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EXHIBIT 10.31
[COMPANY NAME] Computer Associates International, Inc.
One Computer Associates Plaza
Islandia, NY II 788-7000
(516) DIAL CAI (▇▇▇-▇▇▇▇)
FAX (516) DIAL FAX (▇▇▇-▇▇▇▇)
November 28, 1995
VIA AIRBORNE
▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Wink Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: SUBLEASE AT ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dear ▇▇▇▇:
I am enclosing one (1) original, fully executed Sublease Agreement for
your records. I am also enclosing a copy of the letter to the Overlandlord in
which I am requesting approval of the Sublease. I will advise you as soon as I
receive the Overlandlord's consent.
We look forward to having Wink Communications as our subtenant, and we
wish you much success in the new space.
Sincerely,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attorney
cc: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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[COMPANY NAME] Computer Associates International, Inc.
One Computer Associates Plaza
Islandia, NY II 788-7000
(516) DIAL CAI (▇▇▇-▇▇▇▇)
FAX (516) DIAL FAX (▇▇▇-▇▇▇▇)
November 28, 1995
VIA AIRBORNE
▇▇. ▇▇▇▇▇▇▇ ▇. Luck
Alameda Real Estate Investments
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: SUBLEASE TO WINK COMMUNICATIONS
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dear ▇▇▇▇▇▇▇:
I am enclosing one (1) fully executed original of the above referenced
Sublease which has been signed by Computer Associates and Wink Communications.
You will note that this document is in substantially the same form as the
previous CA subleases in the Marina Village area,
If acceptable, kindly provide me with an executed Landlord's Consent to
Sublease form. If you have any questions, I can be reached at (▇▇▇) ▇▇▇-▇▇▇▇.
Sincerely,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attorney
cc: ▇▇▇▇ ▇▇▇▇▇▇, Wink Communications
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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SUBLEASE AGREEMENT
THIS SUBLEASE (the "Sublease") is entered into as of the date set forth in
Section 1.1(e) below, by and between the Sublandlord and the Subtenant set forth
below.
W I T N E S S E T H;
1. SUBLEASE SUMMARY AND DEFINITIONS
1.1 The Sublease provisions and definitions set forth in this Section 1.1
in summary form are solely to facilitate convenient reference by the parties. If
there is any conflict between this Section and any other provisions of this
Sublease, the latter shall control.
(a) Sublandlord's Name COMPUTER ASSOCIATES
and address: INTERNATIONAL, INC.
1 Computer Associates ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Senior Vice President - Facilities
(b) Sublandlord's State of Delaware
Incorporation:
(c) Subtenant's Name and WINK COMMUNICATIONS, INC.
address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
(d) Subtenant's State of
Incorporation: California
(e) Sublease Date: November 1995
(f) Overlandlord's Name Alameda Real Estate Investments
and Address:
(g) ▇▇▇▇▇▇▇▇▇: Dated June 25, 1992 between Alameda Real
Estate Investments and ASK Computer Systems,
Inc. as amended by Amendment No. I dated
July 31, 1993 and
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Amendment No. 2 dated November 30, 1993, and
Amendment No. 3 dated December 1, 1994.
(h) Unincorporated Articles: 1) 2 (including ▇▇, ▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇), ▇▇) 3B(xiv), 4 (including. ▇▇, ▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇: ▇▇ ▇▇▇ ▇▇ and 4G), ▇▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇,
10 (including 10A, 10B, 10C, 10D and 10E),
12, 16, 17, 21, 23, 25A, 25B, 25C, 25D, 31H,
32, 36, 41, 43 and 45, as well as the 6th
sentence of Subsection 31(B) with respect to
the relationship between Sublandlord and
Subtenant.
Exhibits: A, B, C
(i) Building: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
Premises: 17,377 Rentable Square Feet comprising the
entire first floor
(k) Sublease February 1, 1996
Commencement Date:
(1) Sublease Expiration January 31, 2000
Date:
(m) Base Rent:
Annual
Rent per rentable
Yearly Periods square foot Monthly Base Rent Annual Base Rent
-------------- ----------------- ----------------- ----------------
2/l/96 - 7/31/96 $ N/A $18,680.28 $ N/A
8/l/96 - 1/31/97 $ N/A $22,372.89 $ N/A
2/l/97 - 1/31/98 $18.60 $26,934.35 $323,212.20
2/1/98 - 1/31/99 $19.20 $27,803.20 $333,638.40
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2/l/99 - 1/31/00 $19.80 $28,672.05 $344,064.60
(n) Prepaid Base Rent to be
applied to Subtenant's
obligation to pay Base
Rent at the commencement
of the Sublease Terra: $58,647.38
(o) Operating Expenses: See Section 13
(p) Subtenant's 24.32%, which share was determined by dividing the
Proportionate Share: 73,241 Rentable Square Feet in the "Leased Space" (as
defined in the ▇▇▇▇▇▇▇▇▇) by the 17,377
Rentable Square Feet in the Premises. To the
extent that the Rentable Square Feet in the
Leased Space is increased or decreased
during the "Sublease Term" (as hereinafter
defined), Tenant's Proportionate Share shall
be adjusted to the quotient (expressed as a
percentage) obtained when 17,377 is divided
by the then Rental Square Feet in the Leased
Space.
(q) Security Deposit: $58,647.38
(r) Alterations: "As Is" - Subtenant is obligated to spend $30,409.75
on tenant improvements in the Premises on or before
April 30, 1996, such work to -be performed pursuant
to provisions of Article 14 hereof. Subtenant shall
present Sublandlord with proof of such improvements
no later than May 30, 1996.
(s) Brokers: For Sublandlord: Blickman Turkus
For Subtenant: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
(t) Parking: As per ▇▇▇▇▇▇▇▇▇ - 3.5 spaces per thousand square
feet.
2. SUBLEASE GRANT
2.1 By lease (hereinafter referred to as the '▇▇▇▇▇▇▇▇▇") described above,
the Overlandlord leased to Sublandlord certain space (hereinafter called the
"Leased Space") in the Building in accordance with the terms of the ▇▇▇▇▇▇▇▇▇. A
true, correct and
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complete copy of the ▇▇▇▇▇▇▇▇▇ and all amendments or modifications thereto is
annexed hereto as EXHIBIT A.
2.2 In consideration of the obligation of Subtenant to pay rent as herein
provided and in consideration of the other terms, covenants and conditions
hereof, Sublandlord hereby leases to Subtenant and Subtenant hereby hires from
Sublandlord, upon and subject to the provisions of this Sublease and the
▇▇▇▇▇▇▇▇▇, the rentable area as set forth in SECTION 1.1 herein (comprising a
portion of the Leased Space) and as shown hatched on EXHIBIT B a annexed hereto
and made a part hereof (hereinafter called the "Premises"). Sublandlord hereby
grants to Subtenant the right to use in common with other tenants of the
"Building" (as defined in the ▇▇▇▇▇▇▇▇▇), the "Common Areas" (as defined in the
▇▇▇▇▇▇▇▇▇), and the "Outside Areas" (as defined in the ▇▇▇▇▇▇▇▇▇) as such rights
are granted to Sublandlord under the terms of the ▇▇▇▇▇▇▇▇▇. This Sublease is
made subject to the terms and conditions of the ▇▇▇▇▇▇▇▇▇.
3. SUBLEASE TERM
3.1 Subject to the other provisions hereof, this Sublease shall continue
in full force and effect for a primary term beginning on the Sublease
Commencement Date and ending on the Sublease Expiration Date as defined above.
Such term, as it may be extended or modified only by written agreement of the
parties, is herein called the "Sublease Term."
3.2 Possession of the Premises shall be delivered to Subtenant no later
than three (3) days after the last to occur of- (a) the execution of this
Sublease by the parties; and (b) the consent to this Sublease by Overlandlord as
provided in Section 9 hereof. During any such period of possession prior to the
commencement of the "Sublease Term" (as defined in Section 3 hereof), Subtenant
shall have no obligation to pay "Base Rent" (as defined in Section 4 hereof);
provided, however, Subtenant shall reimburse Sublandlord for "Subtenant's
Proportionate Share" (as defined in Section 1.1[p] hereof) of the "Operating
Expenses" and "Property Taxes" (as those terms are defined in Section 13.1
hereof) paid by Sublandlord under the ▇▇▇▇▇▇▇▇▇ with respect to that period of
possession prior to the Sublease Tenn.
4. RENT; SECURITY DEPOSIT
4.1 Subtenant, in consideration of this Sublease agrees to pay to
Sublandlord as rent ("Base Rent") the amounts set forth in SECTION 1.1 hereof.
Base Rent is payable in advance and without demand, at Sublandlord's office (or
such other location as Sublandlord shall designate) by check in equal monthly
installments, on the first day of each month during the Sublease Term without
any set-off, off-set, abatement or reduction whatsoever, except as herein
provided. Subtenant's failure to receive an invoice from Sublandlord for the
rent shall not-relieve Subtenant from its obligation of timely payment
hereunder.
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4.2 As used in this Sublease, "Rent" shall mean the Base Rent, Subtenant's
"Share of Expenses" to be reimbursed pursuant to Section 13, and all other
monetary obligations provided for in this Sublease to be paid by Subtenant, an
of which constitute rental in consideration for this Sublease.
4.3 In the event the Rent is not paid when due as aforesaid,. interest
shall accrue thereon at the lesser of twenty-one percent (21%) per annum or the
maximum rate permitted by law. In addition, if the Rent is not paid by the tenth
day of any given month, Subtenant shall pay as a penalty to Sublandlord an
additional amount equal to five percent (5%) of the Rent due, but not less than
One Hundred Dollars ($100.00).
4.4 The Security Deposit shall be held by Sublandlord as a fund from which
to cure any defaults of Subtenant hereunder and to reimburse Sublandlord for any
expenses incurred as a result of Subtenant's failure to perform hereunder. To
the extent that Sublandlord draws upon the Security Deposit during the Sublease
Term, Subtenant, upon receipt of Sublandlord's request, shall deposit sufficient
funds with Sublandlord to replenish the Security Deposit so that Security
Deposit is fully funded in the amount initially deposited. In holding the
Security Deposit, Sublandlord is not Subtenant's fiduciary, Sublandlord may
commingle the Security Deposit with its funds and Sublandlord shall have no
obligation to pay Subtenant any interest thereon. At the end of the Sublease
Term and upon the surrender of the Premises as provided in this Sublease, so
long as Subtenant is not in default hereunder or otherwise in debt to
Sublandlord, the Security Deposit (or the remaining balance thereof) shall be
returned to Subtenant.
5. ASSIGNMENT OR UNDERLETTING
5.1 Subtenant shall not (a) assign this Sublease, nor (b) permit this
Sublease to be assigned by operation of law or otherwise, nor (c) underlet all
or any desk space therein to be occupied by any person(s) other than employees
of Sub tenant, without first obtaining:
(a) Overlandlord's consent and all other required consents to such
assignment or subletting as set forth in and pursuant to the
▇▇▇▇▇▇▇▇▇, and
(b) Sublandlord's consent.
5.2 Notwithstanding anything hereinbefore contained in Section 5.1 hereof,
in the event Subtenant desires Sublandlord's consent to an assignment of this
Sublease or an underletting of all of the Premises, if consent to such transfer
is required, Subtenant by notice in writing (a) shall notify Sublandlord of the
name of 'the proposed assignee or undertenant, furnish such information as to
the proposed assignee's or undertenant's financial responsibility and standing
as Sublandlord may reasonably require, and advise
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Sublandlord of the covenants, agreements, terms, provisions and conditions
contained in the proposed assignment or underlease and (b) shall offer to vacate
the Premises and to surrender the same to Sublandlord as of a date (hereafter
called the "Surrender Date") specified in said offer which shall be the last day
of any calendar month during the term hereof, provided. however, that the
Surrender Date shall be the effective date of the proposed assignment or the
commencement date of the term of the proposed underlease. If Sublandlord accepts
such offer, Subtenant shall surrender to Sublandlord, effective as of the
Surrender Date, all Subtenant's right, title and interest in and to the entire
Premises. If the Premises be so surrendered by Subtenant, this Sublease shall be
canceled and terminated as of the Surrender Date with the same force and effect
as if the Surrender Date were the date hereinbefore specified for the expiration
of the full terra of this Sublease, and Subtenant shall not be obligated for any
costs which accrue after the Surrender Date unless such costs are caused by
Subtenant's acts.
5.3 In the event Sublandlord does not accept such offer of Subtenant
referred to in Section 5.2 hereof, Sublandlord covenants not to unreasonably
withhold, condition or delay its consent to such proposed assignment or
undertaking, by Subtenant of the Premises to the proposed assignee or
undertenant on said covenants, agreements, terms, provisions and conditions set
forth in notice to Sublandlord referred to in clause (a) of the first sentence
of Section 5.2 hereof; provided, however, that Sublandlord shall not in any
event be obligated to consent to any such proposed assignment or underletting
unless:
(a) the proposed assignee or undertenant is of a financial standing
and is engaged in a business and the Premises will be used in a
manner which is in keeping with the then standards of the Building;
(b) the proposed assignee or undertenant is a reputable party;
(c) Sublandlord shall have the right, upon prior written notice to
Subtenant, to require Subtenant thereafter to pay to Sublandlord a
sum equal to: (i) one half of any rent or other consideration paid
to Subtenant by any undertenant which is in excess of the fixed
annual rent and additional rent then being paid by Subtenant to
Sublandlord pursuant to the terms of this Sublease; and (ii) one
half of any other profit or gain realized by Subtenant (excluding
profit made in connection with the sale of a business, e.g.
goodwill) from any such assignment or underletting in connection
with any underletting; all sums payable hereunder by Subtenant shall
be paid to Sublandlord on a monthly basis as additional rent and, if
requested by Sublandlord, Subtenant shall promptly enter into a
written agreement with Sublandlord setting forth the amount of
additional rent to be paid to Sublandlord pursuant to this Section;
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(d) there shall be no default by Subtenant under any of the terms,
covenants and conditions of this Sublease beyond applicable cure
periods at the time that Sublandlord's consent to any such
assignment or underletting is requested and on the effective date of
the assignment or the proposed underlease;
(e) the proposed assignee or undertenant shall not be (i) a
government or any subdivision of agency thereof, (ii) a school,
college, university or education institution of any type, whether
for profit or non-profit, (iii) a direct competitor of Sublandlord
or (iv) an employment or recruitment agency;
(f) such proposed underletting will result in there being no more
than one (1) occupant of the Premises including Subtenant;
(g) Subtenant shall reimburse Sublandlord for any reasonable
expenses incurred in connection with the proposed assignment or
underleage, including gall costs associated with the granting of
consent.
5.4 Subtenant may, without Sublandlord's consent and without participation
by Sublandlord in the assignment proceeds, assign its interest in this Sublease
to: (a) an "Affiliate" (as hereinafter defined); (b) a successor corporation
related to Subtenant by merger, consolidation, non-bankruptcy reorganization or
government action or engage in a merger, consolidation on other reorganization
of Subtenant; or (c) a purchaser of substantially all of Subtenant's assets
related to the business being operated at the Premises, so long as the Affiliate
and Subtenant combined under (a), the successor or the entity which continues as
the Subtenant under (b), or the purchaser under (c) has a net worth equal to or
-greater than the net worth of Subtenant on the date of the Sublease; provided
in all such instances that the transferee assumes the obligations of the
Subtenant in a writing delivered to Sublandlord and provided further that the
transferor remains liable as a primary obligor for the obligations of Subtenant
under this Sublease (excluding a transferor corporation which does not survive a
merger or other reorganization). For the purpose of this Section 5.4, an
"Affiliate" is a person or entity that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with
Subtenant. For the purpose of the foregoing definition, the term "control" means
the ownership of fifty percent (50%) or more of the beneficial interest or
voting power of the appropriate entity.
6. TERMS OF THE ▇▇▇▇▇▇▇▇▇
6.1 All of the terms and conditions of the ▇▇▇▇▇▇▇▇▇, except for those
referenced in Section 1.1(h) hereof, are incorporated and made a part of this
Sublease; provided, however, all references in such 'incorporated provisions to
"Landlord," Tenant," "Lease"
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and "Premises" shall refer to Sublandlord, Subtenant, this Sublease and the
Premises, respectively. To the extent that such provisions of the ▇▇▇▇▇▇▇▇▇
incorporated into this Sublease conflict with any other provisions of d-this
Sublease (namely those set out in the text of this' Sublease), the provisions
set out in the text of this Sublease shall control.
6.2 In the event that the ▇▇▇▇▇▇▇▇▇ terminates for any reason whatsoever,
this Sublease shall terminate concurrently therewith. Upon termination of this
Sublease, whether by forfeiture, lapse of time or otherwise, or upon the
termination of Subtenant's right to possession, Subtenant will at once
'Surrender and deliver up the Premises in the same condition as existed after
the completion of Subtenant's work contemplated by Section 1.1(r), reasonable
wear and tear excepted. Upon the termination of this Sublease, whether by
forfeiture, lapse of time or otherwise, all obligations of the parties which
have accrued and remain unsatisfied shall survive such termination.
6.3 Subtenant shall be bound by and subject to all of the restrictions
imposed upon Sublandlord as the tenant under the ▇▇▇▇▇▇▇▇▇ and Subtenant shall
not violate any of the provisions of the ▇▇▇▇▇▇▇▇▇.
6.4 This Sublease is subject to, and Subtenant accepts this Sublease
subject to, any amendments and supplements to the ▇▇▇▇▇▇▇▇▇ hereafter made
between Overlandlord and Sublandlord, provided that any such amendment or
supplement to the ▇▇▇▇▇▇▇▇▇ will not prevent or adversely affect the use by
Subtenant of the Premises in accordance with the terms of this Sublease,
increase the obligations of Subtenant or decrease the rights under the Sublease
or in any other way materially adversely affect Subtenant.
6.5 This Sublease is subject and subordinate to the ▇▇▇▇▇▇▇▇▇ and to all
ground or underlying leases and to all mortgages which may now or hereafter
affect. such leases or the real property of which the Premises are a part and
all renewals, modifications, replacements and extensions to any of the
foregoing. This Section 6.5 shall be self-operative and no further instrument of
subordination shall be required. To confirm such subordination, Subtenant shall
execute promptly any certificate that Sublandlord may request.
7. CONDITION OF PREMISES
7.1 Subtenant has examined the Premises, is aware of the physical
condition thereof, and agrees to take the same "as is," (unless otherwise
provided in Section 14 herein) with the understanding that there shall be no
obligation on the part of Sublandlord to incur any expense whatsoever in
connection with the preparation of the Premises -for Subtenant's occupancy
thereof. Any work performed by Subtenant shall be in accordance with the terms
of the ▇▇▇▇▇▇▇▇▇ and Section 14 herein.
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8. USE OF PREMISES
8.1. Subtenant agrees to use the Premises as executive, administrative and
general office use.
9. CONSENT OF OVERLANDLORD
9.1 This Sublease is conditioned upon the consent thereto by Overlandlord,
which consent shall be evidenced by Overlandlord's signature appended hereto or
a separate consent in the form utilized by Overlandlord for such purposes.
Sublandlord shall be solely responsible for any fees or charges imposed by the
Overlandlord in connection with the obtaining of such consent. Provided
Overlandlord's consent does not materially affect the terms of this Sublease,
Subtenant shall immediately execute any documents requested by Overlandlord in
order to obtain Overlandlord's approval. Sublandlord shall use its reasonable
efforts to obtain Overlandlord's consent to this. Sublease. In the event that
such consent of Overlandlord is not received by December 21, 1995, either party
hereto shall have the right to terminate this Sublease by written notice given
to the other party hereto, which notice shall be effective upon receipt;
provided, however, in the event that Sublandlord delivers such consent of
Overlandlord within five (5) days of Sublandlord's receipt of such termination
notice from Subtenant, such termination notice shall be void and this Sublease
shall remain in full force and effect. In connection with Sublandlord's request
to Overlandlord for Overlandlord's consent to this Sublease, Subtenant agrees to
cooperate to the greatest extent reasonably possible, which cooperation shall
include, but shall not be limited to, providing Subtenant's financial
information with all reasonable dispatch. Subtenant agrees that it is the
intention of the parties that the request for Overlandlord's consent to this
Sublease is to be made unfettered by any other issue and Subtenant agrees not to
raise any other issue that might require Overlandlord's consideration until
Overlandlord has consented to this Sublease.
9.2 Sublandlord makes no representation with respect to obtaining
Overlandlord's approval of this Sublease and, in the event that Overlandlord
notifies Sublandlord that Overlandlord will not give such approval, Sublandlord
will so notify Subtenant and, upon receipt of such notification by Sublandlord
of the disapproval by 0verlandlord, this Sublease shall be deemed to be null and
void and without force or effect, and Sublandlord and Subtenant shall have no
further obligations or liabilities to the other with respect to this Sublease.
9.3 Except as otherwise specifically provided herein, wherever in this
Sublease Subtenant is required to obtain Sublandlord's consent or approval,
Subtenant understands that Sublandlord may be required to first obtain the
consent or approval of Overlandlord. If Overlandlord should refuse such consent
or approval, Sublandlord shall be released of any obligation to grant its
consent or approval whether or not Overlandlord's refusal, in Subtenant's
opinion, is arbitrary 'or unreasonable.
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10. DEFAULT
10.1 Subtenant acknowledges that certain services to be rendered to the
Premises are to be rendered by Overlandlord under the ▇▇▇▇▇▇▇▇▇. Anything in
this Sublease to the contrary notwithstanding, if there exists a breach by
Sublandlord of any of its obligations under this Sublease and, concurrently, a
corresponding breach by Overlandlord under the ▇▇▇▇▇▇▇▇▇ of its obligations
under the ▇▇▇▇▇▇▇▇▇ exists, then and in such event, Subtenant's sole remedy
against Sublandlord in the event of any breach of obligations under this
Sublease shall be the right to pursue a claim in the name of Sublandlord against
Overlandlord, and Sublandlord agrees that it will, at Subtenant's expense,
cooperate with Subtenant in the pursuit of such claim.
10.2 Anything contained in any provisions of this Sublease to the contrary
notwithstanding, Subtenant agrees, for the benefit of both Sublandlord and
Overlandlord, with respect to the Premises, to comply with and remedy any
default claimed by Overlandlord under the ▇▇▇▇▇▇▇▇▇ and caused by Subtenant,
within the period allowed to Sublandlord as tenant under the ▇▇▇▇▇▇▇▇▇, even if
such time period is shorter that the period otherwise allowed in the ▇▇▇▇▇▇▇▇▇,
due to the fact that notice of default from Sublandlord to Subtenant is given
after the corresponding notice of default from Overlandlord. Sublandlord agrees
to forward to Subtenant, upon receipt thereof by Sublandlord, a copy of each
notice of default received by Sublandlord in its capacity as tenant-under the
▇▇▇▇▇▇▇▇▇. Subtenant agrees to forward to Sublandlord, upon receipt thereof,
copies of any notices received by Subtenant with respect to the-Premises from
Overlandlord or from any governmental authorities. Sublandlord and Subtenant
each agree to indemnify and hold the other harmless from and against all claims,
penalties and expenses, including reasonable attorneys' fees, based upon any
uncured default by such party during the term hereof and its performance of
those terms, covenants and provisions of the ▇▇▇▇▇▇▇▇▇ which are or shall be
applicable to such party.
10.3 Subtenant acknowledges that upon breach of any provisions of this
Sublease by Subtenant, any rights or options granted to Subtenant under this
Sublease or the ▇▇▇▇▇▇▇▇▇ relating to expansion, renewal, or any other equity
option, shall immediately terminate and shall not be exercisable for the
remainder of the Sublease term. If and whenever there shall occur any event of
default of this Sublease, beyond any applicable cure period, Sublandlord may, at
Sublandlord's option, in addition to any other remedy or right given under the
▇▇▇▇▇▇▇▇▇ or by law or equity, do any one or more of the following:.
(a) Terminate this Sublease without notice to Subtenant, in which
Subtenant shall immediately surrender possession of the Premises to
Sublandlord;
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(b) Terminate Subtenant's right to possession of the Premises under
this Sublease without terminating the Sublease itself, by written
notice to Subtenant in which event Subtenant shall immediately
surrender possession of the Premises to Sublandlord
(c) Enter upon and take possession of the Premises and expel or
remove Subtenant and any other occupant therefrom, with or without
having terminated this Sublease;
(d) Alter locks and other security devices at the Premises with or
without having terminated this Sublease or Subtenant's right to
possession under the Sublease;
(e) Enter upon the Premises by force if necessary without being
liable for prosecution or any claim for damages therefor, and do
whatever Subtenant is obligated to do under the terms of this
Sublease; and Subtenant agrees to reimburse Sublandlord on demand
for any direct or indirect expenses which Sublandlord or
Overlandlord may incur in thus effecting compliance with Subtenant's
obligations under this Sublease, and Subtenant further agrees that
Sublandlord shall not be liable for any damages resulting to
Subtenant from such action;
(f) Accelerate all rental payments due under the Sublease for the.
remainder of the Sublease Term. Sublandlord shall use reasonable
diligence to relet the Premises after such default by Subtenant, and
the net proceeds of such reletting (after deducting reasonable
expenses) shall be credited against the amount due under the
Sublease.
10.4 It is hereby expressly stipulated by Sublandlord and Subtenant that
any of the above listed actions including, without limitation, termination of
this Sublease, termination of Subtenant's right to possession, and re-entry by
Sublandlord, will not affect the obligations of Subtenant for the unexpired
Sublease Term, including the obligations to pay unaccrued monthly rentals and
other charges provided in this Sublease for the remaining portion of the
Sublease Term. If an event of default occurs, and is not cured within -the
applicable cure period, if any, Sublandlord is entitled and is hereby
authorized, without notice to Subtenant, to enter upon the Premises by use of a
master key, a duplicate key, or other peaceable means, and to change, alter,
and/or modify the door locks on all entry doors of the Premises, thereby
permanently excluding Subtenant, and its officers, principals, agents,
employees, and representatives therefrom. In the event that Sublandlord has
either terminated Subtenant's right to possession of the Premises pursuant to
the foregoing provisions of this Sublease, or has terminated the Sublease by
reason of Subtenant's default,
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Sublandlord shall not thereafter be obligated to provide Subtenant with a key to
the Premises at any time; provided, however, that in any such instance, during
Sublandlord's normal business hours and at the convenience of Sublandlord, and
upon the written request of Subtenant accompanied by such written waiver and
releases as the Sublandlord may require, Sublandlord will escort Subtenant or
its, authorized personnel to the Premises to retrieve any personal belongings or
other property of Subtenant. If Sublandlord elects to exclude Sub tenant from
the Premises without permanently repossessing the Premises or terminating the
Sublease pursuant to the foregoing provisions of this Sublease, the Sublandlord
(at any time prior to actual permanent repossession or termination) shall not be
obligated to provide Subtenant a key to re-enter the Premises until such time as
all delinquent rental and other amounts due under this Sublease have been paid
in full (and all other defaults, if any, have been completely cured to
Sublandlord's satisfaction), and Sublandlord has been given assurance reasonably
satisfactory to Sublandlord evidencing Subtenant's ability to satisfy its
remaining obligations under this Sublease. During any such temporary period of
exclusion, Sublandlord will, during Sublandlord's regular business hours, and at
Sublandlord's convenience, upon written request by Subtenant accompanied by such
waivers and releases as the Sublandlord may require, escort Subtenant or its
authorized personnel to the Premises to retrieve personal belongings of
Subtenant or its employees. This remedy of Sublandlord shall be in addition to,
and not in lieu of, any of its other remedies set forth in this Sublease, the
▇▇▇▇▇▇▇▇▇, or otherwise available to Sublandlord at law or in equity.
10.5 Exercise by Sublandlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance or surrender of
the Premises by Subtenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Sublandlord and Subtenant. No such alteration of locks or other security devices
and no removal or other exercise of dominion by Sublandlord over the property of
Subtenant or others at the Premises shall be deemed unauthorized or constitute a
conversion, Subtenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Subtenant's property within the Premises.
All claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Subtenant 'agrees
that any re-entry by Sublandlord may be pursuant to a judgment obtained in
forcible detainer proceedings or other legal proceedings without the necessity
for any legal proceedings, as Sublandlord may elect, and Sublandlord shall not
be liable in trespass or otherwise.
10.6 Neither Subtenant nor Sublandlord shall be liable for consequential
damages caused by such party's default under this Sublease.
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11. SUBLANDLORD REPRESENTATION
11.1 Sublandlord represents (a) that it is the sole holder of the interest
of the tenant under the ▇▇▇▇▇▇▇▇▇ and Sublandlord possesses fun power and
authority to enter into this Sublease (subject to obtaining the consent of
Overlandlord) and (b) that the ▇▇▇▇▇▇▇▇▇ is in full force and effect.
12. BROKERS
12.1 Each party (in this Section 12.1, the "Indemnitor") covenants,
represents and warrants to the other party (in this Section 12.1, the
"Indemnitee") that Indemnitor has had no dealings or communications with any
broker or agent in connection with the consummation of this Sublease other than
those set forth, in SECTION 1.1 hereof, and Indemnitor covenants and agrees to
pay, hold harmless and indemnify Indemnitee from and against any and all cost,
expense (including reasonable attorneys' fees) or liability for any
compensation, commissions or charges claimed by any broker or agent other than
such brokers with respect to this Sublease or the negotiation thereof based on
dealings or communications with Indemnitor.
13. OPERATING EXPENSES/TAXES
13.1 During the first eleven (11) months of the Sublease Term consisting
of the period from February 1, 1996, through and including December 31, 1996,
Subtenant shall have no separate obligation to reimburse Sublandlord for any
portion of the "Operating Expenses" (as defined in the ▇▇▇▇▇▇▇▇▇) or "Property
Taxes" (as defined in the ▇▇▇▇▇▇▇▇▇) as the Base Rent during that period
includes a component for such charges. The parties hereby estimate that the
component charge for Operating Expenses and Property Taxes is $.65 per square
foot. At the expiration of the 1996 calendar year (the "Base Year"), Sublandlord
shall provide Subtenant with a statement of the Operating Expenses and Property
Taxes paid by Sublandlord under the ▇▇▇▇▇▇▇▇▇ during the Base Year.
13.2 As used in this Sublease, the term "Calendar Year" means each period
of January 1st through the following December 31st after the Base Year.
Commencing with the first Calendar Year after the Base Year and continuing each
Calendar Year thereafter, Subtenant shall reimburse Sublandlord for "Subtenant's
Proportionate Share" (as that term is defined in Section 1.1[p] hereof) of that
portion of the aggregate Operating Expenses and Property Taxes paid by
Sublandlord (as tenant) to Overlandlord for that particular Calendar Year that
exceeds the aggregate Operating Expenses and Property Taxes paid by Sublandlord
(as tenant) to Overlandlord during the Base Year, which amount to be reimbursed
to Sublandlord by Subtenant is hereinafter referred to as "Subtenant's Share of
Expenses.
13.3 Subtenant's Share of Expenses shall be paid to Sublandlord in equal
monthly installments paid at the same time as Base Rent is paid on the basis of
Sublandlord's
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reasonable estimate of Subtenant's Share of Expenses for each Calendar Year.
Following the end of each Calendar Year, Sublandlord shall deliver reasonable
proof of the Operating Expenses and Property Taxes paid to Overlandlord by
Sublandlord as the tenant under the ▇▇▇▇▇▇▇▇▇ during that Calendar Year and the
calculation of Subtenant's Share of Expenses for the Calendar Year in question.
In the event that such statement shows that Subtenant has underpaid the amount
due as Subtenant's Share of Expenses, Subtenant shall promptly pay the
deficiency to Sublandlord; if the statement shows that Subtenant has overpaid
the amount due as Subtenant's Share of Expenses, the overpayment amount shall be
credited against the next due monthly installments thereof to be made by
Subtenant, except, at the end of the Sublease Term, the overpayment amount shall
be refunded to Subtenant promptly.
13.4 If Subtenant notifies Sublandlord of any failure by Overlandlord to
perform or observe Overlandlord's obligations under the ▇▇▇▇▇▇▇▇▇, as such
obligations relate to the Premises demised under the Sublease and areas
appurtenant their etc., Sublandlord shall make demand upon the Overlandlord so
to perform and observe the obligations and shall thereafter take such action as
may be reasonably be required to enforce the provisions of the ▇▇▇▇▇▇▇▇▇.
13.5 Under the terms of the ▇▇▇▇▇▇▇▇▇, Overlandlord is obligated to
furnish the Premises with electricity for lighting and the operation of normal
desk-top office machines, heat, ventilating and air conditioning, elevator
service, lighting replacement for building standard fixtures, rest room
supplies, window washing with reasonable frequency, and daily janitor service on
normal business days. Sublandlord shall not be responsible for providing any
such services to Subtenant. Normal Business days for the Building shall include
Monday through Friday excluding the following holidays: New Years Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving and Christmas and other national
legal holidays. Overlandlord shall not be in default hereunder or be liable for
any damages directly or indirectly resulting from, nor shall the rental herein
reserved by abated by reason of (i) the installation, use or interruption of use
of any equipment in connection with the furnishing of any of the foregoing
services, (ii) failure to furnish or delay in furnishing any such services, or
(iii) the limitation, curtailment, rationing or restrictions on use of water,
electricity, gas or any other form of energy serving the Premises. Subtenant
shall reimburse Overlandlord for the cost of providing heat, air conditioning
and utility services in excess of that required for normal office use or during
other than usual business hours for the Building of 8:00 a.m. to 6:00 p.m. as
well as the cost of providing power for other than normal desk-top office
equipment. In the event of any interruption in services to Subtenant during the
Sublease Term, Subtenant shall be entitled to the same remedies as are available
to Sublandlord as Tenant under the ▇▇▇▇▇▇▇▇▇.
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13.6 Except for damages caused by Subtenant, its agents or invitees, and
subject to the provisions of the ▇▇▇▇▇▇▇▇▇, under the terms of the ▇▇▇▇▇▇▇▇▇,
Overlandlord is obligated to keep in good condition and repair the foundations
and exterior walls and roof of the Building and all common areas within the
Building not leased to subtenants. Subtenant expressly waives the benefits of
any statute which would otherwise afford Subtenant the right to make repairs at
Overlandlord's or Sublandlord's expense or to terminate this Sublease because of
Overlandlord's failure to keep the Premises or the Building in good order,
condition, and repair.
13.7 Omitted.
13.8 Subtenant shall not, without Overlandlord's prior consent, make any
alterations, improvements, or additions in or about the Premises. In requesting
Overlandlord's consent, Subtenant shall submit to Overlandlord complete
drawings, and specifications describing such work and the identity of the
proposed contractor. As a condition to giving such consent, Overlandlord may,
among other things, require that Subtenant remove any tion-office use
alterations, improvements or additions that Subtenant may install including, for
example, kitchens, computer rooms and specially improved file rooms at the
expiration of the term which would, if left, require unusual and unreasonable
expense to be incurred to readapt the space for normal office use and restore
the Premises to their prior condition. Overlandlord shall have the right at any
time and from time to time to post and maintain on the Premises such. notices as
Overlandlord reasonably deems necessary to protect the Premises, Overlandlord
and Sublandlord from mechanics' liens or. any other liens. In any event,
Subtenant shall pay when due all claims for labor or materials furnished to -or
for Subtenant at or for use in the Premises to the extent such payments are due
and owing. Subtenant shall not permit any mechanics' liens to be levied against
the Premises for any labor or materials furnished to Subtenant or claimed to
have been furnished to Subtenant or to Subtenant's agents or contractors in
connection with work of any character performed or claimed to have been
performed on the Premises by or at the direction of Subtenant or shall remove
such liens of record by bonding against same within fifteen (15) days after the
filing of the liens. AR alterations, improvements, or additions in or about the
Premises performed by or on behalf of Subtenant shall be done in a first-class,
workmanlike manner, shall not unreasonably lessen the value of the leasehold
improvements in the Premises, and shall be completed in compliance with all
applicable laws, ordinances, regulations, and orders of any governmental
-authority having jurisdiction there over, as well as the requirements of
insurers of the Premises and the Building. Upon Overlandlord's request,
Subtenant shall remove any contractor, subcontractor, or material supplier from
the Premises and the Building if the work or presence of such person or entity
results in labor disputes in or about the Building or the Marina Village
Project, or damage to the Premises, Building or Project. Unless Overlandlord
requires their removal as set forth above, all alterations, improvements or
15
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additions which may be made on the Premises shall become the property of
Overlandlord and remain upon and be surrendered with the Premises at the
expiration of the term; provided, however, that Subtenant's machinery, equipment
and trade fixtures, other than any which may be affixed to the Premises so that
they cannot be removed without material damage-to the Premises, shall remain the
property of Subtenant and may be removed by Subtenant provided further Subtenant
shall be responsible for repairing all damage to the Premises caused by such
removal.
13.9 To the extent that Sublandlord incurs any obligation to pay
Overlandlord of Additional Rent" pursuant to Section 12 of the ▇▇▇▇▇▇▇▇▇ during
the Sublease Term, Subtenant shall reimburse Sublandlord for Subtenant's
Proportionate Share thereof upon receipt of Sublandlord's request therefor,
which request shall be accompanied by reasonable evidence of Sublandlord's
payment (or obligation to pay) such "Additional Rent" pursuant to the ▇▇▇▇▇▇▇▇▇.
14. ALTERATIONS
14.1 In the event Subtenant is permitted to perform alterations in the
Premises pursuant to Section 13.8 hereof, Subtenant shall make no changes,
alterations, additions, improvements or decorations in, to or about the Premises
without submitting detailed plans and construction schedules to Sublandlord and
receiving Sublandlord's prior written consent to such plans. Subtenant shall
make no changes, alterations, additional improvements or decorations which would
result in Overlandlord charging Sublandlord for the cost of same, including any
removal costs associated therewith and, if Subtenant makes any such changes,
alterations, additions or improvements, Subtenant shall comply with all laws and
regulations relating to such construction including, but not limited to, receipt
of certificates of occupancy, permits and ADA requirements, and shall be
responsible for all costs associated therewith. Sublandlord may impose
reasonable guidelines as may be necessary to protect its occupancy and rights
provided in the ▇▇▇▇▇▇▇▇▇, including placing reasonable restrictions on times
when certain types of work may be performed in order to prevent undue intrusion
and noise to Sublandlord or other tenants in the Leased Space.. Subtenant shall
also be required to obtain such approval from Overlandlord, and Sublandlord's
consent shall not constitute the consent of Overlandlord.
15. QUIET ENJOYMENT
15.1 So long as Subtenant pays all of the rent and additional rent due
under this Sublease and performs all of Subtenant's other obligations
hereunder,' Sublandlord shall assure that Subtenant shall peacefully and quietly
have, hold and enjoy the Premises, and any other areas to which Sublandlord has
rights under the ▇▇▇▇▇▇▇▇▇, subject, however, to the terms, provisions and
obligations of this Sublease and the ▇▇▇▇▇▇▇▇▇.
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15.2 In the event Subtenant does not completely vacate the Premises by the
Sublease Expiration Date or earlier termination of this Sublease, Subtenant
shall indemnify and hold harmless Sublandlord in respect of any and all holdover
charges or penalties imposed under the ▇▇▇▇▇▇▇▇▇ upon Sublandlord in respect of
the entire Leased Space. -in this regard, Subtenant shall, if requested by
Sublandlord, in Sublandlord's sole discretion, defend Sublandlord against any
action or proceeding brought against Sublandlord which arises out of said
holdover.
16. DAMAGE AND DESTRUCTION
16.1 In the event that the ▇▇▇▇▇▇▇▇▇ terminates as a result of the damage
or destruction of the Building, this Sublease shall terminate concurrently
therewith. In the event that the Building is damaged such that the ▇▇▇▇▇▇▇▇▇ is
not terminated but Subtenant is prevented thereby from using the Premises in the
manner contemplated at the time that this Sublease is made, Subtenant shall have
the right to terminate this Sublease if such damage and destruction is not
repaired within one hundred eighty (180) days of the date of such damage and
destruction. No such notice of termination by Subtenant shall be effective
unless accompanied by the applicable "Termination Fee." The Termination Fee
represents (a) the unamortized rent abatement given to Subtenant at the
commencement of the Sublease Term as an inducement to enter into this Sublease,
and (b) the unamortized real estate brokerage fee paid by Sublandlord with
respect to this Sublease. The applicable Termination Fee shall be the principal
balance shown on the Amortization Schedule that is Exhibit C, annexed hereto and
incorporated herein, for the month in which such termination notice is given.
The termination notice given by Subtenant shall be effective upon receipt by
Sublandlord so long as such notice is accompanied by the full and unconditional
payment of the Termination Fee.
17. NO WAIVER
17.1 The failure of either party to seek redress for violation of
Sublandlord to insist upon the strict performance of, or to insist upon the
strict performance of any covenant or condition of this Sublease or of any of
the Rules and Regulations set forth or hereafter adopted by Sublandlord, shall
not prevent a subsequent act which would have originally constituted a violation
-from having all the force and effect of an original violation. The receipt by
Sublandlord of rent with knowledge of the breach on any covenant of this
Sublease shall be deemed to have been waived by Sublandlord unless such waiver
be in writing signed by Sublandlord. No payment by Subtenant or receipt by
Sublandlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated base rent,
additional rent or other charge, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Sublandlord may accept such check or payment
without prejudice to Sublandlord's right to recover the balance of such base
rent, additional rent or other charge, or pursue. any other remedy in this
Sublease
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provided. No act or thing done by Sublandlord or Sublandlord's agents during the
term hereby demised shall be deemed an acceptance of a surrender of the Premises
and no agreement to accept such surrender shall be valid unless in writing
signed by Sublandlord. No employee of Sublandlord of Sublandlord's agent shall
have any power to accept the keys of the Premises prior to the expiration of the
Sublease and the delivery of keys to any such agent or employee shall not
operate as a termination of the Sublease or a surrender of the Premises.
18. NOTICES
18.1 Any notice, demand or communication which, under the terms of this
Sublease or under any statute or municipal regulation must or may be given or
made by the parties hereto, shall be in writing and given or made by: (a)
express courier, overnight or better service that requires a signatures as a
condition of delivery (such as Federal Express); or (b) mailing the same by
registered or certified mail, return receipt requested addressed to the address
and person designated in Section 1.1(a) and (c) herein.
18.2 Either party, however, may designate such new or other address to
which such notices, demands or communications thereafter shall be given, made or
mailed by notice (given in the manner prescribed herein). Any such notice,
demand or communication shall be deemed given or served, as the case may be,
upon receipt or attempted delivery if delivery is refused or is not possible.
19. MISCELLANEOUS
19.1 This Sublease may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
19.2 This Sublease shall not be binding upon Sublandlord unless and until
it is signed by Sublandlord and delivered to Subtenant. This Section 19.2 shall
not be deemed to modify the provisions of Section 9 hereof.
19.3 This Sublease constitutes the entire agreement between the parties
and all representations and understandings have been merged herein.
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19.4 This Sublease shall inure to the benefit of all the parties hereto,
their successors and (subject to the provisions hereof) their assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals of
the day and year first above written.
ATTEST: COMPUTER ASSOCIATES
INTERNATIONAL, INC., Sublandlord
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------------
Title: Senior Vice President
ATTEST: WINK COMMUNICATIONS, INC., Subtenant
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. Del Sesto By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- -------------------------------------
Title: Vice President, Business Development
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TABLE OF CONTENTS
Page
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1. Parties.....................................................................1
2. Demise of Premises..........................................................1
3. Lease Term and Definitions..................................................1
A. Lease Term............................................................1
B. Definitions...........................................................1
4. Rent........................................................................3
A. Payment of Rent.......................................................3
B. Schedule of Base Monthly Rent.........................................3
C. Rental Abatement......................................................3
D. Late Charge...........................................................3
E. Additional Rent.......................................................3
F. Operating Expenses....................................................4
G. Place of Payment......................................................6
5. Security Deposit............................................................6
6. Use of Premises.............................................................6
7. Taxes and Assessments.......................................................6
A. Tenant's Property.....................................................6
B. Payment of Property Taxes.............................................6
C. Property Taxes Defined................................................7
D. Assessments...........................................................7
E. Other Taxes...........................................................7
F. Tenant's Right to Contest.............................................7
G. Reduction in Property Taxes...........................................8
8. Insurance...................................................................8
A. Waiver and Indemnity..................................................8
B. Tenant's Liability Insurance..........................................8
C. Landlord's Liability Insurance........................................8
D. Fire and All Risk Insurance...........................................9
E. Release of Landlord...................................................9
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...........................................................11
D. Condition on Delivery................................................11
E. Limitation on Repair Obligation of Landlord..........................11
11. Outside Areas..............................................................11
12. Amortization of Certain Improvements as Additional Rent....................12
13. Alterations................................................................12
A. Trade Fixtures.......................................................12
B. Alterations..........................................................12
▇. ▇▇▇▇ Waiver..........................................................13
D. Legally Required Alterations.........................................14
14. Intentionally Omitted......................................................14
15. Default....................................................................14
A. Events of Tenant's Default...........................................14
B. Remedies.............................................................15
16. Destruction................................................................16
A. Landlord's Duty to Restore...........................................16
B. Landlord's Right to Terminate........................................16
C. Tenant's Right to Terminate..........................................17
D. Abatement of Rent....................................................17
17. Condemnation...............................................................18
A. Definition of Terms..................................................18
B. Rights...............................................................18
C. Total Taking.........................................................18
D. Partial Taking.......................................................18
23
E. Temporary Taking.....................................................18
18. Mechanics' Liens...........................................................18
19. Inspection of the Premises.................................................19
20. Compliance with Laws.......................................................19
A. Obligation of Tenant.................................................19
B. Right to Contest.....................................................19
21. Subordination..............................................................19
22. Holding Over...............................................................20
23. Notices....................................................................20
24. Attorneys' Fees............................................................20
25. Nonassignment..............................................................20
A. Consent Required.....................................................20
B. Notice Required......................................................22
C. Landlord's Right to Share in Net Subrent Profit......................22
D. Exempt Transfers.....................................................23
26. Successors.................................................................23
-i-
24
TABLE OF CONTENTS
(continued)
Page
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27. Lender Protection..........................................................23
28. Estopel Certificates and Financial Statements..............................23
29. Surrender of Lease Not Merger..............................................23
30. Waiver.....................................................................23
31. General....................................................................23
A. Captions.............................................................23
B. Landlord Defined.....................................................23
C. Time.................................................................24
D. Severability Governing Law...........................................24
E. Joint and Several Liability..........................................25
F. Exhibits.............................................................25
G. Miscellaneous........................................................25
H. Survival.............................................................25
32. Signs......................................................................25
33. Interest on Past Due Obligation............................................25
34. Surrender of the Premises..................................................25
35. Authority..................................................................26
36. Options to Extend..........................................................26
37. Hazardous Material.........................................................27
A. Definitions..........................................................27
B. Use Restriction......................................................27
C. Compliance...........................................................28
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.................................................29
43. Memorandum of Lease........................................................30
44. Non-Discrimination.........................................................30
45. Brokerage Commissions......................................................31
EXHIBITS
EXHIBIT A - Diagram(s) of Premises
EXHIBIT B - [omitted]
EXHIBIT C - Diagram of Marina Village Project
EXHIBIT D - Existing Hazardous Material Condition
-ii-
25
MARINA VILLAGE
LEASE
-----------------------
ASK COMPUTER SYSTEMS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
As of the Commencement Date (as hereinafter defined) this Lease shall replace
and supersede that certain Lease dated October 1, 1987 ("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.
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);
C. All interior improvements (the "Tenant Improvement") previously
constructed in the Premises by Landlord for Tenant; and
3. Lease Term and Definitions.
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.
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director, trustee, stockholder 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.,
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.
(iv) The term "Alterations" shall mean all 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 of 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 Area" shall mean all access roads, driveways,
parking
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areas, loading docks and ramps, sidewalks, 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 "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 "glass line" outside boundary,
excluding major vertical penetrations, such as stair ▇▇▇▇▇,
elevators and mechanical shafts, exterior decks, atria and
courtyards.
(xv) 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, business and production equipment and
systems, furniture and furnishings) unless such thing has, by the
manner in which it is affixed, become an integral part of the
Premises.
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(4) If requested by Tenant, Landlord shall make available to Tenant,
within 45 days of Tenant's notice of request, 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
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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.
5. Security Deposit. No security or similar deposit shall at any time be due
from Tenant under this Lease.
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.
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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
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 on 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, 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
or 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 a protest, Tenant shall
pay the same.
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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 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, that the foregoing waiver shall not apply to
(i) damage to the property or persons other than Tenant; or (ii) death or
injury to any person resulting from the negligence or willful misconduct
of Landlord or its Agents. Tenants 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 the
Premises. Landlord shall hold harmless from and defend Tenant against all
claims (except such as arise from the negligence 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, 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. 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 lease 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, at 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 form 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 Tenant
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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 Tenant 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 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 12A. 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 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
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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
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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.
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(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 recommended
specifications. Landlord shall deliver to Tenant a written
report prepared by the party making such inspections promptly
after the conclusion 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 this 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.
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, 13.D, 16 and
17. Tenant hereby expressly waives the provisions of Subsection 1 of
1932 and Sections 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
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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
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.
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.
A. Trade Fixtures. Throughout the Lease Term, Tenant shall provide,
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 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
38
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 the 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
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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 relates 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 Tenant 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:
(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 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 excepted. 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
40
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 with Landlord's consent.
(C) Lien Waiver. Landlord, within thirty (30) days after request from
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 and Trade Fixtures from the Premises before the
expiration of the Lease Term or within five (5) days after
13
41
property, and such case, proceeding or other action (a) results in the
entry of an order for relief against in 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 estoppel
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
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 of 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
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 to 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
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
42
exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(c) the wroth 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
clearing, repairing or restoring damage to the Premises for
which Tenant is responsible; (ii) real estate broker's fees,
advertising costs and
15
43
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 Paragraph 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
44
Page 17
45
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 or furnished to Tenant
18
46
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 of
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 (act 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. (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
47
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
19
48
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 Lender (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.
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.
B. Notice Required. If 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"),
21
49
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 Right 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 to 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 to 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 be 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.
(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 by 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 (c) 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
50
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 is adjusted pursuant to
Paragraph 41.
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51
EXHIBIT B
(IMAGE NOT SHOWN)
52
AMORTIZATION SCHEDULE MONTHLY PAYMENTS
PRINCIPAL AMOUNT $126,467.00
INT RATE/YR (WHOLE NUMBERS) 9
PAYMENT AMOUNT $ 3,147.14
NUMBER OF PAYMENTS 48
STARTING DATE.......................... YEAR 1996
MONTH 2
DAY 1
================================================================================
# DATE ▇▇▇. INT. PAYMENT INTEREST PRINCIPAL BALANCE
================================================================================
1 Feb-96 $3,147.14 $948.50 $2,198.64 $124,268.36
2 Mar-96 $3,147.14 $932.01 $2,215.13 $122,053.24
3 Apr-96 $3,147.14 $915.40 $2,231.74 $119,821.49
4 May-96 $3,147.14 $898.66 $2,248.48 $117,573.02
5 Jun-96 $3,147.14 $881.80 $2,265.34 $115,307.67
6 Jul-96 $3,147.14 $864.81 $2,282.33 $113,025.34
7 Aug-96 $3,147.14 $847.69 $2,299.45 $110,725.89
8 Sep-96 $3,147.14 $830.44 $2,316.70 $108,409.20
9 Oct-96 $3,147.14 $813.07 $2,334.07 $106,075.12
10 Nov-96 $3,147.14 $795.56 $2,351.58 $103,723.55
11 Dec-96 $3,147.14 $777.93 $2,369.21 $101,354.33
12 Jan-97 $3,147.14 $760.16 $2,386.98 $ 98,967.35
13 Feb-97 $3,147.14 $742.26 $2,404.88 $ 96,562.47
14 Mar-97 $3,147.14 $724.22 $2,422.92 $ 94,139.55
15 Apr-97 $3,147.14 $706.05 $2,441.09 $ 91,698.45
16 May-97 $3,147.14 $687.74 $2,459.40 $ 89,239.05
17 Jun-97 $3,147.14 $669.29 $2,477.85 $ 86,761.20
18 Jul-97 $3,147.14 $650.71 $2,496.43 $ 84,264.77
19 Aug-97 $3,147.14 $631.99 $2,515.15 $ 81,749.62
20 Sep-97 $3,147.14 $613.12 $2,534.02 $ 79,215.60
21 Oct-97 $3,147.14 $594.12 $2,553.02 $ 76,662.58
22 Nov-97 $3,147.14 $574.97 $2,572.17 $ 74,090.41
23 Dec-97 $3,147.14 $555.68 $2,591.46 $ 71,498.94
24 Jan-98 $3,147.14 $536.24 $2,610.90 $ 68,888.05
25 Feb-98 $3,147.14 $516.66 $2,630.48 $ 66,257.57
26 Mar-98 $3,147.14 $496.93 $2,650.21 $ 63,607.36
27 Apr-98 $3,147.14 $477.06 $2,670.08 $ 60,937.27
28 May-98 $3,147.14 $457.03 $2,690.11 $ 58,247.16
29 Jun-98 $3,147.14 $436.85 $2,710.29 $ 55,536.88
30 Jul-98 $3,147.14 $416.53 $2,730.61 $ 52,806.26
31 Aug-98 $3,147.14 $396.05 $2,751.09 $ 50,055.17
32 Sep-98 $3,147.14 $375.41 $2,771.73 $ 47,283.44
33 Oct-98 $3,147.14 $354.63 $2,792.51 $ 44,490.93
34 Nov-98 $3,147.14 $333.68 $2,813.46 $ 41,677.47
35 Dec-98 $3,147.14 $312.58 $2,834.56 $ 38,842.91
36 Jan-99 $3,147.14 $291.32 $2,855.82 $ 35,987.10
37 Feb-99 $3,147.14 $269.90 $2,877.24 $ 33,109.86
38 Mar-99 $3,147.14 $248.32 $2,898.82 $ 30,211.04
EXHIBIT C
PAGE 1 OF 2
53
39 Apr-99 $3,147.14 $226.58 $2,920.56 $ 27,290.49
40 May-99 $3,147.14 $204.68 $2,942.46 $ 24,348.02
41 Jun-99 $3,147.14 $182.61 $2,964.53 $ 21,383.49
42 Jul-99 $3,147.14 $160.38 $2,986.76 $ 18,396.73
43 Aug-99 $3,147.14 $137.98 $3,009.16 $ 15,387.57
44 Sep-99 $3,147.14 $115.41 $3,031.73 $ 12,355.83
45 Oct-99 $3,147.14 $ 92.67 $3,054.47 $ 9,301.36
46 Nov-99 $3,147.14 $ 69.76 $3,077.38 $ 6,223.98
47 Dec-99 $3,147.14 $ 46.68 $3,100.46 $ 3,123.52
48 Jan-00 $3,146.95 $ 23.43 $3,123.52 ($0.00)
--------------------------------------------------------------------------------
$151,062.53 $24,595.53 $126,467.00
EXHIBIT C
PAGE 2 OF 2
54
26. Successors. This Lease shall be binding on the parties hereto and on
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 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 this Lease is unmodified and in full force
and effect or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect,
(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 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 Tenant's Default under Paragraph 15. Landlord shall
use reasonable efforts to keep confidential all financial statements
delivered to it by Tenant pursuant to this paragraph 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 of 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.
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
55
meaning of any part of this Lease.
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56
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 personal 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 required under Paragraph 2.D.,
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 costs which will then be
required to complete such renovation improvements, or shall deliver to
Tenant a surety 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 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 to complete the renovation
improvements and/or Paragraph 37.G concerning Hazardous Materials
("Special Defaults"): (i) for Special Defaults, Tenant shall first seek
recourse against the 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 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
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Leases"), and that each of the Other Leases contains a provision
substantially the same as that contained in the immediately preceding
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 his Lease shall be construed as if such
invalid, illegal
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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 broadest
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 recission
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 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.
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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 excepted, 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
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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 limitations,
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. Property 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 have 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
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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
appointed by the parties cannot agree on the appointment of the third
appraiser, they or either or 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 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
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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 alga 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 that in effect prior to the delivery of Tenant's notice of
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 of Tenant which
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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 nay hydrocarbon-based compounds or any Hazardous
Material that has been detected at any time at levels exceeding
"action levels" of any governmental 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.
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(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 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 account 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 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
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requirement 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 which Tenant has exclusive control occurring after the date
possession of the Premises, or the portion where such 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 37.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 buy Tenant or its Agents. If the Premises has been used
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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 injury, 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, stored and disposed of 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 ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ 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 attorneys' 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
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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 subtenant) 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.
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
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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, and 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 judgment 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
demand 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 owed 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
69
acknowledges that neither the Landlord nor Landlord's Agent has made any
representation or warranty as to the suitability of the Premises to the
conduct of Tenant's business. Any agreement, 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.
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 covenants 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
30
70
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 not had 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 agreement
between Landlord and Brokers.
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
Its: VP & General Counsel a California corporation
Managing General Partner
By: __________________________ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: __________________________ Its: President
Date of Execution Date of Execution
by Tenant: June 26, 1992 By Landlord: 6/26/92
31
71
EXHIBIT A
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EXHIBIT A
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EXHIBIT A
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EXHIBIT A
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EXHIBIT B
----------------
EXHIBIT "B" INTENTIONALLY OMITTED.
PAGE 1 OF 1
76
EXHIBIT C
----------------
OUTLINE OF PROJECT
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PAGE 1 OF 1
77
LEASE
BY AND BETWEEN
ALAMEDA REAL ESTATE INVESTMENTS,
a California limited partnership
AND
ASK COMPUTER SYSTEMS, INC.,
a California corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
78
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 11 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 GTuvurid-Water
Investigation of Parcel 5 and Implementation of a Ground-Water Monitoring
Program and Proposed Remedial 'Measures in the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇" 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
79
AMENDMENT NO. 1
TO
MARINA VILLAGE OFFICE LEASE
(1001 MARINA VILLAGE PARKWAY)
THIS AMENDMENT NO. 1 is made and entered into as of July 31, 1993, by and
between THE ASK GROUP, INC., a Delaware corporation, as successor-in-interest to
ASK Computer Systems, Inc., ("Tenant") and ALAMEDA REAL ESTATE INVESTMENTS, a
California limited partnership ("Landlord").
Landlord and Tenant have entered into that certain Marina Village Lease dated
June 25, 1992 (the "Lease") with respect to certain premises located within ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Unless otherwise defined, all
capitalized terms used on this Amendment shall have the same meanings as set
forth in the Lease. Landlord and Tenant desire to amend the Lease as hereinafter
provided and, accordingly, Landlord and Tenant hereby agree as follows:
1. Amendment of Paragraph 2.B. Paragraph 2.B. of the Lease is hereby amended
as of August 1, 1993 to read as follows:
B. Approximately 67,581 square feet of Rentable Area (as defined in
Paragraph 3.B. (xii)) as shown on Exhibit A-1 hereto, subject to
adjustment under Paragraph 2.D., and located within that building
(the "Building") known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, constructed
on a portion of that certain real property described as Lot 2 of
Parcel May 5434 recorded February 23, 1989 in Map Book 182, Pages
56-59, Alameda County Records (the "Parcel").
2. Amendment of Paragraph 2.D. Paragraph 2.D. is hereby amended as of
August 1, 1993 to read as follows:
D. Landlord and Tenant acknowledge and agree that approximately 4,247
square feet of Rentable Area known as Suite 401 in the Building
which was previously leased to another tenant is being delivered by
Landlord to Tenant as of July 1, 1993 as evidenced by the terms of
Amendment No. 1 to the Lease. Tenant has elected to defer Landlord's
obligation to construct certain renovation improvements within such
space known as Suite 401 (as specified below) until a later date
within the Lease Term. Landlord and Tenant agree that
notwithstanding anything to the contrary in this Lease, Tenant's
obligation to pay Base Monthly Rent, Operating Expenses and property
Taxes allocable to such space known as Suite 401 shall be abated
during the construction of renovation improvements until two weeks
after the date of such future delivery of the space known as Suite
401 to Tenant.
At such time as Landlord delivers possession to Tenant all or any
portion of the approximately 5,660 square feet of space remaining in
the Building currently leased to other tenants, the space delivered
to Tenant shall, by means of an amendment to this Lease, be added to
and become a part of the Premises, and the Base Monthly Rent and
Tenant's Percentage Share (as such terms are hereinafter defined)
shall be increased to reflect the addition of such space to the
Premises. Notwithstanding anything to the contrary in this Lease,
Tenant's obligation to pay Base Monthly Rent, Operating Expenses,
Property Taxes allocable to the portion of the Premises so delivered
shall not commence until two weeks after the date of delivery. Prior
to delivery of such space, or any portion thereof, Landlord shall
construct certain renovation improvements within the space in
accordance with a mutually agreed upon space plan, with Landlord's
standard office finishes and in a manner similar to the Premises.
80
3. Amendment of Paragraph 3.B. (xiv). Paragraph 3.B.(xiv) of the Lease is
hereby amended to read as follows:
(xiv) 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 92.27% as of August 1, 1993, subject to
further adjustment under
subparagraph 2.D. above.
3. Ratification. Landlord and Tenant hereby ratify and confirm all of the
terms of the Lease as modified by paragraphs 1 through 3 above.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
date first above written.
TENANT: LANDLORD:
THE ASK GROUP, INC. ALAMEDA REAL ESTATE INVESTMENTS
a Delaware corporation a California limited partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President Vice President
Finance & Information Services
The ASK Group
81
EXHIBIT A-1
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82
EXHIBIT A-1
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83
EXHIBIT A-1
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(CONTINUED)
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84
EXHIBIT A-1
---------------
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(CONTINUED)
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85
AMENDMENT NO. 2
TO
MARINA VILLAGE OFFICE LEASE
(1001 MARINA VILLAGE PARKWAY)
THIS AMENDMENT NO. 2 is made and entered into as of November 30, 1993 by and
between THE ASK GROUP, INC., a Delaware corporation, as successor-in-interest to
ASK Computer Systems, Inc., ("Tenant") and ALAMEDA REAL ESTATE INVESTMENTS, a
California limited partnership ("Landlord").
Landlord and Tenant have entered into that certain Marina Village Lease dated
June 25, 1992, as amended, (the "Lease") with respect to certain premises
located within ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Unless
otherwise defined, all capitalized terms used on this Amendment shall have the
same meanings as set forth in the Lease. Landlord and Tenant desire to amend the
Lease as hereinafter provided and, accordingly, Landlord and Tenant hereby agree
as follows:
1. Amendment of Paragraph 2.B. Paragraph 2.B. of the Lease is hereby amended
as of December 1, 1993 to read as follows:
B. Approximately 71,440 square feet of Rentable Area (as defined in
Paragraph 3.B.(xii)) as shown on Exhibit A-2 hereto, subject to
adjustment under Paragraph 2.D., and located within that building
(the "Building") known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, constructed
on a portion of that certain real property described as Lot 2 of
Parcel May 5434 recorded February 23, 1989 in Map Book 182, Pages
56-59, Alameda County Records (the "Parcel").
2. Amendment of Paragraph 2.D. Paragraph 2.D. is hereby amended as of
December 1, 1993 to read as follows:
D. Landlord and Tenant acknowledge and agree that approximately 4,247
square feet of Rentable Area known as Suite 401 and approximately
3,859 square feet of Rentable Area known as Suite 400, each of which
was previously leased to another tenant, have been or are being
delivered from Landlord to Tenant as of August 1, 1993 and December
1, 1993, respectively. Tenant has elected to defer Landlord's
obligations to construct certain renovation improvements with each
such space known as Suite 401 and Suite 400 (as specified below)
until a later date within the Lease Term. Landlord and Tenant agree
that notwithstanding anything to the contrary in this Lease,
Tenant's obligations to pay Base Monthly Rent, Operating Expenses
and Property Taxes allocable to such spaces known as ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ shall be abated during the construction of Landlord's
renovation improvements and until two weeks after the date of such
future delivery of each space to Tenant.
At such time as Landlord delivers possession to Tenant all or any
portion of the approximately 1,801 square feet of space remaining in
the Building currently leased to a third party tenant (Transamerica
Financial), such space delivered to Tenant shall, by means of an
amendment to this Lease, be added to and become a part of the
Premises, and the Base Monthly Rent and Tenant's Percentage Share
(as such terms are hereinafter defined) shall be increased to
reflect the addition of such space to the Premises. Notwithstanding
anything to the contrary in this Lease, Tenant's obligations to pay
Base Monthly Rent, Operating Expenses, Property Taxes allocable to
the portion of the Premises so delivered shall not commence until
two weeks after the date of delivery. Prior to delivery of such
space, or any portion thereof, Landlord shall construct certain
renovation improvements within the space or
86
portion to be delivered in accordance with a mutually agreed upon
space plan, with Landlord's standard office finishes and in a manner
similar to the Premises.
3. Amendment of Paragraph 3.B. (xiv). Paragraph 3.B.(xiv) of the Lease is
hereby amended to read as follows:
(xiv) 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 97.54% as of December 1, 1993, subject
to further adjustment under subparagraph 2.D. above.
4. Ratification. Landlord and Tenant hereby ratify and confirm all of the
terms of the Lease as modified by paragraphs 1 through 3 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Its: President
VICE PRESIDENT &
GENERAL COUNSEL
THE ASK GROUP, INC.
87
EXHIBIT A-2
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
[FLOOR PLAN MARINA VILLAGE]
88
EXHIBIT A-2
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(CONTINUED)
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89
EXHIBIT A-2
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(CONTINUED)
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90
EXHIBIT A-2
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(CONTINUED)
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91
The following language is hereby added to paragraph 10.B of the Lease, to read
as follows:
B. In addition, Landlord shall, subject to reimbursement for the cost thereof as
an Operating Expense, keep and maintain in good order, condition and repair
those portions of the Premises and the Common Areas consisting of 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 and within the Building serving the
Premises.
A new subparagraph B. (iv) is hereby added to Section 10 of the Lease, to read
as follows:
(iv) Landlord shall provide customary property management services for the
Premises, including arranging for janitorial service, elevator
maintenance, lighting replacement, restroom supplies, window washing with
reasonable frequency and security guards and services during the times and
in the manner that such services are customarily furnished in comparable
office buildings in the Oakland/Alameda area. In addition, Landlord shall
serve as Tenant's representative in arranging directly with Tenant's
subtenants in responding to requests for repairs and services customarily
provided by Landlords of similar premises. All direct out-of-pocket costs
incurred by Landlord in connection with the furnishing of services and
supplies in accordance with this paragraph, but excluding any additional
administrative costs or management fees, shall be reimbursed by Tenant to
Landlord as Operating Expenses. As part of Landlord's property management
services for the Premises and in the event all or any portion of the
Premises are effectively subleased by Tenant to a subtenant, then Landlord
shall ▇▇▇▇ each such subtenant based on its proportionate share of the
Operating Expenses pursuant to the terms of its sublease. All monies
collected by Landlord from subtenant(s) shall be transferred, on a monthly
basis and in a manner mutually agreed upon, to Tenant. Landlord shall
provide detailed ▇▇▇▇▇▇▇▇ to Tenant and any subtenants of such subtenants
share of Operating Expenses, with supporting backup documentation, as
necessary. At Tenant's option, Landlord shall also collect monthly base
rent from Tenant's subtenant(s) as set forth in its sublease and transfer
same, on a monthly basis, to Tenant.
4. Substitution of Computer Associates International, Inc., As Tenant. In
consideration of the execution and delivery of this Amendment by Landlord,
CAI as the sole shareholder of ASK, is hereby substituted for ASK, as the
Tenant under the Lease.
5. Effective Date of Amendment. The effective date of the terms of the Lease
shall be January 1, 1995.
6. Ratification. Landlord and Tenant hereby ratify and confirm all of the
terms of the Lease as modified in paragraph 1 through 4 above. All other
terms and conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 3 as of the
date first set forth above.
ASK: LANDLORD:
THE ASK GROUP, INC., ALAMEDA REAL ESTATE INVESTMENTS,
a Delaware corporation a California limited partnership
By: Vintage Properties-Alameda
Commercial
a California corporation, Managing
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ General Partner
92
Title: Vice Pres. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
CAI: Title: President
COMPUTER ASSOCIATES INTERNATIONAL, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Sr. Vice President
93
(IMAGE NOT SHOWN)
EXHIBIT B
94
AMORTIZATION SCHEDULE MONTHLY PAYMENTS
PRINCIPAL AMOUNT $126,467.00
INT RATE/YR (WHOLE NUMBERS) 9
PAYMENT AMOUNT $ 3,147.14
NUMBER OF PAYMENTS 48
STARTING DATE.......................... YEAR 1996
MONTH 2
DAY 1
================================================================================
# DATE ▇▇▇. INT. PAYMENT INTEREST PRINCIPAL BALANCE
================================================================================
1 Feb-96 $3,147.14 $948.50 $2,198.64 $124,268.36
2 Mar-96 $3,147.14 $932.01 $2,215.13 $122,053.24
3 Apr-96 $3,147.14 $915.40 $2,231.74 $119,821.49
4 May-96 $3,147.14 $898.66 $2,248.48 $117,573.02
5 Jun-96 $3,147.14 $881.80 $2,265.34 $115,307.67
6 Jul-96 $3,147.14 $864.81 $2,282.33 $113,025.34
7 Aug-96 $3,147.14 $847.69 $2,299.45 $110,725.89
8 Sep-96 $3,147.14 $830.44 $2,316.70 $108,409.20
9 Oct-96 $3,147.14 $813.07 $2,334.07 $106,075.12
10 Nov-96 $3,147.14 $795.56 $2,351.58 $103,723.55
11 Dec-96 $3,147.14 $777.93 $2,369.21 $101,354.33
12 Jan-97 $3,147.14 $760.16 $2,386.98 $ 98,967.35
13 Feb-97 $3,147.14 $742.26 $2,404.88 $ 96,562.47
14 Mar-97 $3,147.14 $724.22 $2,422.92 $ 94,139.55
15 Apr-97 $3,147.14 $706.05 $2,441.09 $ 91,698.45
16 May-97 $3,147.14 $687.74 $2,459.40 $ 89,239.05
17 Jun-97 $3,147.14 $669.29 $2,477.85 $ 86,761.20
18 Jul-97 $3,147.14 $650.71 $2,496.43 $ 84,264.77
19 Aug-97 $3,147.14 $631.99 $2,515.15 $ 81,749.62
20 Sep-97 $3,147.14 $613.12 $2,534.02 $ 79,215.60
21 Oct-97 $3,147.14 $594.12 $2,553.02 $ 76,662.58
22 Nov-97 $3,147.14 $574.97 $2,572.17 $ 74,090.41
23 Dec-97 $3,147.14 $555.68 $2,591.46 $ 71,498.94
24 Jan-98 $3,147.14 $536.24 $2,610.90 $ 68,888.05
25 Feb-98 $3,147.14 $516.66 $2,630.48 $ 66,257.57
26 Mar-98 $3,147.14 $496.93 $2,650.21 $ 63,607.36
27 Apr-98 $3,147.14 $477.06 $2,670.08 $ 60,937.27
28 May-98 $3,147.14 $457.03 $2,690.11 $ 58,247.16
29 Jun-98 $3,147.14 $436.85 $2,710.29 $ 55,536.88
30 Jul-98 $3,147.14 $416.53 $2,730.61 $ 52,806.26
31 Aug-98 $3,147.14 $396.05 $2,751.09 $ 50,055.17
32 Sep-98 $3,147.14 $375.41 $2,771.73 $ 47,283.44
33 Oct-98 $3,147.14 $354.63 $2,792.51 $ 44,490.93
34 Nov-98 $3,147.14 $333.68 $2,813.46 $ 41,677.47
35 Dec-98 $3,147.14 $312.58 $2,834.56 $ 38,842.91
36 Jan-99 $3,147.14 $291.32 $2,855.82 $ 35,987.10
37 Feb-99 $3,147.14 $269.90 $2,877.24 $ 33,109.86
38 Mar-99 $3,147.14 $248.32 $2,898.82 $ 30,211.04
EXHIBIT C
PAGE 1 OF 2
95
39 Apr-99 $3,147.14 $226.58 $2,920.56 $ 27,290.49
40 May-99 $3,147.14 $204.68 $2,942.46 $ 24,348.02
41 Jun-99 $3,147.14 $182.61 $2,964.53 $ 21,383.49
42 Jul-99 $3,147.14 $160.38 $2,986.76 $ 18,396.73
43 Aug-99 $3,147.14 $137.98 $3,009.16 $ 15,387.57
44 Sep-99 $3,147.14 $115.41 $3,031.73 $ 12,355.83
45 Oct-99 $3,147.14 $ 92.67 $3,054.47 $ 9,301.36
46 Nov-99 $3,147.14 $ 69.76 $3,077.38 $ 6,223.98
47 Dec-99 $3,147.14 $ 46.68 $3,100.46 $ 3,123.52
48 Jan-00 $3,146.95 $ 23.43 $3,123.52 ($0.00)
--------------------------------------------------------------------------------
$151,062.53 $24,595.53 $126,467.00
EXHIBIT C
PAGE 2 OF 2
96
FIRST AMENDMENT TO SUBLEASE AGREEMENT
THIS FIRST AMENDMENT (the "First Amendment") entered into this day of
March, 1996, between COMPUTER ASSOCIATES INTERNATIONAL, IN-C. (hereinafter
called "Sublandlord") and WINK COMMUNICATIONS, INC. (hereinafter called
"Subtenant") hereby amends and modifies the Sublease Agreement entered into
between Sublandlord and Subtenant dated November 28, 1995, (hereinafter called
the "Sublease"). Capitalized terms used herein shall have the same meaning
assigned to such terms in the Sublease, unless otherwise defined herein.
W I T N E S S E T H
WHEREAS, Subtenant wishes to expand the Premises to include the entire second
floor of the Building; and
WHEREAS, Sublandlord wishes to sublet the entire second floor of the Building to
Subtenant in addition to the existing Premises.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows, which shall become
effective as of April 1, 1996 (the "Effective Date"):
1. Subsection 1.1 (j) of the Sublease is hereby amended to read as
follows:
(j) Premises: 17,377 Rentable Square Feet comprising the entire
first floor and 20,247 Rentable Square Feet comprising the
entire second floor.
2. Subsection 1.1(m) of the Sublease is hereby amended to add the
following as Base Rent for the 2nd floor, which is to be paid in addition to the
Base Rent set forth in the Sublease:
(m) Base Rent:
Annual Rent
Per Rentable
Yearly Periods Square Foot Monthly Base Rent Annual Base Rent
-------------- ------------ ---------------- ----------------
4/1/96-7/31/96 $11.02 $ 18,593.49 N/A
4/1/96-1/31/97 $15.45 $ 26,068.01 N/A
2/1/97-1/31/98 $18.60 $ 31,382.85 $376,594.20
2/1/98-1/31/99 $19.20 $ 32,395.20 $388,742.40
2/1/99-1/31/00 $19.80 $ 33,407.55 $400,890.60
97
3. Subsection 1.1(p) of the Sublease is amended by deleting 1124.32%" therein
and replacing that with "51.37%."
4. Subsection 1.1(s) of the Sublease is amended to read as follows:
(s) Brokers: For Sublandlord: BT commercial
For Subtenant: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Commercial Real Estate
5. In consideration of this expansion, Subtenant agrees to pay to Sublandlord an
additional security deposit in the amount of $33,407.55 to be held by
Sublandlord with the originally deposited security deposit in accordance with
the terms of the Sublease.
6. The additional space is provided to Subtenant "AS IS" and any and all
alterations or tenant improvements shall be at Subtenant's sole cost and
expense, and shall be subject to prior approval of Sublandlord.
7. Subtenant shall have access to the additional space prior to the Effective
Date hereof for the sole purpose of preparing the space for occupancy, provided
that Subtenant provides Sublandlord with a certificate of insurance naming
Sublandlord as an additional insured, and provided that Overlandlord's approval
to this First Amendment is obtained prior to such access.
8. Provided Subtenant has first obtained the consent of Overlandlord and
Sublandlord, as well as required governmental approvals, Subtenant may install
an approved sign on the exterior of the Building at Subtenant's cost and
expense. Subtenant shall be responsible for all costs of maintenance for the
sign and costs of removal at expiration of the Sublease Term.
9. Subtenant may install an 18" digital broadcast satellite dish on top of the
roof in the Building and wire same to the Premises; provided that (i) Subtenant
has first obtained the consent of Overlandlord and any required governmental
approvals, (ii) Subtenant shall be responsible for- all costs of installation,
maintenance and repair, as well as removal of the dish upon expiration of the
Sublease Term, and (iii) Subtenant shall be responsible for any damage caused to
the roof or to others as a result of the installation of the dish, and Subtenant
shall indemnify and hold Landlord harmless from any claims or losses resulting
therefrom.
10. Subtenant may pull the cabling through the existing building conduit as
required, provided that (i) Subtenant first obtains Overlandlord's consent, (ii)
this act does not interfere with nor disturb any existing or future tenants in
the Building, and (iii) Subtenant properly marks the cabling so that it can be
identified easily.
98
11. The Sublease, as amended by this First Amendment, contains the entire
agreement between the parties hereto and there are no agreements, warranties, or
representations which are not set forth therein or herein. This First Amendment
may not be modified or amended except by an instrument in writing duly executed
by or on behalf of the parties hereto.
This Amendment is contingent upon SSB Realty Inc's (another subtenant of
Sublandlord) rejection of its right of First Offer far the additional space. In
the event that SSB Realty accepts the Right of First Offer, Sublandlord agrees
to provide Subtenant with temporary space, for a period not to exceed two (2)
months, at the same rent per square foot as set forth herein, and under the same
terms and conditions hereof.
COMPUTER ASSOCIATES
INTERNATIONAL, INC. WINK COMMUNICATIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
(SIGNATURE) (SIGNATURE)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
(NAME) (NAME)
Sr Vice President VP, Business Development
(TITLE) (TITLE)
CONSENT OF OVERLANDLORD:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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ALAMEDA REAL ESTATE INVESTMENTS