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Exhibit 10.26A
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SECOND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE ("Second Amendment") is made and entered
into as of the 25th day of March, 1999, by and between CREEKSIDE SOUTH TRUST, a
Maryland business trust ("Landlord"), and E-LOAN, INC., a Delaware corporation
("Tenant").
R E C I T A L S
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A. Landlord and Tenant (which at that time was a California corporation)
entered into that certain Multi-Tenant Office Triple Net Lease dated as of
August 19, 1998 (the "Original Lease"), as amended by that certain First
Amendment to Lease dated September 11, 1998 (the "First Amendment"), pursuant
to which Landlord leased to Tenant and Tenant leased from Landlord certain
"Premises" as described in the Lease and located in that certain office
building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building"). The
Original Lease and the First Amendment are collectively referred to herein as
the Lease.
B. Landlord and Tenant now desire to amend the Lease in certain respects,
including to modify and expand the Premises to include additional space in the
Building containing approximately 25,474 rentable square feet, as outlined on
Exhibit "A" attached hereto and incorporated herein by this reference (the
"Expansion Premises"), all upon the terms and conditions as hereinafter
provided.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Capitalized Terms. All capitalized terms when used herein shall have
the same meanings given such terms in the Lease unless expressly superseded by
the terms of this Second Amendment.
2. Addition of Expansion Premises. Notwithstanding any provisions of the
Lease, commencing on the Expansion Premises Commencement Date (as defined
below), the Premises are hereby modified and expanded to include the Expansion
Premises on the same terms and conditions set forth in the Lease, subject to
the modifications set forth in this Second Amendment.
3. Expansion Premises Commencement Date. The "Expansion Premises
Commencement Date" shall be June 1, 1999.
4. Term of Lease. Notwithstanding any provision of the Lease, the Term
of the Lease is hereby amended to expire on November 30, 2004.
5. Monthly Base Rent for the Expansion Premises. Commencing on the
Expansion Premises Commencement Date and otherwise in accordance with the
provisions of
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Section 3 of the Original Lease, Tenant shall pay to Landlord Total Monthly
Base Rent for the Expansion Premises and the Premises as set forth on the
Amended and Restated Rent Schedule attached hereto as Exhibit "C" ("Rent
Schedule"). Notwithstanding any provision of the Lease, for the period June 1,
1999 through July 14, 1999 Tenant may still receive Rent abatement for the
Premises, as provided in Section 3.1 and Section 6.1 of the Original Lease, to
the extent Tenant is not using the entire Premises. During this period, Rent
will be paid on actual space used subject to (a) a minimum of space leased in
the Premises as of May 15, 1999 plus 6,368.5 rentable square feet, and (b) a
maximum of 49,157.50 rentable square feet.
6. Tenant's Share of Operating Expenses. Subject to the Rent abatement,
as provided in Paragraph 5 above, commencing on the Expansion Premises
Commencement Date, Tenant's Share of Operating Expenses for the Expansion
Premises as set forth in Section 6 of the Lease shall be as follows:
Amount of Rentable Square
Footage of Expansion
Premises for Which Tenant is
Paying Tenant's Share of Tenants Share for the
Date During Lease Term Operating Expenses Expansion Premises
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6/1/-7/31/99 6,368.50 7.44%
8/1-9/30/99 12,737.00 14.88%
10/1-11/30/99 19,105.50 22.33%
12/1/99-11/30/04 25,474.00 29.77%
7. Additional Allowance. Tenant shall continue to pay to Landlord the
Additional Allowance amount, as provided in Paragraph 2 of the First Amendment,
which is equal to Four Thousand Seven Hundred Fifty-Eight and 99/100 Dollars
($4,758.99) per month through October 31, 2003.
8. Condition of the Expansion Premises. Except as specifically set forth
in this Second Amendment and the Work Letter, Landlord shall not be obligated to
provide or pay for any improvement work or services related to the improvement
of the Expansion Premises. Tenant also acknowledges that Landlord has made no
representation or warranty regarding the condition of the Expansion Premises or
the Building, except as specifically set forth in this Second Amendment and the
Work Letter. Except for the work to be performed by Landlord as described in the
Work Letter, Tenant accepts the Expansion Premises in an "as is" condition.
9. Letter of Credit. Notwithstanding any provision of the Lease, the
amount of the Letter of Credit, as provided in Section 3.3.2 of the Original
Lease, shall be increased upon execution of this Second Amendment by Tenant to
One Million Two Hundred Fifty Thousand Dollars ($1,250,000).
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10. Broker. Notwithstanding anything to the contrary contained in the
Lease, Landlord and Tenant hereby warrant to each other that they have had no
dealings with any real estate broker or agent in connection with the
negotiation of this Second Amendment except for CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. and ▇▇▇▇
▇▇▇▇▇▇▇ & Associates (collectively, "Brokers"), and that the parties know of no
other real estate broker or agent who is entitled to a commission in connection
with Tenant's lease of the Expansion Premises. Landlord shall pay Brokers a
commission pursuant to separate agreements between Brokers and Landlord. Each
party agrees to indemnify and defend the other party against and hold the other
party harmless from any and all claims, demands, losses, liabilities, lawsuits,
judgments and costs and expenses (including, without limitation, reasonable
attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of any dealings with any real
estate broker or agent other than the Brokers, occurring by, through or under
the indemnifying party.
11. Counterparts. This Second Amendment may be executed in counterparts
with the same effect as if both parties hereto had executed the same document.
Both counterparts shall be construed together and shall constitute a single
Second Amendment.
12. No Further Modification. Except as set forth in this Second Amendment,
all of the terms and provisions of the Lease shall remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, this Second Amendment has been executed as of the day
and year first above written.
"LANDLORD" CREEKSIDE SOUTH TRUST,
a Maryland business trust
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Its: Managing Director
"TENANT" E-LOAN, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: CEO
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Its: CFO
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Illustration of BUILDING C showing the Premises and the Expansion Premises.
35,577 RSF
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EXHIBIT "B"
WORK LETTER
Tenant acknowledges and agrees that the Expansion Premises are satisfactory
and shall be accepted by Tenant in its "AS IS" condition as of the date of
execution of this Lease and on the Commencement Date; provided, however, that
Landlord shall construct certain modifications to the interior of the Expansion
Premises pursuant to the Approved Working Drawings in accordance with the
following provisions of this Tenant Work Letter.
SECTION 1
CONSTRUCTION DRAWINGS FOR THE PREMISES
Landlord and Tenant will approve a detailed space plan for the construction
of certain improvements in the Expansion Premises, which space plan will be
prepared by an architect mutually acceptable to Landlord and Tenant (the "Final
Space Plan"). Based upon and in conformity with the Final Space Plan, Tenant
shall cause its architect and engineers to prepare and deliver to Landlord not
later than August 31, 1999, for Landlord's approval, detailed specifications and
engineered working drawings for the tenant improvements shown on the Final Space
Plan (the "Working Drawings"). The Working Drawings shall incorporate
modifications to the Final Space Plan as necessary to comply with the floor load
and other structural and system requirements of the Building. To the extent that
the finishes and specifications are not completely set forth in the Final Space
Plan for any portion of the tenant improvements depicted thereon, the actual
specifications and finish work shall be in accordance with the specifications
for the Building's standard improvement package items, as determined by Landlord
(the "Building Specifications"). Within three (3) business days after Landlord's
receipt of the Working Drawings, Landlord shall approve or disapprove the same,
which approval shall not be unreasonably withheld; provided, however, that
Landlord may only disapprove the Working Drawings to the extent such Working
Drawings are inconsistent with the Final Space Plan and the Building
Specifications and only if Landlord delivers to Tenant, within such three (3)
business days period, specific changes proposed by Landlord which are consistent
with the Final Space Plan and the Building Specifications. If any such revisions
are timely and properly proposed by Landlord, Tenant shall cause its architect
and engineers to revise the Working Drawings to incorporate such revisions and
submit the same for Landlord's approval in accordance with the foregoing
provisions, and the parties shall follow the foregoing procedures for approving
the Working Drawings until the same are finally approved by Landlord and Tenant.
Upon Landlord's and Tenant's approval of the Working Drawings, the same shall be
known as the "Approved Working Drawings". Once the Approved Working Drawings
have been approved by Landlord and Tenant, Tenant shall make no changes, change
orders or modifications thereto without the prior written consent of Landlord,
which consent may be withheld in Landlord's sole discretion if such change or
modification would: (i) increase the cost of designing or constructing the
Tenant Improvements above the cost of the tenant improvements depicted in the
Final Space Plan; (ii) be of a quality lower than the quality of the standard
EXHIBIT "B"
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improvement package items for the Building; and/or (iii) require any changes to
the base, shell and core work or structural improvements or systems of the
Building. The Final Space Plan, Working Drawings and Approved Working Drawings
shall be collectively referred to herein as, the "Construction Drawings". The
tenant improvements shown on the Approved Working Drawings shall be referred to
herein as the "Tenant Improvements".
SECTION 2
CONSTRUCTION AND COSTS
Landlord shall cause a general contractor (the "Contractor") mutually
approved by Landlord and Tenant to (i) obtain all applicable building permits
for construction of the Tenant Improvements, and (ii) construct the Tenant
Improvements as depicted on the Approved Working Drawings, in compliance with
such building permits and all applicable laws in effect at the time of
construction, including all environmental laws and the Americans with
Disabilities Act, and in good workmanlike manner. Landlord shall pay for the
cost of the design and construction of the Tenant Improvements, including space
planning, engineering, construction drawings, signage, construction
supervision, and any necessary permits, in an amount up to, but not exceeding,
Three Hundred Sixty-Six Thousand Six Hundred Seventy-Six and 68/100 Dollars
($366,676.68) which is equal to Thirty Dollars ($30.00) per Rentable Square
Foot of the Expansion Premises minus Three Hundred Ninety-Seven Thousand Five
Hundred Forty-Three and 32/100 Dollars ($397,543.32) owed to Landlord for the
initial tenant improvements constructed in the Premises, receipt of which is
hereby acknowledged, (the "Tenant Improvement Allowance"); provided, however,
that the Tenant Improvement Allowance shall not be used to pay the traffic
impact fee which shall be paid separately by Landlord. Tenant shall pay for all
costs in excess of the Tenant Improvement Allowance (the "Over Allowance
Amount"), which payment shall be made to Landlord in cash as follows: within
five (5) days after the Contractor has been selected and the construction
contract has been signed, Tenant shall pay to Landlord fifty percent (50%) of
the Over Allowance Amount with Tenant paying the remainder of the Over
Allowance Amount to Landlord upon receipt of invoice from Landlord throughout
the construction of the Tenant Improvements. In no event shall Landlord be
obligated to pay for any of Tenant's furniture, computer systems, telephone
systems, equipment or other personal property which may be depicted on the
Construction Drawings; such items shall be paid for by Tenant. Tenant shall be
entitled to receive as a credit against Rent any portion of the Tenant
Improvement Allowance not used to pay for the cost of the design and
construction of the Tenant Improvements.
SECTION 3
MISCELLANEOUS
Provided that Tenant and its agents do not interfere with Contractor's
work in the Building and the Expansion Premises, Contractor shall allow Tenant
access to the Expansion Premises prior to the Substantial Completion of the
Expansion Premises for the purpose of Tenant installing overstandard equipment,
furniture or fixtures (including Tenant's data and
EXHIBIT "B"
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telephone equipment) in the Expansion Premises. Prior to Tenant's entry into
the Expansion Premises as permitted by the terms of this Section 3, Tenant
shall submit a schedule to Landlord and Contractor, for their approval, which
schedule shall detail the timing and purpose of Tenant's entry. Tenant shall
hold Landlord harmless from and indemnify, protect and defend Landlord against
any loss or damage to the Expansion Premises or Property and against injury to
any persons caused by Tenant's actions pursuant to this Section 3.
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EXHIBIT "C"
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AMENDED AND RESTATED RENT SCHEDULE
TOTAL MONTHLY BASE RENT:
Total Amount of Average Total Amount of
Rentable Square Monthly Base Rent per
Footage of the Rentable Square Foot of Total Amount
Date during Premises and the the Premises and the of Base Rent for
Lease Term Expansion Premises Expansion Premises the Stated Period
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6/1-7/31/99 49,157.5 $1.25 $122,893.75
8/1-9/30/99 55,526.0 $1.25 $138,815.00
10/1-10/31/99 61,894.5 $1.25 $77,368.13
11/1-11/30/99 61,894.5 $1.28 $78,972.71
12/1/99-10/31/00 68,263.0 $1.27 $956,266.71
11/1/00-10/31/01 68,263.0 $1.31 $1,074,496.05
11/1/01-10/31/02 68,263.0 $1.35 $1,106,730.93
11/1/02-10/31/03 68,263.0 $1.39 $1,139,932.86
11/1/03-10/31/04 68,263.0 $1.43 $1,174,130.85
11/1/03-11/30/04 68,263.0 $1.48 $100,779.56