benefit of the parties hereto, their heirs, successors, executors,
administrators and assigns.
5. SIGNATURE PAGE. For convenience, the signatures of the parties
to this Memorandum may be executed on separate pages, which when attached to
this Memorandum shall constitute this as one complete Memorandum.
IN WITNESS WHEREOF, the parties hereto have executed this
Memorandum as of the day and year first above written.
"TENANT"
BROADVISION, INC.,
a Delaware corporation
By:
--------------------------
Its:
-------------------------
By:
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Its:
-------------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
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"LANDLORD"
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P.,
a California limited partnership
Its General Partner
By: TMG Redwood LLC,
a California limited liability company
Its General Partner
By: The Martin Group
of Companies, Inc.,
a California corporation
Its General Partner
By:
----------------------
Its:
---------------------
Date
--------------------
By:
----------------------
Its:
---------------------
Date:
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attach notaries
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Second Floor - Floor Plan
EXHIBIT B
[Image]
<PAGE>
EXHIBIT C
- BroadVision WILL supply the refrigerators on the second floor of the
building. Microwaves will need to be provided by RealNames.
- SECURITY: The security guards that work for The Martin Group patrol the
entire property.
- CARD KEYS FOR 405: Yes, BroadVision will provide them for RealNames. It
will require a $15.00 deposit per key. The deposit will be returned when the
keys are returned. If one is to get lost, there is a $15.00 charge to replace
the key. The charge for lost keys is not refundable. This is for the main
lobby entrance into the building, the second floor entrance and the second
floor server room. There are also two other entrances with stairwells to the
second floor which we will supply door keys to (same key fits both doors) at
$5.00 deposit per key. If one is to be lost, there is a non-refundable $5.00
charge.
- ADDRESS TO BE USED BY REAL NAMES RealNames can use the 405 Broadway
address as their main address.
- SIGNAGE: Small street signage base to be provided. Patsy, David Wright
(landlord) needs a camera-ready disc with your art to complete the sign. Or,
you can forward the disc directly to Jim Mag @ Arrow Signs @ 510.533.7693.
This base sign will have both BroadVision and RealNames on it. There will
also be signage on the glass doors (at the front of the building). All
signage of RealNames is at RealName's expense. RealNames to obtain final
approval from BroadVision for ALL signage.
- RealNames to provide signage in the lobby which directs those entrancing
to the the stairwell that leads to the second floor.
FURNITURE FOR 2ND FLOOR OF 405:
- BroadVision will supply furniture for 21 hardwall offices which includes
a free standing desk, two pedestals and a bookcase.
- BroadVision will supply furniture for 99 8` x 8` cubicles complete
w/overhead bins and organizers and pedestals.
- BroadVision will supply furniture for 7 conference rooms which will
include seating.
- Note: Although BroadVision is quoting numbers above (as to how many
hard-wall offices, cubicles and conference rooms that are in the building on
the second floor), the buildout plan may change due to circumstances. We
<PAGE>
will supply furniture to complete AS BEST WE CAN, the available spaces on the
second floor. However, if the number of cubicles change, for example, we are
not bound by the numbers quoted above. Bottom line: We will adequately
furnish the space.
- Chairs will be provided.
- MIS/TELEPHONY: Exhibit D: BroadVision will supply three 19" cabinets, wire
managers, (NO PATCH CORDS), and power. BroadVision will provide phone blocks in
the Server Room (voice will be terminated on BV side of the blocks).
- Real Names to provide tie to MPOE in Basement.
<PAGE>
PREMISES BUILDOUT - MIS/TELEPHONY
EXHIBIT D
2ND FLOOR SERVER ROOM
[IMAGE]
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JANITORIAL SPECIFICATIONS
Areas to be serviced 5 days per week.
1. Lobbies and hallways . . . . . . . . . . . . . . . . . . . . . . . .Daily
2. Office areas . . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
3. Cafe and break areas ( appliances included) . . . . . . . . . . . . .Daily
4. Restrooms and lounges . . . . . . . . . . . . . . . . . . . . . . . .Daily
5. Computer rooms . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
6. Elevators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
Areas to be dusted:
1. Wall and partitions Weekly
2. Window sill . . . . . . . . . . . . . . . . . . . . . . . . . . . . Weekly
3. Picture frames . . . . . . . . . . . . . . . . . . . . . . . . . . Weekly
4. Chalk rails . . . . . . . . . . . . . . . . . . . . . . . . . . . . Daily
5. HVAC Vents . . . . . . . . . . . . . . . . . . . . . . . . . . . Annually
6. Chairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Weekly
7. Other equipment and furniture . . . . . . . . . . . . . . . . . . . Weekly
8. Detail clean . . . . . . . . . . . . . . . . . . . . . . . . . . . Weekly
Restrooms:
1. Sanitize toilets and urinals . . . . . . . . . . . . . . . . . . . .Daily
2. Clean and sanitize sinks . . . . . . . . . . . . . . . . . . . . . .Daily
3. Clean mirrors . . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
4. Clean all chrome . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
5. Damp mop and sanitize floors . . . . . . . . . . . . . . . . . . . .Daily
6. Clean partitions . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
7. Fill all dispensers . . . . . . . . . . . . . . . . . . . . . . . . .Daily
8. Empty all receptacles . . . . . . . . . . . . . . . . . . . . . . . .Daily
9. Clean and sanitize showers . . . . . . . . . . . . . . . . . . . . .Daily
Cleaning Tasks:
1. Trash receptacles . . . . . . . . . . . . . . . . . . . . . . . . .Daily
2. Drinking fountains . . . . . . . . . . . . . . . . . . . . . . . . .Daily
3. Sand urns . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
4. Janitorial closets . . . . . . . . . . . . . . . . . . . . . . . . .Daily
5. Refrigerators(inside) . . . . . . . . . . . . . . . . . . . . . . . Weekly
6. Microwave (inside) . . . . . . . . . . . . . . . . . . . . . . . . Weekly
<PAGE>
Floor Service:
1. Sweep and / or mop. . . . . . . . . . . . . . . . . . . . . . . . . .Daily
2. Spot clean . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
3. Spray buff . . . . . . . . . . . . . . . . . . . . . . . . . . .Quarterly
4. Refinish VCT tile . . . . . . . . . . . . . . . . . . . . . . . . Annually
Carpets:
1. Vacuum, general cleaning. . . . . . . . . . . . . . . . . . . . . . .Daily
2. Vacuum, detail . . . . . . . . . . . . . . . . . . . . . . . . . . Weekly
3. Spot clean . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Daily
4. Complete carpet cleaning (dry clean method) . . . . . . . . . . . Annually
Windows:
1. Interior glass office doors . . . . . . . . . . . . . . . . . . . . .Daily
2. Interior glass partitions . . . . . . . . . . . . . . . . . . . . . Weekly
3. Lobby side windows. . . . . . . . . . . . . . . . . . . . . . . . .Monthly
4. Exterior entry doors . . . . . . . . . . . . . . . . . . . . . . . .Daily
Special services
1. Secure building, lights, alarms and doors . . . . . . . . . . . . . .Daily
2. Janitors are to report all uncommon events (i.e. leaky faucets, non-closing
doors, etc.).
3. MSDS sheets can be provided for all chemicals kept on sight.
Owner liaison
1. Monthly meetings and or reports reviewing quality and performance.
2. Meetings upon request regarding problems and/or levels of service.
Miscellaneous
1. All paper and cleaning Supplies will be provided and included in monthly
pricing.
<PAGE>
MISCELLANEOUS MAINTENANCE
Miscellaneous maintenance repairs will be covered in this contract under the
following conditions:
1. PLUMBING REPAIRS
a. All interior plumbing repairs are included in this contract. They will be
responded to as emergencies 24 hours a day 7 days a week.
b. The main water lines that service the building are not included in this
contract.
c. This only includes repairing and replacing the plumbing parts to their
original state. This contract does not include repairing the damage that might
have been caused to the building structure or the furnishings therein.
2. ELECTRICAL REPAIRS
a. All interior electrical repairs will be included in this contract. The only
exclusions are vandalism, fixture replacement, and modifications.
b. This only includes repairing and replacing the electrical parts to their
original state. This contract does not include repairing the damage that might
have been caused due to the building structure or the furnishings therein.
3. MISCELLANEOUS REPAIRS
a. Miscellaneous repairs will be Santa Clara Valley Corporation's
responsibility. These repairs might include repairing or adjusting doors,
repairing partitions, replacing molding, replacing damaged ceiling tiles,
repairing bathroom problems, etc.
b. The repairs that are covered under this contract are only genuine
maintenance repairs, not tenant improvements.
c. SCVC is willing to provide additional maintenance services at RealNames
cost. SCVC will invoice RealNames directly.
Any damages caused by Santa Clara Valley Corporation's negligence will be
repaired at our expense.
<PAGE>
EXTERIOR INTERIOR LIGHT MAINTENANCE
EXTERIOR
Exterior light maintenance will be performed on a monthly basis. During this
inspection replacement of all bulbs, tubes and ballasts will be performed as
needed. Alternating months we will be monitoring the timers on the lights at
sunrise and sunset to make sure they turn on and off at the proper times in
order to not waste energy. Vandalism, fixture replacement and modifications are
the only light maintenance expenses that are not included in this contract.
INTERIOR
Interior light maintenance will be performed on a weekly basis. This will
include a complete inspection of the interior of the complex. During the
inspection, replacement of all bulbs, tubes and ballasts will be performed as
needed. Vandalism, fixture replacement and modifications are the only items that
are not included in this contract.