EXHIBIT 10.7(b)
LEASE
BY AND BETWEEN
ALAMEDA REAL ESTATE INVESTMENTS,
a California limited partnership
AND
ASK COMPUTER SYSTEMS, INC.,
a California corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
Page
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1. Parties.............................................................. 1
2. Demise of Premises................................................... 1
3. Lease Term, Definitions, Early Entry and Construction................ 1
A. Lease Term..................................................... 1
B. Definitions.................................................... 1
C. Early Entry Following Renovation Improvements.................. 3
D. Construction of Renovation Improvements........................ 3
4. Rent................................................................. 3
A. Payment of Rent................................................ 3
B. Schedule of Base Monthly Rent.................................. 3
C. Rental Abatement............................................... 4
D. Late Charge.................................................... 4
E. Renovation Improvements........................................ 4
F. Additional Rent................................................ 4
G. Operating Expenses............................................. 4
H. Place of Payment............................................... 6
5. Security Deposit..................................................... 7
6. Use of Premises...................................................... 7
7. Taxes and Assessments................................................ 7
A. Tenant's Property.............................................. 7
B. Payment of Property Taxes...................................... 7
C. Property Taxes Defined......................................... 7
D. Assessments.................................................... 8
E. Other Taxes.................................................... 8
F. Tenant's Right to Contest...................................... 8
G. Reduction in Property Taxes.................................... 8
8. Insurance............................................................ 8
A. Waiver and Indemnity........................................... 8
B. Tenant's Liability Insurance................................... 9
C. Landlord's Liability Insurance................................. 9
D. Fire and All Risk Insurance.................................... 9
E. Release of Landlord............................................ 10
F. Mutual Waiver of Subrogation................................... 10
9. Utilities............................................................ 10
10. Repairs and Maintenance.............................................. 10
A. Tenant's Responsibilities...................................... 10
B. Landlord's Responsibilities.................................... 11
C. Warranties..................................................... 12
D. Condition on Delivery.......................................... 12
E. Limitation on Repair Obligation of Landlord.................... 12
11. Outside Areas........................................................ 12
12. Amortization of Certain Improvements as Additional Rent.............. 12
13. Alterations.......................................................... 13
A. Trade Fixtures................................................. 13
B. Alterations.................................................... 13
▇. ▇▇▇▇ Waiver.................................................... 14
D. Legally Required Alterations................................... 14
14. Delivery of Possession After Renovation Improvements................. 14
15. Default.............................................................. 15
A. Events of Tenant's Default..................................... 15
B. Remedies....................................................... 15
16. Destruction.......................................................... 16
A. Landlord's Duty to Restore..................................... 16
B. Landlord's Right to Terminate.................................. 17
C. Tenant's Right to Terminate.................................... 18
D. Abatement of Rent.............................................. 18
17. Condemnation......................................................... 18
A. Definition of Terms............................................ 18
B. Rights......................................................... 18
C. Total Taking................................................... 19
D. Partial Taking................................................. 19
E. Temporary Taking............................................... 19
18. Mechanics' Liens..................................................... 19
19. Inspection of the Premises........................................... 19
20. Compliance with Laws................................................. 19
A. Obligation of Tenant........................................... 19
B. Right to Contest............................................... 20
21. Subordination........................................................ 20
22. Holding Over......................................................... 20
23. Notices.............................................................. 20
24. Attorneys' Fees...................................................... 21
25. Nonassignment........................................................ 21
A. Consent Required............................................... 21
B. Notice Requested............................................... 22
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TABLE OF CONTENTS
(continued)
Page
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C. Landlord's Right to Share in Net Subrent Profit............ 22
D. Exempt Transfers........................................... 23
26. Successors..................................................... 23
27. Lender Protection.............................................. 23
28. Estoppel Certificates and Financial Statements................. 23
29. Surrender of Lease Not Merger.................................. 24
30. Waiver......................................................... 24
31. General........................................................ 24
A. Captions................................................... 24
B. Transfers by Landlord: Limitations on Tenant's Recourse
for Landlord Default.................................. 24
C. Time....................................................... 25
D. Severability: Governing Law................................ 25
E. Joint and Several Liability................................ 25
F. Exhibits................................................... 25
G. Miscellaneous.............................................. 25
H. Survival................................................... 25
32. Signs.......................................................... 25
33. Interest on Past Due Obligations............................... 26
34. Surrender of the Premises...................................... 26
35. Authority...................................................... 26
36. Options to Extend.............................................. 26
37. Hazardous Material............................................. 27
A. Definitions................................................ 27
B. Use Restriction............................................ 27
C. Compliance................................................. 29
D. Assignment and Subletting.................................. 29
E. Notice..................................................... 29
F. Surrender.................................................. 29
G. Landlord's Obligations..................................... 30
38. Approvals...................................................... 30
39. Reasonable Expenditures........................................ 30
40. Right to Perform Other Party's Covenants...................... 30
41. CPI Adjustment................................................. 30
42. Integration and Amendments...................................... 30
43. Memorandum of Lease............................................ 31
44. Non-Discrimination............................................. 31
45. Brokerage Commissions.......................................... 31
46. Existing Tenancy............................................... 31
EXHIBITS
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EXHIBIT A - Diagram(s) of Premises
EXHIBIT B - Improvement Agreement
EXHIBIT C - Diagram of Marina Village Project
EXHIBIT D - Existing Hazardous Material Condition
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MARINA VILLAGE
LEASE
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ASK COMPUTER SYSTEMS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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As of the Commencement Date (as hereinafter defined) this Lease shall replace
and supersede that certain Lease dated August 1, 1984 ("Previous Lease") by and
between ASK COMPUTER SYSTEMS INC., as successor-in-interest to RELATIONAL
TECHNOLOGY, INC., as Tenant, and ALAMEDA REAL ESTATE INVESTMENTS, as Landlord,
with respect to the Premises (as hereinafter defined), except that the Previous
Lease shall continue to govern the rights and obligations of the parties
accruing prior to that date with respect to the Premises.
1. PARTIES. This Lease, dated for reference purposes as of June 25, 1992, is
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made by and between ALAMEDA REAL ESTATE INVESTMENTS, a California limited
partnership ("Landlord"), and ASK COMPUTER SYSTEMS, INC., a Delaware
corporation ("Tenant").
2. DEMISE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby
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leases from Landlord, upon the terms and conditions hereinafter set forth,
those certain premises (the "Premises") situated in the City of Alameda,
County of Alameda, State of California, described as follows:
A. The right to use in common with other tenants of the Building, the
Common Areas within the Building and the Outside Areas adjacent to the
Building and located on the Parcel (as such terms are hereinafter defined);
B. Approximately 83,091 square feet of Rentable Area (as defined in
Paragraph 3.B(xiv)) as shown on Exhibit A hereto, subject to adjustment
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under Paragraph 4.C(ii), and located within that building (the "Building")
known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, constructed on a portion of that
certain real property described as Lot 3 of Parcel Map 4299 recorded July
24, 1985 in Map Book 155, Pages 21-26, Alameda County Records (the
"Parcel"); and
C. All interior improvements previously constructed or to be constructed
(the "Renovation Improvements") in the Premises in accordance with the
provisions of the Improvement Agreement attached hereto as Exhibit B.
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3. LEASE TERM, DEFINITIONS, EARLY ENTRY AND CONSTRUCTION.
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A. Lease Term. The term of this Lease (the "Lease Term") shall commence
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on June 30, 1992 (the "Commencement Date") and shall end September 30,
2004, unless sooner terminated or extended pursuant to any provision of
this Lease. Landlord and Tenant acknowledge that Tenant has the Option,
pursuant to that certain Marina Village Lease ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
of even date herewith, to terminate this Lease by notice given to Landlord
on or before December 15, 1992.
B. Definitions. As used herein, the following terms shall have the
-----------
following meanings:
(i) The term "Affiliate" shall mean with respect to either Landlord or
Tenant, a person or entity that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under
common control with Landlord (or either of its constituent partners,
or the shareholders or partners of such constituent partners) or
Tenant and any officer, director, trustee, shareholder or partner of
any such person or entity. For purposes of this definition, the term
"control" means the ownership of fifty percent (50%) or more of the
beneficial interest or voting power of the appropriate entity (e.g.,
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partnership, corporation, trust, or unincorporated association).
(ii) The term "Agent" shall mean, with respect to either Landlord or
Tenant, its respective agents, employees, contractors (and their
subcontractors), and invitees (and in the case of Tenant, its
subtenants).
(iii) The term "Agreed Interest Rate" shall mean the "prime" or reference
rate announced from time to time by the Bank of America, NT & SA, or
its successor, for short-term commercial loans plus two percent (2%)
per annum, but in no event to exceed the maximum interest rate
permitted by law.
1
(iv) The term "Alterations" shall mean improvements, additions, alterations
and fixtures installed in the Premises by Tenant at its expense which
are not Trade Fixtures.
(v) The term "Common Area" shall mean those portions of the Building not
leased to Tenant or other tenants or available for lease or exclusive
use to other tenants, whether or not those areas are actually subject
to an existing lease, such as hallways, lobby, common restrooms,
utility rooms, etc.
(vi) The term "Consumer Price Index" shall mean the Consumer Price Index,
for All Urban Consumers Subgroup "All Items", for the San Francisco-
Oakland-San ▇▇▇▇ Metropolitan Area (Base Year 1982-84=100), which is
currently being published monthly by the United States Department of
Labor, Bureau of Labor Statistics. If, however, this Consumer Price
Index is changed so that the base year is altered from that used as of
the Commencement Date, then the Consumer Price Index shall be converted
in accordance with the conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics, to obtain the same
results that would have been obtained had the base year not been
changed. If no conversion factor is available or if the Consumer Price
Index is otherwise changed, revised or discontinued for any reason,
there shall be substituted in lieu thereof and the term "Consumer Price
Index" shall thereafter refer to the most nearly comparable official
price index of the United States Government to obtain substantially the
same result as would have been obtained had the original Consumer Price
Index not been changed, revised or discontinued, which alternative
index shall be selected by Landlord and shall be subject to Tenant's
prior written approval.
(vii) The term "Effective Date" shall mean the date first set forth above
also used for reference purposes as the date of this Lease.
(viii) The term "Institutional Lender" shall mean any commercial bank, savings
and loan association, life insurance company, pension fund, or other
entity regularly engaged in the business of lending where the primary
security is real property whose activities are regulated by the state
or federal government, and which institution is then in compliance with
all regulations by which it is governed.
(ix) The term "Law" shall mean any judicial decision, statute, constitution,
ordinance, resolution, regulation, rule, administrative order, or other
requirement of any municipal, county, state, federal or other
governmental agency or authority having jurisdiction over the parties
to this Lease or the Premises.
(x) The term "Lender" shall mean any beneficiary, mortgagee, secured party
or other holder of any deed of trust, mortgage or other written
security device or agreement encumbering the Premises.
(xi) The term "Outside Areas" shall mean all access roads, driveways,
parking areas, loading docks and ramps, side-walks, landscape areas,
exterior lighting and other facilities located on the Parcel outside
the exterior walls of the Building.
(xii) The term "Project" shall mean all real property within the West End
Community Improvement Project Area which is commonly referred to as
Marina Village, Alameda, California, and more specifically outlined on
Exhibit C attached hereto.
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(xiii) The term "Renovation Commencement Date" with respect to any portion of
the Premises vacated by Tenant to permit Landlord to perform the
Renovation Improvements under the Improvement Agreement shall mean the
date when all of the following have occurred: (a) Landlord has caused
to be substantially completed on any given floor of the Premises all
work to be performed by Landlord pursuant to the Improvement Agreement
("Landlord's Work"):(b) the City of Alameda has issued a temporary
Certificate of Occupancy which permits Tenant to legally occupy that
portion of the Premises and to commence the operation of its business
therein: (c) possession of any portion of the Premises has been
tendered by Landlord to Tenant: (d) all utility services are available
for use by Tenant: and (e) there are no uncompleted items or defects in
construction relating to the Renovation Improvements which would
materially interfere with Tenant's ability to use the Premises for the
uses permitted by the Lease.
(xiv) The term "Rentable Area" shall mean rentable square footage of the
Premises as determined by the Building Owners and Managers Association
(BOMA) measurement standards for multi-story buildings, measuring to
the
2
"glass line" outside boundary, excluding major vertical penetrations,
such as stair ▇▇▇▇▇, elevators and mechanical shafts, exterior decks,
atria and courtyards.
(xv) The term "Tenant's Percentage Share" shall mean the Rentable Area of
the Premises divided by the total Rentable Area of the Building,
which shall be deemed to be 93.08%, subject to adjustment under
subparagraph 4.C,(ii) below .
(xvi) The term "Trade Fixtures" shall mean anything installed in or affixed
to the Premises by Tenant at its expense for purposes of trade,
manufacture, ornament or domestic use (except replacement of similar
work or material originally installed by Landlord) which can be
removed without injury to the Premises (e.g., demountable partitions,
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business and production equipment and systems, furniture and
furnishings) unless such things has, by the manner in which it is
affixed, become an integral part of the Premises.
C. Early Entry Following Renovation Improvements. Tenant may enter the
---------------------------------------------
portion of the Premises after its vacation of such portion (as set forth in
the Improvement Agreement) and prior to the Renovation Commencement Date
for such portion and in accordance with the terms of the Improvement
Agreement to install fixtures and equipment therein provided it first
obtains the prior written approval of Landlord for such entry, which
approval Landlord may withhold if such entry will substantially delay or
increase the cost of completion of construction and Tenant does not agree
to pay such increased cost of Landlord's Work; provided, however, to the
extent such early entry by Tenant causes a delay in the construction of
Landlord's Work, then the Renovation Commencement Date for that portion of
the Premises shall be advanced by the number of days of delay. If Landlord
permits Tenant to so enter upon the Premises, such entry shall be subject
to all of the terms and conditions of this Lease, excepting only the
obligation to pay Base Monthly Rent, Operating Expenses and Property Taxes
with respect to such portion. Tenant shall coordinate its entry onto the
Premises with Landlord and the contractors and other personnel employed by
Landlord and shall at all times while exercising its right of entry refrain
from interfering with the construction activities of such personnel. In any
case, Tenant shall repair any damage to the Renovation Improvements
constructed by Landlord pursuant to Exhibit "B" resulting from the entry
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upon the Premises by Tenant prior to the Renovation Commencement Date or
caused by the installation of Trade Fixtures and equipment by Tenant or
Tenant's Agents. If the entry by Tenant or its Agents prior to the
applicable Renovation Commencement Date causes a delay in completing the
construction of the Renovation Improvements, then the Renovation
Commencement Date shall be deemed to have occurred on the date the
Renovation Improvements would have been completed had there been no such
delay caused by Tenant or its Agents. In the event Tenant does not
immediately comply with any notice from Landlord requesting that Tenant
cease any interference with Landlord's construction activities. Tenant
shall be required to vacate that portion of the Premises but shall
thereafter be entitled to re-enter that portion as soon as reasonably
practicable so long as Tenant's re-entry does not interfere with Landlord's
construction activities in the Premises. Notwithstanding anything to the
contrary contained above, Tenant's obligation for payment of Base Monthly
Rent, Operating Expenses and Property Taxes shall not be advanced unless
within a reasonable period of time after learning of the occurrence of any
delay caused by Tenant or its Agents. Landlord gives notice to Tenant of
the fact that such delay has occurred and the known or anticipated extent
of any such delay.
D. Construction of Renovation Improvements. Following Tenant's vacation of
---------------------------------------
a portion of the Premises and prior to the Renovation Commencement Date,
Landlord shall perform Renovation Improvements in accordance with the terms
of the Improvement Agreement.
4. RENT
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A. Payment of Rent. Tenant shall pay to Landlord as rent for the Premises
---------------
the sum specified in Paragraph 4.B. as the same may be adjusted pursuant to
such Paragraph 4.B (the "Base Monthly Rent") each month in advance on the
first day of each calendar month, without deduction, offset, prior notice
or demand (except as otherwise expressly permitted by this Lease),
commencing on the Commencement Date and continuing through the initial
Lease Term, together with such Additional Rent as is payable by Tenant to
Landlord under the terms of this Lease, subject to the abatement described
in Paragraph 4(C) below.
3
B. Schedule of Base Monthly Rent. The Base Monthly Rent for the Premises shall
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be as follows:
7/1/92 - 3/31/95 $1.160 per square foot of Rentable Area
4/1/95 - 3/31/98 $1.305 per square foot of Rentable Area
4/1/98 - 3/31/01 $1.468 per square foot of Rentable Area
4/1/01 - 3/31/04 $1.651 per square foot of Rentable Area
4/1/04 - 9/30/04 $1.857 per square foot of Rentable Area
This Paragraph 4.B shall not apply during the Option Terms, as the subject of
periodic increases in Base Monthly Rent during the Option Terms is governed by
Paragraph 36.B.
C. Rental Abatement.
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(i) Tenant shall receive a credit in the amount of $140.214 towards the first
installment of Base Monthly Rent due hereunder.
(ii) Landlord and Tenant acknowledge and agree that during the Lease Term,
Landlord shall furnish and install on a phased floor by floor basis,
certain Renovation Improvements within the Premises, pursuant to the
terms and progress schedule described in the Improvement Agreement.
Landlord and Tenant agree to amend this Lease to reflect that commencing
on the date on which Tenant has completely vacated any given floor or
portion of floor of the Premises in accordance with the schedule set
forth in the Improvement Agreement and continuing until the Renovation
Commencement Date for such floor, such floor and its related Rentable
Area shall be deleted from the Premises. Concurrent with the Renovation
Commencement Date for any given floor in the Building, Landlord and
Tenant shall further amend this Lease to reflect the addition of such
Rentable Area to the Premises and such amendment shall provide that until
two weeks after such Renovation Commencement Date for such floor, Tenant
shall not be obligated to pay Monthly Base Rent, Operation Expenses and
Property Taxes due under this Lease pertaining to that portion of the
Premises.
D. Late Charge. If any installment of Base Monthly Rent, Additional Rent or any
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other sum payable by Tenant shall not be received by Landlord when due,
Tenantshall pay to Landlord, as Additional Rent, a late charge equal to four
percent (4%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amount, nor prevent Landlord from exercising any of its rights
and remedies hereunder.
E. Renovation Improvements. The rights and obligations of Landlord and Tenant
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with respect to the Renovation Improvements shall be as set forth in Exhibit B.
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F. Additional Rent. Tenant's obligation to pay its percentage share of Property
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Taxes in accordance with Paragraph 7, Operating Expenses (as defined herein),
and other sums required to be paid by Tenant under this Lease other than Base
Monthly Rent (which other amounts are referred to herein as the "Additional
Rent") shall commence on the Commencement Date. All taxes, Operating Expenses,
late charges, costs and expenses which Tenant is required to pay hereunder,
together with all interest and penalties that may accrue thereon in the event of
Tenant's failure to pay such amounts, and all damages, costs, and attorneys'
fees and expenses which Landlord may incur by reason of any default of Tenant or
failure on Tenant's part to comply with the terms of this Lease, shall be deemed
to be Additional Rent and shall be paid in addition to the Base Monthly Rent,
and, in the event of nonpayment by Tenant. Landlord shall have all of the rights
and remedies with respect thereto as Landlord has for the nonpayment of Base
Monthly Rent.
G. Operating Expenses.
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(1) The term "Operating Expenses" shall mean all expenses and costs of every
kind and nature which Landlord shall reasonably pay or become obligated to pay
because of or in connection with the operation, maintenance and repair of the
Premises, the Building, the Common Area, the Outside Areas, or the Project
including, without limitation, (i) licenses, permit and inspection fees not
related to the Renovation Improvement of the Premises, (ii) premiums for
insurance maintained by Landlord with respect to the Building and the Project
which complies with Paragraph 8.C and 8.D hereof, (iii) wages, salaries and
related expenses and benefits of all employees engaged in operation, maintenance
and security to
4
the extent fairly allocable to the Building (but excluding leasing,
accounting and management activities which are covered by the specified
management fee), (iv) supplies and materials and equipment rental; (v) all
maintenance, repair, janitorial, security and service costs, (vi) a
management cost recovery equal to three percent (3%) of Base Monthly Rent
and Additional Rent payable with respect to the Premises (collectively,
"Gross Revenues") so long as Tenant leases less than all of the Building,
and two percent (2%) of Gross Revenues so long as Tenant leases all of the
Building, provided that Operating Expenses shall not include any other
management fee or costs incurred by Landlord in connection with property
management services, or payable to any third party manager for such
services, and provided further that Gross Revenues shall not include any of
the items described as exclusions from Operating Expenses under
subparagraph 4.G(2), (vii) professional services fees; (viii) repair,
replacement and maintenance costs of the Common Area and Outside Areas,
including, without limitation, those for sidewalks, landscaping, service
areas, parking areas, building exterior, pipes, ducts, conduits, wires and
driveways (excluding those described in Paragraph 10.B to be paid for by
Landlord and not reimbursed as Operating Expenses and those paid for by
proceeds of insurance or by other parties and excluding alterations to the
extent attributable to tenants of the Building other than Tenant), (ix)
amortization of capital improvements to the extent such capital
improvements reduce other Operating Expenses or to the extent that they are
required by governmental authorities amortized according to Paragraph 12,
(x) all charges for heat, water, gas, electricity, sewer and other
utilities used or consumed in the Building, Common Area and Outside Areas,
(xi) maintenance and repair of the roof membrane and (xii) all other
operating expenses reasonably incurred in connection with the operation of
the Building and the Project. Landlord shall not collect in excess of 100%
of all Operating Expenses, and Landlord shall not recover, through
Operating Expenses, any item of costs more than once. Tenant's share of
Operating Expenses and costs incurred by Landlord on a Project-wide basis
shall be the product obtained by multiplying such expenses by a fraction,
the numerator of which is the Rentable Area of the Premises and the
denominator of which is the total Rentable Area of all improvements located
within the Project which benefit from the goods and services relating to
such expenses and costs.
(2) Notwithstanding anything contained in this Lease, the term "Operating
Expenses" shall not include any of the following:
(a) Expenses incurred in connection with (i) obtaining financing for the
Project; (ii) constructing improvements for Tenant or any other tenant of
the Project; (iii) procuring tenants for any portion of the Project
(including commissions and legal fees); (iv) the negotiation, amendment, or
termination of any lease (including unlawful detainer action); or (v)
proceedings against any specific tenant:
(b) Any expenditure for which Landlord has been reimbursed by insurance,
by Tenant, or by any third party (other than pursuant to rent escalation or
tax and operating expense reimbursement provisions in leases):
(c) Any depreciation or amortization on the Project or any property used
in connection therewith:
(d) Expenses in connection with services or other benefits of the type
that are not provided to Tenant, but which are provided to other tenants of
the Project:
(e) Costs incurred due to the violation by Landlord or any other tenant of
the terms of any lease with Landlord affecting the Project:
(f) Overhead and profit increments paid to Affiliates of Landlord, or to
any party as a result of a non-competitive selection process, for
management or other services with respect to the Project to the extent the
cost that would have been paid had the services, supplies, and materials
been provided by parties unaffiliated with Landlord on a competitive basis:
(g) Interest, principal or any other payment made with respect to any
loans obtained by LandLord or any ground lease or underiving lease
affecting the Project:
(h) Rental incurred in leasing building service equipment ordinarily
considered to be of a capital nature (excluding equipment used in providing
janitorial services that is not affixed to the building):
(i) Accounting expenses relating to the ownership entity and not related
to the ownership or operation of the Project:
(j) Any costs, fines or penalties incurred due to violations by Landlord
or any third party of any Law:
5
(k) Any fine and the cost of correcting any violations of Laws applicable
to the design or construction of the Premises prior to the Commencement
Date or any latent defects in the construction of the Premises;
(l) Costs incurred to comply with any Law to the extent of violations
which existed prior to the Commencement Date, including the cost to bring
the Project into compliance with the Americans with Disabilities Act;
(m) The cost of repairs or replacements incurred by reason of fire or
other peril, or caused by the exercise of the right of eminent domain;
(n) Costs directly resulting from the negligence or intentional misconduct
of Landlord or Landlord's Agents;
(o) Any cost or expense incurred in connection with the presence or
alleged presence or remediation of any Hazardous Material on the Project
(which subject is governed exclusively in Paragraph 37 of the Lease) not
caused by Tenant or its Agents;
(p) The "deductible" under any insurance policy maintained by Landlord
(with Tenant's obligation to contribute to the cost of any "deductible"
covered by Paragraph 8.D hereof);
(q) Any Property Taxes or taxes or similar charges excluded from the
definition of "Property Taxes" pursuant to Paragraph 7.C (with Tenant's
obligation to contribute to the payment Real Property Taxes governed by
Paragraph 7.B hereof);
(r) The cost of maintenance, repairs or replacements to the structural
parts of any Building that is part of the Project (including foundation,
load-bearings walls, roof structural system, and floor slab) and all
enclosed plumbing and electrical lines up to the point they enter any
Building in the Project.
(3) Tenant shall pay to Landlord each month at the same time and in the
same manner as monthly Base Rent 1/12th of Landlord's estimate of Tenant's
Percentage Share of Operating Expenses for the then current calendar year.
Within 90 days after the close of each calendar year, or as soon after such
90-day period as practicable. Landlord shall deliver to Tenant a statement
of actual Operating Expenses for such calendar year. If on the basis of
such statement Tenant owes an amount that is less than the estimated for
such calendar year previously made by Tenant. Landlord shall refund such
excess to Tenant. If on the basis of such statement 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 30 days
after delivery of the statement. The obligations of Landlord and Tenant
under this subparagraph with respect to the reconciliation between
estimated payments and actual Operating Expenses for the last year of the
term shall survive the termination of the Lease.
(4) If requested by Tenant, Landlord shall make available to Tenant,
within 45 days of Tenant's notice of requests, which notice shall be given
no later than 90 days following Tenant's receipt of Landlord's statement,
actual bills and invoices, or copies thereof, supporting Landlord's
statement of estimated or actual Operating Expenses for such calendar year,
together with Landlord's calculations of Operating Expenses and Tenant's
Percentage Share. If Tenant disputes such statement, then Tenant shall not
withhold payment but shall, within 10 days after reviewing such bills and
invoices, send notice to Landlord objecting to such statement. If such
notice is sent, the parties recognize the unavailability of Landlord's
books and records because of the confidential nature thereof and hence
agree that either party may refer the decision of the issues raised to a
reputable independent firm of certified public accountants selected by
Landlord and approved by Tenant, which approval shall not be unreasonably
withheld or delayed, which accountants shall have the right to audit
Landlord's records pertaining to Operating Expenses. Any adjustment to any
previous payment of Operating Expenses shall be paid by Landlord or Tenant,
as the case may be, within 30 days after such accountants render their
decision. If the accountants find that the Landlord's statement has
overstated the total Operating Expenses by 5% or more, then Landlord shall
bear the cost of all fees and expenses of the accountants. Otherwise, the
Tenant shall bear the cost of all fees and expenses of the accountants.
H. Place of Payment. Rent shall be payable in lawful money of the United
----------------
States of America to Landlord at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or to such other person(s) or at such other place(s) as
Landlord may designate in writing.
6
5. SECURITY DEPOSIT. No security or similar deposit shall at any time be due
----------------
from Tenant under this Lease.
6. USE OF PREMISES. Tenant may use the Premises for general office use and,
---------------
for so long as Tenant is the tenant for the entire Building, for research
and development purposes which are similar to, and not inconsistent with,
other uses in the Project and which do not require excessive use or misuse
of Building mechanical, electrical, structural or elevator systems, but the
Premises shall not be used for any other purpose. In making such use of the
Premises, Tenant shall comply with all provisions of this Lease, including
without limitation Paragraph 37. Tenant shall indemnify, defend and hold
Landlord harmless against any loss, expense, damage, reasonable attorneys'
fees or liability arising out of failure of Tenant to comply with any
applicable Law. Tenant shall not commit, or suffer to be committed, any
waste upon the Premises, or any nuisance, or allow any sale by auction upon
the Premises, or allow the Premises to be used for any unlawful purpose, or
use any corridor, sidewalks or Outside Areas for storage or any purpose
other than access to the premises, or place or maintain any signs on or
visible from the exterior of the Premises without Landlord's written
consent or do or permit to be done anything in and about the Premises,
either in connection with activities hereunder expressly permitted or
otherwise, which would cause a cancellation of any policy of insurance
(including fire insurance) maintained by Landlord in connection with the
Premises or the Building which would violate the terms of any covenants,
conditions or restrictions affecting the Building or the land on which it
is located or place any loads upon the floor, walls or ceiling which
endanger the structure, or place any harmful liquids in the drainage system
of the Building. No waste materials or refuse shall be dumped upon or
permitted to remain upon any part of the Outside Areas except in trash
containers placed inside exterior enclosures designated for that purpose by
Landlord or otherwise with the written consent of Landlord.
7. TAXES AND ASSESSMENTS.
---------------------
A. Tenant's Property. Tenant shall pay before delinquency any and all
-----------------
taxes and assessments, license fees and public charges levied, assessed or
imposed upon or against Tenant's Trade Fixtures, equipment, furnishings,
furniture, appliances and personal property installed or located on or
within the Premises. Tenant shall use all reasonable efforts to cause said
Trade Fixtures, equipment, furnishings, furniture, appliances and personal
property to be assessed and billed separately from the real property of
Landlord. If any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord the taxes attributable
to Tenant within ten (10) days after receipt of a written statement from
Landlord setting forth the taxes applicable to Tenant's personal property.
B. Payment of Property Taxes. Tenant shall pay, as Additional Rent,
-------------------------
Tenant's Percentage Share of all Property Taxes payable by Landlord and
levied or assessed with respect to the Building and parking area
attributable to the Building, which accrue and become due during the Lease
Term; provided, however, that if the Premises do not constitute a separate
parcel for purposes of assessing Property Taxes, Tenant shall only pay that
portion of the Property Taxes for the tax parcel of which the Building is a
part that is reasonably and equitably allocable to the Building and
attributable parking. Tenant shall pay such Property Taxes to Landlord not
later than (i) twenty (20) days after receipt of billing; or (ii) ten (10)
days prior to the delinquency date of such Property Taxes, whichever is
later. If Tenant fails to do so, Tenant shall reimburse Landlord, on
demand, for all interest, late fees and penalties that the taxing authority
charges the Landlord as a result of such late payment by Tenant. In the
event the Lender holding a first deed of trust encumbering the Premises
requires an impound for Property Taxes, then Tenant shall pay on the first
day of each calendar month one twelfth (1/12) of its annual share of such
Property Taxes, so long as Tenant receives all interest earned thereon
received by Landlord until paid to the taxing authority. Tenant's liability
hereunder shall be prorated to reflect the commencement and termination
dates of the Lease Term, and any overpayment of taxes by Tenant shall be
credited against sums otherwise due hereunder or shall be paid by Landlord
to Tenant in cash if attributable to any period after the termination date
of this Lease; provided, however, that if there exists an uncured Event of
Tenant's Default at any time that Landlord is obligated to reimburse
overpayments to Tenant pursuant to this sentence, Landlord may apply the
amount so held by it to cure such uncured default. Upon written request,
Landlord shall supply to Tenant all tax bills and other correspondence from
any governmental agency relating to any Property Tax that Tenant is
obligated to pay, and Tenant shall have the right to inspect and copy
Landlord's books and records at Tenant's expense upon reasonable notice to
the extent such books and records relate to a determination of the amount
of Property Taxes due or being contested by Landlord or Tenant.
C. Property Taxes Defined. For the purpose of this Lease, "Property Taxes"
----------------------
means and includes all taxes, assessments (including, but not limited to,
assessments for public improvements or benefits), taxes based on vehicles
utilizing parking areas, taxes based or measured by the rent paid, payable
or received under this Lease, taxes on the value, use or occupancy of the
Premises, and all other governmental impositions and charges of every kind
and nature whatsoever, whether or not customary or within the contemplation
of the parties hereto and regardless of whether the same shall be
extraordinary or
7
ordinary, general or special, unforeseen or foreseen, or similar or
dissimilar to any of the foregoing which, at any time during the Lease
Term, shall be applicable to the Premises, or assessed, levied or imposed
upon the Premises, or become due and payable and a lien or charge upon the
Premises, or any part thereof, under or by virtue of any present or future
Laws whatsoever. There shall be credited against Property Taxes all amounts
received by Landlord from tax increment reimbursements from the West End
Community Improvement District related to improvements to real property on
the tax parcel to which such Property Taxes relate. The term "Property
Taxes" shall not include (i) any federal, state or local net income,
estate, transfer, excise, capital stock or inheritance tax imposed on
Landlord, or (ii) any tax, assessment or other governmental levy or any
increase therein occasioned by or relating to any "change in ownership" (as
defined in Sections 60-65 of the California Revenue and Taxation Code and
the regulations thereunder) during the initial term of the Lease, and in
such event Tenant also shall not receive the benefit of any increase in tax
increment, if any, resulting from such change of ownership or transfer.
D. Assessments. With respect to any Property Tax that may be payable in
-----------
installments or by an alternative means at the election of Landlord, Tenant
shall be obligated to pay no more than that amount which would have been
payable had Landlord elected to pay such Property Tax in installments over
the maximum term allowable.
E. Other Taxes. Tenant shall pay, as Additional Rent, or reimburse
-----------
Landlord for, any tax based upon, allocable to, or measured by the area of
the Premises or the rental payable by Tenant under this Lease, including,
without limitation, any gross receipts tax levied by any state, local or
federal government with respect to the receipt of such rental; any tax upon
or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of the Premises or any
portion thereof: any privilege tax, business and occupation tax, sales
and/or use tax, water tax, sewer tax, employee tax, parking tax,
occupational license tax imposed upon Landlord or Tenant with respect to
the Premises; any tax upon this transaction or any document to which Tenant
is a party creating or transferring an interest or an estate in the
Premises; provided, however, that Tenant shall not be obligated to pay any
federal, state or local net income, estate, transfer, excise, capital stock
or inheritance tax imposed on Landlord or imposed as a result of the sale
or conveyance of Landlord's interest in the Premises and/or this Lease.
F. Tenant's Right to Contest. Tenant shall have the right, by
-------------------------
appropriate proceedings, to protest or contest any assessment, reassessment
or allocation of Property Taxes or any change therein or any application of
any Law to the Premises or Tenant's use thereof. Landlord shall notify
Tenant in writing of any change in Property Taxes within sufficient time to
allow Tenant to review and, if it so desires, to contest or protest such
change. In the contest or proceedings, Tenant may act in its own name
and/or the name of Landlord and Landlord will, at Tenant's request and
expense, cooperate with Tenant in any way Tenant may reasonably require in
connection with such contest. If Tenant does not pay Tenant's Percentage
Share of the Property Taxes when due which are the subject of such protest
or contest. Tenant shall post a bond in lieu thereof and, with respect to
any contest of Property Taxes or Laws, shall hold Landlord and the Premises
harmless from any damage arising out of the proceedings or contest and
shall pay any judgment that may be rendered for which Tenant would
otherwise be liable under this Lease without such contest or protest. In
any event, Tenant agrees to pay Tenant's Percentage Share of the Property
Taxes prior to the foreclosure of any tax lien. Any contest conducted by
Tenant under this Paragraph shall be at Tenant's expense and if interest or
late charges become payable as a result of such contest or protest. Tenant
shall pay the same.
G. Reduction in Property Taxes. Within a reasonable period following the
---------------------------
Commencement Date, Landlord shall apply for and use reasonable efforts to
obtain a reduction in Property Taxes from the County Assessors Office,
based on a finding that the current assessed valuation of the Premises
exceeds the current fair market value thereof.
8. INSURANCE.
---------
A. Waiver and Indemnity. As this Lease does not involve the public
--------------------
interest and insurance is available to Tenant which will protect it against
such claims, damage, injury or death. Tenant hereby waives all claims
against Landlord for damage to any property or injury to or death of any
person in, upon or about the Premises or the Building arising at any time
and from any cause: provided, however, that the foregoing waiver shall not
apply to (i) damage to the property of persons other than Tenant; or (ii)
death or injury to any person resulting from the negligence or willful
misconduct of Landlord or its Agents. Tenant shall hold Landlord harmless
from and defend Landlord against all claims (except to the extent such
arises from the negligence or willful misconduct of Landlord or its Agents)
(i) for damage to any property or injury to or death of any person arising
from the use of the Premises by Tenant, or (ii) arising from the negligence
or willful misconduct of Tenant, its employees, agents, or contractors in,
upon or about those portions of the Project or the Building other than
8
the Premises. Landlord shall hold harmless from and defend Tenant against all
claims (except such as arise from the negligence or willful misconduct of Tenant
or its Agents) for damage to any property or injury to or death of any person
arising from events occurring in the Common Areas and Outside Areas. The
foregoing indemnity obligation of Landlord and Tenant shall include attorney's
fees, investigation costs, and all other costs and expenses incurred by the
other party from the first notice that any claim or demand is to be made or may
be made. The provisions of this Paragraph 8 shall survive the expiration or
termination of this Lease with respect to any damage, injury, or death occurring
prior to such termination, and other than with respect to Tenant's right to
early entry under Paragraph 3, its provisions shall only apply after the later
of the Commencement Date or the date that Tenant or its Agents has actually
entered into occupancy of the Premises.
B. Tenant's Liability Insurance. Tenant shall obtain and maintain during the
----------------------------
term of this Lease comprehensive general liability insurance with combined
single limit for personal injury and property damage in a form and with carriers
acceptable to Landlord in an amount not less than $1,000,000, and employer's
liability and workers' compensation insurance as required by Law. In addition,
Tenant shall maintain excess or umbrella liability insurance with limits not
less than $4,000,000 having the general liability coverage desired above as
underlying. Tenant's comprehensive general liability and excess/umbrella
insurance policy shall be endorsed to provide that (i) it may not be canceled or
altered in such a manner as adversely to affect the coverage afforded thereby
without 30 days' prior written notice to Landlord, (ii) Landlord is named as
additional insured, (iii) the insurer acknowledges acceptance of the mutual
waiver of claims by Landlord and Tenant pursuant to subparagraph (F) below, and
(iv) such insurance is primary with respect to Landlord and that any other
insurance maintained by Landlord is excess and noncontributing with such
insurance. If, in the reasonable opinion of Landlord's insurance adviser, based
on a substantial increase in recovered liability claims generally, the specified
amounts of coverage are no longer adequate, such coverage shall be appropriately
increased but, in no event shall such required coverage exceed the level of
coverage customarily carried by similar businesses in Alameda County. Prior to
the Term Commencement. Tenant shall deliver to Landlord a duplicate of such
policy or a certificate thereof to Landlord for retention by it, with
endorsements, and at least 30 days prior to the expiration of such policy or any
renewal thereof. Tenant shall deliver to Landlord a replacement or renewal
binder, followed by a duplicate policy or certificate within a reasonable time
thereafter. If Tenant fails to obtain such insurance or to furnish Landlord any
such duplicate policy or certificate as herein required. Landlord may, as its
election, without notice to Tenant and without any obligation to do so, procure
and maintain such coverage and Tenant shall reimburse Landlord on demand as
Additional Rent for any premium so paid by Landlord.
C. Landlord's Liability Insurance. Landlord shall maintain a policy or
------------------------------
policies of comprehensive general liability insurance insuring Landlord (and
such others as are designated by Landlord) against liability for personal
injury, bodily injury, death and damage to property occurring or resulting from
an occurrence in, on or about the Premises in an amount not less than that
required of Tenant, endorsed to provide coverage for the obligations of Landlord
under Paragraph 8.A. provided if Landlord elects to carry a higher level of
coverage such amount of excess coverage must be reasonable. The cost of such
liability insurance which Landlord elects to maintain shall be Additional Rent,
and Tenant shall pay to Landlord the cost of such insurance as a part of
Operating Expenses.
D. Fire and All Risk Insurance. Landlord shall obtain and keep in force during
---------------------------
the Lease Term a policy or policies of insurance covering loss or damage to the
Building in the amount of the full replacement cost thereof and the Renovation
Improvements to the extent paid for by Landlord providing protection against
those perils included within the classification of "all risk" insurance, plus a
policy of rental income insurance in the amount of twelve (12) months of Base
Monthly Rent and revenues received from the Building together with such
additional coverages (such as earthquake and flood insurance) which Landlord may
reasonably elect to maintain from time to time or which Landlord's Lender may
require Landlord to maintain from time to time so long as such Lender is an
Institutional Lender whose loan is secured by a deed of trust encumbering the
Premises. Tenant shall have no interest in nor any right to the proceeds of any
insurance procured by Landlord on the Building and Renovation Improvements.
Tenant shall pay to Landlord, as Additional Rent. Tenant's Percentage Share of
the cost of such insurance procured and maintained by Landlord as part of its
Operating Expense payment. Tenant's liability for the cost of such insurance
shall be prorated as of the commencement and termination of the Lease Term.
Tenant acknowledges that such insurance procured by Landlord shall contain a
commercially reasonable deductible approved by Landlord and Tenant which reduces
Tenant's cost for such insurance and, in the event of loss or damage which is
not caused by Landlord or its Agents. Tenant shall be required to pay to
Landlord the amount of such deductible. Notwithstanding anything contained
herein, the following shall apply:
(i) In the event Tenant becomes liable to pay "deductibles" with respect to any
loss or losses the aggregate amount of which exceeds for any twelve (12)
month period during the Lease Term an amount equal to one installment of
the
9
Base Monthly Rent then payable, the amount of such excess shall
not be payable by Tenant currently but instead shall be amortized
over the useful life of the improvements constructed with such
deductible amount, together with interest at the Agreed Interest
Rate, and payable as Additional Rent in accordance with the
procedure set forth in Paragraphs 12.A. and B.
(ii) Tenant shall not be obligated to pay the cost of earthquake
insurance to the extent that it exceeds a commercially reasonable
rate for the earthquake insurance; provided, however, that in the
event an Institutional Lender which holds at least 30 loans
secured by office/industrial buildings in Northern California and
is holding a loan that is secured by a deed of trust encumbering
the Premises requires that earthquake insurance be maintained,
and it is the general policy of such Lender to require that
earthquake insurance be maintained on substantially all
properties owned, managed or encumbered by such Lender in the
same or comparable seismic zone as the Premises in California,
then in that event Tenant shall pay the entire cost of earthquake
insurance even if it exceeds a commercially reasonable rate;
provided, however, if such Institutional Lender does not hold
loans on a minimum of 30 office or industrial buildings in
Northern California then Tenant shall not be obligated to pay the
cost of such earthquake insurance to the extent the annual cost
thereof exceeds Thirty Six Cents ($0.36) per One Hundred Dollars
($100) of replacement cost. If the cost of earthquake insurance
exceeds a commercially reasonable rate, Tenant shall nonetheless
continue to pay an amount equal to a commercially reasonable rate
for such earthquake insurance so long as such insurance is
carried by Landlord, subject to the limit contained in preceding
sentence, and Landlord shall pay the remainder of the cost of
earthquake insurance. For purposes hereof, a "commercially
reasonable rate" for earthquake insurance shall mean any rate
that is within the range of the then-current cost of earthquake
coverage which is then being paid by "Prime Owners" (defined
below) of office buildings in the San Francisco Bay Area
containing more than 50,000 square feet that were built after
1976 and which is customarily being reimbursed or paid by tenants
occupying, under triple net office leases, such buildings. The
term "Prime Owners" shall be defined to mean any entity or
individual whose office or commercial real property holdings in
the San Francisco Bay Area exceed Fifty Million Dollars
($50,000,000) in fair market value who fit into any one of the
following categories: (a) institutional investors such as pension
funds, insurance companies, and syndications where partnership
interests were offered pursuant to a registered public offering;
(b) office developers and their affiliated partnerships who
individually have owned or developed more than 250,000 square
feet of office buildings in the San Francisco Bay Area; and (c)
office corporations who own office facilities they occupy.
E. Release of Landlord. Tenant acknowledges that the insurance to be
-------------------
maintained by Landlord on the Premises pursuant to Paragraph 8.D above will
not insure any of Tenant's property. Accordingly, Tenant at Tenant's own
expense, shall maintain in full force and effect on all of its Trade
Fixtures, equipment, leasehold improvements and personal property in the
Premises, a policy of "all risk" coverage insurance to the extent of at
least ninety percent (90%) of their insurable value.
F. Mutual Waiver of Subrogation. Tenant and Landlord hereby mutually
----------------------------
waive their respective rights for recovery against each other for any loss
of or damage to the property of either party, where such loss or damage is
insured by any insurance policy required to be maintained by this Lease or
otherwise in force at the time of such loss or damage (except such waiver
shall not apply to any loss to the extent it is within the "deductible
amount" of such policy). Each party shall obtain any special endorsements,
if required by the insurer, whereby the insurer waives its right of
subrogation against the other party hereto. The provisions of this
Paragraph 8.F shall not apply in those instances in which waiver of
subrogation would cause either party's insurance coverage to be voided or
otherwise made uncollectible or is not available at reasonable cost.
9. UTILITIES. Tenant shall pay for all water, gas, light, heat, power,
---------
electricity, telephone, trash pick-up, sewer charges, and all other
services supplied to or consumed on the Premises, and all taxes and
surcharges thereon: provided, however, so long as Tenant's Percentage Share
is less than One Hundred Percent (100%). Landlord shall pay all utility
charges, except those specifically allocable to Tenant such as telephone,
and Tenant shall reimburse to Landlord, in the same manner as Base Monthly
Rent, Landlord's estimate of Tenant's Percentage Share of such utility
costs, except that Tenant shall pay One Hundred Percent (100%) of the
utility costs related to Tenant's computer room. During any portion of the
term that Tenant's Percentage Share is less than One Hundred Percent
(100%), Landlord may elect to submeter any such utility costs in order to
determine a more accurate actual usage of such utilities by Tenant and
reimbursement by Tenant. Wherever it is practical to do so such services
shall be separately metered or charged to Tenant by the provider thereof
and paid for directly by Tenant. To the extent any of the foregoing
services are provided by Landlord, Tenant shall reimburse Landlord as
Additional Rent for all actual out-of-pocket costs incurred by Landlord in
connection with the provision of such services as billed by the provider
thereof based on Landlord's reasonable estimate of Tenant's use or
consumption of such services.
10
10. REPAIRS AND MAINTENANCE.
-----------------------
A. Tenant's Responsibilities. Subject to Landlord's obligation to
-------------------------
maintain, repair and replace pursuant to Paragraph 10.B. Tenant shall,
during the Lease Term, at Tenant's sole cost and expense, keep and maintain
in good order, condition and repair the entire Premises and every part
thereof and Common Areas, including, without limitation, windows, window
frames, plate glass, glazing, skylights, truck doors, doors and all door
hardware, partitions and all plumbing, electrical, gas, water, telephone
and other cabling, lighting, heating, air conditioning and ventilation
facilities, equipment and systems within the Premises or within the
Building serving the Premises; provided, however, so long as Tenant's
Percentage Share is less than One Hundred Percent (100%), Landlord shall
keep and maintain in good order and repair those portions of the Common
Area specifically described as (i) the first floor lobby, (ii) all
stairwells, (iii) fourth floor elevator lobby and corridor, (iv) fourth
floor common restrooms, and (v) elevators, and Tenant shall reimburse
Landlord in the same manner as Base Monthly Rent for Tenant's Percentage
Share of such costs with the exception that the cost of maintaining items
(iii) and (iv) above shall be reimbursed by Tenant at 64.88% until such
time as Tenant vacates the fourth floor in accordance with the schedule set
forth in the Improvement Agreement. The term "repair" shall include
replacements, restorations and/or renewals when necessary, as well as
painting. Tenant's obligation shall extend to all alterations, additions
and improvements to the Premises, and all fixtures and appurtenances
therein and thereto. Tenant shall, at all times during the Lease Term,
either (i) personally maintain any heating, ventilating and air
conditioning ("HVAC") equipment which serves the Premises through a
maintenance program reasonably approved by Landlord; or (ii) have in effect
a service contract for the maintenance of such HVAC equipment with an HVAC
repair maintenance contractor approved by Landlord which provides for
periodic inspection and servicing at least once every sixty (60) days
during the Lease Term and shall provide Landlord with a copy of such
contract. No less frequently than annually, Tenant shall cause to be made
an inspection of any HVAC system which serves the Premises by a licensed
HVAC repair and maintenance contractor or mechanical engineer approved by
Landlord. Tenant shall deliver to Landlord a written report prepared by the
party making such inspections promptly after the conclusion of each such
inspection. Except as otherwise provided herein, Tenant shall perform such
maintenance and repair work as is recommended by such inspectors to the
extent such work is reasonably necessary to keep any HVAC equipment which
serves the Premises in good order, condition and repair. Tenant shall
indemnify and save Landlord harmless against and from all costs, expenses,
liabilities, losses, injuries, damages, suits, fines, penalties, claims and
demands, including reasonable attorneys' fees, resulting from Tenant's
failure to comply with the foregoing, and Tenant hereby expressly releases
and discharges Landlord of and from any liability therefor. The foregoing
notwithstanding, so long as Tenant's Percentage Share is less than One
Hundred Percent (100%). Tenant shall be credited with that portion of the
costs attributable to HVAC maintenance for space in the Building not leased
by Tenant.
B. Landlord's Responsibilities. During the Lease Term, Landlord shall be
---------------------------
responsible for the following:
(i) Landlord shall maintain, repair and replace when necessary in order to
maintain good order, condition and repair: (1) Common Areas as
described above: (2) Outside Areas: (3) all structural parts of the
Building (i.e., foundation, floor slabs, load-bearing walls and roof
---
structural systems): (4) roof membrane: (5) all plumbing and
electrical lines, pipes, conduits, systems and facilities up to the
point they enter the Building: and (6) all other portions of the
Building requiring capital expenditures excluding Renovation
Improvements (but not excluding HVAC, plumbing and electrical systems)
where (a) the useful life of any replacement item will extend beyond
the remaining Lease Term (excluding options to extend that have not
yet been exercised), and (b) the cost of replacement (and all other
replacements commenced within the same calendar year) exceeds $55,000.
Landlord shall be solely responsible for the payment of costs relating
to the maintenance, repair and replacement of all structural parts of
the Building and all plumbing and electrical lines, pipes, conduits,
systems and facilities up to the point they enter the Building (except
to the extent such costs are the result of an event of damage or
destruction covered under Paragraph 16 below). Landlord shall pay for
the other maintenance, repair and replacement obligations set forth in
this subparagraph provided that the cost thereof shall be considered
Operating Expenses reimbursable by Tenant under Paragraph 4.G. except
that capital expenditures items which, together with all other capital
expenditures incurred within the same calendar year, exceeds $55,000,
shall be amortized, together with interest, as described in Paragraph
12.A., and shall be paid by Tenant in accordance with Paragraph 12.B.
Upon the commencement of any Option Term, the $55,000 limit in this
subparagraph (i) shall be increased pursuant to Paragraph 41 in
accordance with the increase in the Consumer Price Index from the
Effective Date through the commencement of the Option Term.
(ii) Landlord shall be responsible for the correction of defects in design
and construction of the Building and Renovation Improvements and for
corrections of violations of Law existing as of the date the building
permits for the Building
11
and Renovation Improvements were issued. The costs of such correction
shall be borne exclusively by Landlord without right of reimbursement
from Tenant.
(iii) No less frequently than annually, Landlord shall cause to be made an
inspection of the Building roof membrane and roof system by an
inspection service approved by Tenant which inspection shall be done
in accordance with the roofing contractor's specifications and the
roof vendor's recommendation specifications. Landlord shall deliver
to Tenant a written report prepared by the party making such
inspections promptly after the conclusions of each such inspection.
Landlord shall perform such maintenance and repair work as is
recommended by such inspectors to the extent such work is reasonably
necessary to keep the roof membrane and roof system in good order,
condition and repair. The costs of the inspection and any resulting
repairs of the Building roof membrane (to the extent not capital
expenditures subject to subparagraph 10.B(i)) shall be considered
Operating Expenses reimbursable by Tenant under Paragraph 4.G and the
costs related to the structural roof system shall be borne
exclusively by Landlord without right of reimbursement from Tenant.
C. Warranties. Landlord shall assign to Tenant for the term of this Lease
----------
the benefit of all warranties available to Landlord which would reduce the
cost of performing the obligations of Tenant pursuant to the Lease.
Landlord shall cooperate with Tenant in the enforcement of such warranties.
D. Condition on Delivery. As of the Effective Date, Tenant is in
---------------------
possession of the Premises and has accepted the Premises. As of the
Renovation Commencement Date for any given floor of the Premises. Landlord
shall deliver such portion of the Premises in good condition and repair,
broom clean, with all electrical, mechanical, HVAC, plumbing and lighting
equipment, systems and facilities servicing the Premises in good working
order.
E. Limitation on Repair Obligation of Landlord. Landlord shall have no
-------------------------------------------
maintenance or repair obligations whatsoever with respect to the Premises
except as expressly provided in Paragraphs 10, 13D, 16 and 17. Tenant
hereby expressly waives the provisions of Subsection 1 of Section 1932 and
Section 1941 and 1942 of the Civil Code of California and all rights to
make repairs at the expense of Landlord as provided in Section 1942 of said
Civil Code.
11. OUTSIDE AREAS. Tenant and its Agents shall have the non-exclusive right to
-------------
use the Outside Areas in common with other occupants of the Project, which
shall include Tenant's right to not less than three and one-half (3.5)
spaces for automobile parking for each one thousand (1,000) square feet of
Rentable Area in the Premises. This right shall terminate upon the
expiration or earlier termination of this Lease. Landlord may make non-
material changes to the shape, size, location, amount and extent of the
Outside Areas provided that no such change shall reduce the parking rights
granted to Tenant hereunder and shall not in any case unreasonably
interfere with the use of the Premises by Tenant. Unless required by Law or
any governmental agency, Landlord shall obtain Tenant's prior consent to
any material modifications or changes to the Outside Areas. Tenant shall
not abandon any inoperative vehicles or equipment on any portion of the
Outside Areas. Tenant shall make no Alterations to the Outside Areas
without the consent of Landlord. In no event shall Tenant be charged by
Landlord for use of parking spaces in the Outside Areas except to the
extent required by Law or any governmental agency and any revenue received
by Landlord with respect to Tenant's use of such parking spaces, if not
paid to a governmental entity, shall be reimbursed to Tenant, less costs
attributable to Landlord's collection thereof.
12. AMORTIZATION OF CERTAIN IMPROVEMENTS AS ADDITIONAL RENT. Tenant shall pay
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Additional Rent in the amount described in this paragraph in the event
Landlord is required by this Lease to do any of the following: (i) pay the
deductible amount in excess of the limit paid by Tenant pursuant to
Paragraph 8.D and on account of damage caused by any peril to the Premises:
(ii) make replacements to the Premises or to the Building when required
pursuant to Paragraph 10.B.(i); or (iii) make improvements required to be
constructed in order to comply with any Law not in effect or applicable to
the Premises as of the Effective Date, which improvements are not the
responsibility of Tenant pursuant to Paragraph 13.D. The amount of
Additional Rent Tenant is to pay with respect to the amounts spent by
Landlord pursuant to the foregoing sentence shall be determined as follows:
A. All costs paid by Landlord to construct such improvements or make such
restoration (including financing costs but excluding reimbursements
received from insurers or other third parties and any management fee to
Landlord) shall be amortized over the useful life of such improvements or
restoration (determined in accordance with generally accepted accounting
principles) and payable by Tenant, together with interest at the Agreed
Interest Rate, in equal monthly installments. Landlord shall inform Tenant
of the monthly amortization payment required so to amortize such costs and
shall also provide Tenant with the information upon which such
determination is made.
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B. As Additional Rent, Tenant shall pay an amount equal to Tenant's
share of such monthly amortization payment for each month after such
improvement or restoration is completed until the first to occur of
(i) the expiration of the Lease Term (which shall not include the
period of any subsequent option to extend where the Base Monthly Rent
is determined based upon the fair market rental value of the
Premises), or (ii) the end of the term of the useful life over which
such costs were amortized. The amount of such Additional Rent that
Tenant is to pay shall be due at the same time the Base Monthly Rent
is due.
13. ALTERATIONS.
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A. Trade Fixtures. Throughout the Lease Term, Tenant shall provide,
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install and maintain in good condition all Trade Fixtures required in
the conduct of its business in the Premises. All Trade Fixtures shall
remain Tenant's property.
B. Alterations. The following provisions govern Alterations
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constructed by Tenant;
(i) Tenant shall not construct any Alterations or otherwise alter
the Premises without Landlord's prior approval if (a) such
action results in the demolition, removal or material alteration
of existing improvements or future Renovation Improvements
(including partitions, wall and floor coverings, ceilings,
lighting fixtures or other utility installations), and (b) the
cost of such construction or alteration exceeds One Hundred
Thousand Dollars ($100,000) per work of improvement (as such
amount is adjusted pursuant to Paragraph 41) or if the cost of
Alterations done, under construction, or for which approval is
sought during any calendar quarter exceeds One Hundred Thousand
Dollars ($100,000) (as such amount is adjusted pursuant to
Paragraph 41). With respect to any Alterations which must be
approved by Landlord pursuant to the immediately preceding
sentence, Tenant shall not commence construction of such
Alterations until Landlord shall have first approved the plans
and specifications therefor, which approval shall be deemed
given if not denied in writing within ten (10) working days
after Landlord shall have received Tenant's request for such
approval. In no event shall Tenant make any Alterations to the
Premises which could affect the structural integrity or the
exterior design of the Building. Notwithstanding anything
contained herein, Tenant shall have the right to reconfigure
demountable walls and partitions without Landlord's prior
consent.
(ii) All Alterations requiring Landlord's approval shall be
installed by Tenant in substantial compliance with the approved
plans and specifications therefor. All construction undertaken
by Tenant shall be done in accordance with all Laws and in a
good and workmanlike manner using materials of good quality.
Tenant shall not commence construction of any Alterations until
(a) all required governmental approvals and permits shall have
been obtained, and (b) all requirements regarding insurance
imposed by this Lease have been satisfied.
(iii) Landlord shall cause to be made available to Tenant all
information maintained by Landlord or Landlord's architect which
relate to the plans for the Building, including any "as-built"
plans for the Building (and mechanical platforms on the Building
roof) and/or Outside Areas so that Tenant can incorporate such
information into Tenant's files relating to plans for the
Renovation Improvements and for Alterations. At all times during
the Lease Term, (a) Tenant shall maintain and keep updated "as-
built" plans for all Alterations constructed by Tenant which may
or may not have required a building permit or other governmental
approval, and (b) Tenant shall provide to Landlord copies of all
such "as-built" plans and any and all other drawings relating to
Tenant's Alterations in the Premises.
(iv) All Alterations shall remain the property of Tenant during the
Lease Term. Tenant shall have the right to remove any
Alterations so long as it repairs all damage caused by the
installation thereof and returns the Premises to the condition
existing prior to the installation of such Alterations. At the
expiration or sooner termination of the Lease Term, all
Alterations that Tenant does not elect to remove shall be
surrendered to Landlord as a part of the realty and shall then
become Landlord's property, and Landlord shall have no
obligation to reimburse Tenant for all or any portion of the
value or cost thereof. Notwithstanding anything contained herein
(but subject to the restrictions set forth in Paragraphs
13.B(iv)(a) and (b)), if Landlord so requires, at the expiration
or earlier termination of the Lease Term, Tenant shall remove
any Alterations designated for removal by Landlord including,
those Alterations for which Landlord's consent was not initially
required, and shall restore the Premises to the condition
existing prior to the installation of such Alterations only to
the extent necessary to return the Premises to a condition that
has substantially the same value to subsequent tenants as
existed on the Commencement Date, ordinary wear and tear
excepted. The following provisions shall qualify the general
rule set forth in the immediately preceding sentence:
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(a) Tenant shall remove and restore all damage caused by the removal
of any specialized Alterations specifically related to the
operation of Tenant's business in the Premises. To the extent
Alterations made by the Tenant results in a reduction in the
capacity of HVAC, mechanical, electrical or plumbing systems.
Tenant shall restore HVAC, mechanical, electrical and plumbing
systems so that the capacity thereof is substantially the same as
existed as of the Commencement Date, ordinary wear and tear
excepted. If restroom "cores" and fixtures have been changed,
such "cores" shall be moved to their original location and such
"cores" and fixtures shall be restored to substantially the same
condition as existed as of the Commencement Date, ordinary wear
and tear expected. If Tenant has made any Alterations to the
structural parts of the Building (i.e., foundations, load-bearing
----
walls, and structural roof system, but excluding roof membrane)
or the floor slab, such structural parts of the Building shall be
returned to the condition existing prior to the making of such
Alterations by Tenant (including the filling of any pits, ▇▇▇▇▇
or trenches). If Tenant has made any Alterations to the roof
membrane, the roof membrane shall be returned to the condition
existing prior to the making of such Alterations by Tenant,
except that Tenant shall not be obligated to restore any
penetration of the roof membrane that has been made with the
written approval of Landlord. The percentage of dropped ceiling
for each area of the Building (office, research and development,
etc.) shall be substantially the same as existed as of the
Commencement Date. Any Alterations made by Tenant to the fire
sprinkler system shall be restored to substantially the same
condition as existed as of the Commencement Date, ordinary wear
and tear excepted.
(b) Tenant shall only be required to remove Alterations for which
either of the following is true, and only if such removal is
otherwise required by all of the preceding provisions of this
Paragraph 13.B(iv): (i) such Alterations were approved in writing
by Landlord and, at the time such approval was given by Landlord,
Landlord informed Tenant in writing that Landlord would require
that such Alterations be removed at the termination of the Lease
Term: or (ii) such Alterations were installed without Landlord's
consent.
▇. ▇▇▇▇ Waiver. Landlord, within thirty (30) days after request from
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Tenant, shall execute and deliver any document reasonably required by any
supplier, lessor or lender in connection with the installation in the
Premises of Tenant's personal property or Tenant's Trade Fixtures pursuant
to which Landlord waives any rights it may have with respect to such
personal property or Trade Fixtures provided that the supplier, lessor or
lender agrees in writing that (i) it will remove the personal property and
Trade Fixtures from the Premises before the expiration of the Lease Term or
within five (5) days after termination of the Lease Term, and if it does
not remove the property within such period of time, it shall have waived
any rights it may have had to the property in question: (ii) it shall
repair any damage to the Premises resulting from the removal of the
personal property or Trade Fixtures from the Premises: (iii) it will
indemnify Landlord for any loss or liability resulting from its entry onto
the Premises: and (iv) it agrees that the lien waiver will not be recorded.
D. Legally Required Alterations. If, during the Lease Term, any alteration,
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addition or change of any sort to all or any portion of the Premises is
required by Law because of (i) Tenant's particular use or change of use of
the Premises, (ii) Tenant's application for a new permit or governmental
approval, or (iii) Tenant's construction or installation of any Alterations
or Trade Fixtures, Tenant shall promptly make the same at its sole cost and
expense. If during the Lease Term, any alteration, addition, or change to
the Premises is required by any Law and is not made the responsibility of
Tenant pursuant to the immediately preceding sentence. Landlord shall
promptly make the same and the cost of such alteration, addition or change
shall be amortized and Tenant shall pay its share of said cost to Landlord
to the extent provided in Paragraph 12.
14. DELIVERY OF POSSESSION AFTER RENOVATIONS IMPROVEMENTS. Following
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completion of the Renovation Improvements pursuant to the terms and
progress schedule of the Improvement Agreement. Landlord shall use
reasonable efforts to deliver possession of the applicable portions of the
Premises to Tenant. By taking possession of such portion of the Premises as
of the Renovation Commencement Date, Tenant will accept such Premises as
being in good and sanitary order, condition and repair and will accept that
portion of the Premises in their condition existing as of the date of such
entry, subject to (i) latent defects, and (ii) punch list items as
identified during the inspection to be undertaken pursuant to the
Improvement Agreement.
15. DEFAULT.
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A. Events of Tenant's Default. A breach of this Lease shall exist if any
--------------------------
of the following events (hereinafter referred to as "Events of Tenant's
Default") shall occur.
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(i) Default in payment when due of any installment of rent or other
payment required to be made by Tenant hereunder, and such default
shall not have been cured within three (3) business days after written
notice of such default is given to Tenant (such three (3)-day period
shall be concurrent with, and not in addition to, the notice period
required by Law prior to the commencement of an unlawful detainer
action);
(ii) Tenant's failure to perform any other term, covenant or condition
contained in the Lease, and with respect to those terms, covenants, or
conditions which are susceptible of cure, such failure shall have
continued for thirty (30) days after written notice of such failure is
given to Tenant; provided, however, that if the nature of Tenant's
failure reasonably requires more than thirty (30) days to cure. Tenant
shall not be deemed in default if Tenant commences to cure such
failure within said thirty (30) day period and thereafter diligently
and in good faith prosecutes such cure to completion;
(iii) Tenant's vacation or abandonment of the Premises while there exists an
Event of Tenant's Default with regard to the payment of the Base
Monthly Rent or Additional Rent;
(iv) Tenant's assignment of its assets for the benefit of its creditors:
(v) The sequestration of, attachment of, or execution on any substantial
part of the property of Tenant or on any property essential to the
conduct of Tenant's business shall have occurred, and Tenant shall
have failed to obtain a return or release of such property within
sixty (60) days thereafter or prior to sale pursuant to such
sequestration, attachment or levy, whichever is earlier;
(vi) Tenant shall commence any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any Law relating to bankruptcy,
insolvency, reorganization or relief of debtors or seek appointment
of a receiver, trustee, custodian or other similar official for it or
for all or any substantial part of its property;
(vii) Tenant's board of directors shall adopt a resolution authorize any of
the actions set forth in Paragraph 15.A(vi);
(viii) Any case, proceeding or other action against Tenant shall be commenced
seeking to have an order for relief entered against it as debtor or
seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating
to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property,
and such case, proceeding or other action (a) results in the entry of
an order for relief against it which is not fully stayed within thirty
(30) business days after the entry thereof or (b) remains undismissed
for a period of sixty (60) days; or
(ix) Tenant shall fail to provide financial statements or estopped
certificates to LandLord in accordance with Paragraph 28 within two
(2) business days after giving of notice by Landlord of Tenant's
delinquency in delivery of such statements.
B. Remedies. Upon any Event of Tenant's Default, Landlord shall have the
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following remedies, in addition to all other rights and remedies provided by
Law or in equity, to which Landlord may resort cumulatively or in the
alternative;
(i) Recovery of Rent. Landlord shall be entitled to keep this Lease in
---------------
full force and effect (whether or not Tenant shall have abandoned the
Premises) and to enforce all of its rights and remedies under this
Lease, including the right to recover rent and other sums as they
become due, plus interest at the Agreed Interest Rate from the due
date of each installment of rent or other sum until paid.
(ii) Termination. Landlord may terminate this Lease by giving Tenant
-----------
written notice of termination. On the giving of the notice all of
Tenant's rights in the Premises shall terminate. Upon the giving of
the notice of termination, Tenant shall surrender and vacate the
Premises in the condition required by Paragraph 34, and Landlord may
re-enter and take possession of the Premises and all the remaining
improvements or property and eject Tenant or any of Tenant's
subtenants, assignees or other person or persons claiming any right
under or through Tenant or eject some and not others or eject none.
This Lease may also be terminated by a judgment specifically providing
for termination. Any termination under this Paragraph 15.B(ii) shall
not release Tenant from the payment of any sum then due Landlord or
from any claim for damages or rent previously accrued or then accruing
against Tenant or relating to events
15
accruing prior to such termination. In no event shall any one or more
of the following actions by Landlord constitute a termination of this
Lease:
(a) maintenance and preservation of the Premises:
(b) efforts so relet the Premises:
(c) appointment of a receiver in order to protect Landlord's
interest hereunder:
(d) consent to any subletting of the Premises or assignment of this
Lease by Tenant, whether pursuant to provisions hereof
concerning subletting and assignment or otherwise: or
(e) any other action by Landlord or Landlord's Agents intended to
mitigate the adverse effects from any breach of this Lease by
Tenant.
(iii) Damages. In the event this Lease is terminated pursuant to Paragraph
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15.B or otherwise, Landlord shall be entitled to damages in the
following sums:
(a) the worth at the time of award of the unpaid rent which has been
earned at the time of termination; plus
(b) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant
proves could have been resonably avoided; plus
(c) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds
the amount of such rental loss that Tenant proves could be
reasonably avoided; and
(d) any other amount necessary to compensate Landlord for all
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, the following: (i) expenses for cleaning,
repairing or restoring damage to the Premises for which Tenant
is responsible: (ii) real estate broker's fees, advertising
costs and other expenses of reletting the Premises fairly
allocable to the remainder of the Lease Term: (iii) costs of
carrying the Premises such as Property Taxes and insurance
premiums thereon, utilities and security precautions until the
Premises are released (but only to the extent not included in
calculating damages pursuant to Paragraphs 15.B(iii)(a); (b) and
(c)); (iv) expenses in retaking possession of the Premises (v)
reasonable attorneys' fees and court costs; and (vi) any
unamortized real estate brokerage commission paid in connection
with this Lease.
The "worth at the time of award" of the amounts referred to in Paragraphs
15.B(iii)(a) and (b) shall be computed by allowing interest at the Agreed
Interest Rate. The "worth at the time of award" of the amounts referred to
in Parapraph 15.B(iii)(c) shall be computed by discounting such amount at
the discount rate of the Federal Reserve Board of San Francisco at the time
of award plus one percent (1%). The term "rent" as used in this Paragraph
shall include all sums required to be paid by Tenant to Landlord pursuant
to the terms of this Lease.
16. DESTRUCTION.
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A. Landlord's Duty to Restore. If the Premises are damaged by any peril
--------------------------
after the Effective Date, Landlord shall restore the Premises except to the
extent that this Lease is terminated by Landlord pursuant to Paragraph 16.B
or by Tenant pursuant to Paragraph 16.C. All insurance proceeds available
from the fire and property damage insurance carried by Landlord pursuant to
Paragraph 8.D shall be paid to and become the property of Landlord. If this
Lease is terminated pursuant to either Paragraph 16.B or 16.C, then all
insurance proceeds available from insurance carried by Tenant which covers
loss to the Building that is Landlord's property or would become Landlord's
property on the termination of this Lease shall be paid to and become the
property of Landlord. To the extent this Lease is not so terminated, then
upon Landlord's receipt of the insurance proceeds (if the loss is covered
by insurance and the issuance at all necessary governmental permits,
Landlord shall commence and diligently prosecute to completion the
restoration of the Premises, to the extent then allowed by Law, to
substantially the same condition in which the Premises were immediately
prior to
16
such damage. Landlord's obligation to restore shall be limited to the
Premises and Tenant Improvements constructed by Landlord as they existed as
of the Commencement Date, as modified or improved by Alterations
constructed by Tenant thereafter with Landlord's consent, but shall exclude
any Trade Fixtures and/or personal property installed by Tenant in the
Premises. Tenant shall forthwith replace or fully repair all Trade Fixtures
installed by Tenant and existing at the time of such damage or destruction
to the extent still required by Tenant for its business operations in the
Premises.
B. Landlord's Right to Terminate. Landlord shall have the option to
-----------------------------
terminate this Lease in the event any of the following occurs, which option
may be exercised only by delivery to Tenant of a written notice of election
to terminate within sixty (60) days after the date of such damage:
(i) The Building is damaged by any peril either (a) covered by the type
of insurance Landlord is required to carry pursuant to Paragraph 8.D.
or (b) covered by valid and collectible insurance actually carried by
Landlord and in force at the time of such damage or destruction and
in either event the proceeds of such insurance are made available to
Landlord, to such an extent that the estimated restoration cost
exceeds eighty percent (80%) of the then actual replacement cost
thereof and there remains less than three (3) years in the Lease
Term; provided, however, that Landlord may not terminate this Lease
pursuant to this subparagraph if Tenant at the time of such damage
has a then valid written option to extend the Lease Term and Tenant
exercises such option to extend the Lease Term within thirty (30)
days following the date of such damage and such action results in
there being more than three (3) years remaining in the Lease Term (as
it has been extended by the exercise of such option).
(ii) The Building is damaged by any peril both (a) not covered by the type
of insurance Landlord is required to carry pursuant to Paragraph 8.D.
and (b) not covered by valid and collectible insurance actually
carried by Landlord and in force at the time of such damage or
destruction to such an extent that the estimated restoration cost
exceeds five percent (5%) of the then estimated replacement cost of
the Building; provided, however, that Landlord may not terminate this
Lease pursuant to this subparagraph if Tenant agrees in writing to
pay the amount by which the restoration costs exceed five percent
(5%) of the replacement costs of the Building and deposits an amount
equal to the estimated amount of such costs within thirty (30) days
after Landlord has notified Tenant of its election to terminate this
Lease pursuant to this subparagraph.
(iii) The Building is damaged by any peril during the last twelve (12)
months of the Lease Term; provided, however, that Landlord may not
terminate this Lease pursuant to this subparagraph if Tenant, at the
time of such damage, has previously effectively exercised its Option
to Extend the Lease Term, if any.
(iv) The Building is damaged by any peril and, because of the Laws then in
force, may not be restored to substantially the same condition in
which it was prior to such damage because of a substantial increase
in the cost of restoration directly related to changes in Laws that
have occurred since the Building was constructed, which substantial
increase is not covered by insurance proceeds actually made available
by Landlord; provided, however, that Landlord may not terminate this
Lease pursuant to this subparagraph if (a) Tenant agrees in writing
to pay the additional restoration costs directly related to changes
in Laws that have occurred since the Building was constructed to the
extent it is not covered by insurance proceeds actually recovered by
Landlord, and Tenant deposits such amount within thirty (30) days
after Landlord has exercised its option to terminate this Lease, or
(b) the Building may be redesigned in a manner that does not
materially change its size, configuration or value, which redesign
would result in Landlord being able to restore the Building at
reasonable costs and would not result in there being insufficient
insurance proceeds actually recovered by Landlord so long as Landlord
and Tenant reach agreement on such redesign within thirty (30) days
after Landlord has exercised its option to terminate the Lease and
any and all Lenders approve such redesign. For purposes of this
subparagraph, a "substantial increase in the costs of restoration"
shall mean an increase of five percent (5%) or more over what the
restoration costs would have been had no changes in Laws occurred
since the damaged Building was originally constructed.
(v) If Tenant elects to make a deposit to avoid a termination of this
Lease pursuant to Paragraph 16.B(ii) or (iv), the following shall
apply to such deposit: (a) the deposit may be in the form of cash or
an irrevocable letter of credit: (b) any irrevocable letter of credit
provided by Tenant to satisfy this requirement must be payable to
Landlord, be in the amount of the required deposit, be in form
reasonably acceptable to Landlord, and provide for the disbursal of
funds to Landlord upon Landlord's certification that the same are
needed to pay for restoration costs actually incurred: (c) the
deposit shall be disbursed to Landlord as it is needed to pay
restoration costs as they come due on a progress payment basis in
accordance with customary commercial bank construction lending
practices, and Tenant
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shall take such action as is necessary to cause the deposit to be so
disbursed: and (d) the deposit, whether in the form of cash or letter
of credit, shall be held in trust for disbursal to pay restoration
costs by any Lender that is an insurance company or financial
institution, or if there is no such Lender or if such Lender does not
agree to act in such capacity, then by a bank, savings and loan
association, or other financial institution selected by Landlord and
approved by Tenant, whose fee shall be paid by Tenant.
C. Tenant's Right to Terminate. If the Building is damaged by any peril
---------------------------
and Landlord does not elect to terminate this Lease or is not entitled so
to terminate this Lease pursuant to Paragraph 16.B, then as soon as
reasonably practicable. Landlord shall furnish Tenant with the written
opinion of Landlord's architect, contractor or construction consultant as
to when the restoration work required of Landlord may be completed. Tenant
shall have the option to terminate this Lease in the event any of the
following occurs, which option may be exercised only by delivery to
Landlord of a written notice of election to terminate within fifteen (15)
days after Tenant receives from Landlord the estimate of the time needed to
complete such restoration:
(i) The Building is damaged by any peril and, in the reasonable opinion
of Landlord's architect, contractor or construction consultant, the
restoration of the Premises cannot be substantially completed within
the earlier of (a) two hundred seventy (270) days after the date of
issuance of necessary building permits for such restoration; or (b)
three hundred sixty-five (365) days after the date of such damage.
(ii) The Building is damaged by any peril within twelve (12) months of the
last day of the Lease Term, and, in the reasonable opinion of
Landlord's architect or construction consultant, the restoration of
the Building cannot be substantially completed within ninety (90)
days after the date of such damage.
D. Abatement of Rent. In the event of damage to the Building which does
-----------------
not result in the termination of this Lease, the Base Monthly Rent and
Tenant's Percentage Share of the Property Taxes and Operating Expenses,
shall be temporarily abated from the date of the damage and during the
period of restoration in proportion to the degree to which Tenant's use of
the Building is impaired by such damage and restoration. In the event of
any dispute between Landlord and Tenant concerning the amount of such
abatement, the matter shall be determined by binding arbitration under the
Commercial Rules of the American Arbitration Association. Tenant shall not
be entitled to any compensation from Landlord for loss of Tenant's property
or loss to Tenant's business caused by such damage 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, hereafter enacted.
17. CONDEMNATION.
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A. Definition of Terms. For the purposes of this Lease, the following
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terms shall have the indicated meanings: (1) "Taking" means a taking of the
Premises or damage to the Premises related to the exercise of the power of
eminent domain and includes a voluntary conveyance, in lieu of court
proceedings, to any agency, authority, public utility, person or corporate
entity empowered to condemn property: (2) "Total Taking" means the taking
of the entire Building or so much of the Building or the Outside Areas as
to prevent or substantially impair the use thereof by Tenant for the uses
herein specified; provided, however, in no event shall a Taking of less
than ten percent (10%) of the total Rentable Area of the Building or
Outside Areas be deemed a Total Taking: (3) "Partial Taking" means the
taking of only a portion of the Building or of the Outside Areas which does
not constitute a Total Taking: (4) "Date of Taking" means the date upon
which the title to the Premises or a portion thereof passes to and vests in
the condemnor or the effective date of any order for possession if issued
prior to the date title vests in the condemnor, and (5) "Award" means the
amount of any award made, consideration paid, or damages ordered as a
result of a Taking.
B. Rights. The parties agree that in the event of a Taking all rights
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between them or in and to an Award shall be set forth herein and Tenant
shall have no right to any Award except as set forth herein.
C. Total Taking. In the event of a Total Taking during the Lease Term:
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(i) the rights of Tenant under the Lease and the leasehold estate of Tenant
in and to the Premises shall cease and terminate as of the Date of Taking:
(ii) Landlord shall refund to Tenant any prepaid rent: (iii) Tenant shall
pay the Landlord any rent or charges due Landlord under the Lease, each
prorated as of the Date of Taking: (iv) Tenant shall receive from the
Landlord those portions of the Award attributable to Trade Fixtures of
Tenant, the value of any Alterations which Tenant has the right to remove
from the Premises, the unamortized value allocable to the remainder of the
Lease Term of any Alterations installed at Tenant's
18
expense which are not removable, and moving expenses of Tenant; and
(v) the remainder of the Award shall be paid to and be the property of
Landlord.
D. Partial Taking. In the event of a Partial Taking during the
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Lease Term, the following shall apply: (i) the rights of Tenant under
the Lease and the leasehold estate of Tenant in and to the portion of
the Building and any Outside Areas taken shall cease and terminate as
of the Date of Taking: (ii) from and after the Date of Taking the Base
Monthly Rent shall be reduced to an amount which bears the same
relationship to such Base Monthly Rent before such reduction as the
fair market rental value of the Building which remains after the
Partial Taking bears to the fair market rental value of the Building
prior to the Partial Taking; (iii) Tenant shall receive from the Award
the portions of the Award attributable to Trade Fixtures of Tenant,
the value of any Alterations which Tenant has the right to remove from
that part of the Building taken in the Partial Taking, and the
unamortized value allocable to the remainder of the Lease Term of any
Alterations installed at Tenant's expense which are not removable and
which are located in that part of the Building taken in the Partial
Taking; and (iv) the remainder of the Award shall be paid to and be
the property of the Landlord.
E. Temporary Taking. If any portion of the Building or Outside Areas
----------------
is temporarily taken for two hundred seventy (270) days or less, this
Lease shall remain in effect with no abatement of rent and Tenant
shall be entitled to recover any Award that is made for such Taking.
If any portion of the Building or Outside Areas is temporarily taken
by a Taking for a period which exceeds two hundred seventy (270) days
or which extends beyond the natural expiration of the Lease Term, and
such taking prevents or substantially impairs the use of the remainder
of the Building or Outside Areas by Tenant for the uses herein
specified, then Tenant shall have the right to terminate this Lease
effective as of the Date of Taking.
18. MECHANICS' LIENS. Tenant shall (i) pay for all labor and services
----------------
performed for, materials used by or furnished to Tenant or any
contractor employed by Tenant with respect to the Premises, and (ii)
indemnify, defend and hold Landlord and the Premises harmless and free
from and shall promptly cause to be removed any liens, claims,
demands, encumbrances or judgments created or suffered by reason of
any labor or services performed for, materials, used by or furnished
to Tenant or any contractor employed by Tenant with respect to the
Premises, (iii) give notice to Landlord in writing five (5) business
days prior to employing any laborer or contractor to perform services
related to, or receiving materials for use upon the Premises, and (iv)
permit Landlord to post a notice of nonresponsibility in accordance
with the statutory requirements of California Civil Code Section 3094
or any amendment thereof. In the event Tenant is required to post an
improvement bond with a public agency in connection with the above.
Tenant agrees to include Landlord as an additional obligee. Nothing
herein shall prohibit Tenant from contesting any claim for labor,
services or materials, provided Tenant complies with the provisions of
this Paragraph 18.
19. INSPECTION OF THE PREMISES. Tenant shall permit Landlord and its
---------------------------
Agents to enter the Premises at any reasonable time for the purpose of
inspecting the same, performing Landlord's maintenance and repair
responsibilities, making alterations or improvements to the Premises
or to the Building, posting notices of nonresponsibility for
alterations, additions or repairs, and, if Tenant has not effectively
exercised its option to extend the Lease Term and such extension
option has expired, at any time within eighteen (18) months prior to
expiration of this Lease, to place upon the Premises ordinary "For
Lease" or "For Sale" signs, and, to show the Premises and Building to
prospective tenant and brokers, provided that with respect to any such
entry, other than in the case of an emergency. Landlord shall have
given Tenant at least twenty-four (24) hours prior written notice of
intent to enter the Premises, shall be accompanied by a representative
of Tenant (if Tenant requests and provides such representative), shall
comply with any security procedures of Tenant while therein, and at
all times shall use commercially reasonable efforts to minimize
interference with Tenant's use of the Premises.
20. COMPLIANCE WITH LAWS.
--------------------
A. Obligation of Tenant. Tenant shall, at its own cost, comply with
--------------------
all Laws now in force or which may hereafter be in force pertaining
to the use and occupancy of the Premises by Tenant and its Agents. The
judgment at any court of competent jurisdiction or the admission of
Tenant in any action or proceeding against Tenant, whether Landlord
be a party thereto or not, that Tenant has violated any such Laws in
the use and occupancy of the Premises shall be conclusive of the fact
that such violation by Tenant has occurred.
B. Right to Contest. Tenant shall have the right to contest or
----------------
otherwise review by appropriate legal or administrative proceedings
the application of any Law or insurance underwriters requirement to
the use by Tenant of the Premises. If Tenant desires to so contest any
such Law or requirement. Tenant shall give Landlord written notice of
its intention to do so and may conduct such contest or other reviews
so long as it pays all costs, and compliance therewith maybe held in
abeyance pending completion of such proceedings. Tenant shall protect
and indemnify Landlord against any and all expenses or damages
resulting from such contest or other proceeding.
21. SUBORDINATION. Tenant shall, upon Landlord's request, promptly execute
-------------
any instrument (including an amendment to this Lease) or instruments
of subordination reasonably necessary to subordinate this Lease to any
mortgage or deed of trust to be placed upon the Premises, or any part
thereof, by Landlord, which instrument or instruments may include such
other matters as the Lender customarily requires in connection with
such agreements in comparable transactions, including provisions that
the Lender not be liable for any defaults on the part of Landlord
occurring prior to the time the Leader takes possession of the
Premises in connection with the enforcement of its rights under the
mortgage or deed of trust. Tenant's failure to execute any such
instrument within ten (10) days after written demand therefor shall
constitute a default by Tenant under this Lease. Tenant agrees to
attorn to and recognize any mortgagee or beneficiary of the deed of
trust subsequently encumbering the Premises and any party acquiring
title to the Premises, by judicial foreclosure or a trustee's sale, as
a successor to Landlord hereunder. Tenant's obligation to subordinate
this Lease to any mortgage or deed of trust is conditioned upon the
following:
(i) The Lender must consent in writing to this Lease and agree in
writing that, so long as there does not then exist any Event of
Tenant's Default, in the event of foreclosure of the mortgage or
deed of trust the Lender shall recognize the tenancy of Tenant
on the terms contained herein and this Lease shall remain in
full force and effect.
(ii) If the instrument effecting subordination provides that upon
foreclosure of the mortgage or deed of trust the Lender (or any
successor in interest) is not liable for the full and complete
performance of all of the obligations of the Landlord under this
Lease (e.g., the completion of improvements to be constructed by
----
the Landlord), then such agreement shall provide that if a
foreclosure of such mortgage or deed of trust does occur and the
Lender (or its successor in interest) at any time thereafter
relies upon such provision to avoid performance of any
obligation of the Landlord contained in this Lease thus causing
a material interference with Tenant's use of the Premises,
then in that limited circumstance Tenant shall have the
following rights: (i) Tenant may terminate this Lease; or (ii)
Tenant may perform the obligation that such Leader (or successor
in interest) has elected not to perform and deduct the cost
thereof (with interest at the Agreed Interest Rate from date of
expenditure until reimbursement) from the payments of the Base
Monthly Rent until Tenant has been fully reimbursed for the cost
of such performance.
(iii) With respect to any Lender having a security interest in the
Premises as of the Commencement Date, such Lender shall
execute a non-disturbance agreement in accordance with the
aforementioned terms within ninety (90) days after the
Commencement Date. If such non-disturbance agreement is not
executed within such ninety (90) day period then Tenant shall
have the option at any time prior to the execution by the
Lender of such non-disturbance agreement, but shall not be
obligated to do so, to terminate this Lease whereupon the
Previous Lease shall be reinstated and Tenant shall pay to
Landlord the amount by which (i) all sums which would otherwise
have been payable by Tenant under the Previous Lease during the
period commencing April 1, 1992 and continuing through the date
of such termination, exceeds (ii) all amounts actually paid
by Tenant during the same period.
22. HOLDING OVER. This Lease shall terminate without further notice at the
------------
expiration of the Lease Term. Any holding over by Tenant after
expiration shall not constitute a renewal or extension or give Tenant
any rights in or to the Premises except as expressly provided in this
Lease. Any holding over after the expiration with the consent of
Landlord shall be construed to be a tenancy from month to month, at
one hundred twenty-five percent (125%) of the Base Monthly Rent for
the last month of the Lease Term, and shall otherwise be on the terms
and conditions herein specified insofar as applicable.
23. NOTICES. Any notice required or desired to be given under this Lease
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shall be in writing with copies directed as indicted below and shall
be personally served or given upon the earlier of delivery or by mail.
Any notice given by mail shall be deemed to have been given when
forty-eight (48) hours have elapsed from the time which such notice
was deposited in the United States mail, certified and postage
prepaid, addressed to the party to be served with a copy as indicated
herein at the last address given by that party to the other party
under the provisions of this Paragraph. At the date of execution of
this Lease, the address of Landlord is:
c/o Vintage Properties With a Copy To
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Village Parkway
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Suite 100
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
and the address of Tenant is:
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer.
24. ATTORNEYS' FEES. In the event either party shall bring any action or legal
---------------
proceeding for damages for any alleged breach of any provision of this
Lease, to recover rent or possession of the Premises, to terminate this
Lease, or to enforce, protect or establish any term or covenant of this
Lease or right or remedy of either party, the prevailing party shall be
entitled to recover as a part of such action or proceeding reasonable
attorneys' fees and court costs, including attorneys' fees and costs for
appeal, as may be fixed by the court or jury. The term "prevailing party"
shall mean the party who received substantially the relief requested,
whether by settlement, dismissal, summary judgment, judgment or otherwise.
25. NONASSIGNMENT.
-------------
A. Consent Required. Tenant's interest in this Lease is not assignable, by
----------------
operation of law or otherwise, nor shall Tenant have the right to sublet
the Premises, transfer any interest of Tenant therein or permit any use of
the Premises by another party, without the prior written consent of
Landlord to such assignment, subletting, transfer or use, which consent
Landlord agrees not to unreasonably withhold, subject to the provisions of
Paragraph 25.B and Paragraph 37. A consent to one assignment, subletting,
occupancy or use by another party shall not be deemed to be a consent to
any subsequent assignment, subletting, occupancy or use by another party.
Any assignment or subletting without such consent shall be void and shall,
at the option of Landlord, terminate this Lease. Landlord's waiver or
consent to any assignment or subletting hereunder shall not relieve Tenant
from any obligation under this Lease unless the consent shall so provide.
Tenant may, with Landlord's prior written consent, assign this Lease as
security for a bona fide loan: provided, however, that if the lender is an
Institutional Lender or syndicate of lenders headed by an Institutional
Lender (a "Syndicate"), Landlord's prior consent shall not be required. If
the lender taking this Lease as security is an Institutional Lender or a
Syndicate, Landlord shall make such amendments to this Lease or agreements
with such lender as (i) are reasonably requested by such lender, (ii) are
limited to protecting the lender's security interest in the Lease, (iii)
are customarily received by Institutional Lenders in connection with
leasehold mortgage financing, (iv) do not materially and adversely affect
Landlord's rights under the Lease and will not delay Landlord's exercise of
its remedies for an Event of Tenant's Default and in no event change the
Base Monthly Rent, Additional Rent, or Lease Term, and (v) would not
constitute a default under any mortgage or deed of trust encumbering the
Premises. Notwithstanding the foregoing, Landlord shall not be obligated to
make amendments to the Lease or agreements with such lender which would
permit the Lease to be assigned without the prior consent of Landlord.
Without limiting the other instances in which it may be reasonable for
Landlord to withhold its consent to an assignment or subletting, Landlord
and Tenant acknowledge that it shall be reasonable for Landlord to withhold
its consent (i) if the proposed assignee or sublesee is a governmental
agency: (ii) if, in Landlord's reasonable judgement, the use of the
Premises by the proposed assignee or sublessee would entail any atlerations
which would materially lessen the value of the leasehold improvements in
the Premises (and Tenant does not provide Landlord with reasonable
assurance that such alterations will be removed and restored upon
termination of the Lease), or would require materially increased services
by Landlord for which reimbursement by Tenant is not sufficient to cover
all costs that Landlord would incur as a result of providing such
additional services: (iii) if, in Landlord's reasonable judgment, the
financial worth of the proposed assignee or sublessee does not meet the
credit standards applied by Landlord for other tenants under leases with
comparable term and the proposed sublease term expiration is within one (1)
year of the expiration of the Lease Term, or the character, reputation or
business of the proposed assignee or sublessee is not consistent with the
quality of the other tenancies in the Project: (iv) in the case of a
subletting of less than the entire Premises, if the subletting would result
in the division of any given floor of the Premises into more than four
subparcels, would create a subparcel of a configuration that is not
suitable for normal leasing purposes, or would require access to be
provided through space leased or held for lease to another tenant or
improvements to be made outside of the Premises and Tenant does not provide
Landlord with reasonable assurance that such alterations to create such
configuration will be removed and restored to the original configuration
upon termination of the Lease: or (v) if, at the time consent is requested
or at any time prior to the granting of consent, there is an uncured Event
of Tenant's Default under the Lease which is capable of being cured and
which has not been cured. As used in this Paragraph 25, the term "assign"
or "assignment" shall include, without limitation, any sale.
21
transfer, or other disposition of all or any position of Tenant's estate under
this Lease, whether voluntary or involuntary, and whether by operation of law or
otherwise including any of the following:
(i) If Tenant is a corporation (i) any dissolution, merger, consolidation, or
other reorganization of Tenant or (ii) a sale of more than 50% of the
value of the assets of Tenant or (iii) if Tenant is a corporation with
fewer than 50 shareholders, sale or other transfer of a controlling
percentage of the capital stock of Tenant to one entity or to a group of
related entities. The phrase "controlling percentage" means the ownership
of, and the right to vote, stocks possessing at least 50% of the total
combined voting power of all classes of Tenant's stock issues outstanding
and permitted to vote for the election of directors:
(ii) If Tenant is a trust the transfer of more than 50% of the beneficial
interest of Tenant, or the dissolution of the trust:
(iii) If Tenant is a partnership or joint venture, the withdrawal, or the
transfer of the interest of any general partner or joint venturer or the
dissolution of the partnership or joint venture:
(iv) If Tenant is composed of tenant-in-common, the transfer of interest of
any cotenants or the partition of dissolution of the cotenancy.
B. Notice Required. It Tenant desires to assign its interest in this Lease or
---------------
sublet the Premises, or transfer any interest of Tenant therein, or permit the
use of the Premises by another party (hereinafter collectively referred to as a
"Transfer"), Tenant shall give Landlord at least fifteen (15) days prior written
notice of the proposed Transfer and of the terms of such proposed Transfer,
including, but not limited to, the name and legal composition of the proposed
transferee, a financial statement of the proposed transferee, the nature of the
proposed transferee's business to be carried on in the Premises, the payment to
be made or other consideration to be given on account of the Transfer, and such
other pertinent information as may be requested by Landlord, all in sufficient
detail to enable Landlord to evaluate the proposed Transfer and the prospective
transferee.
C. Landlord's Rights to Share in Net Subrent Profit. If Landlord consents to
------------------------------------------------
a Transfer proposed by Tenant, Tenant may enter into such Transfer, and if
Tenant does so, the following shall apply so such Transfer (but not to any
Transfer described by Paragraph 25.D):
(i) If Tenant assigns its interest in this Lease, then Tenant shall pay to
Landlord fifty percent (50%) of all consideration received by Tenant over
and above (a) the assignee's agreement to assume the obligations of Tenant
under this Lease, and (b) all "Permitted Transfer Costs" (as defined in
Paragraph 25.C(v)). In the case of assignment, the amount of consideration
owed to Landlord shall be paid to Landlord on the same basis, whether
periodic or in lump sum, that such consideration is paid to Tenant by the
assignee.
(ii) If Tenant sublets any part of the Premises, then with respect to the space
so subleased. Tenant shall pay to Landlord fifty percent (50%) of the
positive difference, if any, between (a) all rent and other consideration
paid by the subtenant to Tenant less (b) all Permitted Transfer Costs and
all payments of the Base Monthly Rent and Additional Rent fairly allocable
so that part of the Premises affected by such sublease. Such amount shall
be paid to Landlord on the same basis whether periodic or in lump sum,
that such rent and other consideration is paid to Tenant by its subtenant.
In calculating Landlord's share of any periodic payments, all such costs
permitted to be deducted from the gross consideration received by Tenant
that have been paid by Tenant shall he first recovered by Tenant.
(iii) Tenant's obligations under this Paragraph 25.C shall survive any Transfer.
At the time Tenant makes any payment to Landlord required by this
Paragraph 25.C. Tenant shall deliver an itemized statement of the method
by which the amount to which Landlord is entitled was calculated,
certified by Tenant as true and correct. Landlord shall have the right at
reasonable intervals to inspect Tenant's books and records relating to the
payments due hereunder. Upon request therefor, Tenant shall deliver to
Landlord copies of all bills, invoices or other documents upon which its
calculations are based.
(iv) As used in this Paragraph 25.C. the term "consideration" shall mean any
consideration of any kind received by Tenant as a result of the Transfer
if such consideration is paid or given in exchange for Tenant's interest
in this Lease or in the Premises.
22
(v) As used herein, the term "Permitted Transfer Costs" shall mean the
following (a) all reasonable leasing commissions paid to third
parties not affiliated with Tenant in order to obtain the Transfer in
question: (b) all reasonable attorneys' fees incurred by Tenant with
respect to the Transfer in question: (c) the cost of Alterations that
must be made by Tenant in order to obtain the Transfer in question:
(d) the amount of the Base Monthly Rent and all Additional Rent paid
by Tenant with respect to that part of the Premises affected by the
Transfer in question for that period of time during which such part
of the Premises was vacant and actively being marketed for sublease
or assignment so long as at the commencement of such vacancy previous
notice of such vacancy was delivered to Landlord and Landlord was
able to inspect and verify same: and (e) any of the foregoing types
of costs paid or incurred by Tenant with respect to prior Transfers
which Tenant did not recoup (after first paying the Base Monthly Rent
and Additional Rent fairly allocable to the space affected by such
prior Transfers) from rent and other consideration paid by the
subtenants or assignees that were parties to such prior Transfers.
(vi) In the event Tenant shall assign the Lease or sublet the Premises or
request the consent of Landlord to any assignment or subletting or if
Tenant shall request the consent of Landlord for any act that Tenant
proposes to do then Tenant shall pay Landlord's reasonable attorney's
fees incurred in connection therewith up to One Thousand Dollars
($1,000) per event, as such amount as adjusted pursuant to Paragraph
41.
D. Exempt Transfers. Tenants may, without Landlord's prior written
----------------
consent and without any participation by Landlord in assignment or
subletting proceeds, assign its interest in the Lease or sublet the
Premises or a portion thereof to (i) an Affiliate of Tenant: (ii) a
successor corporation related to Tenant by merger, consolidation, non-
bankruptcy reorganization or government action, or engage in a merger,
consolidation or other reorganization of Tenant which is defined as an
"Assignment" under Paragraph 25.A(i); or (iii) a purchaser of substantially
all of the Tenant's assets related to the business being operated at the
Premises, so long Affiliate and Tenant, combined, under (i), such successor
or the entity which continues as Tenant under (ii), or such purchaser under
(iii), has a net worth equal to or greater than the net worth of Tenant as
of the Effective Date: provided that in all such instances the transferee
assumes the obligations of the Tenant under this Lease in a written
instrument delivered to Landlord and provided further that the transferor
tenant remains liable as a primary obligor for the obligations of Tenant
under this Lease (excluding a transferor corporation which does not survive
a merger or other reorganization).
26. SUCCESSORS. This Lease shall be binding on the parties hereto and on their
----------
respective heirs, successors and assigns (to the extent the Lease is
assignable).
27. LENDER PROTECTION. In the event of any default on the part of Landlord.
-----------------
Tenant shall give notice by registered or certified mail to any Lender
whose address shall have been furnished it, and shall offer such Lender a
reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or judicial foreclosure, if
such should prove necessary to effect a cure.
28. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS. At all times during the
----------------------------------------------
Lease Term, each party agrees, following any request by the other party,
promptly to execute and deliver to the requesting party an estoppel
certificate (i) certifying that 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,
(ii) stating the date to which the rent and other charges are paid in
advance, if any, (iii) acknowledging that there are not, to the certifying
party's knowledge, any uncured defaults on the part of any party hereunder
or, if there are uncured defaults, specifying the nature of such defaults,
and (iv) certifying such other information about the Lease as may be
reasonably required by the requesting party. A failure to deliver an
estoppel certificate within ten (10) days after delivery of a request
therefor shall be a conclusive admission that, as of the date of the
request for such statement, (a) this Lease is unmodified except as may be
represented by the requesting party in said request and is in full force
and effect, (b) there are no uncured defaults in the requesting party's
performance, and (c) no rent has been paid in advance for more than thirty
(30) days. At any time during the Lease Term Tenant shall, upon ten (10)
days prior written notice from Landlord, provide Tenant's most recent
financial statement and financial statements covering the twenty-four (24)
month period prior to the date of such most recent financial statement to
Landlord, any existing Lender or to any potential Lender or buyer of the
Premises. Such statements shall be prepared in accordance with generally
accepted accounting principles and, if such is the normal practice of
Tenant, shall be audited by an independent certified public accountant.
Failure to deliver such statements within ten (10) days after receipt of
written notice from Landlord of delinquency in delivery of such statement
shall be an Event of Tenants Default under Paragraph 15. Landlord shall use
reasonable efforts to keep confidential all financial statements delivered
to it by Tenant pursuant to this paragraph
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and shall cause any potential Lender or buyer of the Premises to whom
such statements are delivered also to agree to use reasonable efforts
to keep such statements confidential.
29. SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender of
-----------------------------
this Lease by Tenant, or a mutual cancellation thereof, shall not
work a merger and shall at the option of Landlord, terminate all or
any existing subleases or subtenants or operate as an assignment to
Landlord of any or all such subleases or subtenants.
30. WAIVER. The waiver by Landlord or Tenant of any breach at any term,
------
covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained shall not be
deemed to be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other term, covenant or
condition herein contained.
31. GENERAL.
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A. Captions. The captions and paragraph headings used in this Lease
--------
are for the purposes of convenience only. They shall not be construed
to limit or extend the meaning of any part of this Lease.
B. Transfers by Landlord; Limitation on Tenant's Recourse for Landlord
-------------------------------------------------------------------
Default: Landlord and its successors in interest shall have the
-------
right to transfer their interest in this Lease and the Premises at
any time and to any person or entity. In the event of any such
transfer, the Landlord originally named herein (and, in the case of
any subsequent transfer, the transferor) from the date of such
transfer shall be relieved of all liability for the performance of
the obligations of the Landlord hereunder which may accrue after
the date of such transfer except for those relating to any funds in
which Tenant has an interest that are in the hands of Landlord or
the then transferor at the time of such transfer which are not
turned over the transferee; provided, however, that the foregoing
release shall not be effective unless the transferee shall have
executed an assumption agreement by which it agrees to perform all
of the obligations of the Landlord under this Lease which accrue
after the date of such transfer or which are then in default. The
release of a transferring Landlord of its obligations under
Paragraph 37.G concerning Hazardous Materials shall further be
conditioned upon the transferee having, at the time of transfer of
title to the Premises, either (i) a net worth determined in
accordance with generally accepted accounting principles of at
least $5,000,000 (as such amount is adjusted pursuant to Paragraph
41) which net worth is also not less than twenty-five percent (25%)
of the value of all assets of such transferee, or (ii) a net worth
determined in accordance with generally accepted accounting
principles of at least $15,000,000 (as adjusted pursuant to
Paragraph 41). In addition, if Landlord voluntarily transfers fee
title to the Premises prior to completion of the Renovation
Improvements, then Landlord or the transferor shall not be relieved
of its obligations to complete the Renovation Improvements in
accordance with the Lease unless Landlord shall upon such transfer
deposit into an escrow under the control of Landlord's transferee
and Tenant, as security for the performance of all obligations
under the Improvement Agreement an amount equal to Landlord's
reasonable estimate of the Renovation Improvement Costs which will
then be required to complete such Renovation Improvements or shall
deliver to Tenant a survey bond in such amount as security for the
obligation of Landlord's transferee with respect to the completion
of the Renovation Improvements which bond shall be in form, and be
issued by such surety company, as is reasonably acceptable to
Tenant. The obligations of Landlord under this Lease do not
constitute personal obligations of the partners, directors,
officers, shareholders, or trustees of Landlord, or of the
partners, directors, officers, shareholders or trustees of
Landlord's partners ("Beneficial Owners") except with respect to
Landlord and its general partners (but not the partners of its
general partners) as provided below. For the realization of any
claims against Landlord arising under this Lease. Tenant shall have
recourse only to the assets of Landlord which are real property
subject to this Lease or proceeds therefrom (e.g; condemnation
---
proceeds, insurance proceeds, or rent) (the "Building Assets") for
the satisfaction of such obligations and not against the other
assets of Landlord or its Beneficial Owners. Notwithstanding the
foregoing, the following shall apply only with respect to claims by
Tenant directly resulting from any and all defaults by Landlord of
its obligations under the Improvement Agreement and/or Paragraph
37.G concerning Hazardous Materials ("Special Defaults"): (i) for
Special Defaults, Tenant shall first seek recourse against Building
Assets but not to exceed $5,000,000 (as adjusted pursuant to
Paragraph 41.) for each claim and in the aggregate: (ii) to the
extent Tenant is unable to recover all amounts to which it is
entitled for Special Defaults from recourse against Building
Assets. Landlord and its general partners (but not any partners or
Beneficial Owners of such general partners) shall be liable to pay
the short fall in Tenant's recovery to the extent necessary to
provide Tenant with an aggregate total recovery from Building
Assets and such additional payments by Landlord and its general
partners of the lesser of $5,000,000 as that amount is adjusted
pursuant to Paragraph 41 hereof) or the aggregate amount Tenant is
entitled to recover from Landlord for Special Defaults under the
following three sentences: and (iii) the obligation of Landlord and
its general partners to make the additional contribution described
in clause (ii) immediately preceding (the "Special Contribution
Obligation") shall be limited as provided in the following three
sentences. The parties acknowledge that concurrently with
24
the execution of this Lease, Landlord and Tenant are executing other leases
and option agreements (which, if options are exercised, will lead to the
execution of additional leases) covering facilities in the Project (the
"Other Leases"), and that each of the Other Leases contains a provision
substantially the same as that contained in the immediately preceeding
sentence. Notwithstanding anything contained herein, in no event shall
Landlord and its general partners be required to pay more than $10,000,000
(as such amount is adjusted pursuant to Paragraph 41 hereof) in discharge
of the Special Contribution Obligations described herein or in the Other
Leases. In no event shall Landlord be liable for consequential damages,
such as lost revenues or lost profits, which may result from Landlord's
breach of its obligations to complete the Renovation Improvements set forth
in the Improvement Agreement.
C. Time. Time is of the essence for the performance of each term,
----
covenant and condition of this Lease.
D. Severability; Governing Law. In case any one or more of the provisions
---------------------------
contained herein, except for the payment of rent, shall for any reason be
held to be 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.
This Lease shall be construed and enforced in accordance with the laws of
the State of California.
E. Joint and Several Liability. If Tenant is more than one person or
---------------------------
entity, each such person or entity shall be jointly and severally liable
for the obligations of Tenant hereunder.
F. Exhibits. All exhibits attached hereto and referred to herein are
--------
incorporated herein by this reference.
G. Miscellaneous. Any executed copy of this Lease shall be deemed an
-------------
original for all purposes. As used herein, "party" shall mean Landlord or
Tenant, as the context implies. 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 Landlord or Tenant. 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. The terms "shall", "will", and "agree" are mandatory.
The term "may" is permissive. When a party is required to do something by
this Lease, it shall do so at its sole cost and expense without right of
reimbursement from the other party unless specific provision is made
therefor. When a party is obligated not to perform any act, that party is
also obligated to restrain any others within its control from performing
said act, including agents, contractors and employees. The use herein of
the word "including", when following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not non-limiting language (such as
"without limitation" or "but not limited to," or word of similar import) is
used with reference thereto, but rather shall be deemed to refer to all
other items or matters that could reasonably fall within the broadcast
possible scope of such general statement, term or matter.
H. Survival. The following provisions of this Lease shall survive the
--------
expiration or earlier termination of this Lease (but not if such early
termination results from the exercise by Tenant of any right of rescission
of this Lease as set forth in Paragraph 3.A. above); 4.F.(3) (payment of
Percentage Share of Operating Expenses); 7.B. (payment of Percentage Share
of Property Taxes): 8.A. (Waiver and Indemnity): 9. (Utilities): 13.B. (iv)
(removal of alterations): 22 (Holding Over): 31.B. (Transfers by Landlord:
Limitation on Tenant's Recourse): 34 (Surrender): 37.F. (surrender): and
37.G. (Landlord's Obligations).
32. SIGNS. Tenant shall be entitled to install signs identifying its business
-----
within the Project and exterior signs on the Building as described and in
accordance with an overall signage program to be approved by Landlord and
Tenant and subject to any Laws: provided, however. Landlord has previously
agreed to (i) allow Tenant its own separate identity signage from that of
the Project, and (ii) include in Tenant's signage program major entry
signage at the entry to Tenant's campus within the Project, secondary
identity signage at secondary entrances and directional signage to all of
Tenant's buildings within the Project. The cost of all exterior signage
shall be paid by Landlord. At the termination of this Lease. Tenant shall
remove any signs which it has placed on the Premises and shall repair any
damage caused by the installation or removal of such signs.
33. INTEREST ON PAST DUE OBLIGATIONS. Any amount due to Landlord or Tenant not
--------------------------------
paid when due shall bear interest from the due date until paid at the
Agreed Interest Rate. Payment of such interest shall not excuse or cure any
default by Tenant under this Lease.
25
34. SURRENDER OF THE PREMISES. On the last day of the Lease Term, or on sooner
-------------------------
termination of this Lease, Tenant shall surrender the Premises to Landlord
in their condition existing as of the Commencement Date, ordinary wear and
tear expected, with all originally painted interior walls washed and other
interior walls cleaned, all damaged ceiling tiles and lighting lenses
replaced, all carpets shampooed and cleaned, the air conditioning and
heating equipment serviced and repaired by a reputable and licensed service
firm, all floors cleaned and waxed, all to the reasonable satisfaction of
Landlord, subject to the limitations on Tenant's obligation to remove
Alterations and restore the Premises to its prior condition set forth in
Paragraph 13. Nothing contained in this Paragraph 34 shall require Tenant
to repair the effects of any condemnation, damage or destruction or any
other condition which Tenant is not required to remedy under this Lease.
Tenant shall remove all of Tenant's personal property and Trade Fixtures
from the Premises, and all property not so removed shall be deemed
abandoned by Tenant. Tenant, at its sole cost, shall repair any damage to
the Premises caused by the removal of Tenant's Trade Fixtures, personal
property, machinery and equipment, which repair shall include the patching
and filling of holes and repair of structural damage. If the Premises are
not so surrendered at the termination of this Lease, Tenant shall indemnify
Landlord against loss or liability resulting from delay by Tenant in so
surrendering the Premises, including, without limitation, any claims made
by any succeeding tenant or losses to Landlord due to lost opportunities to
lease to succeeding tenants.
35. AUTHORITY. The undersigned parties hereby warrant that they have proper
---------
authority and are empowered to execute this Lease on behalf of Landlord and
Tenant, respectively.
36. OPTIONS TO EXTEND.
-----------------
A. Tenant shall have three (3) options to extend the Lease Term, each for
a period of five (5) years (each of which is referred to herein as an
"Option Term"). Each option may be exercised only by written notice given
to Landlord not earlier than twenty-four (24) months and not later than
eighteen (18) months prior to the expiration of the then existing Lease
Term. Tenant may not exercise any of such options at any time that there
exists an Event of Tenant's Default involving those events described in
Paragraph 15.A(iv), (vi) or (vii) or there exists an Event of Tenant's
Default that is capable of being cured but has not been cured by Tenant. In
all respects, the terms, covenants and conditions of this Lease shall
remain unchanged during each Option Term, except that the Base Monthly Rent
payable during each Option Term shall be increased in accordance with
Paragraph 36.B. Landlord shall have no obligation to fund additional tenant
improvements in the Premises or pay Tenant's brokerage commission, if any,
and there shall be no further option to extend the Lease Term at the end of
the third Option Term.
B. The Base Monthly Rent payable during each Option Term shall be ninety
percent (90%) of the "Fair Market Rent for the Premises" (as defined in
Paragraph 36.D) as of the first day of the Option Term in question. Base
Monthly Rent during an Option Term may be subject to an adjustment or
adjustments at such times, in such amount or using such formula, as may be
established in connection with determining the Fair Market Rent for the
Premises.
C. Promptly following exercise of each option to extend, the parties
shall meet and endeavor to agree upon the Fair Market Rent of the Premises.
If within fifteen (15) days after exercise of any of the options, the
parties cannot agree upon the Fair Market Rent for the Premises as of the
first day of the Option Term in question, the parties shall submit the
matter to binding appraisal in accordance with the following procedure:
Within thirty (30) days after exercise of the option, the parties shall
either (i) jointly appoint an appraiser for this purpose or (ii) failing
this joint action, separately designate a disinterested appraiser. No
person shall be appointed or designated an appraiser unless he has at least
five (5) years experience in appraising major commercial property in
Alameda County and is a member of a recognized society of real estate
appraisers. If within thirty (30) days after the appointment the two
appraisers reach agreement on the Fair Market Rent for the Premises as of
the first day of the Option Term in question, that value shall be binding
and conclusive upon the parties. If the two appraisers thus appointed
cannot reach agreement on the question presented within thirty (30) days
after their appointment, then the appraisers thus appointed shall appoint a
third disinterested appraiser having like qualifications. If within thirty
(30) days after the appointment of the third appraiser a majority of the
appraisers agree on the Fair Market Rent of the Premises as of the first
day of the Option Term in question, that value shall be binding and
conclusive upon the parties. If within thirty (30) days after the
appointment of the third appraiser a majority of the appraisers cannot
reach agreement on the question presented, then the three appraisers shall
each submit their independent appraisal to the parties, the appraisal
farthest from the median of the three appraisals shall be disregarded, and
the average of the remaining two appraisals shall be deemed to be the Fair
Market Rent of the Premises as of the first day of the Option Term in
question and shall be binding and conclusive upon the parties. Each party
shall pay the fees and expenses of the appraiser appointed by it and shall
share equally the fees and expenses of the third appraiser. If the two
appraisers
26
appointed by the parties cannot agree on the appointment of the third
appraiser, they or either of them shall give notice of such failure to
agree to the parties and if the parties fail to agree upon the selection of
such third appraiser within ten (10) days after the appraisers appointed by
the parties give such notice, then either of the parties, upon notice to
the other party, may request such appointment by the American Arbitration
Association or, on its failure, refusal or inability to act, may apply for
such appointment to the presiding judge of the Superior Court of Alameda
County, California.
D. For purposes of this Paragraph, the term "Fair Market Rent for the
Premises" shall mean the going market rental and any adjustment or
adjustments to such rental at such time(s) and in such amount or using such
formula as is prevailing at the time of the commencement of the Option Term
in question, for comparably equipped space in buildings containing between
50,000 and 250,000 square feet, located within a five (5) mile radius of
the Premises, and in a condition comparable to the then condition of the
Premises, taking into account all legal uses for which the Premises could
be used without material alteration thereto and the value of all the
improvements in the Premises made by Landlord (but adjusting for the age
and then condition of such improvements) for a tenant proposing to sign a
lease for a similar term and having financial qualifications similar to
Tenant and using as a guide equivalent space in the size range specified
above of similar age, construction, quality, use and location. There shall
be excluded from any determination of "Fair Market Rent of the Premises"
the rental value attributable to any improvements constructed by Tenant
with its own funds, and all Trade Fixtures and personal property of Tenant
located in the Premises. Any determination of "Fair Market Rent of the
Premises" shall take into account rental concessions then prevailing in the
market (e.g., "free rent," lease assumptions, payment of moving expenses,
etc.).
E. If the Base Monthly Rent for any Option Term is established by appraisal
conducted pursuant to Paragraph 36.C hereof and if Tenant does not, in its
sole discretion, approve the Fair Market Rent for the Premises established
for the Option Term in question as so established by appraisal, then Tenant
may rescind its exercise of the option in question by giving Landlord
written notice of such election to rescind within fifteen (15) days after
the Fair Market Rent for the Premises for the Option Term in question is so
established by appraisal. If Tenant so timely rescinds its exercise of the
option in question, then (i) the Lease shall expire on the later to occur
of either five hundred forty (540) days after Tenant's notice of rescission
is delivered to Landlord or on the date the Lease would otherwise have
expired absent such exercise of the option in question by Tenant; (ii) if
the Lease Term is extended as a result of Tenant's rescission, then the
Base Monthly Rent for the extended period shall be equal to the Base
Monthly Rent in effect prior to Tenant's rescission; and (iii) Tenant shall
pay all costs incurred by Landlord in participating in any appraisal to
establish the Fair Market Rent for the Premises for the Option Term in
question.
37. HAZARDOUS MATERIAL.
------------------
A. Definitions. As used herein, the term "Hazardous Material" shall mean
-----------
any substance or material which has been determined by any state, federal
or local governmental authority to be capable of posing a risk of injury to
health, safety or property including all of those materials and substances
designated as hazardous or toxic by the Environmental Protection Agency,
the California Water Quality Control Board, the Department of Labor, the
California Department of Industrial Relations, the Department of
Transportation, the Department of Agriculture, the Consumer Product Safety
Commission, the Department of Health and Human Services, the Food and Drug
Administration or any other governmental agency now or hereafter authorized
to regulate materials and substances in the environment. Without limiting
the generality of the foregoing, the term "Hazardous Material" shall
include asbestos, PCB's, petroleum products and all materials and
substances listed under Article 11, or defined as hazardous or extremely
hazardous pursuant to Article 1 of Title 22 of the California Code of
Regulations, Division 4, Chapter 30, as the same shall be amended from time
to time.
B. Use Restriction. Tenant shall not cause or allow anyone else to cause,
---------------
any Hazardous Materials (other than commercially reasonable quantities of
cleaning and office supplies for Tenant's use to be used, generated,
stored, released or disposed of (collectively "Use") on or about the
Premises, the Building or the Outside Areas without the prior written
consent of Landlord, which consent may be withheld in the sole discretion
of Landlord unless all of the conditions set forth in subparagraphs (i)
through (iii) below are met, in which event such consent shall not
unreasonably be withheld. In the Event of any breach by Tenant, which
constitutes an Event of Tenant's Default, of the covenants or conditions
set forth in this Paragraph B, in addition to all of its other remedies
under this Lease, Landlord may revoke any consent previously given with
respect to the Use of Hazardous Materials.
(i) The proposed Hazardous Material does not include freon, TCE,
hydrocarbons or any hydrocarbon-based compounds or any Hazardous
Material that has been detected at any time at levels exceeding
"action levels" of any governmental
27
agency in the soil or groundwater of the Premises, and the Use does not
involve: (1) outside or underground storage: (2) storage of any quantities
in excess of those requiring the establishment of a Business Plan under
the provisions of Health & Safety Code Section 25503.5: (3) the proposed
Use does not involve manufacturing of commercial quantities of any
Hazardous Materials: or (4) above-ground or inside storage, unless Tenant
has made appropriate provisions for leak protection, leak detection and
leak containment and such provisions are compatible with Building systems.
(ii) The tangible net worth of Tenant at the time it requests consent to such
Use is at least equal to $5,000,000 (as increased in accordance with the
percentage increase in the Consumer Price Index from the Effective Date
through the month prior to Tenant's request). "Tangible net worth" shall
mean, at any date, the sum of the capital stock and additional paid-in
capital stock and additional paid-in capital plus retained earnings (or
minus accumulated deficit) of Tenant and its subsidiaries on a
consolidated basis, minus all intangible assets of Tenant and its
subsidiaries including, without limitation: (a) goodwill, trademarks,
patents, patent application, brand names, copyrights, franchises and
deferred charges (including unamortized debt discount and software
development and other research and development costs), determined in
accordance with generally acceptable accounting principles; (b) treasury
stock; (c) cash held in a sinking or other similar fund established for
the purpose of redemption or other retirement of capital stock: (d) to the
extent not already deducted from total assets, reserves for depreciation,
depletion, obsolescence or amortization of properties and other reserves
or appropriations of retained earnings which have been or should be
established in connection with the business conducted by the relevant
corporation: (e) purchased intangibles; and (f) any revaluation or other
write-up in book value of assets subsequent to the fiscal year of Tenant
last ended at the date of this Lease. Such tangible net worth shall be as
reported by an independent certified public accountant according to
generally accepted accounting principles.
(iii) Tenant, and/or any subtenant on whose behalf Tenant requests such consent
has not previously been cited or charged by any governmental authority for
improper use, storage or discharge of any Hazardous Material and is not,
and has not previously been involved, either as a potentially responsible
party, or otherwise, in any remediation or clean-up of a release of
Hazardous Material: provided, however, if Tenant's proposed subtenant is
an entity whose shares are publicly traded, the subtenant explicitly
assumes in writing the obligations of Tenant under this Paragraph 37 with
respect to those Hazardous Materials Used by such subtenant on a joint and
several basis, and the net worth of such proposed subtenant, as determined
in accordance with generally acceptable accounting principles, is at least
$50,000,000, then this subparagraph (iii) shall not be applicable.
Upon seeking Landlord's consent, Tenant shall provide a complete list of all
Hazardous Materials proposed to be permitted on the Premises, the maximum
quantities to be used during any one-month period and a description of the means
which will be used to handle, store and remove such materials from the Premises.
Tenant shall obtain Landlord's consent before using any additional Hazardous
Materials on the Premises not included in Tenant's most recent list, and shall
provide written certification to Landlord at least once during any twelve month
period of the term, and at any time within five business days of Landlord's
request, but not more often than four times during each twelve month period of
the continued accuracy of Tenant's prior disclosures with respect to the
Hazardous Materials then being used on the Premises. Tenant at its sole cost
shall strictly comply with all Laws relating to the Use by Tenant or its Agents
of Hazardous Materials. Landlord and its Agents may, from time to time, and
without prior notice to Tenant, inspect the Premises for the purposes of
confirming the presence of Hazardous Materials thereon and the means and methods
then being used to handle and dispose of such materials, but Landlord shall not
have an obligation so to do. The costs of inspections by Landlord's consultants
shall be paid by Tenant as an Operating Expense, and if, as a result of any such
inspection, or otherwise, Landlord determines that any certification by Tenant
is inaccurate, then, promptly following Landlord's request, Tenant shall cause
the proper legal removal from the Premises of Hazardous Materials not previously
disclosed and opposed by Landlord, and shall cease all use or processes for
which Landlord has not previously given its consent. If the Use of Hazardous
Materials on the Premises caused by Tenant or its Agents results in
contamination of the Premises or any soul or groundwater in, under or about the
Premises. Tenant, at its expense, shall promptly take all actions necessary to
remediate such contamination and otherwise to comply with the requirements of
any governmental agency or other authority having jurisdiction over the
Premises. Tenant shall defend, hold harmless and indemnify Landlord and its
Agents and employees with respect to (i) all claims, damages (including
consequential damages such as those which may result from Landlord's inability
to obtain financing for the Building), costs (including attorneys' fees) and
liabilities arising out of or in connection with the Use of any Hazardous
Material in or about the Premises by Tenant or its Agents, and (ii) any disposal
or release of any Hazardous Material on or under the Building emanating from
those portions of the Premises over which Tenant has exclusive control occurring
after the date possession of the Premises or the portion where such
28
Material is disposed or released, is delivered to Tenant and prior to the
termination of this Lease, and that is not the result of the negligence or
willful misconduct of Landlord or its Agents. In the event of any dispute
between Landlord and Tenant concerning Tenant's indemnification and defense
obligations under this Paragraph B, for so long as Tenant uses the Premises
solely for general office purposes. Landlord shall have the burden of showing
by the preponderance of the evidence that the Use of any Hazardous Material was
caused by Tenant or its Agents. If the Premises has been used for other than
general office purposes by Tenant or its Agents, then Tenant shall bear the
burden of showing by the same burden of proof that neither it nor any of its
Agents caused the contamination of the Premises or any such soil or groundwater
or such claims, damages or liabilities.
C. Compliance. Tenant, at its sole cost, shall strictly comply with all Laws
----------
relating to the Use by Tenant of Hazardous Materials. If the presence of
Hazardous Materials on the Premises caused by Tenant or its Agents results in
contamination of the Premises or any soil or groundwater in, under or about the
Premises, Tenant, at its expense, shall promptly take all actions necessary to
remediate such contamination and otherwise to comply with the requirements of
any governmental agency or other authority having jurisdiction over the
Premises. Tenant shall not suffer any lien to be recorded against the Premises
as a consequence of the disposal of a Hazardous Material on the Premises by
Tenant or its Agents, including any so-called state, federal or local "super
fund" lien related to the "clean-up" of a Hazardous Material in or about the
Premises. Tenant shall promptly, following Tenant's becoming aware of the same,
notify Landlord of any inquiry, test, investigation or enforcement proceeding by
or against Tenant or the Premises concerning a Hazardous Material. If Landlord
reasonably believes that Tenant has violated the provisions of this Paragraph 37
and, if following notice by Landlord to Tenant. Tenant has failed to correct
such violation in a timely manner. Landlord shall have the right to appoint a
consultant to conduct an investigation to determine whether Hazardous Materials
are being Used in an appropriate manner. If Tenant has violated any law or
covenant in this Lease regarding the Use of Hazardous Materials on or about the
Premises. Tenant Shall reimburse Landlord for the cost of such investigation.
Tenant, at its expense, shall comply with all reasonable recommendations of the
consultant required to conform Tenant's Use of Hazardous Materials to the
requirements of applicable Law or to fulfill the obligations of Tenant
hereunder.
D. Assignment and Subletting. In evaluating a proposed Transfer and the
-------------------------
prospective transferee in accordance with Paragraph 25. Landlord may take into
account the proposed transferee's history of compliance with Laws regulating
Hazardous Materials.
E. Notice. Landlord and Tenant shall each give written notice to the other as
------
soon as reasonably practicable of (i) any communication received from any
governmental authority concerning Hazardous Materials which relates to the
Premises, and (ii) any contamination of the Premises by Hazardous Materials
which constitutes a violation of any Law regulating Hazardous Materials. At any
time during the Lease Term, Tenant shall, within five (5) days after written
request therefor received from Landlord, disclose in writing all Hazardous
Materials that are being used by Tenant on the Premises, the Use of which
requires Tenant to make written reports to any governmental agency under any Law
regulating Hazardous Materials which disclosure by Tenant shall state the nature
of such Use.
F. Surrender. Upon the expiration or earlier termination of the Lease. Tenant,
---------
at its sole cost, shall remove all Hazardous Materials from the Premises and
from the groundwater under the Premises which Tenant introduced to the Premises
to the extent required by Law or to that level that a prudent owner would do on
its own account (taking into account cost, legal requirements, anticipated
changes in legal requirements and potential threat to groundwater), with
disputes settled by binding arbitration under the Commercial Rules of the
American Arbitration Association. Tenant shall indemnify and hold Landlord
harmless from all claims, liabilities, expenses (including attorney's fees and
investigation costs) penalties, fines, response costs and damages resulting from
Tenant's failure to surrender the Premises as required by this Paragraph,
including, without limitation, any claims or damages in connection with the
condition of the Premises, including damages occasioned by the inability to
relet the Premises or a reduction in the fair market and/or rental value of the
Premises by reason of the existence of any Hazardous Materials disposed of by
Tenant in or around the Premises. Upon the expiration or earlier termination of
the Lease. Landlord, at its option, may through outside consultants, perform an
exit environmental site assessment of the Premises, the cost of which would be
paid by Tenant if (i) Tenant has not increased the intensity of use of Hazardous
Materials over the Lease Term but there is contamination at the Premises caused
by Tenant, or (ii) Tenant (or a subtentant) has increased the intensity of use
of Hazardous Materials over the Lease Term at the Premises. The foregoing
notwithstanding, Tenant's payment of such assessment shall be limited to
$10,000, as adjusted pursuant to Paragraph 41, unless such assessment indicates
that Tenant has caused such contamination.
29
G. Landlord's Obligations. Landlord represents and warrants that, without
-----------------------
independent investigation, it has no knowledge of any Hazardous Materials
present in, on or under the Premises other than as described in those
reports described in Exhibit "D" (the "Existing Hazardous Material
-----------
Condition"). Landlord, at its sole cost, shall comply with all Laws
(including the federal law known as "CERCLA" and its California
counterpart) which impose liability or responsibility upon either Landlord
or Tenant to investigate, remediate or otherwise take any action with
respect to the following: (i) the Existing Hazardous Material Condition;
and (ii) compliance with all Laws regulating Hazardous Materials affecting
the Premises to the extent that Landlord is legally obligated to do so by
such Laws and such compliance is not made the responsibility of Tenant
pursuant to Paragraph 37.B, 37.C, 37.F. Landlord shall indemnify, defend
and hold Tenant and its Agents harmless from and against all liabilities,
claims, penalties, fines, response costs, and other expenses (including
reasonable attorneys' fees) which result from Landlord's failure to perform
the obligation stated in the immediately preceding sentence.
38. APPROVALS. Whenever this Lease requires an approval, consent, designation,
---------
determination or judgment by either Landlord or Tenant, such approval,
consent, designation, determination or judgement shall not be unreasonably
withheld or delayed.
39. REASONABLE EXPENDITURES. Any expenditure by a party provided or required
-----------------------
under the Lease, for which such party is entitled to demand and does
reimbursement from the other party, shall be limited to the fair market
value of the goods and services involved, shall be reasonably incurred, and
shall be substantiated by documentary evidence available for inspection and
review by the other party or its representative during normal business
hours.
40. RIGHT TO PERFORM OTHER PARTY'S COVENANTS. If either party 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 for thirty (30)
days following notice to the other party and, in the case of Landlord, to
Landlord's Lender(s), of such failure (unless the nature of the obligation
is such that it cannot be completed within thirty (30) days, in which event
the defaulting party need only commence performance within the thirty (30)
day period and thereafter diligently complete the same), the other party
may, but shall not be obligated to and without waiving or releasing such
party from any obligation of such party under this Lease, make such payment
or perform such other act to the extent the other party may deem desirable,
and in connection therewith pay expenses and employ counsel.
Notwithstanding the above, in the event such failure to perform shall
create any unsafe or other emergency condition, the other party may take
such actions as it deems reasonably necessary for protection of person and
property in and about the Premises and shall promptly thereafter notify the
other party of such actions. All sums so paid by the other party and all
penalties, interest and costs in connection therewith shall be due and
payable by the defaulting party on the next day after any such payment by
the other party, together with interest at the Agreed Interest Rate from
such date to the date of payment thereof by the defaulting party to the
other party. All such sums owned by Tenant to Landlord under this Paragraph
40 shall be deemed Additional Rent.
41. CPI ADJUSTMENT. Where provisions of this Lease specify dollar amounts and
--------------
state that they are to be adjusted pursuant to this Paragraph (e.g.,
----
Paragraph 13.B(i) and 31.B), at the time such provisions are applied during
the Lease Term the amount in question shall be adjusted to that amount
which is equal to the product obtained by multiplying (i) the amount
originally specified in the provision in question as of the Effective
Date, by (ii) a fraction the numerator of which is the Consumer Price Index
published immediately preceding the date upon which such provision is to be
applied and the denominator of which is the Consumer Price Index published
immediately preceding the Effective Date.
42. INTEGRATION AND AMENDMENTS. Except as expressly provided herein, Tenant
--------------------------
acknowledges that neither the Landlord nor Landlord's Agents has made any
representation or warranty as to the suitability of the Premises to the
conduct of Tenant's business. Any agreements, warranties or
representations not expressly contained herein shall in no way bind either
Landlord or Tenant, and Landlord and Tenant expressly waive all claims for
damages by reason of any statement, representation, warranty, promise or
agreement, if any, not contained in this Lease. This Lease, together with
all Exhibits hereto, constitutes the entire understanding between the
parties regarding Tenant's lease of the Premises and no addition to, or
modification of, any term or provision of this Lease shall be effective
until set forth in writing signed by both Landlord and Tenant.
30
43. MEMORANDUM OF LEASE. Concurrently with the execution hereof, the parties
-------------------
shall execute, acknowledge and record a Memorandum of Lease referencing
Tenant's options to extend the term in a form approved by Landlord and
Tenant.
44. NON-DISCRIMINATION. Tenant convenants for itself, its heirs, executors,
------------------
administrators, and assigns, and all persons claiming under or through it,
and this Lease is made and accepted upon it subject to the condition that
there shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex, marital
status, national origins, or ancestry in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the Premises herein
leased nor shall the Tenant itself, or any person claiming under or through
it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or
occupancy of tenant, subtenants, vendees in the Premises.
45. BROKERAGE COMMISSIONS. Each party hereto represents and warrants to the
---------------------
other that it has any dealings with any real estate brokers, leasing agents
or salesmen, other than ▇▇▇▇▇▇/▇▇▇▇▇ Commercial Real Estate and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ (collectively "Brokers"), or incurred any obligations for the
payment of real estate brokerage commissions or finder's fees which would
be earned or due and payable by reason of the execution of this Lease other
than to Brokers. Landlord shall pay any applicable commission to Brokers in
accordance with separate agreements between Landlord and Brokers.
46. EXISTING TENANCY. As of the Effective Date, 6,169 square feet of Rentable
----------------
Area (the "Prudential Space") located on the fourth floor of the Building
is leased by Landlord to The Prudential Insurance Company of America. The
Lease for such space expires on December 31, 1994, and there are no options
to renew the lease term. As of January 1, 1996, the Prudential Space shall
be added to and become a part of the Premises, the Base Monthly Rent shall
be increased to reflect the addition of such space to the Premises, and
Tenant's Percentage Share shall become one hundred percent(100%). Prior to
January 1, 1996, Landlord shall have completed Renovation Improvements
within the Prudential Space under the terms of the Improvement Agreement.
IN WITNESS WHEREOF, the parties have executed this Lease on the dates set forth
below.
TENANT: LANDLORD:
ASK COMPUTER SYSTEMS, INC. ALAMEDA REAL ESTATE INVESTMENTS
a Delaware corporation a California limited partnership
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: Vintage Properties - Alameda
--------------------------- Commercial,
a California corporation
Its: VP & General Counsel Managing General Partner
-----------------------
By:___________________________ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Its:_______________________ Its: President
-------------------------
Date of Execution Date of Execution
by Tenant: June 26, 1992 By Landlord: 6/26/92
-------------------- ------------------
31
EXHIBIT A
---------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
[FLOOR PLANS APPEAR HERE]
EXHIBIT A
---------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(CONTINUED)
[FLOOR PLANS APPEAR HERE]
EXHIBIT A
---------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
[FLOOR PLANS APPEAR HERE]
EXHIBIT A
---------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(CONTINUED)
[FLOOR PLANS APPEAR HERE]
EXHIBIT A
---------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(CONTINUED)
[FLOOR PLANS APPEAR HERE]
EXHIBIT B
IMPROVEMENT AGREEMENT
FOR ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
INITIAL IMPROVEMENT OF THE BUILDING AND
RENOVATION IMPROVEMENTS
_________________________
This Exhibit B is incorporated into that certain Lease dated June 25, 1992,
between ASK COMPUTER SYSTEMS, INC., as "Tenant", and ALAMEDA REAL ESTATE
INVESTMENTS, as "Landlord", (the "Lease"). All of the defined terms as used in
the Lease shall have the same meanings herein.
1. RENOVATION IMPROVEMENTS. Landlord shall cause the renovation of the
-----------------------
Premises in phases as described in this Exhibit. In accordance with the
progress schedule outlined below, Landlord, through its general contractor,
shall furnish and install within the Premises substantially in accordance
with the drawings and specifications finally approved by Landlord and
Tenant and generally consistent with the quantities and quality of
improvement in the plans previously prepared by ▇▇▇▇▇ & Nettle Architect,
entitled Scheme #2, Preliminary Space Plan for Second Floor, certain
interior improvements on a "turn-key" basis, including, but not limited to,
installation of Tenant's voice and data cabling within the Premises (the
"Renovation Improvements"). The quantities, character and manner of
installation of all of the Renovation Improvements shall be subject to the
limitations imposed by any applicable governmental regulations and shall
include Landlord's standard Building Finishes as set forth in Exhibit B-1
attached hereto.
2. ALLOCATION OF COST. Landlord shall bear the cost of all Renovation
------------------
Improvements, permits, architectural and engineering services related to
the Renovation Improvements. Tenant acknowledges that Landlord's target
expenditure, including permits and professional services, for the
Renovation Improvements is $20.00 per Rentable Area of the Premises, based
upon May, 1992, costs with such target amount to be increased by a factor
of 4% compounded annually until such funds are expended.
3. DRAWINGS AND SPECIFICATIONS.
---------------------------
a. Landlord, through its architects and engineers, shall furnish drawings
and specifications required for the pricing and construction of the
Renovation Improvements. At its own expense and in accordance with the
schedule outlined below, Tenant shall provide Landlord's architects
and engineers with sufficient instructions, as described below, to
enable Landlord's architects and engineers to prepare complete plans
and specifications for the Renovation Improvements.
b. Tenant's instructions to Landlord's architects and engineers shall
include all relevant information, including, without limitation.
Tenant's budget, special floor loadings, floor openings, air
conditioning, plumbing and electrical loads, location and size of
telephone equipment, location and size of all of the functional
requirements and the nature of desired finishes, casework, millwork,
lighting and any special acoustic treatments. Tenant and Landlord
shall diligently pursue preparation of all such drawings and
specifications which shall be subject to the reasonable approval of
both Landlord and Tenant. If information submitted by Tenant is not
sufficient for Landlord's purposes, Landlord shall so notify Tenant
within fifteen days after receipt of such information specifying the
required additional information. Within five days thereafter, Tenant
shall provide the additional information to Landlord in a form
sufficient to permit Landlord, its architects and engineers, and
general contractor to proceed with the design and construction of the
Renovation Improvements. Tenant shall approve or disapprove the final
drawings and specifications within the time period provided in
paragraph 6 below. If Tenant disapproves the drawings and
specifications submitted by Landlord, the parties shall meet within
five (5) days of such disapproval and confer to develop drawings and
specifications acceptable to both Landlord and Tenant. In the event
Tenant and Landlord do not resolve all of Tenant's objections within
five (5) days after initially conferring to resolve such objections,
Landlord and Tenant shall immediately cause Landlord's architect, or a
representative of Landlord's architect, to meet and confer with
Tenant's architect or construction consultant, who shall apply the
standards set forth in this Agreement to resolve Tenant's objections
and incorporate such resolution into the drawings and specifications
for the Renovation Improvements, which process Landlord and Tenant
shall cause to be completed within five (5) business days after the
conclusion of the five (5) day period referred to in the immediately
preceding sentence. The "standards set forth in this Agreement" to be
applied
by Landlord's architect and Tenant's architect or construction
consultant to resolve objections pursuant to this paragraph shall be
(i) any drawings and specifications that have been previously approved
by Landlord and Tenant, (ii) the requirement that at each stage of
development, the drawings and specifications in question are to be
the logical and reasonable evolution and development of drawings and
specifications previously approved by Landlord and Tenant, (iii)
Landlord and Tenant are obligated to act reasonably and in good faith,
and (iv) unless there is an agreement to the contrary, Landlord and
Tenant have agreed that the improvement requirements of each shall be
evaluated in accordance with custom prevailing in Alameda County for
the development of comparable facilities.
c. Upon completion and approval of the drawings and specifications by
Landlord and Tenant, Landlord shall obtain a quotation of the cost of
the Renovation Improvements from Landlord's contractor. Landlord may
disapprove such quotation if the total cost of the Renovation
Improvements, permits and professional services would exceed $20.00
per Rentable Area of the Premises, increased as described above, as a
result of Tenant's request for quantities or quality of construction
or finishes not contemplated in Paragraph 1 above. If disapproved,
within five days following disapproval Tenant shall provide Landlord
with additional information adequate to permit the revision of the
drawings and specifications and re-pricing of the Renovation
Improvements which are consistent with those contemplated in paragraph
1.
4. CHANGES TO RENOVATION IMPROVEMENTS. Neither Landlord nor Tenant shall have
----------------------------------
the right to order extra work or change orders with respect to the
construction of the Renovation Improvements without the prior written
consent of the other. All extra work or change orders requested by either
Landlord or Tenant shall be made in writing, shall specify any added or
reduced cost and/or construction time resulting therefrom, and shall become
effective and a part of the Renovation Improvement Drawings once approved
in writing by both parties. If a change order requested by Tenant results
in a net increase in the cost to Landlord of constructing the Renovation
Improvements. Tenant shall pay the amount of such increase caused by the
change order requested by Tenant, together with a fee payable to Landlord
equal to 15% of such net increase (but only if and when Tenant's changes
have resulted in a net increase in the cost of the Renovation Improvements
in excess of 5% of initial construction hard costs as set forth in
Landlord's contract with its construction contractor) upon completion of
the Renovation Improvements, or, at Landlord's option, within fifteen (15)
days of Landlord's request.
5. TENANT'S WORK.
-------------
a. Any items or work beyond the scope of the Renovation Improvements for
which Tenant contracts separately (hereinafter "Tenant's Work"), shall
be subject to Landlord's and its contractors' policies and schedules
and shall be conducted in such a way as not to unreasonably hinder,
cause any disharmony with or delay work of improvements in the
Building and Tenant shall be allowed early entry access to the
Premises in accordance with the terms and conditions of Paragraph 3.C.
of the Lease and this Paragraph 5. To this end, Tenant's Work shall
conform with a schedule determined by Landlord's contractor and no
work shall be done by Tenant which would cause Landlord's contractor
to be dependent upon such work for completion of Landlord's
contractor's work. All of Tenant's Work shall be done with union labor
in accordance with the Northern California Master Labor Agreement. In
no event shall work involving the sprinkler, plumbing, mechanical,
electrical power, lighting or life safety systems of the Building be
performed by other than Landlord's approved subcontractors and all
telecommunications and other special electrical equipment shall be
installed under the supervision of Landlord's electrical
subcontractor.
b. Not less than five business days prior to the date Tenant desires to
commence Tenant's Work, it shall give a written request to Landlord
setting forth or accompanied by all of the following:
1. A description and schedule for the work to be performed;
2. The names and addresses of all contractors, subcontractors and
material suppliers who will perform Tenant's Work;
3. The approximate number of individuals, itemized by trade, who
will be present in the Premises;
4. Copies of all drawings and specifications pertaining to that
portion of Tenant's Work;
5. Copies of all licenses and permits which may be required in
connection with the performance of Tenant's Work;
2
6. Certificates of insurance indicating compliance with the insurance
requirements set forth in the Lease; and
7. At Landlord's request, evidence of the availability of funds
sufficient to pay for all such Tenant's Work.
All of the foregoing shall be subject to Landlord's approval, which approval
shall not unreasonably be withheld.
c. Tenant shall be responsible for any hoisting charges incurred in connection
with Tenant's Work and for any expenses incurred by Landlord due to
hinderance or delay to Landlord's contractors caused by those performing
Tenant's Work or inadequate cleanup by those performing Tenant's Work.
d. If any supplier, contractor or worker performing Tenant's Work unreasonably
hinders or delays any other work of improvement in the Building or performs
any work which may or does unreasonably impair the quality, integrity or
performance of any portion of the Building, Landlord may give notice to
Tenant. If within one business day after Tenant's receipt of such notice,
such supplier, contractor or worker does not cure the failure set forth in
Landlord's notice to Tenant, Tenant shall cause such supplier, contractor
or worker immediately to remove all of its tools, equipment and materials
and to cease working in the Building. As Additional Rent under the Lease,
Tenant shall reimburse Landlord for any repairs or corrections of the
improvements or of any portion of the Building or the cost of any delays
caused by or resulting from the actions or omissions of anyone performing
Tenant's Work.
6. PROGRESS SCHEDULE FOR RENOVATION IMPROVEMENTS. Concurrent with the
---------------------------------------------
execution of this Lease and of even date herewith, Landlord and Tenant have
entered into that certain Lease (the "1101 Lease") for premises located in
a two-story, build-to-suit building (the "1101 Premises") referred to as
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and that certain Lease
(the "1151 Lease") for premises located in a one-story, build-to-suit
building (the "1151 Premises") referred to as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Pursuant to the terms of the 1101 Lease and 1151
Lease, no later than two weeks after completion of construction, providing
certain other conditions have been met as described therein, Tenant is to
occupy the respective premises. No later than the expiration of such two
week period for the 1101 Premises, Tenant shall vacate three floors of the
Premises, one of which shall be the fourth floor. No later than the
expiration of such two week period for the 1151 Premises, Tenant shall
vacate the remaining two floors of the Premises. Once such portions of the
Premises are vacated, Landlord shall commence construction of the
Renovation Improvements therein as described herein. Additionally, Landlord
and Tenant shall maintain the following progress schedule, with dates and
times for performance for actions as follows, subject to delays for events
beyond the control of either party:
ACTION DATE OR TIME
------ ------------
a. Tenant to vacate three floors Two weeks after Term Commencement
of the Premises (including the under the 1101 Lease
▇▇▇ ▇▇▇▇▇)
b. Landlord to complete Renovation Three months following Term
Improvements in two of vacated Commencement under the 1101 Lease
floors (not including ▇▇▇ ▇▇▇▇▇)
c. Tenant to vacate two floors of Two weeks after Term Commencement
the Premises under the 1151 Lease
d. Landlord to complete Renovation Three months following Term
Improvements of two floors (not Commencement under 1151 Lease
including ▇▇▇ ▇▇▇▇▇)
e. Landlord to complete Renovation Fifteen months following Term
Improvements on fourth floor Commencement under the 1151 Lease
f. Delivery of Instructions by Three months prior to Landlord's
Tenant to Landlord's architects estimated date for commencement of
under Paragraph 3 above Renovation Improvements for any
particular floor
g. Approval or disapproval by Tenant Ten days after submission or
of drawings and specifications resubmission
after submission or resubmission
to Tenant by Landlord's architect
3
ACTION DATE OR TIME
------ ------------
h. Approval or disapproval of cost Ten days after submission or
quotation by resubmission
Tenant after submission or
resubmission to Tenant
7. COMPLETION AND RENTAL COMMENCEMENT DATE. Notwithstanding anything to the
---------------------------------------
contrary contained in the Lease, Tenant's obligation for the payment of
Base Monthly Rent and Additional Rent under the Lease shall commence two
(2) weeks after Tenant receives notice from Landlord that it has
substantially completed the Renovation Improvements, subject only to the
completion of punch list items as determined by Landlord and Tenant, and
the City of Alameda has issued a temporary Certificate of Occupancy which
permits Tenant to legally occupy that portion of the Premises and to
commence the operation of its business thereon. If Landlord shall be
delayed in substantially completing any portion of the Renovation
Improvements as a result of:
a. Tenant's failure to comply with the schedule set forth in Paragraph 6
above;
b. Tenant's changes to drawings and specifications after approval thereof
pursuant to Paragraph 3(c) above;
c. Changes in the Renovation Improvements at Tenant's request after
commencement of construction in the amount of time of delay specified
in the change order approved by Tenant;
d. Hindrance or disruption of the work of Landlord's contractor resulting
from Tenant's Work or any other reason under-Tenant's control; or
e. Cessation or termination of work in the Premises due to Tenant's
failure to pay when due all amounts payable by Tenant pursuant to this
Exhibit B;
then the commencement date of Tenant's obligation for payment of rental
shall be advanced by the number of days of such delay. Unless otherwise
noted, all time periods referred to in this Exhibit B shall be computed on
a calendar basis with no allowable for holidays or weekends.
Notwithstanding anything to the contrary contained above, Tenant's
obligation for payment of rental shall not be advanced unless within a
reasonable period of time after learning of the occurrence of any delay
caused by Tenant or its contractors, Landlord notifies Tenant in writing of
the fact that such delay has occurred and the known or anticipated extent
of any such delay.
8. DELIVERY OF POSSESSION, PUNCH LIST, AND ACCEPTANCE AGREEMENT. As soon as
------------------------------------------------------------
the improvements to be constructed by Landlord are substantially completed,
Landlord and Tenant shall together inspect the Renovation Improvements.
After such inspection has been completed, each party shall sign an
acceptance agreement which shall (i) include a list of all "punch list"
items which the parties agree are to be corrected by Landlord, and (ii)
shall state the Rent Commencement Date for the portion of the Premises in
which the Renovation Improvements have been constructed. As soon as such
inspection has been completed and such acceptance agreement executed,
Landlord shall deliver possession of the portion of the Premises to Tenant.
Landlord shall use reasonable efforts to complete and/or repair such "punch
list" items within thirty (30) days after executing the acceptance
agreement. Landlord shall have no obligation to deliver possession of the
portion of the Premises to Tenant until such procedures regarding the
preparation of a punch list and the execution of the acceptance agreement
have been completed. Notwithstanding anything contained herein, Tenant's
obligation to pay the Base Monthly Rent and the Additional Rent shall
commence as provided in the Lease, regardless of whether Tenant completes
such inspection or executes such acceptance agreement.
4
IN WITNESS WHEROF, the parties have executed this Exhibit B on the respective
dates they executed the Lease.
TENANT: LANDLORD:
ASK COMPUTER SYSTEMS, INC., ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: Vintage Properties - Alameda
----------------------------------
Commercial, a California corporation.
Its: VP & GENERAL COUNSEL Managing General Partner
-------------------------------
By:__________________________________ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Its:_______________________________ Its: PRESIDENT
--------------------------------
5
EXHIBIT B-1
-----------
STANDARD OFFICE FINISHES
APPLIANCES/UTILITIES SPECIFICATIONS
----------------------------- -------------------------------------
1. Doors 9'0" Plain Sliced Red Oak
2. Hardware Schlage "D" Series Latchset,
"Olympiad"
3. Ceiling Tile 2x4 ▇▇▇▇▇▇▇▇▇ "Second Look II"
4. Light Fixtures 2x4 Parabolic Lens, 3 Lamp Florescent
5. Carpet Design Weave "Premiere"
6. Door Frames Western Integrated Series 300, In
Standard Colors
7. Exterior Window Covering 1" Miniblinds
8. Paint 2 Coat Latex System
9. Electrical, Telephone and Data Two Duplex Outlets And One
Combination Telephone/Data Location
Per Office
10. Partitioning Metal Studs 5/8 Gypboard
11. Sidelight One 2'0" Sidelight Per Office
12. Cabinets Workroom Upper and Lower Cabinets
PAGE 1 OF 1
EXHIBIT C
---------
OUTLINE OF PROJECT
[FLOOR PLAN APPEARS HERE]
PAGE 1 OF 1
EXHIBIT D
---------
EXISTING HAZARDOUS MATERIAL CONDITION
ENVIRONMENTAL REPORTS:
---------------------
A. "Preliminary Site Environmental Review, Portions of Marina Village,
Alameda, California" prepared by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Consultants, March 1987.
B. "Toxic Hazardous Assessment Marina Village Development, Alameda,
California" prepared by Applied Geosciences, Inc., December 1987.
C. Toxic Hazard Assessment, Phase II Field Investigation, Marina Village
Development, Alameda California" prepared by Applied Geosciences, Inc.,
February 1, 1988.
Incorporated into the above Toxic Hazardous Assessment for Select Portions
of the Marina Village Development, Alameda, California - Draft Report"
prepared by Applied Geosciences Inc., February 26, 1988.
D. "Investigation of Field Area South of Powerhouse, Marina Village, April 25,
1988" prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇.
E. "Removal of Petroleum Affected Soils from the Field Area South of the
Powerhouse, Alameda Marina Village, Alameda, California" prepared by
▇▇▇▇▇▇-▇▇▇▇▇▇, October 5, 1988.
F. "Investigation of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇"
prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇, October 6, 1988.
G. "Phase I Environmental Assessment Report, Vintage Properties/Alameda
Commercial, Alameda, California", prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇, February 16,
1989.
H. "Continued Monitoring and Proposed Remedial Measure in Northwest Study Area
dated June 26, 1989", prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇ (Primary Report).
Supplemental to Primary Report: "Continued Soil and Ground-Water
Investigation of Parcel 5 and Implementation of a Ground-Water Monitoring
Program and Proposed Remedial Measures in the Northwest Study Area, Marina
Village, Alameda, California" prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇, June 6, 1989.
I. "Results of Soil Investigation, Parcel 2, Northwest Study Area", prepared
by ▇▇▇▇▇▇-▇▇▇▇▇▇, dated November 27, 1989.
J. "Results of 3rd Round of Ground Water Sampling, Northwest Area" prepared by
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 13, 1990.
PAGE 1 OF 1
--------------------------------------------------------------------------------
AMENDMENT NO. 1
TO
MARINA VILLAGE OFFICE LEASE
(1080 MARINA VILLAGE PARKWAY)
THIS AMENDMENT NO. 1 is made and entered into as of January 29, 1993, by and
between ASK COMPUTER SYSTEMS, INC., a Delaware corporation ("Tenant"), and
ALAMEDA REAL ESTATE INVESTMENTS, a California limited partnership, ("Landlord").
Landlord and Tenant have entered into that certain Marina Village Lease (1080
Marina Village Parkway) dated June 25, 1992 (the "Lease") with respect to
certain premises within ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Landlord and Tenant desire to amend the Lease and therefore do hereby agree as
follows:
1. AMENDMENT OF PARAGRAPH 21. Subparagraph (iii) of Paragraph 21 of the Lease
-------------------------
is hereby amended to read as follows:
With respect to any Lender having a security interest in the Premises as of
the Commencement Date, such Lender shall execute either a non-disturbance
agreement in accordance with the aforementioned terms or an instrument
explicitly subordinating its interest in the Premises to the Lease on or
before January 31, 1993. If such subordination instrument or non-
disturbance agreement is not executed on or before such date, then Tenant
shall have the option at any time prior to the execution by the Lender of
such subordination instrument or non-disturbance agreement, but shall not
be obligated to do so, to terminate this Lease whereupon the Previous Lease
shall be reinstated and Tenant shall pay to Landlord the amount by which
(i) all sums which would otherwise have been payable by Tenant under the
Previous Lease during the period commencing April 1, 1992 and continuing
through the date of such termination, exceeds (ii) all amounts actually
paid by Tenant during the same period.
2. AMENDMENT OF PARAGRAPH 31. The following language is hereby added to
-------------------------
Paragraph 31.B. of the Lease to read as follows:
Notwithstanding anything in this Paragraph 31.B. to the contrary, the
following shall apply: (i) any Lender that is an Institutional Lender who
acquires title to the Premises by means of foreclosure or deed in lieu of
foreclosure (a" Foreclosing Institutional Lender") shall not be liable for
any default of any predecessor Landlord arising prior to the date said
Foreclosing Institutional Lender acquires title to the Premises: (ii) a
Foreclosing Institutional Lender who acquires the Premises by foreclosure
who subsequently transfers the title to the Premises to a third party
shall, upon the date of transfer, be relieved of all liability for the
performance of the obligations of the Landlord under this Lease which may
accrue after the date of such transfer: (iii) under no circumstances shall
any Foreclosing Institutional Lender become liable or responsible for the
performance of the obligations of Landlord concerning Hazardous Materials
set forth in Paragraph 31 or Paragraph 37 hereof: (iv) any party who is
Landlord who is divested of title to the Premises by foreclosure or by deed
in lieu of foreclosure shall remain liable for the performance of the
obligations of Landlord under this Lease arising after the date of transfer
of title and shall not be relieved of liability for any default in the
obligations of Landlord arising prior to the date of transfer of title.
3. RATIFICATION. Landlord and Tenant hereby ratify and confirm all of the
------------
terms of the Lease as modified by paragraphs 1 and 2 above.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
date first above written.
TENANT: LANDLORD:
ASK COMPUTER SYSTEMS, INC. ALAMEDA REAL ESTATE INVESTMENTS
a Delaware corporation a California limited partnership
By: Vintage Properties-Alameda
Commercial, a California corporation,
Managing General Partner
By:/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- ---------------------------------------
Its: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------ --------------------------------------
Director, Operations Vice President
The ASK Group
--------------------------------------------------------------------------------
EXHIBIT A
---------
[FLOOR PLAN APPEARS HERE]
EXHIBIT A
---------
(CONTINUED)
[FLOOR PLAN APPEARS HERE]
EXHIBIT A
---------
(CONTINUED)
[FLOOR PLAN APPEARS HERE]
EXHIBIT A
---------
(CONTINUED)
[FLOOR PLAN APPEARS HERE]
EXHIBIT A
---------
(CONTINUED)
[FLOOR PLAN APPEARS HERE]
EXHIBIT B
IMPROVEMENT AGREEMENT
FOR ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
INITIAL IMPROVEMENT OF THE BUILDING AND
RENOVATION IMPROVEMENTS
_________________
This Exhibit B is incorporated into that certain Lease dated June 25, 1992,
between ASK COMPUTER SYSTEMS, INC., as "Tenant", and ALAMEDA REAL ESTATE
INVESTMENTS, as "Landlord", (the "Lease). All of the defined terms as used in
the Lease shall have the same meanings herein.
1. RENOVATION IMPROVEMENTS. Landlord shall cause the renovation of the
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Premises in phases as described in this Exhibit. In accordance with the
progress schedule outlined below, Landlord, through its general contractor,
shall furnish and install within the Premises substantially in accordance
with the drawings and specifications finally approved by Landlord and
Tenant and generally consistent with the quantities and quality of
improvement in the plans previously prepared by ▇▇▇▇▇ & Nettle Architect,
entitled Scheme #2, Preliminary Space Plan for Second Floor, certain
interior improvements on a "turn-key" basis, including, but not limited to,
installation of Tenant's voice and data cabling within the Premises (the
"Renovation Improvements"). The quantities, character and manner of
installation of all of the Renovation Improvements shall be subject to the
limitations imposed by any applicable governmental regulations and shall
include Landlord's standard Building Finishes as set forth in Exhibit B-1
attached hereto.
2. ALLOCATION OF COST. Landlord shall bear the cost of all Renovation
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Improvements, permits, architectural and engineering services related to
the Renovation Improvements. Tenant acknowledges that Landlord's target
expenditure, including permits and professional services, for the
Renovation Improvements is $20.00 per Rentable Area of the Premises, based
upon May, 1992, costs with such target amount to be increased by a factor
of 4% compounded annually until such funds are expended.
3. DRAWINGS AND SPECIFICATIONS.
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a. Landlord, through its architects and engineers, shall furnish drawings
and specifications required for the pricing and construction of the
Renovation Improvements. At its own expense and in accordance with the
schedule outlined below. Tenant shall provide Landlord's architects
and engineers with sufficient instructions, as described below, to
enable Landlord's architects and engineers to prepare complete plans
and specifications for the Renovation Improvements.
b. Tenant's instructions to Landlord's architects and engineers shall
include all relevant information, including, without limitation.
Tenant's budget, special floor loadings, floor openings, air
conditioning, plumbing and electrical loads, location and size of
telephone equipment, location and size of all of the functional
requirements and the nature of desired finishes, casework, millwork,
lightning and any special acoustic treatments. Tenant and Landlord
shall diligently pursue preparation of all such drawings and
specifications which shall be subject to the reasonable approval of
both Landlord and Tenant. If information submitted by Tenant is not
sufficient for Landlord's purposes, Landlord shall so notify Tenant
within fifteen days after receipt of such information specifying the
required additional information. Within five days thereafter, Tenant
shall provide the additional information to Landlord in a form
sufficient to permit Landlord, its architects and engineers, and
general contractor to proceed with the design and construction of the
Renovation Improvements. Tenant shall approve or disapprove the final
drawings and specifications within the time period provided in
paragraph 6 below. If Tenant disapproves the drawings and
specifications submitted by Landlord, the parties shall meet within
five (5) days of such disapproval and confer to develop drawings and
specifications acceptable to both Landlord and Tenant. In the event
Tenant and Landlord do not resolve all of Tenant's objections within
five (5) days after initially conferring to resolve such objections.
Landlord and Tenant shall immediately cause Landlord's architect, or a
representative of Landlord's architect, to meet and confer with
Tenant's architect or construction consultant, who shall apply the
standards set forth in this Agreement to resolve Tenant's objections
and incorporate such resolution into the drawings and specifications
for the Renovation Improvements, which process Landlord and Tenant
shall cause to be completed within five (5) business days after the
conclusion of the five (5) day period referred to in the immediately
preceding sentence. The "standards set forth in this Agreement" to be
applied
by Landlord's architect and Tenant's architect or construction
consultant to resolve objections pursuant to this paragraph shall be
(i) any drawings and specifications that have been previously approved
by Landlord and Tenant, (ii) the requirement that at each stage of
development, the drawings and specifications in question are to be
the logical and reasonable evolution and development of drawings and
specifications previously approved by Landlord and Tenant, (iii)
Landlord and Tenant are obligated to act reasonably and in good faith,
and (iv) unless there is an agreement to the contrary, Landlord and
Tenant have agreed that the improvement requirements of each shall be
evaluated in accordance with custom prevailing in Alameda County for
the development of comparable facilities.
c. Upon completion and approval of the drawings and specifications by
Landlord and Tenant, Landlord shall obtain a quotation of the cost of
the Renovation Improvements from Landlord's contractor. Landlord may
disapprove such quotation if the total cost of the Renovation
Improvements, permits and professional services would exceed $20.00
per Rentable Area of the Premises, increased as described above, as a
result of Tenant's request for quantities or quality of construction
or finishes not contemplated in Paragraph 1 above. If disapproved,
within five days following disapproval Tenant shall provide Landlord
with additional information adequate to permit the revision of the
drawings and specifications and re-pricing of the Renovation
Improvements which are consistent with those contemplated in paragraph
1.
4. CHANGES TO RENOVATION IMPROVEMENTS. Neither Landlord nor Tenant shall have
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the right to order extra work or change orders with respect to the
construction of the Renovation Improvements without the prior written
consent of the other. All extra work or change orders requested by either
Landlord or Tenant shall be made in writing, shall specify any added or
reduced cost and/or construction time resulting therefrom, and shall become
effective and a part of the Renovation Improvement Drawings once approved
in writing by both parties. If a change order requested by Tenant results
in a net-increase in the cost to Landlord of constructing the Renovation
Improvements. Tenant shall pay the amount of such increase caused by the
change order requested by Tenant, together with a fee payable to Landlord
equal to 15% of such net increase (but only if and when Tenant's changes
have resulted in a net increase in the cost of the Renovation Improvements
in excess of 5% of initial construction hard costs as set forth in
Landlord's contract with its construction contractor) upon completion of
the Renovation Improvements, or, at Landlord's option, within fifteen (15)
days of Landlord's request.
5. TENANT'S WORK.
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a. Any items or work beyond the scope of the Renovation Improvements for
which Tenant contracts separately (hereinafter "Tenant's Work"), shall
be subject to Landlord's and its contractors policies and schedules
and shall be conducted in such a way as not to unreasonably hinder,
cause any disharmony with or delay work of improvements in the
Building and Tenant shall be allowed early entry access to the
Premises in accordance with the terms and conditions of Paragraph 3.C.
of the Lease and this Paragraph 5. To this end, Tenant's Work shall
conform with a schedule determined by Landlord's contractor and no
work shall be done by Tenant which would cause Landlord's contractor
to be dependent upon such work for completion of Landlord's
contractor's work. All of Tenant's Work shall be done with union labor
in accordance with the Northern California Master Labor Agreement. In
no event shall work involving the sprinkler, plumbing, mechanical,
electrical power, lighting or life safety systems of the Building be
performed by other than Landlord's approved subcontractors and all
telecommunications and other special electrical equipment shall be
installed under the supervision of Landlord's electrical
subcontractor.
b. Not less than five business days prior to the date Tenant desires to
commence Tenant's Work, it shall give a written request to Landlord
setting forth or accompanied by all of the following:
1. A description and schedule for the work to be performed:
2. The names and addresses of all contractors, subcontractors and
material suppliers who will perform Tenant's Work:
3. The approximate number of individuals, itemized by trade, who
will be present in the Premises:
4. Copies of all drawings and specifications pertaining to that
portion of Tenant's Work:
5. Copies of all licenses and permits which may be required in
connection with the performance of Tenant's Work:
2
6. Certificates of insurance indicating compliance with the
insurance requirements set forth in the Lease; and
7. At Landlord's request, evidence of the availability of funds
sufficient to pay for all such Tenant's Work.
All of the foregoing shall be subject to Landlord's approval, which
approval shall not unreasonably be withheld.
c. Tenant shall be responsible for any hoisting charges incurred in
connection with Tenant's Work and for any expenses incurred by
Landlord due to hinderance or delay to Landlord's contractors caused
by those performing Tenant's Work or inadequate cleanup by those
performing Tenant's Work.
d. If any supplier, contractor or worker performing Tenant's Work
unreasonably hinders or delays any other work of improvement in the
Building or performs any work which may or does unreasonably impairs
the quality, integrity or performance of any portion of the Building,
Landlord may give notice to Tenant. If within one business day after
Tenant's receipt of such notice, such supplier, contractor or worker
does not cure the failure set forth in Landlord's notice to Tenant.
Tenant shall cause such supplier, contractor or worker immediately to
remove all of its tools, equipment and materials and to cease working
in the Building. As Additional Rent under the Lease, Tenant shall
reimburse Landlord for any repairs or corrections of the Improvements
or of any portion of the Building or the cost of any delays caused by
or resulting from the actions or omissions of anyone performing
Tenant's Work.
6. PROGRESS SCHEDULE FOR RENOVATION IMPROVEMENTS. Concurrent with the
---------------------------------------------
execution of this Lease and of even date herewith, Landlord and Tenant have
entered into that certain Lease (the "1101 Lease") for premises located in
a two-story, build-to-suit building (the "1101 Premises") referred to as
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and that certain Lease
(the "1151 Lease") for premises located in a one-story, build-to-suit
building (the "1151 Premises") referred to as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Pursuant to the terms of the 1101 Lease and 1151
Lease, no later than two weeks after completion of construction, providing
certain other conditions have been met as described therein. Tenant is to
occupy the respective premises. No later than the expiration of such two
week period for the 1101 Premises. Tenant shall vacate three floors of the
Premises, one of which shall be the fourth floor. No later than the
expiration of such two week period for the 1151 Premises. Tenant shall
vacate the remaining two floors of the Premises. Once such portions of the
Premises are vacated, Landlord shall commence construction of the
Renovation Improvements therein as described herein. Additionally, Landlord
and Tenant shall maintain the following progress schedule, with dates and
times for performance for actions as follows, subject to delays for events
beyond the control of either party:
ACTION DATE OR TIME
------ ------------
a. Tenant to vacate three floors Two weeks after Term Commencement
of the Premises (including the under the 1101 Lease
▇▇▇ ▇▇▇▇▇)
b. Landlord to complete Renovation Three months following Term
Improvements in two of vacated Commencement under the 1101 Lease
floors (not including ▇▇▇ ▇▇▇▇▇)
c. Tenant to vacate two floors of Two weeks after Term Commencement
the Premises under the 1151 Lease
d. Landlord to complete Renovation Three months following Term
Improvements of two floors (not Commencement under 1151 Lease
including ▇▇▇ ▇▇▇▇▇)
e. Landlord to complete Renovation Fifteen months following Term
Improvements on fourth floor Commencement under the 1151 Lease
f. Delivery of Instructions by Three months prior to Landlord's
Tenant to Landlord's architects estimated date for commencement of
under Paragraph 3 above Renovation Improvements for any
particular floor
g. Approval or disapproval by Ten days after submission or
Tenant of drawings and resubmission
specifications after submission
or resubmission to Tenant by
Landlord's architect
3
ACTION DATE OR TIME
------ ------------
h. Approval or disapproval of cost Ten days after submission or
quotation by resubmission
Tenant after submission or
resubmission to Tenant
7. COMPLETION AND RENTAL COMMENCEMENT DATE. Notwithstanding anything to the
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contrary contained in the Lease, Tenant's obligation for the payment of
Base Monthly Rent and Additional Rent under the Lease shall commence two
(2) weeks after Tenant receives notice from Landlord that it has
substantially completed the Renovation Improvements, subject only to the
completion of punch list items as determined by Landlord and Tenant, and
the City of Alameda has issued a temporary Certificate of Occupancy which
permits Tenant to legally occupy that portion of the Premises and to
commence the operation of its business thereon. If Landlord shall be
delayed in substantially completing any portion of the Renovation
Improvements as a result of:
a. Tenant's failure to comply with the schedule set forth in Paragraph 6
above;
b. Tenant's changes to drawings and specifications after approval thereof
pursuant to Paragraph 3(c) above;
c. Changes in the Renovation Improvements at Tenant's request after
commencement of construction in the amount of time of delay specified
in the change order approved by Tenant;
d. Hindrance or disruption of the work of Landlord's contractor resulting
from Tenant's Work or any other reason under-Tenant's control; or
e. Cessation or termination of work in the Premises due to Tenant's
failure to pay when due all amounts payable by Tenant pursuant to this
Exhibit B;
then the commencement date of Tenant's obligation for payment of rental
shall be advanced by the number of days of such delay. Unless otherwise
noted, all time periods referred to in this Exhibit B shall be computed on
a calendar basis with no allowance for holidays or weekends.
Notwithstanding anything to the contrary contained above, Tenant's
obligation for payment of rental shall not be advanced unless within a
reasonable period of time after learning of the occurrence of any delay
caused by Tenant or its contractors, Landlord notifies Tenant in writing of
the fact that such delay has occurred and the known or anticipated extent
of any such delay.
8. DELIVERY OF POSSESSION, PUNCH LIST, AND ACCEPTANCE AGREEMENT. As soon as
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the improvements to be constructed by Landlord are substantially completed,
Landlord and Tenant shall together inspect the Renovation Improvements.
After such inspection has been completed, each party shall sign an
acceptance agreement which shall (i) include a list of all "punch list"
items which the parties agree are to be corrected by Landlord, and (ii)
shall state the Rent Commencement Date for the portion of the Premises in
which the Renovation Improvements have been constructed. As soon as such
inspection has been completed and such acceptance agreement executed,
Landlord shall deliver possession of the portion of the Premises to Tenant.
Landlord shall use reasonable efforts to complete and/or repair such "punch
list" items within thirty (30) days after executing the acceptance
agreement. Landlord shall have no obligation to deliver possession of the
portion of the Premises to Tenant until such procedures regarding the
preparation of a punch list and the execution of the acceptance agreement
have been completed. Notwithstanding anything contained herein, Tenant's
obligation to pay the Base Monthly Rent and the Additional Rent shall
commence as provided in the Lease, regardless of whether Tenant completes
such inspection or executes such acceptance agreement.
4
IN WITNESS WHEREOF, the parties have executed this Exhibit B on the respective
dates they executed the Lease.
TENANT: LANDLORD:
ASK COMPUTER SYSTEMS, INC., ALAMEDA REAL ESTATE INVESTMENTS.
a Delaware corporation a California limited partnership
By: /s/ [SIGNATURE ILLEGIBLE] By: Vintage Properties - Alameda
-------------------------------
Commercial, a California corporation.
Its: VP & General Counsel Managing General Partner
--------------------------
By:_______________________________ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its:___________________________ Its: President
------------------------------
5
EXHIBIT B-1
-----------
STANDARD OFFICE FINISHES
Appliances/Utilities Specifications
------------------------------- ----------------------------------------
1. Doors 9'0" Plain Sliced Red Oak
2. Hardware Schlage "D" Series Latchset, "Olympiad"
3. Ceiling Tile 2x4 ▇▇▇▇▇▇▇▇▇ "Second Look II"
4. Light Fixtures 2x4 Parabolic Lens, 3 Lamp Florescent
5. Carpet Design Weave "Premiere"
6. Door Frames Western Integrated Series 300, In
Standard Colors
7. Exterior Window Covering 1" Miniblinds
8. Paint 2 Coat Latex System
9. Electrical, Telephone and Data Two Duplex Outlets And One Combination
Telephone/Data Location Per Office
10. Partitioning Metal Studs 5/8 Gypboard
11. Sidelight One 2'0" Sidelight Per Office
12. Cabinets Workroom Upper and Lower Cabinets
PAGE 1 OF 1
EXHIBIT C
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OUTLINE OF PROJECT
[PLAN APPEARS HERE]
PAGE 1 OF 1
EXHIBIT D
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EXISTING HAZARDOUS MATERIAL CONDITION
ENVIRONMENTAL REPORTS:
----------------------
A. "Preliminary Site Environmental Review, Portions of Marina Village,
Alameda, California" prepared by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Consultants, March 1987.
B. "Toxic Hazardous Assessment Marina Village Development, Alameda,
California" prepared by Applied Geosciences, Inc., December 1987.
C. "Toxic Hazard Assessment, Phase II Field Investigation, Marina Village
Development, Alameda, California" prepared by Applied Geosciences, Inc.,
February 1, 1988.
Incorporated into the above "Toxic Hazardous Assessment for Select Portions
of the Marina Village Development, Alameda, California - Draft Report"
prepared by Applied Geosciences Inc., February 26, 1988.
D. "Investigation of Field Area South of Powerhouse, Marina Village, April 25,
1988" prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇.
E. "Removal of Petroleum Affected Soils from the Field Area South of the
Powerhouse, Alameda Marina Village, Alameda, California" prepared by
▇▇▇▇▇▇-▇▇▇▇▇▇, October 5, 1988.
F. "Investigation of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇"
prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇, October 6, 1988.
G. "Phase I Environmental Assessment Report, Vintage Properties/Alameda
Commercial, Alameda, California", prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇, February 16,
1989.
H. "Continued Monitoring and Proposed Remedial Measure in Northwest
Study Area dated June 26, 1989", prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇ (Primary
Report).
Supplemental to Primary Report: "Continued Soil and Ground-Water
Investigation of Parcel 5 and Implementation of a Ground-Water Monitoring
Program and Proposed Remedial Measures in the Northwest Study Area, Marina
Village, Alameda, California" prepared by ▇▇▇▇▇▇-▇▇▇▇▇▇, June 6, 1989.
I. "Results of Soil Investigation, Parcel 2, Northwest Study Area", prepared
by ▇▇▇▇▇▇-▇▇▇▇▇▇, dated November 27, 1989.
J. "Results of 3rd Round of Ground Water Sampling, Northwest Area" prepared by
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 13, 1990.
PAGE 1 OF 1
AMENDMENT NO. 1
TO
MARINA VILLAGE OFFICE LEASE
(1080 MARINA VILLAGE PARKWAY)
THIS AMENDMENT NO. 1 is made and entered into as of January___, 1993, by and
between ASK COMPUTER SYSTEMS, INC., a Delaware corporation ("Tenant"), and
ALAMEDA REAL ESTATE INVESTMENTS, a California limited partnership, ("Landlord").
Landlord and Tenant have entered into that certain Marina Village Lease (1080
Marina Village Parkway) dated June 25, 1992 (the "Lease") with respect to
certain premises within ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Landlord and Tenant desire to amend the Lease and therefore do hereby agree as
follows:
1. AMENDMENT OF PARAGRAPH 21. Subparagraph (iii) of Paragraph 21 of the Lease
-------------------------
is hereby amended to read as follows:
With respect to any Lender having a security interest in the Premises as of
the Commencement Date, such Lender shall execute either a non-disturbance
agreement in accordance with the aforementioned terms or an instrument
explicitly subordinating its interest in the Premises to the Lease on or
before January 31, 1993. If such subordination instrument or non-
disturbance agreement is not executed on or before such date, then Tenant
shall have the option at any time prior to the execution by the Lender of
such subordination instrument or non-disturbance agreement, but shall not
be obligated to do so, to terminate this Lease whereupon the Previous Lease
shall be reinstated and Tenant shall pay to Landlord the amount by which
(i) all sums which would otherwise have been payable by Tenant under the
Previous Lease during the period commencing April 1, 1992 and continuing
through the date of such termination, exceeds (ii) all amounts actually
paid by Tenant during the same period.
2. AMENDMENT OF PARAGRAPH 31. The following language is hereby added to
-------------------------
Paragraph 31.B. of the Lease to read as follows:
Notwithstanding anything in this Paragraph 31.B. to the contrary, the
following shall apply: (i) any Lender that is an Institutional Lender who
acquires title to the Premises by means of foreclosure or deed in lieu of
foreclosure (a "Foreclosing Institutional Lender") shall not be liable for
any default of any predecessor Landlord arising prior to the date said
Foreclosing Institutional Lender acquires title to the Premises; (ii) a
Foreclosing Institutional Lender who acquires the Premises by foreclosure
who subsequently transfers the title to the Premises to a third party
shall, upon the date of transfer, be relieved of all liability for the
performance of the obligations of the Landlord under this Lease which may
accrue after the date of such transfer; (iii) under no circumstances shall
any Foreclosing Institutional Lender become liable or responsible for the
performance of the obligations of Landlord concerning Hazardous Materials
set forth in Paragraph 31 or Paragraph 37 hereof; (iv) any party who is
Landlord who is divested of title to the Premises by foreclosure or by deed
in lieu of foreclosure shall remain liable for the performance of the
obligations of Landlord under this Lease arising after the date of transfer
of title and shall not be relieved of liability for any default in the
obligations of Landlord arising prior to the date of transfer of title.
3. RATIFICATION. Landlord and Tenant hereby ratify and confirm all of the
------------
terms of the Lease as modified by paragraphs 1 and 2 above.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
date first above written.
TENANT: LANDLORD:
ASK COMPUTER SYSTEMS, INC. ALAMEDA REAL ESTATE INVESTMENTS
a Delaware corporation a California limited partnership
By: Vintage Properties-Alameda
Commercial, a California corporation,
Managing General Partner
/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
By:--------------------------- By:_____________________________________
Its: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its:____________________________________
--------------------------
Director, Operations
The ASK Group
SUBORDINATION OF MORTGAGE
-------------------------
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA as owner and holder of a
certain Promissory Note dated March 27, 1987, in the principal sum of Twenty
Eight Million Five Hundred Thousand Dollars ($28,500,000.00) and of a certain
Mortgage or Deed of Trust of even date therewith and securing the said Note,
recorded on March 30, 1987, as No. 87-086477, Official Records, Alameda County,
now a first lien upon the premises known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and particularly demised and described in that certain Lease
dated June 30, 1992, by and between ALAMEDA REAL ESTATE INVESTMENTS a California
limited partnership, as Lessor, and ASK COMPUTER SYSTEMS, INC., a Delaware
corporation, as Lessee, and upon other property, in consideration of such
leasing and of the sum of One ($1.00) Dollar and other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned, DOES
hereby covenant and agree that the said Mortgage or Deed of Trust shall be and
the same is hereby made SUBORDINATE to the said Lease with the same force and
effect as if the said Lease had been executed, delivered and recorded prior to
the execution, delivery and recording of said Mortgage or Deed of Trust;
EXCEPT, HOWEVER, that this Subordination shall not effect nor be applicable to
and does hereby expressly exclude:
(a) The prior right, claim and lien of said Mortgage or Deed of Trust in, to
and upon any award or other compensation heretofore or hereafter to be made
for any taking by eminent domain of any part of the said premises, and to
the right of disposition thereof in accordance with the provisions of the
said Mortgage or Deed of Trust,
(b) The prior right, claim and lien of the said Mortgage or Deed of Trust in,
to and upon any proceeds payable under all policies of fire and rent
insurance upon the said premises and as to the right of disposition thereof
in accordance with the terms of the said Mortgage or Deed of Trust, and
(c) Any lien, right, power or interest, if any, which may have arisen or
intervened in the period between the recording of the said Mortgage or Deed
of Trust and the execution of the said lease, or any lien or judgement
which may arise at any time under the terms of such lease.
This Subordination shall inure to the benefit of and shall be binding upon the
undersigned, its successors and assigns.
IN WITNESS WHEREOF, the Subordination has been duly signed and delivered by the
undersigned this 28th day of August, 1992.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
a New York Corporation
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Assistant Secretary
LESSEE'S AGREEMENT
------------------
The undersigned, as Lessee under the lease herein described, does hereby accept
and agree to the terms of the foregoing Subordination, which shall inure to the
benefit of and be binding upon the undersigned and the ???? executors,
administrators, legal representatives, successors and assigns of the
undersigned.
ASK COMPUTER SYSTEMS, INC
a Delaware corporation
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its:[SIGNATURE ILLEGIBLE]
------------------------
VICE PRESIDENT & GENERAL COUNSEL
ASK COMPUTER SYSTEMS, INC
STATE OF NEW YORK )
)SS
COUNTY OF NEW YORK )
On this 9 day of February, 1993, before me, a Notary Public in and for said
State, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
______ and _____________________ personally known to me (or proved to me on the
basis of satisfactory evidence) to be the [ILLEGIBLE] and ________________ of
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation,
the officers executing the within instrument, and acknowledged to me that such
corporation executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal on
the date in this certificate first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Notary Public
[STAMP]
TENANT
------
STATE OF CALIFORNIA )
) SS
COUNTY OF SANTA ▇▇▇▇▇ )
On this 28th day of August, 1992, before me, a Notary Public in and for said
State, duly commissioned and sworn, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇,
personally known to me to be the Vice President & General Counsel of ASK
COMPUTER SYSTEMS, INC., a California corporation, the officer executing the
within instrument, and acknowledged to me that such corporation executed the
within instrument pursuant to its bylaws or a resolution of its board of
directors, and acknowledged to me that he subscribed his name on the within
instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal on
the date in this certificate first above written.
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Notary Public
[STAMP APPEARS HERE]
ACKNOWLEDGEMENT
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[ILLEGIBLE] On this the 4th day of January 199?, before me,
--------------------- )
)
) SS. ▇. ▇. ▇▇▇▇▇▇▇▇▇
[ILLEGIBLE] ) ------------------------------------------------
--------------------- )
the undersigned Notary Public, personally
appeared
C. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
[STAMP APPEARS HERE] [X] personally known to me to be the person
whose name is subscribed to the within
instrument, and acknowledged that he executed
it.
WITNESS my hand and official seal.
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Notary's Signature
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[ILLEGIBLE]ARY: Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to another document.
Title or Type of Document Subordination, Estoppel, Non-Disturbance +
-------------------------------------------
Attornment Agr.
--------------
Number of Pages Seven Date of Document December 1, 1992
-------------- -----------------------
Signer(s) Other Than Named Above none (to be signed by 4 other
-----------------------------
parties)
--------
================================================================================
ACKNOWLEDGEMENT NO 209
====================================================================================================================================
CAPACITY CLAIMED BY SIGNER
[ILLEGIBLE]
--------------------- ) [_] INDIVIDUAL(S)
)
) SS.
[ILLEGIBLE] )
--------------------- ) [X] CORPORATE VICE PRESIDENT OF
1993 before me, ▇▇▇▇▇ ▇▇ ▇▇▇▇, Notary Public -----------------
---- ------------------------------------------------------, OFFICER(S) GENERAL PARTNERS
NAME, TITLE OF OFFICER .E.G. "▇▇▇▇ ▇▇▇, NOTARY PUBLIC" ----------------
TITLE(S)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [_] PARTNER(S) Which is a Corporation
-------------------------------------------------------------------------
NAME(S) OF SIGNER(S) [_] ATTORNEY-IN-FACT
[ILLEGIBLE] me- OR- [_] proved to me on the basis of satisfactory evidence to be [_] TRUSTEE(S)
the person whose name is subscribed to the within
instrument and acknowledged to me that he executed [_] SUBSCRIBING WITNESS
the same in his authorized capacity, and that by his
[STAMP APPEARS HERE] signature on the instrument the person or the entity [_] GUARDIAN\CONSERVATOR
upon behalf of which the person acted, executed the
instrument. [_] OTHER: _________________________
Witness my hand and official seal. ________________________________
________________________________
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
VINTAGE PROPERTIES -
------------------------------------
ALAMEDA COMMERCIAL
------------------------------------
/s/ ▇▇▇▇▇ ▇▇ ▇▇▇▇
----------------------------------------------------- ____________________________________
SIGNATURE OF NOTARY
------------------------------------------------------------------------------------------------------------------------------------
[ILLEGIBLE] though the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to unauthorized document.
Title or Type of Document Subordination, Estoppel, Non-Disturbance +
-------------------------------------------
Attornment Agreement
--------------------
Number of Pages Seven Date of Document December 1, 1992
-------------- ----------------------
[ILLEGIBLE] Signer(s) Other Than Named Above (to be signed by ▇▇▇▇▇ Fargo Bank
----------------------------------
and ▇▇▇▇▇▇
----------
================================================================================
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
▇▇▇▇▇ FARGO BANK, N.A.
Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Loan No. 5038ZS
--------------------------------------------------------------------------------
SUBORDINATION, ESTOPPEL, NON-DISTURBANCE
----------------------------------------
AND ATTORNMENT AGREEMENT
------------------------
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR LEASE BECOMING SUBJECT TO
AND OF LOWER PRIORITY THAN THE LIEN OF A LATER SECURITY INSTRUMENT.
THIS AGREEMENT is made as of this 1st day of December, 1992, by and
among ASK COMPUTER SYSTEMS, INC., a Delaware corporation ("Lessee"), ALAMEDA
REAL ESTATE INVESTMENTS, a California limited partnership ("Borrower"), and
▇▇▇▇▇ FARGO BANK, N.A. ("Lender").
RECITALS
--------
A. Lender has made, or has agreed to make, a loan to Borrower in the
principal amount of FOUR MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS
($4,700,000.00) ("Loan") which is or will be evidenced by, among other things,
a promissory note executed by Borrower in favor of Lender in the principal
amount of the Loan ("Note").
B. The Note and certain other obligations of Borrower under the Loan
are secured by, among other things, a deed of trust ("Deed of Trust") executed
by Borrower, as Trustor, in favor of Lender, as Beneficiary, covering real
property situated in the County of Alameda, State of California, and more
particularly described on Exhibit A, attached hereto, and incorporated herein by
---------
this reference ("Property"). Said Deed of Trust will be recorded concurrently
herewith in the records of the County Recorded of Alameda County, California
("Official Records").
C. Subject to the terms and provisions of a lease dated June 25,
1992 ("Lease"), Borrower granted to Lessee a leasehold estate in and to the
Property. Paragraph 36 of the Lease grants Lessee the option ("Option") to
extend the term of the Lease. Unless otherwise stated herein, all references to
the Lease shall include the Option.
D. The Loan is further secured by, among other things, an Assignment
of Lessor's Interest in Leases ("Assignment"), wherein all of the Borrower's
interest in and to the Lease was assigned to Lender. The Assignment will be
recorded concurrently herewith in the records of the County Recorder of the
Official Records. In making the loan, Lender is relying, in part, upon the
statements, acknowledgements, representations and agreements set forth in this
Agreement.
Therefore, for good and sufficient consideration and subject to
the terms and conditions of this Agreement, Lessee acknowledges, represents and
agrees for the benefit of Lender, with knowledge that Lender is relying thereon,
as follows:
-1-
1. SUBORDINATION.
-------------
(1) The Deed of Trust and the Assignment, and any
modifications, renewals, extensions or replacements thereof, and of the Note
secured thereby, shall unconditionally be and at all times remain liens or
charges on the Property prior and superior to the Lease;
(2) Lessee and Borrower acknowledge and agree that Lender
would not make the Loan to Borrower without this Agreement;
(3) This Agreement shall be the whole and only agreement
with regard to the subordination of the Lease to the liens or charges of the
Deed of Trust and the Assignment and shall supersede and cancel, but only
insofar as would affect the priority between the Deed of Trust and the
Assignment and the Lease, any prior agreements as to such subordination,
including, but not limited to, those provisions, if any, contained in the Lease
which provide for the subordination of the Lease to a deed of trust or to a
mortgage or mortgages;
(4) Lessee consents to and approves (i) all provisions of
the Note, Deed of Trust and Assignment in favor of Lender, and (ii) all other
agreements including but not limited to any loan or other agreements, between
Borrower and Lender relating to the Loan or the disbursement of the proceeds of
the Loan (together with the Note, Deed of Trust and Assignment, "Loan
Documents");
(5) Lender, in making disbursements pursuant to any of the
Loan Documents, is under no obligation or duty to, nor has Lender represented
that it will, see to the application of such proceeds by the person or persons
to whom Lender disburses such proceeds, and any application or use of such
proceeds for purposes other than those provided for in the Loan Documents shall
not defeat the subordination herein made in whole or in part;
(6) Lessee intentionally and unconditionally waives,
relinquishes and subordinates all of Lessee's right, title and interest under
the Lease and in and to the Property to the lien or charge of the Deed of Trust
and the Assignment and understands that in reliance upon and in consideration
of, this waiver, relinquishment and subordination, specific loans and advances
are being and will be made by Lender and, as part and parcel thereof, specific
monetary and other obligations are being and will be entered into which would
not be made or entered into but for said reliance upon this wavier,
relinquishment and subordination; and
(7) Lender may provide future financing to Borrower in
connection with the development, construction and/or holding of the Property.
Lessee agree that the Lease shall be subject and subordinate to, the lien of the
deed of trust securing any such future financing and all the terms, conditions
and provisions thereof, and Lender's rights in the Property and any related
security, to all advances made thereunder, and any renewals, extensions,
modifications or replacements thereof, in all cases on the same terms and
conditions as provided in this Agreement. Lessee and Borrower agree to execute
and record an agreement confirming the foregoing in substantially the same form
as this Agreement.
2. ESTOPPEL. Lessee acknowledges and represents that:
--------
(a) Lease Effective. The Lease has been duly executed and
---------------
delivered by Lessee and that, subject to the terms and conditions thereof, the
Lease is in full force and effect and the obligations of Lessee thereunder are
valid and binding and there have been no modifications or additions, written or
oral, to the Lease;
-2-
(b) No Default. As of the date hereof and to the best of
----------
Lessee's knowledge (i) there exists no breach, default, or event or condition
which, with the giving of notice or the passage of time or both, would
constitute such a breach or default; and (ii) there are no existing claims,
defenses or offsets against rental due or to become due under the terms of the
Lease;
(c) Entire Agreement. The Lease constitutes the entire
----------------
agreement between Borrower and Lessee with respect to the Lease and the Property
and Lessee claims no rights with respect to the Property other than as set forth
in the Lease;
(d) No Prepaid Rent. No deposits or prepayments of rent
---------------
have been made in connection with the Lease;
(e) Term. The original term of the Lease commences on
----
the Date provided in Section 3 of the Lease and shall continue for a period
ending September 30, 2004 unless sooner terminated or extended pursuant to any
provision of the Lease thereafter. Lessee has three (3) options to extend the
term of the Lease for five (5) years each.
(f) Rent. The base rent payable under the Lease is an
----
amount shown pursuant to paragraph 4.B of the Lease. Tenant has provided
Borrower with $ NONE as the security deposit under the Lease;
-----
(g) No Transfer. Tenant has received no notice of any
-----------
prior sale, transfer, assignment, hypothecation or pledge of the Lease or the
rents secured thereunder except for the Assignment; and
(h) Pursuant to Section 7.B of the Lease, Lessee is to
reimburse Borrower for all "Property Taxes" assessed in respect of the premises
during the term of the Lease and "Property Taxes" shall mean that definition
shown in paragraph 7.C of the Lease.
3. AGREEMENT. Lessee hereby covenants and agrees that, during
---------
all such times as Lender is the beneficiary under the Deed of Trust:
(a) Modification, Termination and Cancellation. Lessee will
------------------------------------------
not consent to any modification, termination or cancellation of the Lease unless
Lender first consents thereto in writing;
(b) Notice of Default. Lessee shall notify Lender in
-----------------
writing concurrently with any notice given to Borrower of any default on the
part of Borrower under the Lease, and Lessee agrees that Lender shall have the
right (but not the obligation) to cure any breach or default specified in such
notice within the time periods set forth below and Lessee shall not declare a
default of the Lease, as to Lender, if Lender cures such default within thirty
(30) days from and after expiration of the time period provided in the Lease for
the cure thereof by Borrower; provided, however, that if such default cannot
with diligence be cured by lender within such thirty (30) day period, the
commencement of action by Lender within such thirty (30) day period to remedy
the same shall be deemed sufficient so long as Lender pursues such cure with
diligence;
(c) No Advance Rent. Lessee will make no payments or
---------------
prepayments of rent more than one (1) month in advance of the time when the same
become due under the Lease; and
(d) Assignment of Rents. Upon receipt by Lessee of written
-------------------
notice from Lender that Lender has elected to terminate the license granted to
Borrower to collect rents, as provided in the Deed of Trust and Assignment, and
directing the
-3-
payment thereof to Lender, Lessee shall comply with such direction to pay and
shall not be required to determine whether Borrower is in default under the
Loan.
4. ATTORNMENT. Lessee hereby agrees for the benefit of Lender
----------
(which term shall include, for purposes of this Section 4 and for purposes of
Section 5 hereof, any transferee of Borrower's title in and to the Property by
Lender's exercise of its remedies under the Assignment or Deed of Trust by
foreclosure or otherwise, or any transferee by deed in lieu thereof, and any
subsequent transferee of such title, whether Lender or any other party) as
follows:
(a) Payment of Rent. Lessee shall pay to Lender all rental
---------------
payments required to be made by Lessee pursuant to the terms of the Lease for
the duration of the term of the Lease;
(b) Continuation of Performance. Lessee shall be bound to
---------------------------
Lender in accordance with all of the terms of the Lease for the balance of the
term thereof, and Lessee hereby attorns to Lender as its landlord, such
attornment to be effective and self-operative without the execution of any
further instrument immediately upon Lender succeeding to the lessor's interest
in the Lease and giving written notice thereof to Lessee. Lessee agrees to
provide written confirmation of the foregoing upon request of Lender;
(c) No Offset. Lender shall not be liable for, nor subject
---------
to, any offsets or defenses which Lessee may have by reason of any act or
omission of Borrower as prior lessor, nor for the return of any sums which
Lessee may have paid to Borrower as prior lessor as and for security deposits,
advance rentals or otherwise, except to the extent that such sums are actually
delivered by Borrower to Lender; and
(d) Subsequent Transfer. If Lender, by succeeding to the
-------------------
interest of lessor under the Lease, should become obligated to perform the
covenants of lessor thereunder, then, upon any further transfer of the lessor's
interest by Lender, all of such obligations shall terminate as to Lender.
5. NON-DISTURBANCE. In the event of a foreclosure of the Deed
---------------
of Trust or deed in lieu thereof, so long as there shall then exist no breach,
default, or event of default on the part of Lessee under the Lease, nor any
event or condition which, with notice or passage of time or both, would
constitute such a breach, default, or event of default, the leasehold interest
of Lessee under the Lease shall not be extinguished or terminated by reason of
such foreclosure, but rather the Lease shall continue in full force and Lender
shall recognize and accept Lessee as tenant under the Lease subject to the terms
and provisions of the Lease except as modified by this Agreement.
6. MISCELLANEOUS.
-------------
(a) Heirs, Successors, Assigns and Transferees. The
------------------------------------------
covenants herein shall be binding upon, and inure to the benefit of, the heirs,
successors and assigns of the parties hereto;
(b) Notices. All notices or other communications required
-------
or permitted to be given pursuant to the provisions hereof shall be deemed
served upon delivery or, if mailed, upon the first to occur of receipt or the
expiration of seventy-two (72) hours after deposit in the United States
Postal Service, certified mail, postage prepaid and addressed to the address of
Lessee or Lender appearing below:
- 4 -
LESSEE
---------------------------------------
ASK Computer System, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
LENDER
-----------------------------------------
▇▇▇▇▇ Fargo Bank, N.A.
Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BORROWER
-----------------------------------------
Alameda Real Estate Investments
c/o Vintage Properties
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Provided, however, that any party shall have the right to change its address for
notice hereunder by giving written notice thereof to the other party in the
manner set forth hereinabove;
(c) Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute and be construed as one and the same instrument;
(d) Remedies cumulative. All remedies provided herein are
-------------------
cumulative and shall be in addition to any and all other rights and remedies
provided by law and by other agreements between Lender and Borrower or others;
(e) Paragraph Headings. Paragraph headings in this Agreement
------------------
are for convenience only and are not to be construed as part of this Agreement
or in any way limiting or applying the provisions hereof;
(f) Further Assurances. At the request of either party
------------------
hereto, the other party shall execute, acknowledge and deliver such other
documents and/or instruments as may be reasonably required by the
requesting party in order to carry out the purpose of this Agreement, provided
that no such document or instrument shall modify the rights and obligations of
the parties provided herein;
(g) Conflicts. In the event of any inconsistency between the
---------
terms of this Agreement and the Lease, the terms of this Agreement shall
control; and
(h) Attorneys' Fees. The prevailing party shall be entitled
---------------
to recover from the other party its reasonable costs, including reasonable
attorneys' fees, in any action brought by any party against the other to enforce
any rights or obligations under this Agreement.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE OWNER
TO OBTAIN A LOAN THE PROCEEDS OF WHICH MAY BE EXPENDED FOR PURPOSES OTHER THAN
IMPROVEMENT OF THE LAND.
-5-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this day and year first above written.
"Lender" "Borrower"
WELL FARGO BANK, N.A., ALAMEDA REAL ESTATE INVESTMENTS,
a national banking a California limited partnership
association
By: C/O DEVELOPMENT ASSOCIATES,
a Massachusetts general
BY: /s/ [SIGNATURE ILLEGIBLE] partnership
--------------------------------
By: Copley/Ohio Associates,
Its: Vice President Partner
-------------------------------
By: ▇▇▇▇▇▇ Real Estate
Advisors, Inc.,
its managing Partner
"Lessee"
ASK COMPUTER SYSTEMS, INC., By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
a Delaware corporation Authorized Signatory
▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: New England Mutual Life
-------------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Insurance Company, Partner
Its: Director Operations
-------------------------------
By: ▇▇▇▇▇▇ Real Estate
Advisors, Inc.,
its asset manager
hereunder duly authorized
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Authorized Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇
By: VINTAGE PROPERTIES - ALAMEDA
COMMERCIAL
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION AGREEMENT,
THE PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT THERETO.
-6-
EXHIBIT A
---------
(Description of Property)
EXHIBIT A to Subordination, Estoppel, Non-Disturbance and
---------
Attornment Agreement executed by ALAMEDA REAL ESTATE INVESTMENTS, a
California limited partnership, "Borrower", and ASK COMPUTER SYSTEMS, INC.,
a Delaware corporation, as "Lessee", in favor of ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, dated as of December 1, 1992.
REAL PROPERTY in the City of Alameda, County of Alameda, State of California,
described as follows:
Parcel One:
▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, filed December 14, 1992, Map Book ▇▇▇, ▇▇▇▇▇ ▇▇-▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Records.
Parcel Two:
Non-exclusive easements appurtenant to Parcel One above for (a) use of the
common area, (b) for pedestrian and vehicular ingress and egress, (c) for the
purpose of accommodating any ecxroachment over or onto any part of the common
area due to roof overhang or the settlement or shifting of building
improvements, (d) for the purpose of parking, (e) for the purpose of
accommodating private utilities, private storm drain lines and private sanitary
sewer lines which cross the lot lines, all as defined in Article 3, Section
3.02(a), (b), (c), (d) and (e) of that certain document entitled "Declaration of
Reciprocal Easements, Covenants and Restrictions (Office Buildings and
Powerhouse)" recorded February 28, 1989, Series No. 89-56055, Official Records.
Parcel Three:
Non-exclusive easements appurtenant to Parcel One above, for pedestrian and
vehicular ingress and egress and related appurtenances, landscaping and similar
improvements, as defined in that certain document entitled "Roadway Easement
Agreement" recorded April 20, 1987, Series No. 87-107258, Official Records.
A.P. No. ▇▇▇-▇▇▇▇-▇▇▇
▇▇▇-▇▇▇▇-▇▇▇
▇▇▇-▇▇▇▇-▇▇▇