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EXHIBIT 10.17
SUBLEASE
THIS SUBLEASE ("Sublease"), is entered into by and between Liberate
Technologies, a Delaware corporation, formerly known as Network Computer, Inc.
("Sublandlord"), and Cosine Communications, Inc., a California corporation
("Subtenant"), as of June 28, 2000.
RECITALS
A. Sublandlord leases certain premises (the "Master Lease Premises")
located in that certain building ("Building") located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, from Circle Star Center Associates, L.P., a California
limited partnership (the "Master Landlord"), pursuant to that certain Lease
dated April 27, 1999, as amended by an undated letter agreement entitled
"Confirmation of Addition of Second Building," complete copies of which are
attached hereto as Exhibit A (collectively, the "Master Lease"). Capitalized
terms used but not defined herein have the same meanings as they have in the
Master Lease.
B. Sublandlord desires to sublease a portion of the Master Lease
Premises to Subtenant, and Subtenant desires to sublease a portion of the
Master Lease Premises from Sublandlord on the terms and provisions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, Sublandlord and Subtenant covenant and agree as
follows:
AGREEMENT
1. SUBLEASED PREMISES. On and subject to the terms and conditions
below, Sublandlord hereby leases to Subtenant, and Subtenant hereby leases from
Sublandlord, approximately 25,179 square feet of space located and comprising
all rentable space on the second floor of the Building, which space is shown on
Exhibit B attached hereto (the "Subleased Premises").
2. TERM. This Sublease shall commence on the date Sublandlord makes
the Subleased Premises available to Subtenant (the "Commencement Date"), which
date shall be the later of (i) July 1, 2000 or (ii) one (1) day after Subtenant
has received a fully-executed copy of the Master Landlord's Consent (defined in
paragraph 13 below), which shall not be later than July 15, 2000. The term shall
expire on the last day of the twelfth full month after the Commencement Date
(the "Expiration Date"), unless sooner terminated pursuant to any provision
hereof.
3. RENT; DEPOSITS. Within two (2) business days of the Commencement
Date Subtenant shall pay rent ("Rent") to Sublandlord for the entire term of
this Sublease. Rent shall be calculated at the rate of Two Hundred Two Thousand
Six Hundred Ninety and 95/100 Dollars ($202,690.95) per month (Two Million Four
Hundred Thirty-Two Thousand Two Hundred Ninety-One and 40/100 Dollars
($2,432,291.40) per year). Rent shall be payable to Sublandlord in lawful money
of the United States, without offset, at the address specified for notice to
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Sublandlord below. If this Sublease shall terminate prior to the Expiration
Date (other than due to a Subtenant default), then all Rent attributable to the
period from the actual termination date to the Expiration Date shall be
returned to Subtenant within ten (10) days after such termination date. If the
Commencement Date does not fall on the first day of a calendar month, Rent for
any partial month shall be prorated on a daily basis upon a thirty day calendar
month. If this Sublease shall terminate before the Expiration Date because of a
Subtenant default, then unused Rent shall be applied to Sublandlord's damages
and the balance, if any, returned to Subtenant.
(a) SUBTENANT'S SHARE OF EXPENSES AND REAL ESTATE TAXES. Subtenant
shall pay, in advance on the first day of each calendar month, fourteen percent
(14%) of Expenses and Real Estate Taxes ("Subtenant's Share") allocable to the
Building. For the term of the Sublease, Subtenant's Share is estimated to be
Twenty-Five Thousand One Hundred Seventy-Nine and No/100 Dollars ($25,179.00)
per month. Sublandlord may adjust the amount of Subtenant's Share at any time
the amount of Expenses and Real Estate Taxes being charged to Sublandlord under
the Master Lease is adjusted in accordance with the terms thereof. Promptly
following reconciliation of the amounts charged to Sublandlord under Sections
3(c)(2) and 3(c)(3) of the Master Lease, the amounts charged to Subtenant
pursuant to this Section 3(a) shall be reconciled in accordance with the
provisions of Sections 3(c)(2) and 3(c)(3) of the Master Lease, which are
incorporated herein by Section 7 below.
(b) PERSONAL PROPERTY. During the entire term of this Sublease,
Subtenant shall have the right to use the furniture, cabling system, telephone
system, printers, and various other items of personal property located in the
Subleased Space and described on Exhibit C attached hereto (collectively, the
"Personal Property") at an additional cost of Twenty-Five Thousand One Hundred
Seventy-Nine and No/100 Dollars ($25,179.00) per month ("Personal Property
Rent"). Subtenant shall pay Personal Property Rent in advance on the first day
of each calendar month together with Subtenant's Share. Subtenant shall keep
the Personal Property in good condition and repair and shall return the same to
Sublandlord at the end of the Sublease term, subject to damage by fire or other
casualty and ordinary wear and tear.
(c) FIRST PAYMENT OF PERSONAL PROPERTY RENT AND SUBTENANT'S SHARE.
Upon execution of this Sublease, Subtenant shall pay to Sublandlord the sum of
Fifty Thousand Three Hundred Fifty-Eight and No/100 Dollars ($50,358.00),
constituting payment in advance of the first full month's Personal Property
Rent and the first estimated month's payment of Subtenant's Share.
(d) SECURITY DEPOSIT. Upon execution of this Sublease, Subtenant shall
pay to Sublandlord the sum of Fifty Thousand Three Hundred Fifty-Eight and
00/100 Dollars ($50,358.00) to secure the performance of Subtenant's
obligations hereunder (the "Security Deposit"). The Security Deposit is not
advance rental, nor a measure of Sublandlord's damages. Sublandlord shall not
be required to keep the Security Deposit separate from its general accounts.
Upon the occurrence of any default by Subtenant, if the default shall continue
after the expiration of any applicable notice and cure period, Sublandlord may,
from time to time and without prejudice to any other remedy available to
Sublandlord provided herein or by law, use the Security Deposit to the extent
necessary to make good any arrears in Rent or other payments due hereunder, or
other damage, injury, expense or liability caused by such default. Subtenant
shall pay to Sublandlord, upon demand, the amount so applied to restore the
Security Deposit to
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the original amount. Any remaining balance shall be returned to Subtenant after
Subtenant has surrendered the Subleased Premises in the condition required by
this Sublease and all Subtenant's other obligations under this Sublease have
been fulfilled.
4. ACCEPTANCE OF SUBLEASED PREMISES. Sublandlord shall deliver the
Subleased Premises to Subtenant in broom clean condition with any and all
damage caused by Sublandlord's occupancy of or move from the Subleased Premises
repaired. Subject to the foregoing, Subtenant has inspected the Subleased
Premises and accepts the same in its current condition "AS-IS" and waives the
right to make any claim against Sublandlord for any matter directly or
indirectly arising out of the condition of the Subleased Premises,
appurtenances thereto, and the improvement thereof. Subtenant acknowledges that
the taking of possession of the Subleased Premises by Subtenant shall be
conclusive evidence that the Subleased Premises are in good and satisfactory
condition at the time such possession was so taken. Subtenant has determined to
its satisfaction that the Subleased Premises can be used for the purposes for
which the same is leased. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SUBLANDLORD
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR HABITABILITY OF THE
SUBLEASED PREMISES. Sublandlord represents and warrants to Subtenant that as of
the Commencement Date, the Subleased Premises are in good condition.
5. RIGHT OF EARLY ENTRY. Sublandlord shall use reasonable efforts to
give Subtenant seven (7) days notice prior to the Commencement Date. Following
such notice, Subtenant may enter the Subleased Premises for the purposes of
making the Subleased Premises ready for occupancy. Such early entry shall be
subject to each and every provision of this Sublease except Subtenant's
obligation to pay Rent and Subtenant's Share.
6. USE. Subtenant may use the Subleased Premises only for uses
permitted by the Master Lease. Subtenant shall not use or permit the use of the
Subleased Premises in a manner that will create waste or a nuisance, interfere
with or disturb other tenants in the Building or violate the provisions of the
Master Lease.
7. INCORPORATION OF SUBLEASE. All of the terms and provisions of the
Master Lease, except as specifically excluded therefrom in this paragraph, are
incorporated into and made a part of this Sublease and the rights and
obligations of the parties under the Master Lease are hereby imposed upon the
parties hereto with respect to the Subleased Premises, Sublandlord being
substituted for the "Landlord" in the Master Lease (except in Sections 1, 7,
9, 10(f), 12, 16, 20, 21, 39(c); the introductory paragraph of 39, in which
references to "Landlord" shall continue to be deemed to refer to the Master
Landlord, not Sublandlord) and Subtenant being substituted for the "Tenant"
in the Master Lease. It is further understood that where reference is made in
the Master Lease to the "Premises," the same shall mean the Subleased
Premises as defined herein; where reference is made to the "Commencement
Date," the same shall mean the Commencement Date as defined herein; and where
reference is made to "this Lease," the same shall mean this Sublease.
Notwithstanding the foregoing, Sublandlord shall have no obligation to perform
any of Master Landlord's obligations under the Master Lease but upon request of
Subtenant, Sublandlord shall use commercially reasonable efforts to cause
Master Landlord to perform such obligations. The following Sections of the
Master Lease are not incorporated herein; Basic Lease Information, Sections 2,
3(a), 3(b), 3(c)(1)(B), 32, 34, 37, 41 (other than main lobby and
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floor lobby directory signage rights, which shall apply), 42, 43, 44, 45,
Exhibit B (Work Letter), Exhibit F (Form of Letter of Credit), and Exhibit G
(Description of Second Building).
Sublandlord represents and warrants to Subtenant that (i) except as
specifically set forth herein, the Master Lease is unmodified and in full force
and effect, (ii) to the best of Sublandlord's knowledge, Sublandlord is not in
default under the Master Lease, nor is there any event or circumstance which
has occurred or is occurring that with notice or the passage of time or both
would result in a default by Sublandlord under the Master Lease, (iii) to the
best of Sublandlord's knowledge, Master Landlord is not in default under the
Master Lease, nor is there any event or circumstance which has occurred or is
occurring that with notice or the passage of time or both would result in a
default by Master Landlord under the Master Lease, (iv) Sublandlord shall not
exercise its termination rights, if any, under the Master Lease (except any
such rights arising from a condemnation or casualty of the Master Lease
Premises) or otherwise agree to an early termination of the Master Lease or
surrender of the Subleased Premises unless Master Landlord accepts this
Sublease as a direct lease between Master Landlord and Subtenant and (v)
Sublandlord shall not amend or otherwise modify the terms of the Master Lease
in a manner that would materially and adversely affect Subtenant's use and
enjoyment of the Subleased Premises as contemplated by this Sublease.
Section 6 of the Master Lease, which is incorporated herein, requires that
Sublandlord notify Subtenant whether any Alterations will be required to be
removed and the Subleased Premises restored to its condition upon delivery to
Subtenant. Sublandlord hereby notifies Subtenant that at the expiration or
earlier termination of this Sublease, any alterations or additions to the
Subleased Premises performed by Subtenant must be removed and the Subleased
Premises returned to the condition in which they were first delivered to
Subtenant (damage by fire or other casualty, eminent domain and ordinary wear
and tear excepted), all at Subtenant's sole cost and expense.
8. ASSIGNMENT AND SUBLETTING. Subtenant may not assign, sublet,
transfer, pledge, hypothecate or otherwise encumber the Subleased Premises
(each, a "Transfer"), in whole or in part, or permit the use or occupancy of
the Subleased Premises by anyone other than Subtenant unless Subtenant has
obtained the consent of the Master Landlord and otherwise complied with the
terms of the Master Lease, except any obligation to pay Bonus Rent to Master
Landlord thereunder, which shall be paid to Master Landlord by Sublandlord.
Regardless of Sublandlord's and/or Master Landlord's consent, no subletting or
assignment shall release Subtenant from its obligations hereunder.
Subtenant may not Transfer all or any portion of the Subleased Premises without
first obtaining the consent of Sublandlord, which consent shall not be
unreasonably withheld, conditioned or delayed. In the event of such a Transfer,
Subtenant shall deliver to Sublandlord fifty percent (50%) of all sums received
from the assignee, sublessee or other transferee in excess of the Rent and
other sums due from Subtenant to Sublandlord under this Sublease; provided that
Subtenant may first deduct from such excess its "Transfer Costs." As used
herein, "Transfer Costs" shall mean (i) any brokerage commissions paid by
Subtenant in connection with the Transfer, (ii) any improvement allowance or
other concessions or payments made by Subtenant to the transferee as an
inducement to enter into the Transfer, and (iii) the costs of any alterations,
additions or
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improvements made by Subtenant to the Subleased Premises to make the same
suitable for occupancy by the transferee.
Notwithstanding anything to the contrary in this Section 8, Subtenant may
assign this Sublease or sublet the Subleased Premises or any portion thereof,
without first obtaining Sublandlord's consent, to any partnership, corporation
or other entity which controls, is controlled by or is under common control
with Subtenant or Subtenant's parent (control being defined for such purposes
as ownership of at least 50% of the equity interests in, or the power to direct
the management of, the relevant entity), or to any partnership, corporation or
other entity resulting from a merger or consolidation with Subtenant or
Subtenant's parent, or to any person, partnership, corporation or other entity
which acquires (whether by means of an asset purchase of all or substantially
all of the assets of Subtenant or by means of a transfer of Subtenant capital
stock) Subtenant as a going concern including as part of an initial public
offering of Subtenant's stock or other equity interests or as part of a
re-incorporation of Subtenant in another jurisdiction) (collectively, an
"Affiliate"), provided that (i) in the event of such assignment or subletting,
the Affiliate assumes in writing all of Subtenant's obligations under this
Sublease pertaining to the portion of the Subleased Premises which is the
subject of the assignment or sublease (but no such assumption shall relieve
Subtenant from primary liability under this Sublease) and (ii) in the event of
such assignment, the financial strength of the Affiliate is equal to or greater
than the financial strength of Subtenant at the date of this Sublease and at
the date of such assignment or subletting.
In no event shall any public offering of Subtenant's capital stock or other
equity interests, whether as part of an initial public offering or any
secondary public offering, or any transfer of Subtenant's capital stock or
other equity interests through the "over the counter" market or any recognized
national or international securities exchange, be deemed a Transfer hereunder.
9. PARKING. Subtenant shall have the right to use 83 unassigned parking
spaces in common with other occupants of the Building and the project of which
the Building is a part.
10. NOTICES. The addresses specified in the Master Lease for receipt of
notices to each of the parties are deleted and replaced with the following:
TO SUBLANDLORD AT: the Master Lease Premises
Attn: Director of Operations
TO SUBTENANT AT: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
11. BROKERS. Each party hereto represents and warrants that it has
dealt with no broker, finder or real estate agent in connection with this
Sublease and the transaction contemplated herein. Each party shall indemnify,
protect, defend and hold the other party harmless from all costs and expenses
(including reasonable attorneys' fees) arising from or relating to a breach of
the foregoing representation and warranty.
12. RIGHT OF FIRST REFUSAL. Sublandlord hereby grants to Subtenant a
right of first refusal ("First-Refusal Right") to lease all or any portion of
the remaining Master Lease Premises
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(the "First-Refusal Space"). Upon receipt of a third-party offer to lease all or
any portion of the First-Refusal Space, which offer Sublandlord desires to
accept, Sublandlord shall provide Subtenant with written notice (the
"First-Refusal Notice") of such offer and all terms thereof, including rent,
tenant improvement allowances or other concessions, lease term and landlord's
pre-delivery work obligations, if any. Sublandlord shall ensure that the
First-Refusal Notice specifically describes the First-Refusal Space that will be
available for lease (the "Specific First-Refusal Space"). If Subtenant wishes to
exercise its First-Refusal Right with respect to the Specific First-Refusal
Space, Subtenant, within five (5) business days after the delivery of the
First-Refusal Notice to Subtenant, shall deliver notice to Sublandlord of
Subtenant's intention to exercise its First-Refusal Right with respect to all
the Specific First-Refusal Space. If Subtenant does not exercise its
First-Refusal Right within the five (5) business day period, the First-Refusal
Right shall terminate for the Specific First-Refusal Space, and Sublandlord
thereafter shall be free for a period of 120 days to lease the Specific
First-Refusal Space to anyone on the terms set forth in the First Refusal
Notice. If Subtenant exercises its First-Refusal Right, Sublandlord and
Subtenant shall promptly enter into a written sublease agreement on the same
general terms and conditions as this Sublease except that Rent and all other
economic terms for the Specific First-Refusal Space shall be as set forth in the
First Refusal Notice and this First-Refusal Right shall be of no further effect.
The term of this Sublease as it pertains to the Specific First Refusal Space
shall be co-terminus with the term of this Sublease as it pertains to the
balance of the Subleased Premises.
13. MASTER LANDLORD'S CONSENT. This Sublease is conditioned upon
Master Landlord's written approval hereof as evidenced by Master Landlord's
execution of a consent to sublease substantially in the form attached hereto as
Exhibit D ("Master Landlord's Consent"). If Sublandlord and Subtenant shall not
have obtained Master Landlord's consent to this Sublease by July 15, 2000, then
either Subtenant or Sublandlord may terminate this Sublease and all sums paid by
Subtenant to Sublandlord hereunder immediately shall be returned to Subtenant.
14. AUTHORITY. Sublandlord hereby warrants and represents that it is a
corporation, duly authorized and in good standing under the laws of the State of
Delaware and has the power to execute and deliver this Sublease. The persons
signing on behalf of the Sublandlord hereby represent and warrant that they are
the duly authorized representatives of the Sublandlord and have the power and
authority to bind the Sublandlord. Subtenant hereby warrants and represents that
it is a corporation, duly authorized and in good standing under the laws of the
State of California and has the power to execute and deliver this Sublease. The
persons signing on behalf of the Subtenant hereby represent and warrant that
they are the duly authorized representatives of the Subtenant and have the power
and authority to bind the Subtenant.
15. NO ANIMALS. Subtenant shall not permit any animals to be brought
into the Premises, the Building or the common areas of the project of which the
Building is a part, except animals assisting disabled persons.
16. COUNTERPARTS. This Sublease may be executed in two (2) or more
counterparts, each of which shall be deemed an original but when taken together
shall constitute one and the same instrument.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the
date first written above.
SUBLANDLORD:
LIBERATE TECHNOLOGIES,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: President [STAMP]
Date:
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And By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- [STAMP]
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Its: Secretary
SUBTENANT:
COSINE COMMUNICATIONS, INC.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: COO
Date: 6/29/00
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And By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Secretary
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CONSENT OF MASTER LANDLORD
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CONSENT TO SUBLEASE
THIS AGREEMENT ("Agreement") is made as of July 5, 2000, by and among Circle
Star Center Associates, L.P., a California limited partnership ("Landlord"),
Liberate Technologies, a Delaware corporation ("Sublessor"), and Cosine
Communications, a California corporation ("Subtenant").
Recitals
A. Landlord is the landlord and Network Computer, Inc. (n/k/a Liberate
Technologies) is the tenant under a lease dated April 27, 1999, as amended by
Confirmation of Addition of Second Building (the "Master Lease"), for a total
of 180,815 square feet of space located in certain premises commonly known and
designated as Suites 100, 300 and 400 at Two Circle Star Way and all space at
One Circle Star Way in ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Premises"). Capitalized
terms not otherwise defined herein shall have the meanings given them in the
Master Lease.
B. Sublessor has requested that Landlord consent to the subletting by
Sublessor to Subtenant of a portion of the Premises, consisting of
approximately 25,179 rentable square feet on the third floor of One Circle Star
Way and generally shown on the floor plan attached hereto as Exhibit B ("Sublet
Premises"), pursuant to the Sublease dated June 28, 2000 (the "Sublease"), to
which this Agreement is attached.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants contained herein, Landlord hereby consents to the Sublease subject to
and upon the following terms and conditions, as to each of which Sublessor and
Subtenant expressly agree:
1. Nothing contained in this Agreement shall:
(a) operate as a consent to or approval or ratification by
Landlord of any specific provisions of the Sublease or as a representation or
warranty by Landlord, or cause Landlord to be estopped or bound in any way by
any of the provisions of the Sublease, or
(b) be construed to modify, waive or affect (i) any of the
provisions, covenants or conditions in the Master Lease, or (ii) any of
Sublessor's obligations under the Master Lease, or (iii) any rights or remedies
of Landlord under the Master Lease or otherwise; or to enlarge or increase
Landlord's obligations or Sublessor's rights under the Master Lease or
otherwise, or
(c) be deemed to make Subtenant a third party beneficiary of
the provisions of the Master Lease, or create or permit any direct right of
action by Subtenant against Landlord for breach of the covenant of quiet
enjoyment or any other covenant of Landlord under the Master Lease, or
(d) be construed to waive any past, present or future breach
or default on the part of Sublessor under the Master Lease.
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2. The Sublease shall be subject and subordinate at all times to the
Master Lease and to all of its provisions, covenants and conditions. Except for
rent payable under the Master Lease, Subtenant shall perform faithfully and be
bound by all of the terms, covenants, conditions, provisions and agreements of
the Master Lease (including, without limitation, insurance requirements, as
though Subtenant were the "Tenant" under the Master Lease), for the period
covered by the Sublease, but only to the extent applicable to the Sublet
Premises. In case of any conflict between the provisions of the Master Lease and
the provisions of the Master Lease and the provisions of the Sublease as among
Landlord, Sublessor and Subtenant, the provisions of the Master Lease shall
prevail unaffected by the Sublease. As between Sublessor and Subtenant, the
provisions of the Sublease shall control.
3. Neither the Sublease nor this consent thereto shall release or
discharge Sublessor from any liability under the Master Lease. Sublessor shall
remain liable and responsible for the full performance and observance of all the
provisions, covenants and conditions set forth in the Master Lease on the part
of Sublessor to be performed and observed. Any breach or violation of any
provision of the Master Lease by Subtenant shall be deemed to be, and shall
constitute, a default by Sublessor in fulfilling such provision.
4. This consent by Landlord shall not be assignable or transferable and
shall not be construed as a consent by Landlord to any further subletting by
Sublessor or Subtenant or to any assignment by Sublessor of the Master Lease or
assignment by Subtenant of the Sublease, whether or not the Sublease purports to
permit the same, and, without limiting the generality of the foregoing, both
Sublessor and Subtenant agree that Subtenant has no right whatsoever to assign,
mortgage or encumber the Sublease nor to sublet any portion of the Sublet
Premises or permit any portion of the Sublet Premises to be used or occupied by
any other party or in any other manner to transfer all or any part of
Subtenant's rights with respect to the Sublease or the Sublet Premises. All
provisions in the Master Lease restricting or prohibiting transfer of Tenant's
interests shall also apply to restrict or prohibit transfer by Subtenant (but,
except only as otherwise expressly provided to the contrary in this Agreement,
no provisions in the Master Lease permitting any transfer by Sublessor shall
apply to permit any transfer by Subtenant). This consent may not be construed as
a consent by Landlord to any modification, amendment, extension or renewal of
the Sublease, without Landlord's prior written consent.
5. Sublessor hereby absolutely and irrevocably assigns to Landlord any
and all rights to receive rent and other consideration from any sublease,
including the Sublease, during the pendency of any Event of Default under the
Master Lease, and agrees that Landlord, as assignee for Sublessor for purposes
hereof, or a receiver for Sublessor appointed on Landlord's application may (but
shall not be obligated to) collect such rents and other consideration and apply
the same toward Sublessor's obligations to Landlord under the Master Lease
during the pendency of any default under the Master Lease; provided, however,
that Landlord grants to Sublessor at all times prior to occurrence of any
default under the Master Lease, the right to collect such rents. Sublessor and
Subtenant agree that upon receipt of notice from Landlord directing Subtenant to
pay the sublease rent directly to Landlord, Subtenant shall pay rent due under
the Sublease to Landlord. Landlord shall credit Sublessor with any rent received
by Landlord under such assignment, but the acceptance of any payment on account
of rent from Subtenant as the result of any such default shall in no manner
whatsoever serve to release Sublessor from any liability under the Master Lease,
except to the extent of the rent so credited.
6. Upon the expiration or any earlier termination of the term of the
Master Lease, the
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voluntary or involuntary surrender of the Master Lease by Sublessor to Landlord,
or a mutual cancellation of the Master Lease by Landlord and Sublessor, the
Sublease and its term shall terminate and Subtenant shall vacate the Premises on
or before the effective date of such termination. In the event of the failure of
Subtenant to so vacate the Premises, Landlord shall be entitled to enforce
against Subtenant all of the rights and remedies available to a landlord against
a tenant holding over after the expiration of a term.
7. Both Sublessor and Subtenant shall be and continue to be liable for
the payment of (a) all bills rendered by Landlord for charges incurred by
Subtenant for services and materials supplied to the Sublet Premises beyond that
which is required by the terms of the Master Lease, and (b) any additional costs
incurred by Landlord for maintenance and repair of the Sublet Premises (beyond
that which is required by the Master Lease) as the result of Subtenant occupying
the Sublet Premises (including, but not limited to, any excess cost to Landlord
of services furnished to or for the Sublet Premises).
8. Notwithstanding anything to the contrary contained in the Sublease,
Landlord may require that requests for any service to be supplied by Landlord to
the Sublet Premises, requests to alter the Sublet Premises, requests to further
sublet the Sublet Premises or assign the Sublease, and other requests for
Landlord's consent or approval be made by Sublessor on behalf of Subtenant.
9. Sublessor and Subtenant each covenants and agrees that under no
circumstances shall Landlord be liable for any brokerage commission or other
charge or expense in connection with the Sublease.
10. Sublessor and Subtenant understand and acknowledge that Landlord's
consent to the Sublease expressed herein is not a consent to any improvement or
alteration work to be performed in the Sublet Premises (including without
limitation any improvement work contemplated in the Sublease), that Landlord's
consent for such work must be separately sought and that any such work shall be
subject to all the provisions of the Master Lease with respect thereto.
11. In the event of any conflict between the provisions of this
Agreement and the provisions of the Sublease as between Landlord and Sublessor
or between Landlord and Subtenant, the provisions of this Agreement shall
prevail.
12. In addition to complying with all provisions of the Master Lease
concerning estoppel certificates, Sublessor and Subtenant each also agree to
execute and deliver from time to time upon request such other estoppel
certificates as Landlord may require with respect to the Sublease.
13. In the event of any arbitration or action or proceeding at law or
in equity between or among the parties to this Agreement as a consequence of any
controversy, claim, or dispute relating to this agreement or the breach thereof
or to enforce any of the provisions and/or rights hereunder, the unsuccessful
party or parties to such arbitration, action or proceeding shall pay to the
successful party or parties all costs and expenses, including attorneys' fees
incurred therein by such successful party or parties.
14. Each of Subtenant and Sublessor, jointly and severally, shall
indemnify, defend and hold Landlord harmless from and against any and all claims
arising out of any claim for brokerage commissions or other charges or expenses
in connection with the Sublease; and from and against any
3
12
and all damages, losses, liabilities, lawsuits, judgments, and costs and
expenses (including without limitation reasonable attorneys' fees) arising in
connection with any such claim or claims, or any action or proceeding brought
thereon. If any such action or proceeding be brought against Landlord, the
indemnifying party, upon notice from Landlord, shall defend the same at the
indemnifying party's sole expense by counsel reasonably satisfactory to
Landlord.
15. This Agreement shall be construed in accordance with the laws of
the State of California and, together with the Sublease and the Master Lease,
contains the entire agreement of the parties hereto with respect to the subject
matter hereof and may not be changed or terminated orally or by course of
conduct.
16. This Agreement is hereby incorporated into the Sublease and shall
be attached to the Sublease.
17. Master Landlord represents and warrants to Subtenant that (i) the
Master Lease is unmodified and in full force and effect, (ii) Master Landlord
is not in default under the Master Lease, nor is there any event or
circumstance which has occurred or is occurring that with notice or the passage
of time or both would result in a default by Master Landlord under the Master
Lease, and (iii) to the best of Master Landlord's knowledge, Sublandlord is not
in default under the Master Lease, nor is there any event or circumstance which
has occurred or is occurring that with notice or the passage of time or both
would result in a default by Sublandlord under the Master Lease.
18. Master Landlord agrees that its waiver and covenants in Paragraph
11 of the Master Lease, entitled "Waiver of Subrogation", shall apply in favor
of Subtenant and its agents, employees, successors, assignees and subtenants.
19. Master Landlord agrees that Subtenant may assign the Sublease or
sublet the Subleased Premises or any portion thereof, without Master Landlord's
consent, to any partnership, corporation or other entity which controls, is
controlled by, or is under common control with Subtenant or Subtenant's parent
(control being defined for such purposes as ownership of at least 50% of the
equity interests in, or the power to direct the management of, the relevant
entity), or to any partnership, corporation or other entity resulting from a
merger or consolidation with Subtenant or Subtenant's parent, or to any person,
partnership, corporation or other entity which acquires (whether by means of an
asset purchase of all or substantially all the assets of Subtenant or by means
of a transfer of Subtenant's capital stock) Subtenant as a going concern
(including as part of an initial public offering of Subtenant's stock or other
equity interests or as part of a re-incorporation of Subtenant in another
jurisdiction) (collectively, an "Affiliate"), provided that, in the event of an
assignment, the Affiliate assumes in writing all of Subtenant's obligations
under the Sublease (but no such assumption shall relieve Subtenant from
liability under this Sublease). Subtenant shall give Master Landlord notice of
any assignment or sublet to an Affiliate.
In no event shall any public offering of Subtenant's capital stock or
other equity interests, whether as part of an initial public offering or any
secondary public offering, or any transfer of Subtenant's capital stock or
other equity interests through the "over the counter" market or any
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recognized national or international securities exchange, be deemed an
assignment of the Sublease or a sublease of the Subleased Premises.
20. Master Landlord does not consent hereby to Subtenant's right to
sublease any other part of Sublessor's premises leased under the terms of the
Master Lease, including without limitation the First Refusal Space (as defined
in Section 12 of the Sublease).
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
CIRCLE STAR CENTER ASSOCIATES, L.P.
a California limited partnership
By: M-D Ventures, Inc.
Its: General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
SUBLESSOR:
LIBERATE TECHNOLOGIES,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- [STAMP]
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP, CFO
SUBTENANT:
COSINE COMMUNICATIONS
a California corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President & CEO
6
15
EXHIBIT A
MASTER LEASE
16
================================================================================
CIRCLE STAR LEASE AGREEMENT
by and between
CIRCLE STAR CENTER ASSOCIATES, L.P.
("Landlord")
and
NETWORK COMPUTER, INC.
("Tenant")
================================================================================
17
TABLE OF CONTENTS
PARAGRAPH DESCRIPTION PAGE
--------- ----------- ----
BASIC LEASE INFORMATION .................................................iv
1. Occupancy and Use .................................................. 1
2. Terms and Possession ............................................... 1
3. Rent; Rent Adjustments; Additional Charges for Expenses and Taxes... 2
(A) Monthly Base Rent .............................................. 2
(B) Adjustments in Base Rent ....................................... 3
(C) Additional Charges for Expenses and Taxes ...................... 3
(1) Definitions of Additional Charges: ............................. 3
(A) "Tax Year" ..................................................... 3
(B) "Tenant's Share" ............................................... 3
(C) "Real Estate Taxes" ............................................ 3
(D) "Expenses" ..................................................... 4
(E) "Expense Year" ................................................. 5
(2) Payment of Real Estate Taxes: .................................. 5
(3) Payment of Expenses: ........................................... 6
(4) Other: ......................................................... 6
(5) Audit: ......................................................... 6
(D) Late Charges ................................................... 6
4. Restrictions on Use ................................................ 7
5. Compliance with Laws ............................................... 7
6. Additional Alterations ............................................. 8
7. Repair and Maintenance ............................................. 9
8. Liens ..............................................................10
9. Assignment and Subletting ..........................................10
10. Insurance and Indemnification ......................................13
11. Waiver of Subrogation ............................................. 14
12. Services and Utilities ............................................ 15
13. Tenant's Certificates ............................................. 16
14. Holding over ...................................................... 16
15. Subordination ..................................................... 17
16. Rules and Regulations ............................................. 17
i
18
17. Re-entry by Landlord............................................ 18
18. Insolvency or Bankruptcy........................................ 18
19. Default......................................................... 18
20. Damage by Fire, Etc............................................. 19
21. Eminent Domain.................................................. 21
22. Sale by Landlord................................................ 21
23. Right of Landlord to Perform.................................... 21
24. Surrender of Premises........................................... 22
25. Waiver.......................................................... 22
26. Notices......................................................... 22
27. Taxes Payable by Tenant......................................... 23
28. Abandonment..................................................... 23
29. Successors and Assigns.......................................... 23
30. Attorney's Fees................................................. 23
31. Light and Air................................................... 23
32. Security Deposit................................................ 23
33. Corporate Authority; Financial Information...................... 25
34. Parking......................................................... 26
35. Miscellaneous................................................... 26
36. Tenant's Remedies............................................... 26
37. Real Estate Brokers............................................. 27
38. Lease Effective Date............................................ 27
39. Hazardous Substance Liability................................... 27
40. Arbitration of Disputes......................................... 28
41. Signage......................................................... 28
42. Option to Renew................................................. 28
ii
19
43. Rent During Extension Term..................................... 28
44. Satellite Antenna.............................................. 30
45. Rent During Extension Term..................................... 30
Exhibit "A" Premises
Exhibit "B" Work Letter
Exhibit "B-1" Landlord's Plans
Exhibit "B-2" Minimum Information Required
Exhibit "C" Rules and Regulations
Exhibit "D" Form of Tenant Estoppel Certificate
Exhibit "E" Encumbrances
Exhibit "F" Form of Letter of Credit
Exhibit "G" Second Building
iii
20
BASIC LEASE INFORMATION
Lease Date: April 27 ▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ STAR CENTER ASSOCIATES, L.P.
a California limited partnership
Managing Agent: THE MOZART DEVELOPMENT COMPANY
Landlord's and Managing Agent's Address: c/o THE MOZART DEVELOPMENT COMPANY
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
TENANT: NETWORK COMPUTER, INC.
a Delaware Corporation
Tenant's Address: Prior to Occupancy: After Commencement Date:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at the Premises
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Chief Financial Officer
Building: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Suite: 100, 300, and 400
Rentable Area of the Premises: First Floor: 24,696; Third Floor: 26,561; Fourth Floor: 26,561;
Total: 77,818
Rentable Area of the Building: 102,997 square feet
Tenant's Use of the Premises: General Office and Administration, research and development;
hardware and software labs, and incidental uses including
demonstration rooms and multi-purpose rooms.
Lease Term: Ten (10) years
Option to Terminate: See paragraph 2(e)
Scheduled Commencement Date: August 1, 1999
Scheduled Expiration Date: July 31, 2009
Tenant Allowance: $1,945,450 ($25 psf x 77,818 sf).
Additional Allowance: $389,090 ($5 psf x 77,818 sf).
Tenant's Plan Delivery Date: April 21, 1999
Outside Delivery Date: December 31, 1999
Monthly Base Rent: $2.60 per Rentable Square Foot of the Rentable Area of the
Premises, provided, however, the Monthly Base Rent for the first
month (in respect of the Initial Premises) shall be waived. The
term "Initial Premises" shall mean the premises described on
Exhibit "A" prior to the effect of any increase in the Premises
that results from an election of Tenant to lease any First Right
Space pursuant to Paragraph 45.
iv
21
Base Rent Adjustment: On each anniversary of the Commencement Date the Monthly Base
Rent shall increase by three percent (3%) over the Monthly Base
Rent applicable to the month immediately prior to the applicable
anniversary. (Note: there is also an initial adjustment to
Monthly Base Rent required by Paragraph 3(b)(i)).
Tenant's Share of Expenses and Taxes
("Additional Charges"): 75.55%
Security Deposit: See Paragraph 32.
Guarantor of Lease: Oracle Corporation, a Delaware corporation
Broker: Cornish & ▇▇▇▇▇ Commercial (Landlord & Tenant)
Broker's Fee or Commission, If Any,
Paid By: Landlord
The foregoing Basic Lease Information is hereby incorporated into and made a
part of this Lease. Each reference in this Lease to any of the Basic Lease
Information shall mean the respective information hereinabove set forth and
shall be construed to incorporate all of the terms provided under the particular
paragraph pertaining to such information. In the event of any conflict between
any Basic Lease Information and the Lease, the latter shall control.
v
▇▇
▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇ STAR CENTER ASSOCIATES, L.P.
a California limited partnership
By: M-D Ventures, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Vice President
TENANT:
NETWORK COMPUTER, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: CEO & President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President & Chief Financial Officer
vi
23
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of April 27, 1999, by
and between CIRCLE STAR CENTER ASSOCIATES, L.P., a California limited
partnership, (herein called "Landlord"), and NETWORK COMPUTER, INC., a Delaware
corporation, (herein called "Tenant").
Upon and subject to the terms, covenants and conditions hereinafter
set forth, Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord those premises (the "Premises") comprising the area substantially as
crosshatched on the attached Exhibit "A", in the building (hereinafter referred
to as the "Building") specified in the Basic Lease Information attached hereto.
The number of square feet designated as Rentable Area of the Premises on the
Basic Lease Information may include portions of the Building Common Area
attributed to the Premises and not located within the area outlined on Exhibit
A. Tenant acknowledges that the number of square feet of Rentable Area of the
Premises and the Building has been determined according to the measurement
standard described in the letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Associates dated
September 18, 1998. The Building is located on land on which Landlord intends
to develop two buildings as an integrated project (the "Project"). The term
"Common Area" shall mean all areas and facilities within the Project that are
not designated by Landlord for the exclusive use of Tenant or any other tenant
or other occupant of the Project, including the parking areas, access and
perimeter roads, pedestrian sidewalks, landscaped areas, trash enclosures,
recreation areas and the like.
1. OCCUPANCY AND USE. Tenant may use and occupy the Premises for the
purpose specified in the Basic Lease Information and for no other use or
purpose without the prior written consent of Landlord. Landlord shall have the
right to grant or withhold consent to a proposed change of use in its sole
discretion. Tenant shall be entitled to the benefit on a nonexclusive basis of
(i) the Building Common Areas with other occupants of the Building, and (ii) to
the extent and for so long as Landlord continues to own the Project, the
Project Common Areas with other occupants of the Project in accordance with the
Rules and Regulations established by Landlord from time to time. Provided,
however, that if Landlord sells a portion of the Project, Landlord shall assure
to Tenant that Tenant's rights to access and parking are assured through a
Reciprocal Easement Agreement or other like mechanism. Notwithstanding the
above, Tenant understands and agrees that (a) a Declaration of Covenants,
Conditions and Restrictions made as of June 24, 1997 by and between Mozad,
L.P., a California limited partnership and Homestead Village Inc., a Maryland
corporation ("CC&R's"), (b) the Lease between Mozad, L.P. as Lessor and Circle
Star Center Associates, L.P. as Lessee dated as of October 15, 1997 ("Ground
Lease") and (c) a Conditional Use Permit, Office Complex, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, effective date June 12, 1997, may encumber the Land and
Project and that Tenant's Occupancy and Use of the Premises may be restricted
by such encumbrances. If necessary, Tenant shall execute such documents as are
reasonably necessary to cause this Lease to become subordinate to such
encumbrances (see attached Exhibit "E", Encumbrances).
2. TERM AND POSSESSION; OPTION TO TERMINATE.
(a) The Term of this Lease (the "Term") shall be for the
period specified in the Basic Lease Information (or until sooner terminated as
herein provided), subject extension pursuant to Paragraph 42 and/or Paragraph
45(c)(3)(E). Subject to Tenant's termination right set forth below in this
Paragraph, if Landlord, for any reason whatsoever, cannot deliver possession of
the Premises in the condition required under this Lease (including the
Substantial Completion of the Tenant Improvements), with all governmental
permits required for the occupancy of the Premises, to Tenant on the date
specified in the Basic Lease Information for the commencement of the Term, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom. In that event, however, the Term of the
Lease shall not commence until such commencement date as is determined pursuant
to Exhibit B. In such event, the scheduled commencement date and scheduled
expiration date shall be adjusted accordingly. Payment of Rent and Additional
Charges by Tenant due to delay in delivery of the Premises caused by Tenant
shall also be governed by Exhibit B hereof. Notwithstanding the provisions
above and of Exhibit B, if the delivery of the Premises is delayed beyond
Outside Delivery Date, as set forth in the Basic Lease Information, Tenant
shall have the right to terminate this Lease by notifying Landlord in writing
of its intent to do so no later than ten (10) business days after the Outside
Delivery Date. The Outside Delivery Date shall be extended one day for each day
of
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delay caused by (i) Tenant Delays as more particularly set forth in Exhibit B
hereof and (ii) acts of God or the elements, acts of the Government, labor
disturbances of any character, a shortage of material or labor, or other causes
beyond the reasonable control of Landlord for a period up to sixty (60) days
(any of the foregoing, "Force Majeure"). The dates upon which the Term shall
actually commence and terminate pursuant to this Paragraph 2(a) are herein
called the "Commencement Date" and the "Expiration Date," respectively.
(b) Completion of the improvements to the Premises and Building
shall be governed by the terms and conditions of the separate work letter
("Work Letter"), attached hereto as Exhibit "B".
(c) The Premises shall be deemed "delivered" and the Term shall
commence as defined in Exhibit B.
(d) Tenant shall, no later than thirty (30) days after
Substantial Completion of the Tenant Improvements, occupy a portion of the
Premises or deliver a letter to Landlord confirming that possession of the
Premises has been tendered to and accepted by Tenant and that Tenant, by virtue
of such acceptance, is in occupancy of the Premises. Time is of essence. This
subparagraph 2(d) shall not be construed as an obligation of Tenant to
continuously occupy the Premises.
(e) Tenant shall have the option to terminate this Lease with
respect to not less than all of the Initial Premises effective upon the end of
the eighth anniversary of the Commencement Date (subject to the extension of
this period pursuant to Paragraph 45(c)(3)(C)) if, and only if, Tenant provides
written notice to Landlord no less than twenty (20) months prior to the
effective date of such termination. This option to terminate shall not be
exercisable from and after Tenant's exercise of its option to renew pursuant to
Paragraph 42 below. As a condition to Tenant's termination of this Lease
pursuant to this subparagraph (e), Tenant shall pay the unamortized portion of
the Additional Allowance applicable to the Initial Premises as of the date of
such termination based upon amortization over the period commencing on the
first day of the second month of the Term and ending on the Expiration Date,
with the return of nine percent (9%) per annum. In the event Tenant exercises
its option to terminate pursuant to this paragraph, effective upon such
termination all of its rights to occupy the Initial Premises and the portions
of the Project associated therewith shall terminate including but not limited
to its right to building signage pursuant to the second sentence of Paragraph
41 and its right to use the roof top for an Antenna pursuant to Paragraph 44.
3. RENT; RENT ADJUSTMENTS; ADDITIONAL CHARGES FOR EXPENSES AND
TAXES.
(a) Monthly Base Rent.
(i) Payment of Base Rent. Commencing on the Commencement
Date (but subject to the waiver in clause (ii) below), Tenant shall pay to
Landlord throughout the Term an amount equal to the Monthly Base Rent rate
specified in the Basic Lease Information as adjusted pursuant to Paragraph
3(b), multiplied by the Rentable Area of the Premises, as specified in the
Basic Lease Information ("Base Rent"), which sum shall be payable by Tenant in
equal monthly installations on, or, at Tenant's election, before, the first day
of each month, in advance, in lawful money of the United States (without any
prior demand therefor and without deduction or offset whatsoever, except as
expressly provided for in Paragraphs 20 & 21) to Landlord or its managing agent
at the address specified in the Basic Lease Information or to such other firm
or to such other place as Landlord or its Managing Agent may from time to time
designate in writing. Tenant shall pay to Landlord all charges and other
amounts whatsoever as provided in this Lease ("Additional Charges") at the
place where the Base Rent is payable, and Landlord shall have the same remedies
for a default in the payment of Additional Charges as for a default in the
payment of Base Rent. As used herein, the term "Rent" shall include all Base
Rent and Additional Charges (including, without limitation, Additional Charges
for Real Estate Taxes and Expenses pursuant to Paragraph 3(c) below, and
Additional Charges pursuant to Paragraphs 7(b), 8, 10(d) and 23). If the
Commencement Date should occur on a day other than the first day of a calendar
month, or the Expiration Date should occur on a day other than the last day of
a calendar month, then the Rent and Additional Charges for such fractional
month shall be prorated on a daily basis.
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(ii) Partial Waiver of Monthly Base Rent. Landlord
shall waive the Monthly Base Rent for the first month (in respect of the Initial
Premises) of the Term.
(b) Adjustments in Monthly Base Rent.
(i) Adjustment for Additional Allowance. Effective as
of the first day of the second month of the Term, the initial Monthly Base Rent
shall be increased by $12.73 per $1,000 of the Additional Allowance drawn by
Tenant pursuant to the Work Letter.
(ii) Annual Adjustment. The Monthly Base Rent under
Paragraph 3(a) (excluding the amount payable pursuant to Paragraph 3(b)(i)),
shall be adjusted as provided in the Basic Lease Information under the "Base
Rent Adjustment".
(c) Additional Charges for Expenses and Taxes.
(1) Definitions of Additional Charges: For
purposes of this Paragraph 3(c), the following terms shall have the meanings
hereinafter set forth:
(A) "Tax Year" shall mean each
twelve (12) consecutive month period commencing January 1st of the
calendar year during which the Commencement Date of this Lease occurs,
provided that Landlord, upon notice to Tenant, may change the Tax Year
from time to time to any other twelve (12) consecutive month period
and, in the event of any such change, Tenant's Share of Real Estate
Taxes (as hereinafter defined) shall be equitably adjusted for the Tax
Years involved in any such change.
(B) "Tenant's Share" shall mean
the percentage figure so specified in the Basic Lease Information.
(C) "Real Estate Taxes" shall mean
all taxes, assessments and charges levied upon or with respect to the
Project or any personal property of Landlord used in the operation of
thereof, or Landlord's interest in the Project or such personal
property. Real Estate Taxes shall include, without limitation, all
general real property taxes and general and special assessments,
charges, fees or assessments for transit, housing, police, fire or
other governmental services or purported benefits to the Building
(provided, however, that any refunds of Real Estate Taxes paid by
Tenant (as part of Tenant's Share of Real Estate Taxes) shall be
credited against Tenant's further obligation to pay Real Estate Taxes
during the Term, or paid to Tenant if received after expiration of the
Term), service payments in lieu of taxes, and any tax, fee or excise on
the act of entering into this Lease, or any other lease of space in
the Building, or on the use or occupancy of the Building or any part
thereof, or on the rent payable under any lease or in connection with
the business of renting space in the Building, that are now or
hereafter levied or assessed against Landlord by the United States of
America, the State of California, or any political subdivision, public
corporation, district or any other political or public entity, and
shall also include any other tax, fee or other excise, however
described, that may be levied or assessed as a substitute for, or as an
addition to, in whole or in part, any other Real Estate Taxes, whether
or not now customary or in the contemplation of the parties on the date
of this Lease. Real Estate Taxes shall not include franchise, transfer,
inheritance or capital stock taxes, gift or estate taxes, any
assessments in excess of the amount which would be payable if such tax
or assessment expense were paid in installments over the longest
permitted term, any increases in taxes due to the improvement of the
Project for the sole use of other occupants, or income taxes measured
by the net income of Landlord from all sources unless, due to a change
in the method of taxation, any of such taxes is levied or assessed
against Landlord as a substitute for, in whole or in part, any other
tax that would otherwise constitute a Real Estate Tax. Additionally,
Real Estate Taxes shall not include any assessments or like charges to
pay for any remediation of contamination from any Hazardous Substance
(which are not the liability of Tenant pursuant to Paragraph 39
hereof). Real Estate Taxes shall also include reasonable legal fees,
costs and disbursements incurred in connection with proceedings to
contest, determine or reduce Real Estate Taxes; provided that such
fees, costs and disbursements do not
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exceed the actual savings in Real Estate Taxes obtained by Tenant over the Term
of the Lease. If any assessments are levied on the Project, Tenant shall have
no obligation to pay more than that amount of annual installments of principal
and interest that would become due during the Lease Term had Landlord elected
to pay the assessment in installment payments, even if Landlord pays the
assessment in full. From and after commencement of construction of the Second
Building (as defined in Paragraph 45 below) Real Estate Taxes shall be adjusted
so as to exclude any taxes attributable to the construction of such Second
Building during the period of construction thereof. Upon completion of
construction of the Second Building, Real Estate Taxes shall include only the
Building's Share (as defined below) thereof.
(D) "Expenses" shall mean the total
costs and expenses reasonably paid or incurred by Landlord in
connection with the management, operation, maintenance and repair of
the Building, including, without limitation (i) the cost of air
conditioning, electricity, steam, heating, mechanical, ventilating,
elevator systems and all other utilities and the cost of supplies and
equipment and maintenance and service contracts in connection
therewith; (ii) the cost of repairs and general maintenance and
cleaning; (iii) the cost of fire, extended coverage, boiler, sprinkler,
public liability, property damage, rent, earthquake (if Landlord
determines that it is available at commercially reasonable rates) and
other insurance obtained by Landlord in connection with the Project,
all including, without limitation, insurance premiums and any
deductible amounts paid by Landlord; (iv) fees, charges and other
costs, including management fees, consulting fees, legal fees (which
are allowed elsewhere in the Lease) and accounting fees of all
independent contractors engaged by Landlord directly related to the
operation of the Building or reasonably charged by Landlord if Landlord
performs management services in connection with the Building, (though
the management fee shall not exceed the cap noted in the following
paragraph); (v) the cost of any capital improvements made to the
Building after the Commencement Date (a) as a labor saving device or to
effect other economies in the operation or maintenance of the Building
(from which a reasonable person would anticipate that savings would
actually result), (b) to repair or replace capital items which are no
longer capable of providing the services required of them, or (c) that
are made to the Building after the date of this Lease and are required
under any Laws (as defined in Paragraph 5), where such capital
improvements were not required under any such Laws to be completed with
respect to the Building prior to the date the Lease was executed, and
the cost of any such capital improvements incurred during any calendar
year, shall be amortized over the useful life (but not more than ten
years) of the capital item in question as determined in accordance with
generally accepted accounting principles ("GAAP"), together with
interest on the unamortized balance at (x) the rate paid by Landlord on
funds borrowed for the purpose of constructing such capital
improvements; or (y) if paid from Landlord's own funds, 10% per annum;
provided, however, the first $.24 per square foot of the Rentable Area
of the Premises of such cost of capital improvements may be included in
Expenses even if such amount exceeds the foregoing amortization and any
remaining balance of the cost of such capital improvements shall be
amortized in accordance with the foregoing (such amortization to
commence in the year following the year in which the $.24 was taken as
an expense item); and (vi) any other reasonable expenses of any other
kind whatsoever reasonably incurred in managing, operating, maintaining
and repairing the Building, including, but not limited to, costs
incurred pursuant to the Encumbrances identified in Exhibit "E" and the
Building's Share of Project Common Expenses. "Project Common Expenses"
shall mean any expenses reasonably paid or incurred by Landlord in
connection with the management, operation, maintenance and repair of
the Project Common Areas in the Project and any other Expenses
reasonably paid or incurred by Landlord for the benefit of the Project
as a whole, including, but not limited to, the cost of maintaining the
parking lot and facilities and landscaping. "Building's Share" shall
mean the pro rata portion of all Project Common Expenses based on the
amount of gross floor area of the Building as a portion of the gross
floor area of all applicable buildings in the Project, all as
reasonably determined by Landlord. Any "deductible" amounts relating to
capital improvements required to be paid by Tenant hereunder in
connection with any casualty policy carried by Landlord shall be
amortized over the useful life of the restoration work in accordance
with GAAP; provided, however, such amounts shall no longer constitute
Expenses from and after the date upon which Monthly Base Rent is
adjusted to fair market rental pursuant to the terms and conditions of
this Lease.
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Notwithstanding anything to the contrary herein contained, Expenses
shall not include, and in no event shall Tenant have any obligation to
pay for pursuant to this Paragraph 3 or Paragraph 7(b), (aa) the
initial construction cost of the Project or real property on which the
Building is located; (bb) the cost of providing tenant improvements,
renovations, painting or redecorating (other than in Common Areas) to
Tenant or any other tenant; (cc) any Base Monthly Rental or Percentage
Rental payable pursuant to the Ground Lease and/or debt service
(including, but without limitation, interest, principal and any impound
payments) required to be made on any mortgage or deed of trust recorded
with respect to the Building and/or the real property on which the
Building is located other than debt service and financing charges
imposed pursuant to Paragraph 3(c)(1)(D)(v) above; (dd) the cost of
special services, goods or materials provided to any tenant; (ee)
depreciation; (ff) the portion of a management fee paid to Landlord or
affiliate in excess of three percent (3%) of Base Rent and Additional
Charges (excluding the management fee); (gg) the portion of a
management fee paid in excess of two percent (2%) of Base Rent and
Additional Charges (excluding the management fee) if Tenant manages all
services (e.g. janitorial, HVAC, security, etc.) in respect of its
Premises; (hh) costs occasioned by Landlord's fraud or willful
misconduct under applicable laws; (ii) costs for which Landlord has a
right of reimbursement from others; (ii) costs to correct any
construction or design defects in the original construction of the
Premises, the Building or the Project; (kk) costs arising from a
disproportionate use of any utility or service supplied by Landlord to
any other occupant of the Building; (ll) repairs, replacement and
upgrades to the structural elements of the Building (including
foundation, floor slabs, exterior walls and roof structure); (mm)
environmental pollution remediation related costs in connection with
the remediation of the Project including costs for which Landlord has
indemnified Tenant pursuant to Paragraph 39, except any such costs
incurred as the result of Tenant's use of the Premises; (nn)
advertising or promotional costs; (oo) leasing commissions; (pp) except
as provided in Paragraph 20, costs occasioned by casualties or by the
exercise of the power of eminent domain (other than deductible amounts
under insurance policies which shall be included as an Expense); and
(qq) legal costs incurred in connection with negotiations or disputes
with any other occupant (or prospective occupant) of the Project. In
the event that the Building or the Project is not at least ninety-five
percent (95%) occupied during any fiscal year of the Term as determined
by Landlord, an adjustment shall be made in computing the Expenses
and/or the Project Common Expenses, as applicable, for such year so
that Expenses and/or Project Common Expenses, as applicable, which vary
with occupancy shall be computed as though the Building or Project, as
applicable, had been ninety-five percent (95%) occupied; provided,
however, that in no event shall Landlord be entitled to collect in
excess of one hundred percent (100%) of the total Expenses from all of
the tenants in the Building including Tenant. All costs and expenses
shall be determined in accordance with generally accepted accounting
principles which shall be consistently applied (with accruals
appropriate to Landlord's business). Expenses shall not include
specific costs incurred for the account of, separately billed to
specific tenants.
(E) "Expense Year" shall mean each
twelve (12) consecutive month period commencing January 1 of the
calendar year during which the Commencement Date of the Lease occurs,
provided that Landlord, upon notice to Tenant, may change the Expense
Year from time to time to any other twelve (12) consecutive month
period, and, in the event of any such change, Tenant's Share of
Expenses shall be equitably adjusted for the Expense Years involved in
any such change.
(2) Payment of Real Estate Taxes: Commencing on the
Commencement Date, unless otherwise provided for in Paragraph 3(a), Tenant shall
pay to Landlord as Additional Charges one-twelfth (1/12th) of Tenant's Share of
Real Estate Taxes fairly allocable to the Building as reasonably determined by
Landlord for each Tax Year on or before the first day of each month during such
Tax Year, in advance, in an amount reasonably estimated by Landlord and billed
by Landlord to Tenant, and Landlord shall have the right initially to determine
monthly estimates and to revise such estimates from time to time. With
reasonable promptness after Landlord has received the tax bills for any Tax
Year, Landlord shall furnish Tenant with a statement (herein called "Landlord's
Tax Statement") setting forth the amount of Real Estate Taxes for such Tax Year,
and Tenant's Share thereof. If the actual Tenant's Share of Real Estate Taxes
for such Tax Year exceed the estimated Real Estate Taxes paid by Tenant for such
Tax Year, Tenant shall pay to Landlord the difference between the amount paid by
Tenant and the actual Real Estate Taxes within twenty (20) days after the
receipt of Landlord's Tax Statement, and if the total amount paid by Tenant for
any such Tax Year shall exceed
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the actual Tenant's Share of Real Estate Taxes for such Tax Year, such excess
shall be credited against the next installment of Real Estate Taxes due from
Tenant to Landlord hereunder. If it has been determined that Tenant has overpaid
Real Estate Taxes during the last year of the Lease Term, then Landlord shall
reimburse Tenant for such overage on or before the twentieth (20th) day
following the Expiration Date. Upon Tenant's written request, Landlord will
provide an explanation of any allocation of taxes made by Landlord among
different parts of the Project.
(3) Payment of Expenses: Commencing on the Commencement Date,
unless otherwise provided for in Paragraph 3(a), Tenant shall pay to Landlord as
Additional Charges one-twelfth (1/12th) of Tenant's Share of the Expenses for
each Expense Year on or before the first day of each month of such Expense Year,
in advance, in an amount reasonably estimated by Landlord and billed by Landlord
to Tenant, and Landlord shall have the right initially to determine monthly
estimates and to revise such estimates from time to time. With reasonable
promptness after the expiration of each Expense Year, Landlord shall furnish
Tenant with a statement (herein called "Landlord's Expense Statement"), setting
forth in reasonable detail the Expenses for such Expense Year and Tenant's Share
thereof. If the actual Expenses for such Expense Year exceed the estimated
Expenses paid by Tenant for such Expense Year, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual Tenant's Share of
Expenses within twenty (20) days after the receipt of Landlord's Expense
Statement, and if the total amount paid by Tenant for any such Expense Year
shall exceed the actual Tenant's Share of Expenses for such Expense Year,
such excess shall be credited against the next installment of the estimated
Expenses due from Tenant to Landlord hereunder or if the Term has ended it shall
be returned to Tenant within twenty (20) days. Any utility rebates for the
Project which Landlord receives for payments made by Tenant (as part of Tenant's
Share of Expenses) shall be forwarded to Tenant so long as such rebate is
received within one year following the Expiration Date or sooner termination of
the Lease. If it has been determined that Tenant has overpaid Expenses during
the last year of the Lease Term (including rebates of utilities applicable to
Tenant), then Landlord shall reimburse Tenant for such overage on or before the
twentieth (20th) day following the Expiration Date. Upon Tenant's written
request, Landlord will explain any "gross-up" of expenses and the allocation of
any particular item of expense among different parts of the Project.
(4) Other: To the extent any item of Real Estate Taxes or
Expenses is payable by Landlord in advance of the period to which it is
applicable (e.g. insurance and tax escrows required by Landlord's Lender), or to
the extent that prepayment is customary for the service or matter, Landlord may
(i) include such items in Landlord's estimate for periods prior to the date such
item is to be paid by Landlord and (ii) to the extent Landlord has not collected
the full amount of such item prior to the date such item is to be paid by
Landlord, Landlord may include the balance of such full amount in a revised
monthly estimate for Additional Charges. If the Commencement Date or Expiration
Date shall occur on a date other than the first day of a Tax Year and/or Expense
Year, Tenant's share of Real Estate Taxes and Expenses, for the Tax Year and/or
Expense Year in which the Commencement Date occurs shall be prorated.
(5) Audit: Within twelve (12) months after receipt of any
Expense Statement or Tax Statement from Landlord, Tenant shall have the right to
examine Landlord's books and records, copies of which shall be maintained in the
San Francisco, Bay Area relating to such Expense Statements and Tax Statements,
or cause an independent audit thereof to be conducted by an accounting firm to
be selected by Tenant and subject to the reasonable approval of Landlord. If the
audit conclusively proves that Tenant has overpaid either Expenses or Real
Estate Taxes, then Landlord shall promptly reimburse Tenant for such overage,
and if such overage exceeds five percent (5%) of the actual amount of Expenses
or Real Estate Taxes paid by Landlord for the Tax or Expense Year covered by
such audit, then Landlord shall bear the reasonable cost of such audit, up to a
maximum cost of $10,000. If Tenant fails to object to any such Expense Statement
or Tax Statement or request an independent audit thereof within such twelve (12)
month period, such Expense Statement and/or Tax Statement shall be final and
shall not be subject to any audit, challenge or adjustment.
(d) Late Charges. Tenant recognizes that late payment of any Base Rent
or Additional Charges will result in administrative expenses to Landlord, the
extent of which additional expense is extremely difficult and economically
impractical to ascertain. Tenant therefore agrees that if any Base Rent of
Additional Charges remain unpaid three (3) days after such amount is due, the
amount of such unpaid Base Rent or
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Additional Charges shall be increased by a late charge to be paid to Landlord
by Tenant in an amount equal to four percent (4%) of the amount of the
delinquent Base Rent or Additional Charges. Tenant shall be excused once each
twelve (12) month period of the Term from the application of a late fee to any
Base Rent or Additional Charge which became delinquent without a prior written
invoice or other notice of Landlord of such delinquency; provided, however, the
late fee shall nevertheless be payable if Tenant does not cure the delinquency
within ten (10) days after written notice from Landlord. In addition, any
outstanding Base Rent, Additional Charges, late charges and other outstanding
amounts shall accrue interest at an annualized rate of the lesser of (i) the
greater of, 10% or The Federal Reserve Discount Rate plus 5%, or (ii) the
maximum rate permitted by law (the "Default Rate"), until paid to Landlord.
Tenant agrees that such amount is a reasonable estimate of the loss and expense
to be suffered by Landlord as a result of such late payment by Tenant and may
be charged by the Landlord to defray such loss and expense. The provisions of
this Paragraph 3(d) in no way relieve Tenant of the obligation to pay Rent or
Additional Charges on or before the date on which they are due, nor do the
terms of this Paragraph 3(d) in any way affect Landlord's remedies pursuant to
Paragraph 19 in the event any Base Rate or Additional Charges are unpaid after
the due date.
4. RESTRICTIONS ON USE. Tenant shall not do or permit anything to
be done in or about the Premises which will unreasonably obstruct or interfere
with the rights of other tenants or occupants of the Building or the Project or
injure or annoy them, nor use or allow the Premises to be used for any unlawful
purpose, nor shall Tenant cause or maintain or permit any nuisance in, on or
about the Premises. Tenant shall not commit or suffer the commission of any
waste in, on or about the Premises.
5. COMPLIANCE WITH LAWS.
(a) Tenant's compliance Obligations. Tenant shall not use the Premises
or permit anything to be done in or about the Premises which will in any way
conflict with any present and future laws, statutes, ordinances, resolutions,
regulations, proclamations, orders or decrees of any municipal, county, state or
federal government or other governmental or regulatory authority with
jurisdiction over the Project, or any portion thereof, whether currently in
effect or adopted in the future and whether or not in the contemplation of the
parties hereto (collectively, "Laws"), and Tenant shall promptly, at its sole
expense, maintain the Premises, any Alterations (as defined in Paragraph 6
below) permitted hereunder and Tenant's use and operations thereon in strict
compliance at all times with all Laws. "Laws" shall include, without limitation,
all Laws relating to health and safety (including, without limitation, the
California Occupational Safety and Health Act of 1973 and the California Safe
Drinking Water and Toxic Enforcement Act of 1986, including posting and delivery
of notices required by such Laws with respect to the Premises) and disabled
accessibility (including, without limitation, the Americans with Disabilities
Act, 42 U.S.C Paragraph 12101 et seq.), Hazardous Substances, and all present
and future life safety, fire, sprinkler, seismic retrofit, building code and
municipal code requirements; provided however, that the Tenant's obligation to
comply with Laws relating to Hazardous Substances is subject to the terms and
conditions of Paragraph 39, and Tenant shall not be responsible for compliance
with clean-up provisions of any Laws with respect to Hazardous Substances except
to the extent of any release caused by the Tenant Parties or otherwise included
in Tenant's indemnity contained in Paragraph 39. Notwithstanding the foregoing,
Landlord, and not Tenant, shall be responsible for correcting any condition at
the Premises which is in violation of applicable Laws on or prior to the
Commencement Date, except to the extent such condition is caused by the acts or
omissions of the Tenant Parties or such violation results from Tenant's use of
the Premises in a manner other than as permitted under this Lease.
Notwithstanding the first sentence of this Paragraph 5(a), Tenant shall not be
required to make any alterations to the Premises in order to comply with Laws
unless the requirement that such alterations be made is triggered by any of the
following (or, if such requirement results from the cumulative effect of any of
the following when added to other acts, omissions, negligence or events, to the
extent such alterations are required by any of the following): (i) the
installation, use or operation of any Alterations, or any of Tenant's trade
fixtures or personal property; (ii) the acts, omissions or negligence of Tenant,
or any of its servants, employees, contractors, agents or licensees; or (iii)
the particular use or particular occupancy or manner of use or occupancy of the
Premises by Tenant, or any or its servants, employees, contractors, agents or
licensees (as opposed to the use of the Premises for general office use). Any
alterations that are Tenant's responsibility pursuant to this Paragraph 5 shall
be made in accordance with Paragraph 6 below. The parties acknowledge and agree
that Tenant's obligation to comply with all Laws as provided in this paragraph
(subject to the limitations contained herein) is a material part of the
bargained-for
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consideration under this Lease. Tenant's obligations under this Paragraph and
under Paragraph 7(c) below shall include, without limitation, the
responsibility of Tenant to make substantial or structural repairs and
alternations to the Premises to the extent provided above, regardless of, among
other factors, the relationship of the cost of curative action to the Rent
under this Lease, the length of the then remaining Term hereof, the relative
benefit of the repairs to Tenant or Landlord, the degree to which the curative
action may interfere with Tenant's use or enjoyment of the Premises, and the
likelihood that the parties contemplated the particular Law involved.
(b) INSURANCE REQUIREMENTS. Tenant shall not do or permit
anything to be done in or about the Premises or bring or keep anything therein
which will in any way increase the rate of any insurance upon the Project or any
of its contents (unless Tenant agrees to pay for such increase) or cause a
cancellation of any insurance on the Project or otherwise violate any
requirements, guidelines, conditions, rules or orders with respect to such
insurance. Tenant shall at its sole cost and expense promptly comply with the
requirements of the ISO, board of fire underwriters, or other similar body now
or hereafter constituted relating to or affecting Tenant's use or occupancy of
the Project (other than in situations where compliance involves repair,
maintenance or replacement of items that Landlord is expressly required to
repair, maintain or replace under this Lease).
(c) NO LIMITATION ON OBLIGATIONS. The provisions of this
Paragraph 5 shall in no way limit Tenant's maintenance, repair and replacement
obligations under Paragraph 7 or Tenant's obligation to pay Expenses under
Paragraph 3(c). The judgment of any court of competent jurisdiction or the
admission of Tenant in an action against Tenant, whether Landlord is a party
thereto or not, that Tenant has so violated any such Law shall be conclusive of
such violation as between Landlord and Tenant.
6. ADDITIONAL ALTERATIONS. Tenant shall not make or suffer to be
made any additional alterations, additions or improvements ("Alterations") in,
on or to the Premises or any part thereof without the prior written consent of
Landlord. Landlord shall not unreasonably delay its processing of Tenant's
written request for such request. Tenant's written request for consent shall
contain the following language in bold print: "THIS REQUEST IS MADE PURSUANT TO
PARAGRAPH 6 OF THE LEASE AND REQUIRES A RESPONSE WITHIN A REASONABLE TIME". Any
alterations in, on or to the Premises, except for Tenant's movable furniture and
equipment (including the telephone system, security system, demountable
partitions, secretarial stations, cubicles, cabinets or shelving systems and
kitchen equipment, except to the extent paid for with the Tenant Improvement
Allowance or Additional Allowance), shall be the property of Tenant during the
Term and shall become Landlord's property at the end of the Term without
compensation to Tenant. Landlord shall not unreasonably withhold its consent to
Alterations that (i) do not materially affect the structure of the Building or
its electrical, plumbing, HVAC, security or other systems, (ii) are not visible
from the exterior of the Premises, (iii) are consistent with Tenant's permitted
use hereunder, and (iv) do not adversely affect the value or marketability of
Landlord's reversionary interest upon termination or expiration of this Lease.
In the event Landlord consents to the making of any Alterations by Tenant, the
same shall be made by Tenant, at Tenant's sole cost and expense, in accordance
with plans and specifications reasonably approved by Landlord, and any
contractor or person selected by Tenant to make the same must first be
reasonably approved in writing by Landlord. Upon the expiration or sooner
termination of the Term, Tenant shall upon demand by Landlord, at Landlord's
election either (x) at Tenant's sole cost and expense, forthwith and with all
due diligence remove any Alterations made by or for the account of Tenant,
designated by Landlord to be removed (provided, however, that upon the written
request of Tenant prior to installation of such Alterations, Landlord shall
advise Tenant at that time whether or not such Alterations must be removed upon
the expiration or sooner termination of this Lease), and restore the Premises to
its original condition as of the Commencement Date, subject to normal wear and
tear and the rights and obligations of Tenant concerning casualty damage
pursuant to Paragraph 20 or (y) pay Landlord the reasonable estimated cost
thereof; provide, however, if Tenant wishes to proceed pursuant to clause (x) it
may do so if it completes all such work prior to the expiration or termination
of the Term.
Notwithstanding the foregoing Tenant shall be permitted to make Alterations
without Landlord's prior written consent if all of the following conditions are
met:
(A) The Alterations meet the conditions specified in clauses
(i)-(iii) above;
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(B) Tenant provides Landlord at least twenty (20) days prior
written notice of the commencement of construction of such
Alterations together with the plans and specifications for
such Alterations;
(C) Such Alterations are constructed by Devcon Construction;
(D) Such Alterations are consistent with the floor plan of the
floor of the Premises being altered; and
(E) The total cost of such Alterations when taken together
with all Alterations constructed by Tenant in reliance upon
this provision (allowing construction without Landlord's prior
written approval) over the prior 24 months, does not exceed
$50,000.
7. REPAIR AND MAINTENANCE.
(a) Landlord shall be responsible for the following repair,
replacement and maintenance obligations: (i) maintenance and repair of the
exterior of the Building, roof (including roof membrane) and structural portions
of the Building, (ii) repairs, replacement, and maintenance of the Building
systems, including, without limitation, electrical, mechanical, HVAC and
plumbing and all controls appurtenant thereto, (iii) repairs, replacement and
maintenance of any elevators in the Building, (iv) repair, replacement and
maintenance of Common Areas, (v) alterations to the Premises required under
applicable Laws to the extent not the responsibility of Tenant pursuant to
Paragraph 5 or 6 hereof, (vi) any repair, maintenance or improvements which
could be treated as a "capital expenditure" under generally accepted accounting
principles, (vii) any repair, maintenance or improvements which are a result of
casualty or the exercise of the power of eminent domain which are Landlord's
responsibility under Paragraph 20 or 21, (viii) repairs and replacements of
lighting equipment (including light bulbs), (ix) any repair, maintenance or
improvements which are required as a consequence of construction defects in
Landlord's work or the Tenant Improvements, (x) any repair, maintenance or
improvements for which Landlord has a right of reimbursement from others. As
part of Landlord's maintenance of the building systems, Landlord shall implement
and carry out throughout the term of this Lease an ongoing program of regular
and preventative maintenance of all building systems (such program to include
the periodic replacement of HVAC filters in accordance with manufacturers'
specifications and the monitoring of HVAC systems settings (i.e., percentage of
outside air to ensure compliance with the specifications of the equipment
manufacturers and the design of the HVAC system)) and shall in any event cause
the Building HVAC system and indoor air quality of the Common Areas within the
Building and the Premises to meet for the entire term of this Lease the
standards set forth in Standard 62-1989 ("Ventilation for Acceptable Indoor Air
Quality "), including both the requirements of the Ventilation Rate Procedure
and Indoor Air Quality Procedure and the maintenance requirements,
recommendations and guidelines contained therein, promulgated by the American
Society of Heating, Refrigerating and Air Conditioning Engineers ("ASHRAE"), and
any applicable laws, ordinances, rules air regulations now in effect or
thereafter promulgated by any governmental authority having jurisdiction over
the Building or persons occupying or working in the Building relating to office
building indoor air quality (collectively, the "Indoor Air Quality Standard").
Landlord shall make available to Tenant Landlord's records evidencing such
maintenance efforts by Landlord, and Landlord shall cooperate with Tenant's
efforts to monitor and to maintain the Indoor Air Quality Standard in the
Premises. Tenant shall have the right, from time to time, to test the air
quality within the Premises; if at any time air within the Premises or a portion
thereof is determined to contain carbon dioxide in excess of 1,000 parts per
million (PPM) (or such lesser amount as may then violate the applicable Indoor
Air Quality Standard), at Tenant's request, Landlord will promptly make such
adjustments or alterations to the ventilation system serving the Premises as are
reasonably necessary to be performed which will increase ventilation in the
Premises such that carbon dioxide levels in the Premises are in compliance with
the Indoor Air Quality Standard. Notwithstanding the foregoing, Tenant shall be
responsible for Tenant's Share of the costs described in this paragraph to the
extent such costs are properly included in Expenses.
(b) Tenant shall maintain and repair the interior portion of
the Premises and any Alterations installed by or on behalf of Tenant within the
Premises, however, excluding any portions thereof which are structural in nature
or which are the obligation of Landlord under Paragraph 7(a) (subject to
Paragraphs 5 and
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7(c)). Tenant shall be responsible for the expense of installation, operation,
and maintenance of its telephone and other communications cabling from the point
of entry into the Building to the Premises and throughout the Premises; though
Landlord shall have the right to perform such work on behalf of Tenant in Common
Areas. Tenant hereby waives and releases its right to make repairs at Landlord's
expense under Paragraphs 1941 and 1942 of the California Civil Code or under any
similar law, statute or ordinance now or hereafter in effect. In addition,
Tenant hereby waives and releases its right to terminate this Lease under
Paragraph 1932(1) of the California Civil Code or under any similar law,
statute or ordinance now or hereafter in effect. If Tenant fails after thirty
(30) days' written notice by Landlord to proceed with due diligence to make
repairs required to be made by Tenant, the same may be made by Landlord at the
expense of Tenant and the expenses thereof incurred by Landlord shall be
reimbursed (with interest at the Default Rate from the date Landlord incurs such
cost) as Additional Charges within thirty (30) days after submission of a ▇▇▇▇
or statement therefor.
(c) The purpose of Paragraph 7(a) and 7(b) is to define the
obligations of Landlord and Tenant to perform various repair and maintenance
functions; the allocation of the costs therefor are covered under this
Paragraph 7(c) and Paragraph 3. Tenant shall bear the full cost of repairs or
maintenance, interior or exterior, structural or otherwise, to preserve the
Premises and the Building in good working order and condition, arising out of
(i) the existence, installation, use or operation of any Alterations, or any of
Tenant's trade fixtures or personal property; (ii) the moving of Tenant's
property or fixtures in or out of the Building or Project or in and about the
Premises; or (iii) except to the extent any claims arising from any of the
foregoing are reimbursed by insurance carried by Landlord, are covered by the
waiver of subrogation in Paragraph 11 or are otherwise provided for in
Paragraph 20, the acts, omissions or negligence of Tenant, or any of its
servants, employees, contractors, agents, visitors, or licensees, or the
particular use or particular occupancy or manner of use or occupancy of the
Premises by Tenant or any such person (as opposed to general office use).
Any Alterations required with respect to Tenant's responsibilities pursuant to
this Paragraph 7(c) shall be made in accordance with Paragraph 6.
(d) Except to the extent any claims arising from any of the
foregoing are reimbursed by rental abatement insurance carried by Landlord, are
covered by the waiver of subrogation in Paragraph 11 or are otherwise provided
for in Paragraph 20, there shall be no abatement of Rent with respect to, and
except for Landlord's active negligence or willful misconduct, Landlord shall
not be liable for any injury to or interference with Tenant's business arising
from, any repairs, maintenance, alteration or improvement in or to any portion
of the Building, including the Premises, or in or to the fixtures, appurtenances
and equipment therein.
8. LIENS. Tenant shall keep the Premises free from any liens arising
out of any work performed, material furnished or obligations incurred by Tenant.
In the event that Tenant shall not, within thirty (30) days after Tenant
receives actual notice of the imposition of any such lien, cause the same to be
released of record by payment or posting of a proper bond, Landlord shall have,
in addition to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All such sums
paid by Landlord and all expenses incurred by it in connection therewith shall
be considered Additional Charges and shall be payable to it by Tenant on demand
with interest at the Default Rate. Landlord shall have the right at all times to
post and keep posted on the Premises any notices permitted or required by law,
or which Landlord shall deem proper, for the protection of Landlord, the
Premises, the Building and any other party having an interest therein, from
mechanics' and materialmen's liens, and Tenant shall give notice to Landlord at
least five (5) business days' prior notice of commencement of any construction
on the Premises.
9. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not directly or indirectly, voluntarily or by
operation of law, sell, assign, encumber, pledge or otherwise transfer or
hypothecate all or any part of the Premises or Tenant's leasehold estate
hereunder (collectively, "Assignment"), or permit the Premises to be occupied by
anyone other than Tenant or sublet the Premises or any portion thereof
(collectively, "Sublease"), without Landlord's prior written consent in each
instance, which consent shall not be unreasonably withheld or delayed by
Landlord. Without otherwise limiting the criteria upon which Landlord may
withhold its consent to any proposed Sublease or Assignment, if Landlord
withholds its consent where either (i) the creditworthiness of the proposed
Sublessee or
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Assignee (given to financial obligations of the proposed Sublease or
Assignment) is not reasonably acceptable to Landlord or, (ii) the proposed
Sublessee's or Assignee's use of the Premises is not in compliance with the
allowed Tenant's Use of the Premises as described in the Basic Lease
Information, such, withholding of consent shall be presumptively reasonable. If
Landlord consents to the Sublease or Assignment, Tenant may thereafter enter
into a valid Sublease or Assignment upon the terms and condition set forth in
this Paragraph 9.
Notwithstanding anything to the contrary herein, unless and until the Guaranty
of this Lease by Oracle Corporation terminates pursuant to Paragraph 22(a)
thereof, Landlord shall have no obligation to consent to any Sublease or
Assignment or to respond to any request by Tenant for approval thereto, unless
and until Landlord receives written approval by Oracle Corporation of the
proposed Sublease or Assignment executed by an Authorized Officer of Oracle
Corporation which includes the identity of the proposed sublessee or assignee,
in substantially the following form:
Oracle Corporation, as Guarantor of the obligations of the
tenant under that certain Lease dated April__, 1999 by and
between Circle Star Center Associates, L.P. as Landlord,
and Network Computer, Inc. as Tenant, for the benefit of
Landlord hereby approves the proposed [sublease or
assignment] of [describe the portion of the Premises
subleased and term of sublease or the entire Premises
and entire term if an assignment] to [identify proposed
sublessee or assignee]. Oracle Corporation hereby
confirms to Landlord and its successors and assigns that the
Guaranty by Oracle Corporation of the obligations under the
above mentioned Lease shall remain in full force and effect
notwithstanding the proposed [sublease or assignment].
Oracle Corporation
------------------
By:
--------------
Its:
-------------
The term "Authorized Officer" shall have the meaning given in Paragraph 45
below. The above referenced approval of Oracle Corporation shall be accompanied
by an incumbency certificate signed by the Secretary or Assistant Secretary of
Oracle Corporation certifying that the person signing the above referenced
approval on behalf of Oracle Corporation is a corporate officer of Oracle
Corporation holding one of the offices constituting an Authorized Officer.
(b) If Tenant desires at any time to enter into an Assignment
of this Lease or a Sublease of the Premises or any portion thereof, it shall
first give written notice to Landlord of its desire to do so, which notice
shall contain (i) the name of the proposed assignee, subtenant or occupant;
(ii) the name of the proposed assignee's, subtenant, or occupant's business to
be carried on in the Premises; (iii) the terms and provisions of the proposed
Assignment or Sublease; (iv) such financial information as Landlord may
reasonably request concerning the proposed assignee, subtenant or occupant; and
(v) the following language in bold print: "THIS REQUEST IS MADE PURSUANT TO
PARAGRAPH 9(b) OF THE LEASE AND REQUIRES A RESPONSE WITHIN FIFTEEN (15) DAYS
FROM THE DATE OF THIS NOTICE".
(c) At any time within fifteen (15) days after Landlord's
receipt of the notice specified in Paragraph 9(b), Landlord may by written
notice to Tenant elect to (i) consent to the Sublease or Assignment or (ii)
disapprove the Sublease or Assignment.
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If Landlord consents to Sublease or Assignment within said
fifteen (15) day period, Tenant may thereafter within one hundred twenty (120)
days after Landlord's consent, but not later than the expiration of said one
hundred twenty (120) days, enter into such Assignment or Sublease of the
Premises or portion thereof upon the terms and conditions set forth in the
notice furnished by Tenant to Landlord pursuant to Paragraph 9(b). However,
during any period of time in which Tenant directly occupies less than
seventy-five percent (75%) of the Premises (regardless of whether such occupancy
threshold is not met at the time the Sublease is entered into or at any time
during the term of such Sublease), fifty percent (50%) of any rent or other
consideration realized by Tenant under any such Sublease in excess of the Base
Rent and Additional Charges payable hereunder (or the amount thereof
proportionate to the portion of the Premises subject to such Sublease) shall be
paid to Landlord ("Bonus Rent"), after first deducting from such excess the
unamortized costs of any portion of the Tenant Improvements paid for by Tenant
(and not from the Tenant Improvement Allowance or Additional Allowance) or costs
reasonably incurred for tenant improvements installed by Tenant to obtain the
Sublease in question, each of which are installed in that portion of the
Premises which is the subject of the Sublease and which unamortized costs shall
be amortized on a straight line basis (without interest) over the term of the
Sublease in equal installments, and after deducting therefrom any customary
brokers' commissions that Tenant has incurred in connection with such Sublease
amortized on a straight line basis (without interest) over the term of the
Sublease.
(b) No consent by Landlord to any Assignment or Sublease by
Tenant shall relieve Tenant of any obligation to be performed by Tenant under
this Lease, whether arising before or after the Assignment or Sublease. The
consent by Landlord to any Assignment or Sublease shall not relieve Tenant from
the obligation to obtain Landlord's express written consent to any other
Assignment or Sublease. Any Assignment or Sublease that is not in compliance
with this Paragraph 9 shall be void and, at the option of Landlord, shall
constitute a material default by Tenant under this Lease. The acceptance of Base
Rent or Additional Charges by Landlord from a proposed assignee or sublessee
shall not constitute the consent to such Assignment or Sublease by Landlord.
(e) The following shall be deemed a voluntary assignment of
Tenant's interest in this Lease: (i) any dissolution, merger, consolidation,
or other reorganization of Tenant; and (ii) if the capital stock of Tenant is
not publicly traded, the sale or transfer to one person or entity stock
possessing more than fifty percent (50%) of the total combined voting power of
all classes of Tenant's stock issued, outstanding and entitled to vote for the
election of directors. Notwithstanding anything to the contrary contained in
this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ may enter into any of the following transfers (a
"Permitted Transfer") without Landlord's prior written consent: (1) Tenant may
assign its interest in the Lease to a corporation which results from a merger,
consolidation or other reorganization, so long as the surviving corporation has
a net worth immediately following such transaction that is equal to or greater
than the net worth of Tenant as of the date immediately prior to such
transaction; and (2) Tenant may assign this Lease to a corporation which
purchases or otherwise acquires all or substantially all of the assets of
Tenant, so long as such acquiring corporation has a net worth immediately
following such transaction that is equal to or greater than the net worth of
Tenant as of the date immediately prior to such transaction.
(f) No Assignment shall be binding on Landlord unless the
assignee or Tenant shall deliver to Landlord a counterpart of the Assignment in
form that contains a covenant of assumption by the assignee satisfactory in
substance and form to Landlord, consistent with the requirements of this
Paragraph 9(f), but the failure or refusal of the assignee to execute such
instrument of assumption shall not release or discharge the assignee from its
liability hereunder. No Sublease shall be binding on Landlord unless Landlord
shall agree in writing following termination of this Lease to recognize such
Sublessee and such Sublessee agrees in writing to attorn to Landlord on the
terms and conditions of the sublease (including the obligations under this Lease
to the extent that they relate to the portion of the Premises subleased).
(g) Tenant shall have the right, without Landlord's consent
but with written notice to Landlord at least ten (10) days prior thereto, to
enter into an Assignment of Tenant's interest in the Lease or a Sublease of all
or any portion of the Premises to an Affiliate (as defined below) of Tenant,
provided that in connection with an Assignment that is not a sublease, (i) the
Affiliate delivers to Landlord concurrent with such Assignment a written notice
of the Assignment and an assumption agreement whereby the Affiliate assumes and
agrees to
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perform, observe and abide by the terms, conditions, obligations, and
provisions of this Lease; and (ii) the entity remains an Affiliate throughout
the term of this Lease (and the assumption agreement shall contain provisions
consistent with the provisions of this subparagraph allowing Landlord to
terminate this Lease at such time as the entity is no longer an Affiliate of
the original Tenant). If this Lease is assigned to an Affiliate and thereafter
any circumstance occurs which causes such assignee to no longer be an Affiliate
of the original Tenant, Tenant shall give written notice thereof to Landlord,
which notice, to become effective, shall refer to Landlord's right to terminate
this Lease pursuant to this subparagraph ("Affiliation Termination Notice").
Following occurrence of the circumstance giving rise to the discontinuation of
such assignee being an Affiliate ("Affiliate Termination") of the original
Tenant, Landlord shall be entitled to terminate this Lease unless Landlord has
given its prior written consent to such circumstance, which consent shall not
be unreasonably withheld by Landlord so long as such assignee (after giving
effect to such circumstance) has financial strength (as demonstrated by audited
financial statements) equal to or greater than the original Tenant (including
its net worth) as of the date of execution of this Lease, or the original
Tenant executes a guaranty in usual form reasonably acceptable to Landlord
(however, this does not imply that Tenant would be released without such
guaranty). No Sublease or Assignment by Tenant made pursuant to this Paragraph
shall relieve Tenant of Tenant's obligations under this Lease. As used in this
paragraph, the term "Affiliate" shall mean and collectively refer to a
corporation or other entity which controls, is controlled by or is under common
control with Tenant, by means of an ownership of either (aa) more than fifty
percent (50%) of the outstanding voting shares of stock or partnership or other
ownership interests, or (bb) stock, or partnership or other ownership
interests, which provide the right to control the operations, transactions and
activities of the applicable entity.
(h) Notwithstanding anything to the contrary herein (x)
Guarantor is hereby approved in respect of an Assignment or Sublease by Tenant
to Guarantor regardless of whether Guarantor is an Affiliate of Tenant at the
time and (y) in connection with an Assignment to Guarantor, Guarantor shall
assume all of Tenant's obligations under this Lease. Upon such assumption by
Guarantor any security held by Landlord in respect to the portion of the
Premises which is the subject of the Assignment or Sublease assumed by
Guarantor, shall be released by Landlord.
10. INSURANCE AND INDEMNIFICATION.
(a) Except to the extent caused by the negligence or willful
misconduct of Tenant Parties (as defined in Paragraph 10(c) below) or Tenant's
breach of this Lease, Landlord shall indemnify and hold Tenant harmless from
and defend Tenant against any and all claims or liability for any injury or
damage to any person or property including any reasonable attorney's fees (but
excluding any consequential damages or loss of business) occurring in, on, or
about the Project to the extent such injury or damage is caused by the
negligence or willful misconduct of Landlord, its agents, servants,
contractors, employees (collectively, including Landlord, "Landlord Parties")
or Landlord's breach of this Lease.
(b) Landlord shall not be liable to Tenant, and Tenant hereby
waives all claims against Landlord Parties for any injury or damage to any
person or property in or about the Premises by or from any cause whatsoever
(other than the negligence or willful misconduct of Landlord Parties, including
Landlord's negligence or willful misconduct as related to construction or
property management), and without limiting the generality of the foregoing,
whether caused by water leakage of any character from the roof, walls,
basement, or other portion of the Premises or the Building, or caused by gas,
fire, oil, electricity, or any cause whatsoever, in, on, or about the Premises,
the Building or any part thereof (other than that caused by the negligence or
willful misconduct of Landlord Parties). Tenant acknowledges that any casualty
insurance carried by Landlord will not cover loss of income to Tenant or damage
to the alterations in the Premises installed by Tenant or Tenant's personal
property located within the Premises. Tenant shall be required to maintain the
insurance described in Subparagraph 10(d) below during the Term.
(c) Except to the extent caused by the negligence or willful
misconduct of Landlord Parties or Landlord's breach of this Lease, Tenant shall
indemnify and hold Landlord harmless from and defend Landlord against any and
all claims or liability for any injury or damage to any person or property
whatsoever; (i) occurring in or on the Premises; or (ii) occurring in, on, or
about any other portion of the Project to the extent such injury or damage
shall be caused by the negligence or willful misconduct by Tenant, its agents,
servants,
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employees, or invitees (collectively, including Tenant, "Tenant Parties").
Tenant further agrees to indemnify and hold Landlord harmless from, and defend
Landlord against, any and all claims, losses, or liabilities (including damage
to Landlord's property) arising from (x) any breach of this Lease by Tenant
and/or (y) the conduct of any work or business of Tenant Parties in or about
the Project and/or (z) any matter referred to in Paragraph 10(g). This
Paragraph 10 does not govern liability for Hazardous Substances, which subject
is governed by Paragraph 39 of the Lease concerning Hazardous Substance
liability.
(d) Tenant shall procure at its cost and expense and keep in
effect during the Term the following insurance: (i) commercial general liability
insurance including contractual liability with a minimum combined single limit
of liability of Three Million Dollars ($3,000,000). Such insurance shall name
Landlord as an additional insured, shall specifically include the liability
assumed hereunder by Tenant, and shall provide that it is primary insurance, and
not excess over or contributory with any other valid, existing, and applicable
insurance in force for or on behalf of Landlord, and shall provide that Landlord
shall receive thirty (30) days' written notice from the insurer prior to any
cancellation or change of coverage; (ii) "all risk" property insurance
(including, without limitation, boiler and machinery (if applicable); sprinkler
damage, vandalism and malicious mischief) on all leasehold improvements
installed in the Premises by Tenant at its expense (if any), and on all Tenant's
personal property. Such insurance shall be an amount equal to full replacement
cost of the aggregate of the foregoing and shall provide coverage comparable to
the coverage in the standard ISO All Risk form, when such form is supplemented
with the coverages required above; (iii) worker's compensation insurance; and
(iv) such other insurance as may be required by the law. Tenant shall deliver
policies of such insurance or certificates thereof to Landlord on or before the
Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of expiring policies; and, in the event Tenant shall fail to
procure such insurance, or to deliver such policies or certificates, Landlord
may, at its option, procure same for the account of Tenant, and the cost thereof
shall be paid to Landlord as Additional Charges within five (5) days after
delivery to Tenant of bills therefor.
(e) The provisions of this paragraph 10 shall survive the
expiration or termination of this Lease with respect to any claims or liability
occurring prior to such expiration or termination.
(f) Landlord shall maintain insurance on the Project against
fire and risks covered by "all risk" (excluding earthquake and flood, though
Landlord, at its option, may include this coverage) on a 100% of "replacement
cost" basis (though reasonable deductibles may be included under such
coverage). Landlord's insurance shall also cover the improvements installed by
Landlord prior to the commencement of the Term, shall have a building ordinance
provision, and shall provide for rental interruption insurance covering a
period of twelve (12) full months. In no event shall Landlord be deemed a
co-insurer under such policy. Landlord shall also maintain contractual
liability coverage (or with contractual liability endorsement) on an
occurrence basis in amounts not less than Three Million Dollars ($3,000,000)
per occurrence with respect to bodily injury or death and property damage.
Notwithstanding the foregoing obligations of Landlord to carry insurance,
Landlord may modify the foregoing coverages if and to the extent it is
commercially reasonable to do so.
(g) Tenant acknowledges that even if Landlord installs and
operated security cameras or other security equipment and/or provides any other
services that could be construed as being intended to enhance security, Landlord
shall have no obligation to Tenant or to any of Tenant's employees, customers
or invitees for any damage, claim, loss or liability related to any claim that
Landlord had a duty to provide security or that the equipment or services
provided by Landlord were inadequate, inoperative or otherwise failed to
provide adequate security. Any such claim made against Landlord by any
employee, customer or invitee of Tenant shall be included within Tenant's
obligation of indemnity and defense set forth in subparagraph (c) above.
11. WAIVER OF SUBROGATION. Notwithstanding anything to the contrary in
this Lease, the parties hereto release each other and their respective agents,
employees, successors, assignees and subtenants from all liability for injury
to any person or damage to any property that is caused by or results from a
risk (i) which is actually insured against, to the extent of receipt of payment
under such policy (unless the failure to receive payment under any such policy
results from a failure of the insured party to comply with or observe the terms
and conditions of the insurance policy covering such liability, in which event,
such release shall not be so limited), (ii) which is required to be insured
against under this Lease, or (iii) which would normally be covered
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by the standard form of "all risk-extended coverage" casualty insurance, without
regard to the negligence or willful misconduct of the entity so released.
Landlord and Tenant shall each obtain from their respective insurers under all
policies of fire, theft, and other property insurance maintained by either of
them at any time during the Term insuring or covering the Project or any portion
thereof of its contents therein, a waiver of all rights of subrogation which the
insurer of one party might otherwise, if at all, have against the other party,
and Landlord and Tenant shall each indemnify the other against any loss or
expense, including reasonable attorneys' fees, resulting from the failure to
obtain such waiver.
12. SERVICES AND UTILITIES.
(a) Landlord shall provide the maintenance and repairs
described in paragraph 7(a), except for damage occasioned by the act of Tenant,
in which case, but in any event subject to the terms of Paragraph 11 above,
such damage shall be repaired by Landlord at Tenant's expense.
(b) Subject to the provisions elsewhere herein contained and
to the rules and regulations of the Building, Landlord agrees to furnish to the
premises during ordinary business hours of generally recognized business days,
to be determined by Landlord (but exclusive, in any event, of Saturdays, Sundays
and legal holidays), hot and cold water and electricity suitable for the
intended use of the Premises, heat and air conditioning required in Landlord's
judgment for the comfortable use and occupation of the Premises, janitorial
services during the times and in the manner that such services are, in
Landlord's judgment, customarily furnished in comparable office buildings in the
immediate market area, and elevator service (if the Building has an elevator)
which shall mean service either by non-attended automatic elevators or elevators
with attendants, or both, at the option of the Landlord. Notwithstanding the
above, except in the case of emergencies, utilities to the Building and elevator
service shall be provided every day. At Tenant's request, Landlord shall provide
additional or after hours heating or air conditioning and Tenant shall pay to
Landlord a reasonable charge for such services as determined by Landlord (not to
exceed Landlord's actual costs, which costs do not include depreciation). Tenant
agrees at all times to cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the heating, ventilating and air conditioning
system. Wherever heat generating machines, excess lighting or equipment are used
in the Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises, and the cost thereof, including the cost of
installation and the cost of operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord. To the extent Tenant requires water,
electricity, heat, air conditioning or other services in portions of the
Premises which are not metered separately from other tenants of the Project and
in amounts in excess of amounts delivered to such other tenants of the Project
as reasonable determined by Landlord. Tenant shall pay to Landlord a reasonable
charge for such excess amounts as determined by Landlord. Landlord shall make
available to Tenant reasonable documentation supporting its charges for such
excess services.
(c) Tenant will not without the written consent of Landlord,
which consent shall not be unreasonable withheld or delayed, use any apparatus
or device in the Premises which, when used, puts an excessive load on the
Building or its structure or systems, including, without limitation, electronic
data processing machines, punch card machines and machines using excess lighting
or voltage in excess of the amount for which the Building is designed, which
will in any way materially increase the amount of gas, electricity or water
usually furnished or supplied for use of the Premises as general office space;
nor connect with electric current, except through existing electrical outlets in
the Premises, or water pipes or gas outlets, any apparatus or device for the
purposes of using gas, electrical current or water. If Tenant shall require
water or electrical current or any other resource in excess of that usually
furnished or supplied for use of the Premises as general office space, Tenant
shall first obtain the consent of Landlord, which Landlord may refuse, to the
use thereof, and Landlord may cause a special meter to be installed in the
Premises so as to measure the amount of water, electric current or other
resource consumed for any such other use. The cost of any such meters and of
installation, maintenance and repair thereof shall be paid for by Tenant, and
Tenant agrees to pay Landlord promptly upon demand by Landlord for all such
water, electric current or other resource consumed, as shown by said meters, at
the rates charged by the local public utility, furnishing the same, plus any
additional expense incurred in keeping account of the water, electric current
or other resource so consumed.
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(d) Landlord shall not be in default hereunder, nor be deemed
to have evicted Tenant, nor be liable for any damages directly or indirectly
resulting from, nor shall the rental herein reserved be abated by reason of (i)
the installation, use or interruption of use of any equipment in connection with
the foregoing utilities and services; (ii) failure to furnish or delay in
furnishing any services to be provided by Landlord when such failure or delay is
caused by Force Majeure, or by the making of repairs or improvements to the
Premises or to the Building (unless such failure or delay is caused by
Landlord's negligence or willful misconduct); or (iii) the limitation,
curtailment, rationing or restriction on use of water, electricity, gas or any
other form of energy, or any other service or utility whatsoever serving the
Premises, the Building or the Project. Furthermore, Landlord shall be entitled
to cooperate with the mandatory requirements of national, state or local
governmental agencies or utilities suppliers in connection with reducing energy
or other resources consumption. If the Premises become unsuitable for Tenant's
use as a consequence of cessation of gas and electric utilities or other
services provided to the Premises resulting from a casualty covered by
Landlord's insurance, then Tenant's Base Rent and Additional Charges shall ▇▇▇▇▇
during the period of time in which Tenant cannot occupy the Premises for
Tenant's use, but only to the extent of rental abatement insurance proceeds
received by Landlord. Landlord shall use reasonable diligence to make such
repairs as may be required to lines, cables, wires, pipes equipment or machinery
within the Project to provide restoration of the services Landlord is
responsible for providing under this Paragraph 12 and, where the cessation or
interruption of such services has occurred due to circumstances or conditions
beyond Project boundaries, to cause the same to be restored, by diligent
application or request to the provider hereof. In no event shall any mortgagee
or beneficiary under any mortgage or deed of trust on all or any portion of the
Project, the Building, or the land on which all or any portion of the Project is
located (any such mortgagee or beneficiary, a "Mortgagee") be or become liable
for any default of Landlord under this Paragraph 12.
13. TENANT'S CERTIFICATES. Tenant, at any time and from time to time,
within ten (10) days from receipt of written notice from Landlord, will execute,
acknowledge and deliver to Landlord and, at Landlord's request, to any
prospective tenant, purchaser, ground or underlying lessor or Mortgagee or any
other party acquiring an interest in Landlord, a certificate of Tenant
substantially in the form attached as Exhibit "D" and also containing any other
information that may reasonably be required by any of such persons. It is
intended that any such certificate of Tenant delivered pursuant to this
Paragraph 13 may be relied upon by Landlord and any prospective tenant,
purchaser, ground or underlying lessor or Mortgagee, or such other party. If
requested by Tenant, Landlord shall provide Tenant with a similar certificate.
14. HOLDING OVER. If Tenant (directly or through any
successor-in-interest of Tenant) remains in possession of any or all of the
Premises after the expiration or termination of this Lease with the consent of
landlord, such continued possession shall be construed to be a tenancy from
month to month at one hundred twenty-five percent (125%) of the Monthly Base
Rent herein specified (and shall be increased in accordance with Paragraph 4(b)
[Adjustments in Base Rent]), together with an amount estimated by Landlord for
the monthly Additional Charges payable under this Lease, and shall otherwise be
on the terms and conditions herein specified so far as applicable. If Tenant
(directly or through any successor-in-interest of Tenant) remains in possession
of all or any portion of the Premises after the expiration or termination of
this Lease without the consent of Landlord, Tenant's continued possession shall
be on the basis of a tenancy at the sufferance of Landlord. In such event,
Tenant shall continue to comply with or perform all the terms and obligations of
Tenant under this Lease, except that the Monthly Base Rent during Tenant's
holding over shall be greater of the then-fair market rent for the Premises (as
reasonably determined by Landlord) or one hundred fifty percent (150%) of the
Monthly Base Rent and Additional Charges payable in the last full month prior to
the termination hereof (and shall be increased in accordance with Paragraph 4(b)
[Adjustment in Base Rent]). In addition to Rent, Tenant shall pay Landlord for
all damages proximately caused by reason of the Tenant's retention of
possession. Landlord's acceptance of Rent after the termination of this Lease
shall not constitute a renewal of this Lease, and nothing contained in this
provision shall be deemed to waive Landlord's right to re-entry or any other
right hereunder or at law. Tenant acknowledges that, in Landlord's marketing and
re-leasing efforts for the Premises, Landlord is relying on Tenant's vacation of
the Premises on the Expiration Date. Accordingly, Tenant shall indemnify, defend
and hold Landlord harmless from and against all claims, liabilities, losses,
costs, expenses and damages arising or resulting directly or indirectly from
Tenant's failure to timely surrender the Premises, including (i) any loss, cost
or damages suffered by any prospective tenant of all or any part of the
Premises, and (ii) Landlord's damages as a result of such prospective tenant
rescinding or refusing to
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enter into the prospective lease of all or any portion of the Premises by
reason of such failure of Tenant to timely surrender the Premises.
15. SUBORDINATION.
(a) Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to: (i) the Encumbrances and all
ground leases or underlying leases which may now exist or hereafter be executed
affecting the Building or the land upon which the Building is situated or both;
(ii) any CC&R's, currently in effect or that Landlord may enter into in the
future, that affect the Building or the Common Areas; and (iii) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed in any
amount for which the Building, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such successor in interest.
Notwithstanding anything to the contrary contained herein (but subject to
subparagraph 15(b) below), this Lease shall not be subject or subordinate to any
ground or underlying lease or to any lien, mortgage, deed of trust or other
security interest affecting the Premises, unless the ground lessor, lender or
other holder of the interest to which this lease would be subordinated executes
a reasonable recognition and non-disturbance agreement which provides that
Tenant shall be entitled to continue in possession of the Premises on the terms
and conditions of this Lease if and for so long as Tenant fully performs all of
its obligations hereunder. Tenant covenants and agrees to execute and deliver
upon demand by Landlord and in the form requested by Landlord and reasonably
acceptable to Tenant, any customary additional documents evidencing the priority
or subordination of this Lease with respect to any such ground leases or
underlying leases or the lien of any such mortgage or deed of trust. Tenant
shall execute, deliver and record any such documents within twenty (20) days
after Landlord's written request.
(b) Notwithstanding the provisions of subparagraph 15(a) above
to the contrary, specifically with regard to the Ground Lease (as defined in
Exhibit "E"), this Lease shall be subject to and subordinate to the terms,
covenants and conditions of the Ground Lease and the rights of the Lessor (as
defined in the Ground Lease), without the requirement that the Lessor enter
into a separate recognition and non-disturbance agreement as contemplated by
subparagraph 15(a), provided that Landlord and Tenant agree to the following
conditions as required by Article 25 of the Ground Lease:
(1) Upon any termination or surrender of the Ground
Lease, this Lease shall continue in full force and effect and the Tenant
(defined as "sublessee" in the Ground Lease) shall attorn to, or, at the option
of Lessor (as defined in the Ground Lease), enter into a direct lease on
identical terms (i.e. the terms of this Lease) with, Lessor;
(2) Lessor shall not be bound by any prepayment of
rent hereunder; and
(3) Tenant and Landlord agree that this Lease is an
arm's length transaction between Landlord (defined as "Lessee" in the Ground
Lease) and Tenant (defined as "the subtenant" in the Ground Lease), and that
Tenant is not an Affiliate (as defined in the Ground Lease) of Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with the rules and regulations attached to this Lease as Exhibit "C" and all
reasonable modifications thereof and additions thereto from time to time put
into effect by Landlord. Landlord shall not be responsible for the
nonperformance by any other Tenant or occupant of the Building or the Project
of any said rules and regulations. In the event of an express and direct
conflict between the terms, covenants, agreements and conditions of this Lease
and those set forth in the rules and regulations, as modified and amended from
time to time by Landlord, this Lease shall control.
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17. RE-ENTRY BY LANDLORD. Landlord reserves and shall at all reasonable
times, upon reasonable prior notice (except in the case of an emergency), and
subject to Tenant's reasonable security precautions and the right of Tenant to
accompany Landlord at all times, have the right to re-enter the Premises to
inspect the same, to supply janitor service and any other service to be provided
by Landlord to Tenant hereunder (unless Tenant is supplying such service), to
show the Premises to prospective purchasers, Mortgagees or tenants (as to
prospective tenants, only during the last twelve (12) months of the Lease Term),
to post notices of nonresponsibility or as otherwise required or allowed by this
Lease or by law, and to alter, improve or repair the Premises and any portion of
the Building and may for that purpose erect, use, and maintain scaffolding,
pipes, conduits, and other necessary structures in and through the Premises
where reasonably required by the character of the work to be performed. Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance or other damage arising from Landlord's entry and acts
pursuant to this Paragraph and Tenant shall not be entitled to an abatement or
reduction of Base Rent or Additional Charges if Landlord exercises any rights
reserved in this paragraph. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby, except for Landlord's negligence or willful misconduct. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with which
to un-lock all of the doors in, upon and about the Premises, excluding Tenant's
vaults and safes, or special security areas (designated in advance), and
Landlord shall have the right to use any and all means which Landlord may deem
necessary or proper to open said doors in an emergency, in order to obtain entry
to any portion of the Premises, and any entry to the Premises, or portion
thereof obtained by Landlord by any of said means, or otherwise, shall not under
any emergency circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction, actual or
constructive, of Tenant from the Premises or any portions thereof. Landlord
shall use best efforts during re-entry to not unreasonably interfere with
Tenant's use of the Premises or its business conducted therein. Tenant
acknowledges that the first floor telephone equipment room provides third party
access to the electronic sign equipment that operates the sign facing Highway
101 and that Landlord retains the right to access to such facilities at all
times without notice. Tenant acknowledges that it has no right hereunder to use
of such electronic sign.
18. INSOLVENCY OR BANKRUPTCY. The appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, or an assignment
of Tenant for the benefit of creditors, or any action taken or suffered by
Tenant under any insolvency, bankruptcy, reorganization or other debtor relief
proceedings, whether now existing or hereafter amended or enacted (collectively
"Insolvency Proceeding"), shall at Landlord's option constitute a breach of this
Lease by Tenant unless a petition in bankruptcy, or receiver attachment, or
other remedy pursued by a third party is discharged within sixty (60) days. Upon
the happening of any such event or at any time thereafter, this Lease shall
terminate five (5) days after written notice of termination from Landlord to
Tenant. In no event shall this Lease be assigned or assignable by operation of
law or by voluntary or involuntary bankruptcy proceedings or otherwise and in no
event shall this Lease or any rights or privileges hereunder be an asset of
Tenant under any bankruptcy, insolvency, reorganization or other debtor relief
proceedings.
19. DEFAULT.
(a) The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute a "default" hereunder by
Tenant upon expiration of the appropriate grace or cure period hereinafter
provided. Tenant shall have a period of three (3) days from the date of written
notice from Landlord (which notice shall be in lieu of and not in addition to
the notice required by Section 1161 of the California Code of Civil Procedure)
within which to cure any failure to pay Base Rent or Additional Charges;
provided, however, that Landlord shall not be required to provide such notice
more than four times during any two (2) year period during the Term with respect
to non-payment of Base Rent or Additional Charges, the fifth such non-payment
constituting default without requirement of notice. Tenant shall have a period
of thirty (30) days from the date of written notice from Landlord within which
to cure any other curable failure to perform any obligation under this Lease;
provided, however, that with respect to any curable failure to perform other
than the payment of Base Rent or Additional Charges that cannot reasonably be
cured within thirty (30) days, the cure period shall be extended if Tenant
commences to cure within thirty (30) days from Landlord's notice and continues
to prosecute diligently the curing thereof. Notwithstanding the foregoing, (i)
if a different cure
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period is specified elsewhere in this Lease or the Work Letter with respect to
any specific obligation of Tenant, such specific cure period shall apply with
respect to a failure of such obligation; and (ii) the foregoing cure rights
shall not extend the specified time for compliance with any required delivery,
approval or performance obligation of Tenant under the Work Letter. Upon a
default of this Lease by Tenant, Landlord shall have the following rights and
remedies in additional to any other rights or remedies available to Landlord at
law or in equity.
(1) The rights and remedies provided by California
Civil Code, Section 1951.2, including but not limited to, recovery of the worth
at the time of award of the amount by which the unpaid Basic Rent and Additional
Charges for the balance of the Term after the time of award exceeds the amount
of rental loss for the same period that the Tenant proves could be reasonably
avoided, as computed pursuant to subsection (b) of said Section 1951.2;
(2) The rights and remedies provided by California
Civil Code, Section 1951.4, that allows Landlord to continue this Lease in
effect and to enforce all of its rights and remedies under this Lease, including
the right to recover Base Rent and Additional Charges as they become due, for so
long as Landlord does not terminate Tenant's right to possession; provided,
however, if Landlord elects to exercise its remedies described in this Paragraph
19(a)(ii) and Landlord does not terminate this Lease, and if Tenant requests
Landlord's consent to an assignment of this Lease or a sublease of the Premises
at such time as Tenant is in default, Landlord shall not unreasonably withhold
its consent to such assignment or sublease. Acts of maintenance or preservation,
efforts to relet the Premises or the appointment of receiver upon Landlord's
initiative to protect its interest under this Lease shall not constitute a
termination of Tenant's rights to possession;
(3) The right to terminate this Lease by giving
notice to Tenant in accordance with applicable law;
(4) If Landlord elects to terminate this Lease, the
right and power to enter the Premises and remove therefrom all persons and
property and, to store such property in a public warehouse or elsewhere at the
cost of and for the account of Tenant, and to sell such property and apply such
proceeds therefrom pursuant to applicable California law.
(b) Landlord shall have a period of thirty (30) days from the
date of written notice from Tenant within which to cure any default by Landlord
under this Lease; provided, however, that with respect to any default that
cannot reasonably be cured within thirty (30) days, the default shall not be
deemed to be uncured if Landlord commences to cure within thirty (30) days from
Tenant's notice and continues to prosecute diligently the curing thereof. Tenant
agrees to give any Mortgagee, by registered or certified mail, a copy of any
Notice of Default served upon the Landlord, provided that prior to such notice
Tenant has been notified in writing, (by way of Notice of Assignment of Rents
and Leases, or otherwise) of the address of such Mortgagee. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the Mortgagee shall have an additional thirty
(30) days (provided that Tenant notifies Mortgagee concurrently with Tenant's
notice to Landlord at the beginning of Landlord's thirty (30) day period;
otherwise Mortgagee shall have sixty days from the date on which it is noticed)
within which to cure such default or if such default cannot be cured within that
time, then the cure period shall be extended for such additional time as may be
necessary to cure such default shall be granted if within such applicable period
Mortgagee has commenced and continues to prosecute diligently the cure of such
default (including, but not limited to, commencement of foreclosure
proceedings, if necessary to effect such cure).
20. DAMAGE BY FIRE, ETC. If the Premises or the Building are damaged by
fire or other casualty, Landlord shall forthwith repair the same, provided that
such repairs can be made within two hundred seventy (270) days after the date of
such damage under the laws and regulations of the federal, state and local
governmental authorities having jurisdiction thereof. In such event, this Lease
shall remain in full force and effect except that Tenant shall be entitled to a
proportionate reduction of Base Rent and Additional Charges while such repairs
to be made hereunder by Landlord are being made. Such reduction of rent, if any,
shall be based upon the greater of (i) the proportion that the area of the
Premises rendered untenantable by such damage.
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bears to the total area of the Premises; or (ii) the extent to which such
damage and the making of such repairs by Landlord shall interfere with the
business carried on by Tenant in the Premises, where clause (ii) is limited to
the extent of rental abatement insurance allowed by Landlord's casualty
insurance policy. Within twenty (20) days after the date of such damage,
Landlord shall notify Tenant of the approximate date by which Landlord believes
that it can complete the repair of such damage ("Estimated Damage Completion
Date") (including such dates for each floor of the Premises if the completion
thereof will occur on different dates) and the date by which Landlord would
need to commence construction ("Estimated Construction Commencement Date") in
order to complete repairs by the Estimated Damage Completion Date and
Landlord's determination thereof shall be binding on Tenant. If Landlord's
Estimated Damage Completion Date is more than two hundred seventy (270) days
from the date of such damage, Landlord shall have the option within thirty (30)
days after the date of such damage either to: (i) notify Tenant of Landlord's
intention to repair such damage and diligently prosecute such repairs, in which
event (subject to Tenant's right to terminate specified below) this Lease shall
continue in full force and effect and the Base Rent and Additional Charges
shall be reduced as provided herein; or (ii) notify Tenant of Landlord's
election to terminate this Lease as of a date specified in such notice, which
date shall not be less than thirty (30) days nor more than sixty (60) days
after notice is given; provided, however, in the event the damage giving rise
to such right to terminate this Lease by Landlord is the result of damage in
only one of the two buildings in the Project, Landlord's right to terminate
this Lease shall not apply to the portion of the Premises, if any, in such
building, and in such event the Lease shall remain in full force and effect
with respect to the balance of the Premises and the Base Rent and Tenant's
Share shall be appropriately adjusted to reflect the portion of the Premises,
if any, with respect to which this Lease is terminated. In the event that such
notice to terminate is given by Landlord, this Lease shall terminate on the
date specified in such notice. In the event that Landlord notifies Tenant that
Landlord's Estimated Damage Completion Date is more than two hundred seventy
(270) days following the date of the damage, Tenant shall have a right to
terminate the Lease in respect of all floors of the Premises to which
Landlord's notice applies ("Affected Premises Portion") within fifteen (15)
days following receipt of Landlord's notice, by providing Landlord with written
notice of its election to do so. In such event (and also in the event Landlord
terminates the lease pursuant to the immediately preceding sentence), Tenant
shall have no liability in respect of the portion of the Premises with respect
to which the Lease was terminated, for payment of the deductible under
Landlord's insurance relating to such damage. In case of termination by either
event, the Base Rent and Additional Charges shall be reduced by a proportionate
amount based upon the extent to which such damage interfered with the business
carried on by Tenant in the Premises, and Tenant shall pay such reduced Base
Rent and Additional Charges up to the date of termination. Landlord agrees to
refund to Tenant any Base Rent and Additional Charges previously paid in
respect of a portion of the Premises with respect to which the Lease has
terminated, for any period of time subsequent to such date of such termination.
In the event the Lease is terminated in respect of only a portion of the
Premises leaving the Lease in effect with respect to the balance of the Premises
the Base Rent and Tenant's Share shall be appropriately adjusted. If, and to the
extent, neither Landlord nor Tenant have terminated this Lease pursuant to the
provisions set forth above, and the construction of the repairs has not
commenced within ninety (90) days of the Estimated Construction Commencement
Date, Tenant shall have the additional right to terminate this Lease in respect
of the Affected Premises Portion during the first five (5) business days of
each calendar month following the end of such period until such time as
construction of the repairs has commenced, by notice to Landlord (the "Damage
Termination Notice"), effective as of a date set forth in the Damage
Termination Notice (the "Damage Termination Date"), which Damage Termination
Date shall be no earlier than thirty (30) days or later than sixty (60) days
following the date of such Damage Termination Notice. At any time, from time to
time, after the date occurring sixty (60) days after the date of the damage,
Tenant may request that Landlord inform Tenant of Landlord's reasonable opinion
of the date of completion of the repairs and Landlord shall respond to such
request in reasonable detail within five (5) business days following receipt of
such request. The repairs to be made hereunder by Landlord shall not include,
and Landlord shall not be required to repair, any damage by fire or other cause
to the property of Tenant or any repairs or replacements of any paneling,
decorations, railings, floor coverings or any alterations, additions, fixtures
or improvements installed on the Premises by or at the expense of Tenant
(excluding the initial Tenant Improvements constructed by Landlord). Tenant
hereby waives the provisions of Section 1932.2, and Section 1933.4, of the
Civil Code of California. Notwithstanding anything contained herein to the
contrary, if a Major Casualty occurs with respect to any portion of the
Building, and the net insurance proceeds obtained as a result of such casualty
are ninety percent (90%) or a lesser percentage of the cost of restoration,
rebuilding or replacement, then Landlord shall not be obligated to undertake
such restoration, rebuilding or replacement
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unless Landlord elects to do so in writing. For the purpose of this Lease, a
"Major Casualty" shall mean a casualty that renders unusable twenty percent
(20%) or more of the Net Rentable Area of the Building or which materially
adversely affects the use of such Building.
21. EMINENT DOMAIN. If any part over 15% of the Premises shall be taken
or appropriated under the power of eminent domain or conveyed in lieu thereof,
Tenant shall have the right to terminate this Lease at its option. If any part
of the Building shall be taken or appropriated under power of eminent domain or
conveyed in lieu thereof and such taking is so extensive that it renders the
remaining portion of the Building unsuitable for the use being made of the
Building on the date immediately preceding such taking, Landlord may terminate
this Lease at its option. In either of such events, Landlord shall receive (and
Tenant shall assign to Landlord upon demand from Landlord) any income, rent,
award or any interest therein which may be paid in connection with the exercise
of such power of eminent domain, and Tenant shall have no claim against Landlord
for any part of sum paid by virtue of such proceedings, whether or not
attributable to the value of the unexpired term of this Lease, except that
Tenant shall be entitled to petition the condemning authority for the following:
(1) the then unamortized cost of any Alterations or tenant improvements paid for
by Tenant from its own funds (as opposed to any allowance provided by Landlord);
(ii) the value of Tenant's trade fixtures; (iii) Tenant's relocation costs; (iv)
Tenant's goodwill, loss of business and business interruption; and (v) one-half
of the amount which is the lesser of (a) the bonus value of this lease, or (b)
the amount of the award in excess of the sum of amounts payable to Landlord's
ground lessor (if any) and any holder of a mortgage or other third party lien
encumbering Landlord's ground lease estate or fee simple ownership in the
Property. If a part of the Premises shall be so taken or appropriated or
conveyed and neither party hereto shall elect to terminate this Lease and the
Premises have been damaged as a consequence of such partial taking or
appropriation or conveyance, Landlord shall restore the Premises continuing
under this Lease at Landlord's cost and expense; provided, however, that
Landlord shall not be required to repair or restore any injury or damage to the
property of Tenant or to make any repairs or restoration of any Alterations
installed on the Premises by or at the expense of Tenant. Thereafter, the Base
Rent and Additional Charges to be paid under this Lease for the remainder of the
Term shall be proportionately reduced, such that thereafter the amounts to be
paid by Tenant shall be in the ratio that they are of the portion of the
Premises not so taken bears to the total area of the Premises prior to such
taking. Notwithstanding anything to the contrary contained in this Paragraph 21,
if the temporary use or occupancy of any part of the Premises shall be taken or
appropriated under power of eminent domain during the Term, this Lease shall be
and remain unaffected by such taking or appropriation and Tenant shall continue
to pay in full all Base Rent and Additional Charges payable hereunder by Tenant
during the Term; in the event of any such temporary appropriation or taking,
Tenant shall be entitled to receive that portion of any award which represents
compensation for the use of or occupancy of the Premises during the Term, and
Landlord shall be entitled to receive that portion of any award which represents
the cost of restoration of the Premises and the use and occupancy of the
Premises after the end of the Term. If such temporary taking is for a period
longer than two hundred and seventy (270) days and unreasonably interferes with
Tenant's use of the Premises or the Project Common Areas, then Tenant shall have
the right to terminate the Lease. Landlord and Tenant understand and agree that
the provisions of this Paragraph 21 are intended to govern fully the rights and
obligations of the parties in the event of a Taking of all or any portion of the
Premises. Accordingly, the parties each hereby waives any right to terminate
this Lease in whole or in part under Sections 1265.120 and 1265.130 of the
California Code of Civil Procedure or under any similar Law now or hereafter in
effect.
22. SALE BY LANDLORD. If Landlord sells or otherwise conveys its
interest in the Premises, Landlord shall be relieved of its obligations under
the Lease from and after the date of sale or conveyance (including the
obligations of Landlord under Paragraph 39), only when Landlord transfers any
security deposit of Tenant to its successor and the successor assumes in writing
the obligations to be performed by Landlord on and after the effective date of
the transfer (including the obligations of Landlord under Paragraph 39),
whereupon Tenant shall attorn to such successor.
23. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of Base Rent
or Additional Charges. If Tenant shall default in the payment of any sum of
money, other than Base Rent or Additional Charges, required to be paid by it
hereunder or shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for the applicable
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cure period provided in Paragraph 19 (except in the event of emergency, when no
cure period shall be required), Landlord may, but shall not be obligated so to
do, and without waiving or releasing Tenant from any obligations of Tenant,
make any such payment or perform any such act on Tenant's part to be made or
performed as provided in this Lease. All sums so paid by Landlord and all
necessary incidental costs together with interest thereon at the Default Rate,
from the date of such payment by Landlord shall be payable as Additional
Charges to Landlord on demand.
24. SURRENDER OF PREMISES
(a) At the end of the Term or any renewal thereof or other
sooner termination of this Lease, Tenant will peaceably deliver to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to Landlord, by whomsoever made, in the same condition as received, or
first installed, subject to the terms of Paragraphs 39 & 21 and the rights and
obligation of Tenant concerning casualty damage pursuant to Paragraph 20, damage
by fire, earthquake, Act of God, ordinary wear and tear, Hazardous Substances
(other than those for which Tenant is indemnifying Landlord pursuant to
Paragraph 39) or the elements alone excepted, Tenant may, upon the termination
of this Lease, remove all movable furniture and equipment belonging to Tenant,
at Tenant's sole cost, provided that Tenant repairs any damage caused by such
removal. Property not so removed shall be deemed abandoned by Tenant, and title
to the same shall thereupon pass to Landlord. Upon request by Landlord, and
unless otherwise agreed to in writing by Landlord, Tenant shall remove, at
Tenant's sole cost, any or all Alterations to the Premises installed by or at
the expense of Tenant and all movable furniture and equipment belonging to
Tenant which may be left by Tenant and repair any damage resulting from such
removal.
(b) 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 subtenancies, or
may, at the option of Landlord, operate as an assignment to it of any or all
such subleases or subtenancies.
25. WAIVER. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such waiver shall not be
deemed to be a waiver of any subsequent breach of the same or any other term,
covenant or condition contained herein. Furthermore, the acceptance of Base
Rent or Additional Charges by Landlord shall not constitute a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
regardless of Landlord's knowledge of such preceding breach at the time
Landlord accepted such Base Rent or Additional Charges. Failure by Landlord to
enforce any of the terms, covenants or conditions of this Lease for any length
of time shall not be deemed to waive or to decrease the right of Landlord to
insist thereafter upon strict performance by Tenant. Waiver by Landlord of any
term, covenant or condition contained in this Lease may only be made by a
written document signed by Landlord.
26. NOTICES. Except as otherwise expressly provided in this Lease, any
bills, statements, notices, demands, requests or other communications given or
required to be given under this Lease shall be effective only if rendered or
given in writing, sent by certified mail, return receipt requested, reputable
overnight carrier, or delivered personally, (i) to Tenant (A) at Tenant's
address set forth in the Basic Lease Information, if sent prior to Tenant's
taking possession of the Premises, or (B) at the Premises if sent subsequent to
Tenant's taking possession of the Premises, or (C) at any place where Tenant
may be found if sent subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Premises; or (ii) to Landlord at Landlord's address set forth
in the Basic Lease Information; or (iii) to such other address as either
Landlord or Tenant may designate as its new address for such purpose by notice
given to the other in accordance with the provisions of this Paragraph 26.
If and for so long as Oracle Corporation is a Guarantor of the obligations of
Tenant under this Lease any notice sent to Tenant shall be given to Oracle
Corporation in writing in the manner described above with respect to notices to
Tenant.
Any such ▇▇▇▇, statement, notice, demand, request or other communication shall
be deemed to have been rendered or given on the date the return receipt
indicate delivery of or refusal of delivery if sent by certified
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mail, the day upon which recipient accepts and signs for delivery from a
reputable overnight carrier, or on the date a reputable overnight carrier
indicates refusal of delivery, or upon the date personal delivery is made. If
Tenant is notified in writing of the identity and address of any Mortgagee or
ground or underlying lessor, Tenant shall give to such Mortgagee or ground or
underlying lessor notice of any default by Landlord under the terms of this
Lease in writing sent by registered or certified mail, and such Mortgagee or
ground or underlying lessor shall be given the opportunity to cure such default
(as defined in Paragraph 19(b)) prior to Tenant exercising any remedy available
to it.
27. TAXES PAYABLE BY TENANT. At least ten (10) days prior to
delinquency Tenant shall pay all taxes levied or assessed upon Tenant's
equipment, furniture, fixtures and other personal property located in or about
the Premises. If the assessed value of Landlord's property is increased by the
inclusion therein of a value placed upon Tenant's equipment, furniture,
fixtures or other personal property, Tenant shall pay to Landlord, upon written
demand, the taxes so levied against Landlord, or the proportion thereof
resulting from said increase in assessment.
28. ABANDONMENT. Tenant shall not abandon the Premises and cease
performing its financial and maintenance obligations under this Lease at any
time during the Term, and if Tenant shall abandon and cease performing its
financial and maintenance obligations under this Lease, or surrender the
Premises or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the Premises shall, at the option of
Landlord, be deemed to be abandoned and title thereto shall thereupon pass to
Landlord. Notwithstanding anything to contrary contained herein, Tenant shall
not be allowed to vacate the Premises if such would result in a termination of
Landlord's insurance. Upon Tenant's request, Landlord will ask its insurer if
such vacation of the Premises would result in termination of its current
insurance policy. For purposes of this Paragraph 28, the Tenant shall not be
deemed to have abandoned the Premises solely because the Tenant is not
occupying the Premises.
29. SUCCESSORS AND ASSIGNS. Subject to the provisions of Paragraph 9,
the terms, covenants and conditions contained herein shall be binding upon and
inure to the benefit of the parties hereto and their respective legal and
personal representatives, successors and assigns.
30. ATTORNEY'S FEES. If Tenant or Landlord brings any action for any
relief against the other, declaratory or otherwise, arising out of this Lease,
including any suit by Landlord for the recovery of Base Rent or Additional
Charges or possession of the Premises, the losing party shall pay to the
prevailing party a reasonable sum for attorney's fees, which shall be deemed to
have accrued on the commencement of such action and shall be paid whether or
not the action is prosecuted to judgment.
31. LIGHT AND AIR. Tenant covenants and agrees that no diminution of
light, air or view by any structure which may hereafter be erected (whether or
not by Landlord) shall entitle Tenant to any reduction of rent under this
Lease, resulting in any liability of Landlord to Tenant, or in any other way
affect this Lease or Tenant's obligations hereunder.
32. SECURITY DEPOSIT.
(a) LETTER OF CREDIT. Concurrently with Tenant's execution of
this Lease, Guarantor shall deliver to Landlord its Guaranty of Tenant's
obligations hereunder. Such Guaranty provides for the termination of the
Guaranty when certain criteria have been met including the deposit with
Landlord of a letter of credit meeting the requirements of this Paragraph 32.
Concurrently with Landlord's written confirmation of termination of the
Guaranty, Tenant shall deliver to Landlord an unconditional, irrevocable,
transferable letter of credit, in an amount equal to the "Required Amount"
(defined below) issued by a financial institution acceptable to Landlord in the
form attached hereto as Exhibit "F", with an original term of no less than one
year and automatic extensions through the end of the Term of this Lease and
sixty (60) days thereafter (the "Letter of Credit"). Landlord shall not
unreasonably withhold its approval of such a financial institution if it is a
national bank with office in the San Francisco Bay Area (including an office
allowing the Letter of Credit to be presented to and paid by such office) with
assets in excess of twenty billion dollars. The term "Required Amount" shall
mean a sum reasonably determined by Landlord as of the date the Letter of
Credit is delivered
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hereunder to be the amount of ten (10) months Base Rent plus Additional Charges.
Tenant shall keep the Letter of Credit, as its expense, in full force and effect
until the sixtieth (60th) day after the Expiration Date or other termination of
this Lease, to insure the faithful performance by Tenant of all of the
covenants, terms and conditions of this Lease, including, without limitation,
Tenant's obligations to repair, replace or maintain the Premises and Tenant's
obligations under the Work Letter; provided, however, at any time during the
term that Landlord holds cash as a security deposit hereunder in the amount of
the Letter of Credit, Tenant shall not be in default hereunder for failing to
maintain the Letter of Credit. Landlord shall be entitled to draw the full
amount of the Letter of Credit (i) at any time Tenant is in "default" (as
defined in Paragraph 19(a)), (ii) at any time an event has occurred which, with
the passage of time or giving of notice or both, would constitute a default,
where Landlord is prevented from, or delayed in, giving such notice because of
an Insolvency Proceeding or (iii) on or after thirty (30) days prior to the
expiration of the Letter of Credit. The Letter of Credit shall provide for full
payment to Landlord, upon presentation of the following to the issuer of the
Letter of Credit (x) a letter signed by an authorized agent of Landlord stating
that Landlord is entitled to draw the Letter of Credit and (y) the original
Letter of Credit. In the event of such payment to Landlord, Landlord shall hold
the funds so obtained as the security deposit required under this Lease. Any
unused portion of the funds so obtained by Landlord shall be returned to Tenant
upon replacement of the Letter of Credit or deposit of cash security in the full
amount required as the face amount of the Letter of Credit hereunder. If
Landlord uses any portion of the Letter of Credit, or the cash security deposit
resulting from a draw on the Letter of Credit, to cure any default by Tenant
hereunder, Tenant shall replenish the security deposit to the original amount
within ten (10) days of notice from Landlord. Tenant's failure to do so shall
become a material breach of this Lease. Landlord shall keep any cash security
funds separate from its general funds, and shall invest such cash security at
Tenant's reasonable direction, and any interest actually earned by Landlord on
such cash security shall be paid to Tenant quarterly. If an event of default
occurs under this Lease or the Work Letter (including, without limitation, any
default by Tenant with respect to its payment and performance obligations under
the Work Letter), or if Tenant is the subject of any Insolvency Proceeding,
Landlord may present its written demand for payment of the entire face amount of
the Letter of Credit and the funds so obtained shall become due and payable to
Landlord. Landlord may retain such funds to the extent required to compensate
Landlord for damages incurred, or to reimburse Landlord as provided herein, in
connection with any such default, and any remaining funds shall be held as a
cash security deposit. Without limiting the foregoing, in the event of a default
in Tenant's obligations to complete or pay for the Tenant Improvements in
accordance with the Work Letter, Landlord may use the security deposit to
complete and/or pay for the Tenant Improvements to the extent of Tenant's
obligations as contemplated by the Work Letter. Landlord shall be entitled to
assign the Letter of Credit and its rights thereto in connection with an
assignment of this Lease to its Lender as security for the obligations of
Landlord to such lender. Tenant shall cooperate with Landlord in connection with
any modifications of the Letter of Credit that may be reasonably requested in
connection with such assignment.
(b) ANNUAL REDUCTION OF LETTER OF CREDIT. Tenant shall be
entitled to reduce the Letter of Credit on the sixth through tenth anniversaries
of the Commencement Date in the amount of one-fifth (1/5th) of the initial
balance, so long as (i) Tenant is not in default (and no event has occurred
which, with the passage of time or giving of notice or both, would constitute a
default) under the Lease on such anniversary date, and (ii) Landlord has not
delivered a notice of Tenant's failure to perform any of its monetary
obligations hereunder during the previous six months, regardless of whether such
failure was cured by Tenant within any applicable grace or cure period;
provided, however, that any such notice of failure to perform relating to a
non-monetary failure to perform which was disputed, in good faith, by Tenant and
ultimately determined (by agreement of the parties, arbitration or judicial
action) not to be a violation of this Lease shall not be considered for purposes
of determining whether such condition has been met.
(c) RETURN OF LETTER OF CREDIT. The Letter of Credit shall be
returned to Tenant if, at any time after the fifth anniversary of the
Commencement Date, Tenant (A) can establish to Landlord's reasonable
satisfaction that as of the end of any fiscal year of Tenant following the
fifth anniversary of the Commencement Date, Tenant has (i) had revenues for
eight consecutive quarters in excess of an annual rate of $75,000,000 "Revenue
Criteria", (ii) Market Capitalization of an average of $750,000,000 over the
proceeding twelve months, and (iii) cash and cash equivalents ("Cash Criteria")
(including up to twenty five percent (25%) of which may be comprised of the
amount Tenant would receive from a factor, without recourse in respect of
current ninety day or less accounts receivables (which are not and shall not be
pledged or factored), certified to
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Landlord by an independent third party factor) in excess of Forty Million
Dollars ($40,000,000), all as determined in accordance with GAAP and as
reflected on certified, audited financial statements; and (b) is not in default
(and no event has occurred which, with the passage of time or giving of notice
or both, would constitute a default) under the Lease as of the date the Letter
of Credit is returned to Tenant. The term "Market Capitalization" shall mean
the average daily closing price of a class of Tenant's stock which is publicly
traded multiplied by the number of shares of Tenant's stock that is held by
shareholders who may freely trade such stock.
(d) Conversion of Deposit to Loan. Landlord and Tenant
acknowledge and agree that, if Tenant defaults under this Lease and Landlord
elects to pursue its remedies under California Civil Code Section 1951.2 or
under this Lease to terminate this Lease (any such event, a "Landlord Action"),
(i) Landlord will incur certain damages, costs and expenses, including, without
limitation, marketing costs, commissions, relocation costs, tenant improvement
costs (but limited to costs for improvements consistent with the level of
finish and build out of Tenant's Improvement), and carrying costs in connection
with releasing the Premises, in addition to the other damages, costs and
expenses Landlord may incur as a result of such default and/or other defaults
under this Lease (all of the foregoing collectively, "Default Damages"); (ii)
Landlord has no assurance of a source of funds to cover such Default Damages
other than the proceeds of the Letter of Credit (or cash collateral); and (iii)
the proceeds of the Letter of Credit (or cash collateral) should be available
to Landlord to apply to Default Damages, even if the amount thereof exceeds
that amount to which Landlord is ultimately determined to be entitled under
this Lease and pursuant to applicable law. Accordingly, at Landlord's sole
election, Landlord shall be entitled to draw the full amount of the Letter of
Credit (or the full amount of cash collateral shall be released to Landlord)
which is then existing (after any previous application of funds by Landlord
and/or replenishment by Tenant pursuant to Paragraph 32(a) above),
simultaneously with commencement of a Landlord Action or at any time
thereafter. All proceeds thereof in excess of amounts applied (pursuant to
Paragraph 32(a)) to Default Damages incurred by Landlord prior to commencement
of the Landlord Action shall be deemed a loan from Tenant to Landlord (the
"Default Loan"). The Default Loan shall be unsecured and shall not bear
interest, and repayment thereof shall be limited to the terms and conditions
set forth in this paragraph. Any sums to which Landlord from time to time
becomes entitled hereunder and pursuant to law as a result of Tenant's default
and any previous defaults of the Lease, to which the Letter of Credit (or cash
collateral) has not previously been applied pursuant to Paragraph 32(a), shall
be offset against the principal balance of the Loan. The amount of the Default
Loan remaining, if any, after such offset shall be referred to herein as the
"Excess Amount". The Excess Amount shall be payable by Landlord to Tenant from,
and only from, first any proceeds from the Letter of Credit (or cash
collateral) which have not been applied to Default Damages incurred by Landlord
after the same are finally determined (the "Remaining Proceeds"), and then
Excess Rent. The Remaining Proceeds shall be paid by Landlord to Tenant
promptly upon final determination after the entire Premises are leased to a
third party or parties. If Tenant disputes the amount of Remaining Proceeds
paid by Landlord, Tenant may submit such dispute to arbitration in accordance
with Paragraph 40 [Arbitration of Disputes] of this Lease. "Excess Rent" shall
mean the amount by which (x) rent received by Landlord (from the tenant or
tenants leasing all or any portion of the Premises after Tenant's default) in
any month exceeds (y) the amount of rent that would have been payable under
this Lease for such month if this Lease had not been terminated. Landlord shall
pay Tenant one-half of the Excess Rent until the earlier of (A) the date the
Excess Amount is fully repaid or (B) the date that would have been the
Expiration Date (excluding any Renewal Term) of this Lease. Any remaining
balance of the Default Loan on such date shall be deemed forgiven. If the
Default Loan is insufficient to cover all Default Damages, Tenant shall pay
Landlord any such shortfall immediately upon demand by Landlord, and Landlord
shall have all rights and remedies available at law or elsewhere in the Lease
with respect to such shortfall.
33. CORPORATE AUTHORITY; FINANCIAL INFORMATION. If Tenant signs as a
corporation each of the persons executing this Lease on behalf of Tenant does
hereby covenant and warrant that Tenant is a duly authorized and existing
corporation, that Tenant has and is qualified to do business in California,
that the corporation has full right and authority to enter into this Lease, and
that each and both of the persons signing on behalf of the corporation were
authorized to do so. Upon Landlord's request, Tenant shall provide Landlord
with evidence reasonably satisfactory to Landlord confirming the foregoing
covenants and warranties. Tenant hereby further covenants and warrants to
Landlord that all financial information and other descriptive information
regarding Tenant's business, which has been or shall be furnished to Landlord,
is to
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Tenant's best knowledge accurate and complete at the time of delivery to
Landlord.
34. PARKING. Tenant shall have the right to use the Building's parking
spaces in common with other tenants or occupants of the Buildings, if any,
subject to the Encumbrances and the rules and regulations of Landlord for such
parking facilities which may be established or altered by Landlord at any time
or from time to time during the term. Landlord represents and warrants to Tenant
that the number of parking spaces initially constructed by Landlord in
connection with the Project shall be equal to or greater than the minimum number
required by the City of San ▇▇▇▇▇▇ and that Landlord will not thereafter
voluntarily reduce the number of parking spaces available to the Project below
such minimum number except as may be required by law or in connection with
condemnation. Landlord shall not voluntarily agree to an amendment or
modification or waiver of provisions of the CC&Rs in a manner that reduces or
impairs the parking available to the Project except as may be required by law or
in connection with condemnation. Tenant acknowledges that the parking structure
is not scheduled to be completed by the Scheduled Commencement Date. Neither
Tenant nor any of its employees, visitors or invitees shall have an obligation
to pay for parking in the parking structure or otherwise on the Project.
Landlord will operate a valet parking service from 8:30 a.m. to 5:30 p.m. Monday
through Friday excluding holidays from the date Tenant first takes possession of
the Initial Premises (for the operation of its business) through the date the
parking structure is completed and available for use.
35. MISCELLANEOUS.
(a) The term "Premises" wherever it appears herein includes
and shall be deemed or taken to include (except where such meaning would be
clearly repugnant to the context) the office space demised and improvements now
or at any time hereafter comprising or built in the space hereby demised. The
paragraph headings herein are for convenience of reference and shall in no way
define, increase, limit or describe the scope or intent of any provision of this
Lease. The term "Landlord" shall include Landlord and its successors and
assigns. In any case where this Lease is signed by more than one person, the
obligations hereunder shall be joint and several. The term "Tenant" or any
pronoun used in place thereof shall indicate and include the masculine or
feminine, the singular or plural number, individuals, firms or corporations, and
their and each of their respective successors, executors, administrators, and
permitted assigns, according to the context hereof.
(b) Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
State of California. This lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous negotiations. There
have been no representations made by the Landlord or understandings made between
the parties other than those set forth in this Lease and its exhibits. This
Lease may not be modified except by a written instrument by the parties hereto.
(c) If for any reason whatsoever any of the provisions hereof
shall be unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
(d) Upon Tenant paying the Base Rent and Additional Charges
and performing all of Tenant's obligations under this Lease, Tenant may
peacefully and quietly enjoy the Premises during the Term as against all persons
or entities lawfully claiming by or through Landlord; subject, however, to the
provisions of this Lease.
36. TENANT'S REMEDIES. If any default hereunder by Landlord is not
cured within the applicable cure period provided in Subparagraph 19(b), Tenant's
exclusive remedies shall be an action for specific performance or action for
actual damages. Tenant hereby waives the benefit of any laws granting it (A) the
right to perform Landlord's obligation, or (B) the right to terminate this Lease
or withhold Rent on account of any Landlord default. Tenant shall look solely to
Landlord's interest in the Project for the recovery of any judgment from
Landlord. Landlord, or if Landlord is a partnership, its partners whether
general or limited, or if Landlord is a corporation, its directors, officers or
shareholders, shall never be personally liable for any such judgment. Any lien
obtained to enforce such judgment and any levy of execution thereon shall be
subject and subordinate to any mortgage or deed of trust (excluding any mortgage
or deed of trust which was created as part of an effort to defraud creditors,
i.e., a fraudulent conveyance); provided, however that any such judgement
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and any such levy of execution thereon shall not be subject or subordinated to
any mortgage or deed of trust that shall have been created or recorded in the
official records of Santa ▇▇▇▇▇ County after the date of the judgment giving
rise to such lien. Landlord's interest in the Project shall include any
insurance proceeds received by Landlord which are not controlled by Landlord's
lender and any proceeds of the Security Deposit under this Lease that are then
held by Landlord.
37. REAL ESTATE BROKERS. Each party represents that it has not had
dealings with any real estate broker, finder or other person with respect to
this Lease in any manner, except for any broker named in the Basic Lease
Information, whose fees or commission, if earned, shall be paid as provided in
the Basic Lease Information. Each party shall hold harmless the other party
from all damages resulting from any claims that may be asserted against the
other party by any other broker, finder or other person with whom the other
party has or purportedly has dealt.
38. LEASE EFFECTIVE DATE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
39. HAZARDOUS SUBSTANCE LIABILITY. Tenant has received from Landlord a
copy of the following reports (the "Environmental Reports"): "Phase I and II
Environmental Assessment Report, Circle Star Theater Property, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, January 31, 1997" prepared by McLaren/▇▇▇▇
Environmental Engineering Corporation. Except as noted in the Environmental
Reports, Landlord represents and warrants that to the best of its knowledge,
the Premises and Project are presently free of asbestos, toxic waste,
underground storage tanks and other Hazardous Substances in amounts exceeding
legally established maximum thresholds. Additionally, except as noted in the
Environmental Reports, Landlord represents that it has received no written
notice of any violation or claimed violation with respect to the presence of
toxic or Hazardous Substances on, in or under the Project or of any pending or
contemplated investigation or other action relating thereto.
(a) DEFINITION OF HAZARDOUS SUBSTANCES. For the purpose of
this Lease, "Hazardous Substances" shall be defined, collectively, as oil,
flammable explosives, asbestos, radioactive materials, hazardous wastes, toxic
or contaminated substances or similar materials, including, without limitation,
any substances which are "hazardous substances," "hazardous wastes," "hazardous
materials" or "toxic substances" under applicable environmental laws,
ordinance or regulation.
(b) TENANT INDEMNITY. Tenant releases Landlord from any
liability for, waives all claims against Landlord and shall indemnify, defend
and hold harmless Landlord, its employees, partners, agents, subsidiaries and
affiliate organizations against any and all claims, suits, loss, costs
(including costs of investigation, clean up, monitoring, restoration and
reasonably attorney fees), damage or liability, whether foreseeable or
unforeseeable, by reason of property damage (including diminution in the value
of the property of Landlord), personal injury or death directly arising from or
related to Hazardous Substances released, manufactured, discharged, disposed,
used or stored on, in, or under the Property or Premises during the initial
Term and any extensions of this Lease by Tenant or its employees, agents,
sublessees, assignees or contractors. The provisions of this Tenant Indemnity
regarding Hazardous Substances shall survive the termination of the Lease.
(c) LANDLORD INDEMNITY. Landlord releases Tenant from any
liability for, waives all claims against Tenant and shall indemnify, defend and
hold harmless Tenant, its officers, employees, and agents to the extent of
Landlord's interest in the Project, against any and all actions by any
governmental agency for clean up of Hazardous Substances on or under the
Property, including costs of legal proceedings, investigation, clean up,
monitoring, and restoration, including reasonable attorney fees, if, and to the
extent, arising from the presence of Hazardous Substances on, in or under the
Property or Premises, except to the extent caused by the release, disposal, use
or storage of Hazardous Substances in, on or about the Premises by Tenant, its
employees, agents, sublessees, assignees, or contractors. The provision of this
Landlord Indemnity regarding Hazardous Substances shall survive the termination
of the Lease.
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Tenant has informed Landlord, that except for very immaterial amounts of toxic
materials incidental to its office use (e.g. copier toner). Tenant will not use
any Hazardous Substances in material amounts within the Building and shall
comply with any applicable laws to the extent that it does.
40. ARBITRATION OF DISPUTES.
ANY CONTROVERSY OR CLAIM ARISING OUT OF THIS LEASE OR A
BREACH OF THIS LEASE SOLELY BETWEEN LANDLORD AND TENANT RELATING TO A MONETARY
DEFAULT IN AN AMOUNT OF LESS THAN TWENTY-FIVE THOUSAND DOLLARS ($25,000), BUT
NOT INCLUDING A DEFAULT WITH RESPECT TO THE TIMELY PAYMENT OF BASE RENT AND
ADDITIONAL CHARGES, SHALL BE SETTLED BY ARBITRATION BEFORE THE JUDICIAL
ARBITRATION MEDIATION SERVICE (JAMS) IN ACCORDANCE WITH THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT ON THE AWARD RENDERED BY THE
ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO
HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA
LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
[STAMP]
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
Consent to neutral arbitration by: /s/ [ILLEGIBLE] (Landlord):
/s/ [ILLEGIBLE] (Tenant).
41. SIGNAGE. Tenant shall be allowed to use a proportional share (based
on square footage) of the main lobby directory and the monument sign located at
the Project's entry off of Industrial Road, as well as building standard signage
at the lobby on Tenant's floor as well as Tenant's main entry door. In addition
Tenant shall be entitled to one sign each on the northeast (i.e. the glass
curtain wall adjacent to the Highway 101 freeway frontage) and northwest (i.e.
the pre-cast concrete panel visible from the southbound lanes of Highway 101)
sides of the Building, such signs (in the aggregate) to comprise no more than
one half of the square footage of such exterior building surface signage allowed
in respect of the Project by the City of San ▇▇▇▇▇▇. Such signage shall be in
conformity with standards provided by Landlord, and subject to approval by
Landlord. All signage shall be at Tenant's expense. Landlord shall work with
Tenant to obtain approval of the applicable governmental authorities for
construction of (i) signage on top of the Building and (ii) monument signage at
the main entry to the Project. Such signage shall be subject to the reasonable
approval of Landlord as well as all applicable governmental authorities.
42. OPTION TO RENEW. Upon condition that (i) no event of default is
continuing under this Lease at the time of exercise or at the commencement of
the option term, and (ii) Tenant or its affiliate continues to physically
occupy at least fifty percent (50%) of the Premises, then Tenant shall have the
right to extend the Term for one (1) period of six (6) years ("Extension
Term(s)") following the initial Expiration Date, by giving written notice
("Exercise Notice") to Landlord at least eighteen (18) months prior to the
Expiration of the Term.
43. RENT DURING EXTENSION TERM. The Monthly Base Rent during the six
(6) year Extension Term shall be the greater of the average Monthly Base Rent
(excluding adjustments pursuant to Paragraph 3(b)(i)) paid during the initial
Term or the Fair Market Rental Value for the Premises as of the
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commencement of the option term, as determined below:
(a) Within thirty (30) days after receipt of Tenant's
Exercise Notice, Landlord shall notify Tenant of Landlord's estimate of the Fair
Market Rental Value for the Premises, as determined below, for determining
Monthly Base Rent during the ensuing Extension Term; provided, however, if
Tenant's Exercise Notice is given more than eighteen (18) months before the
Expiration Date, Landlord's estimate of Fair Market Rental Value may, but need
not be given more than eighteen (18) months before the Expiration Date. Within
fifteen (15) days after receipt of such notice from Landlord, Tenant shall
notify landlord in writing that it (i) agrees with such rental rate or (ii)
disagrees with such rental rate. No response shall constitute agreement. In the
event that Tenant disagrees with Landlord's estimate of Fair Market Rental Value
for the Premises, then the parties shall meet and endeavor to agree within
fifteen (15) days after Landlord receives Tenant's notice described in the
immediately preceding sentence. If the parties cannot agree upon the Fair
Market Rental Value within said fifteen (15) day period, then the parties shall
submit the matter to binding appraisal in accordance with the following
procedure except that in any event neither party shall be obligated to start
such procedure sooner than eighteen (18) months before the expiration of the
Lease Term. Within fifteen (15) days of the conclusion of the period during
which the two parties fail to agree (but not sooner than eighteen (18) months
before the expiration of the Lease Term), the parties shall either (i) jointly
appoint an appraiser for this purpose or (ii) failing this joint action, each
separately designate a disinterested appraiser. No person shall be appointed or
designated an appraiser unless such person has at least five (5) years
experience in appraising major commercial property in San Mateo 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 Rental Value for the Premises, that value shall be binding and conclusive
upon the parties. If the two appraisers thus appointed cannot reach agreement on
the Fair Market Rental Value for the Premises within thirty (30) days after
their appointment, then the appraisers thus appointed shall appoint a third
disinterested appraiser having like qualifications within five (5) days. If
within thirty (30) days after the appointment of the third appraiser a majority
of the appraisers agree on the Fair Market Rental Value of the Premises, 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 Fair Market Rental Value for the Premises, then
the three appraisers shall each simultaneously submit their independent
appraisal to the parties, the appraisal farthest from the median of the three
appraisals shall be disregarded, and the mean average of the remaining two
appraisals shall be deemed to be the Fair Market Value for the Premises and
shall be binding and conclusive upon the parties. Each party shall pay the fees
and expenses of the appraiser appointed by it and shall share equally the fees
and expenses of the third appraiser. If the two appraisers appointed by the
parties cannot agree on the appointment of the third appraiser, they or either
of them shall give notice of such failure to agree to the parties and if the
parties fail to agree upon the selection of such third appraiser within ten (10)
days after the appraisers appointed by the parties give such notice, then either
of the parties, upon notice to the other party, may request such appointment by
the American Arbitration Association or, on it failure, refusal or inability to
act, may apply for such appointment to the presiding judge of the Superior Court
of San Mateo County, California.
(b) Wherever used throughout this Paragraph (Rent during
Extension Term) the term "Fair Market Rental Value" shall mean the fair market
rental value of the Premises, using as a guide the rate of monthly base rent
which would be charged during the Extension Term (including periodic increases
during the Extension Term, if any) in the Mid-Peninsula area for comparable high
image, Class A office space in comparable condition, of comparable quality, as
of the time that the Extension Term commences, with appropriate adjustments
regarding taxes, insurance and operating expenses as necessary to insure
comparability to this Lease, as the case may be, and also taking into
consideration amount and type of parking, location, leasehold improvements,
proposed term of lease, amount of space leased, extent of service provided or to
be provided, and any other relevant terms or conditions (including consideration
of whether or not the monthly base rent is fixed).
(c) In the event of a failure, refusal or inability of any
appraiser to act, his successor shall be appointed by the party who originally
appointed him, but in the case of the third appraiser, his successor shall be
appointed in the same manner as provided for appointment of the third appraiser.
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(d) The appraisers shall render their appraisals in writing
with counterpart copies to Landlord and Tenant. The appraisers shall have no
power to modify the provisions of this Lease.
(e) To the extent that binding appraisal has not been
completed prior to the expiration of any preceding period for which Monthly Base
Rent has been determined, Tenant shall pay Monthly Base Rent at the rate
estimated by Landlord, with an adjustment to be made once Fair Market Rental
Value is ultimately determined by binding appraisal.
(f) From and after the commencement of the Extension Term, all
of the other terms, covenants and conditions of the Lease shall also apply;
provided, however, that Tenant shall have no further rights to extend the Term.
44. SATELLITE ANTENNA. During the Term, Tenant shall have the
non-exclusive right, subject to relevant regulatory approvals, availability of
space within the roofscreen and Landlord's consent, such consent not to be
unreasonably withheld or delayed, to install a satellite antenna ("Antenna")
within the roofscreen on the roof of the Building in a location satisfactory to
both Landlord and Tenant. Without otherwise limiting the criteria upon which
Landlord may withhold its consent to any proposed Antenna, if Landlord withholds
its consent due to concerns regarding the appearance of the Antenna or the
impact on structural aspects of the Building, such withholding of consent shall
be presumptively reasonable. Tenant shall not be charged any rent for roof
space. Prior to submitting any plans to the City of San ▇▇▇▇▇▇ or proceeding
with any installation of an Antenna, Tenant shall submit to Landlord elevations
and specifications for the Antenna. Tenant shall install any approved Antenna at
its sole expense and shall be responsible for any damage caused by the
installation of the Antenna or related to the Antenna. At the end of the Term,
Tenant shall remove the Antenna from its location and repair any damage caused
by such removal.
45. SECOND BUILDING.
(a) Prior to September 1, 1999, for so long as Tenant is not
in default hereunder, Landlord shall not execute a letter of intent or Lease
with another tenant for any portion of the Second Building. The term "Second
Building" shall mean the improvements proposed to be built by Landlord as part
of the Project and more fully described on Exhibit "G"; the Second Building is
commonly known as One Circle Star Way. From and after September 1, 1999 through
October 31, 2000, Tenant shall have the rights described in this Paragraph
("First Right Offer") to lease the First Right Space (defined below). During the
period of time commencing on September 1, 1999, Landlord shall be free to
negotiate and enter into letters of intent or leases with other parties for all
or any portion of the First Right Space, provided that Landlord shall provide
Tenant with a written "Offer Notice" if Landlord believes that a letter of
intent that it receives from, or submits to, another party is likely to result
in a letter of intent acceptable to Landlord. If such letter of intent is for
the lease of less than the entire Second Building, the Offer Notice will
indicate which portion of the First Right Space the letter of intent covers.
Tenant shall have seven (7) business days (ending at 5:00 p.m. on such seventh
business day) after receipt of the Offer Notice ("Offer Notice Deadline") to
deliver to Landlord the Tenant's Election Notice electing to lease the space
described in the Offer Notice on the terms and conditions set forth in Paragraph
45(c). If Tenant does not deliver to Landlord its Tenant Election Notice within
such seven (7) business day period, Landlord shall be entitled to complete the
transaction with the party with whom Landlord is negotiating or, within one
hundred twenty (120) days following the Offer Notice Deadline, with any other
tenant for the space described in the Offer Notice. The "Tenant Election Notice"
a letter notifying Landlord of Tenant's unconditional election to exercise its
option to lease the space described in the Offer Notice executed by Tenant. To
be effective, the Tenant's Election Notice must contain the following additional
paragraph and be signed by an Authorized Officer of Oracle Corporation:
Oracle Corporation, as Guarantor of the obligations of the
Tenant under that certain Lease dated April ___, 1999 by and
between Circle Star Center Associates, L.P. as Landlord
and Network Computer, Inc. as Tenant, hereby agrees that
the additional obligations of Network Computer, Inc.
associated with the foregoing election to lease additional
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space from Landlord is approved by Oracle Corporation
pursuant to Oracle Corporation's guaranty of the obligations
of Network Computer, Inc. under such Lease.
Oracle Corporation
By: ______________
Its:______________
An "Authorized Officer" shall mean the President or any Executive
Vice-President, Vice-President or Assistant Vice-President, Treasurer or
Assistant Treasurer of Oracle Corporation. In order for the Tenant Election
Notice to be effective, it must be accompanied by an incumbency certificate
signed by the Secretary or Assistant Secretary of Oracle Corporation certifying
that the person signing the Tenant's Election Notice on behalf of Oracle
Corporation is a corporate officer of Oracle Corporation holding one the offices
specified above. Unless Tenant's Election Notice meets all of the foregoing
requirements and is delivered to Landlord within the seven (7) business day
period specified above, such document shall be ineffective and may be
disregarded by Landlord.
(b) Notwithstanding anything to the contrary herein, Tenant's
rights under this Paragraph 45 shall not apply to the third or fourth floor of
the Second Building in the event that Landlord elects to lease such space to
Centraal Corporation (and its Affiliates). In the event that Centraal
Corporation (or it Affiliates) leases both the third and fourth floors of the
Second Building, then Centraal Corporation (and its Affiliates) shall be
required to vacate the second floor of the Building and the Second Floor of the
Building shall be subject to Tenant's First Right of Offer under the terms and
conditions of this Paragraph 45; provided, however, there shall be no Tenant
Improvement Allowance for the second floor of the Building except such amount as
is required to a ceiling grid with ceiling tiles and install lighting and HVAC
ducting consistent with the initial space leased by Tenant in the Building, but
in no event shall such Tenant Improvement Allowance exceed $7 per rentable
square feet of space located on the second floor of the Building. The term
"First Right Space" shall mean the Second Building (subject to the right of
Landlord to lease portions thereof to Centraal Corporation (or its Affiliates)
in accordance with the foregoing) and the second floor of the Building if, and
when, Centraal Corporation leases both the third and fourth floors of the Second
Building.
(c) Terms of Lease of First Right Space.
(1) RENT. The Base Rent for the First Right Space
leased by Tenant pursuant to this Paragraph 45 shall be based on a Rentable Area
of the Second Building and 25,179 square feet for the second floor of the
Building. Landlords's architect shall determine the Rentable Area of the Second
Building and each floor thereof, and shall certify such Rentable Area in writing
to Landlord and Tenant. The computations called for in the prior two sentences
to be made by Landlord's architect shall be carried out in a manner consistent
with the computations for the Building and so that the total Rentable Square
Feet for all of the floors of the Second Building shall be the sum of the
aggregate Rentable Area of the Building. The initial Base Rent for each First
Right Space shall be the Monthly Base Rent specified on the Basic Lease
information subject to the adjustment pursuant to Paragraph 3(b)(i) for the
Additional Allowance applicable to the First Right Space but at a rate and for
the period described in Paragraph 45(c)(2) below.
(2) RENT COMMENCEMENT AND EXPIRATION DATE. If Tenant
elects to lease all or part of the First Right Space pursuant to this Paragraph
45, the date Rent shall commence for each First Right Space (the "First Right
Space Rent Commencement Date") shall be a date which is the sum of (i) the
number of weeks of Tenant's Plan Approval Period (defined below) plus (ii)
Landlord's Construction Period (defined below), following the date of Tenant's
notice pursuant to Paragraph 45(a), as extended by the number of days in excess
of three (3) business days that it takes Landlord to review and comment upon any
plans submitted by Tenant to Landlord pursuant to the
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Work Letter. The term "Tenant's Plan Approval Period" shall mean forty-two (42)
days. The term "Landlord's Construction Period" shall mean the following time
periods depending upon the number of floors that the First Right Space
comprises:
Number of Floors Landlord's Construction Period
---------------- ------------------------------
1 6 Weeks
2 8 Weeks
3 10 Weeks
The above described Landlord's Construction Periods are estimates of the time
period between the date Tenant has completed Tenant's Plans and obtained
Landlord's approval and processed building permits in respect of the Tenant's
Improvements for the First Right Space, on the one hand, and the date Landlord
achieves Substantial Completion of the Tenant Improvements (excluding any Tenant
Delay), on the other hand. The Rent payable by Tenant in respect of any First
Right Space shall be abated for the number of days, if any, that it takes
Landlord to achieve Substantial Completion in excess of the applicable
Landlord's Construction Period (as reasonably increased if Tenant's proposed
improvements are of a character as will require a longer construction period
than the character of the improvements to be constructed in respect of the
Initial Premises), excluding from such period, Tenant Delays.
Landlord and Tenant acknowledge that until the Tenant Improvements in respect of
any First Right Space are completed it will not be possible to compute the
adjustment to Monthly Base Rent attributable to the Additional Allowance.
Accordingly, Landlord and Tenant agree that upon Substantial Completion of such
Tenant Improvements, Landlord shall deliver written notice to Tenant of its
calculation of the adjustment to Monthly Base Rent in respect of the Additional
Allowance. The Monthly Base Rent shall be increased by an amount equal to the
sum determined by amortizing the amount of the Additional Allowance on a
straight line basis at 9% per annum over the period from the date of such
Substantial Completion through a date ten (10) years following the applicable
First Right Space Rent Commencement Date ("Amortization Ending Date").
There shall be no Outside Delivery Date in respect of any First Right Space.
(3) LEASE TERMS. If Tenant leases any First
Right Space pursuant to this Paragraph 45, in addition to the terms set forth in
clauses (1) and (2) above, this Lease shall automatically be modified to provide
as follows:
(A) Both the Initial Premises and
the First Right Space shall be part of the "Premises" under this Lease, such
that the term "Premises" as used in this Lease shall refer collectively to both
the Initial Premises and the First Right Space;
(B) Tenant's Share of Real Estate
Taxes and Expenses shall be adjusted to reflect the Increased Rentable Area of
the Premises, based on the ratio of the Rentable Area of the collective Premises
to the total Rentable Area of the Project;
(C) Tenant's right to terminate
this Lease pursuant to pursuant to Paragraph 2(e) shall be modified by extending
the effective date of such termination to the eighth anniversary of the last
First Right Space Rent Commencement Date (with a corresponding adjustment to the
date by which notice of the exercise of such termination option must be given by
Tenant) and such right to terminate shall apply only to all (and not less than
all) of the portion of the Initial Premises and shall not be applicable to any
First Right Space;
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(D) Tenant's lease of the First Right Space shall be
on the same terms and conditions as in effect for the Premises from time to
time, except as expressly provided in this Paragraph 45;
(E) The Expiration Date applicable to the Initial
Premises and the First Right Space shall be the date which is ten (10) years
following the last First Right Space Rent Commencement Date. The Base Rent in
respect of any portion of the Initial Premises for the period of the initial
Term (excluding any extension of the Term pursuant to Paragraph 42) in excess of
ten (10) years shall be adjusted by reducing the Base Rent for such excess
period by the amount of the adjustment for the Additional Allowance provided for
in Paragraph 3(b)(i) in respect of the Initial Premises. The Base Rent in
respect of any First Right Space for the period of the initial Term (excluding
any extension of the Term pursuant to Paragraph 42) beyond the Amortization
Ending Date in respect of such First Right Space shall be adjusted by reducing
the Base Rent for such excess period by the amount of the adjustment for the
Additional Allowance provided for in Paragraph 45(c)(2);
(F) All references to percentage of destruction or
taking in Paragraph 20 [Damage by Fire, Etc.] and Paragraph 21 [Eminent Domain]
shall be deemed to mean each of the Building and Second Building separately;
(G) Landlord shall provide the same Base Building
Improvements as provided for the Building (and conduit between the Building and
the Second Building and a covered walk way from the side of the Second Building
nearest the parking garage to the parking garage, subject to receiving all
necessary applicable approvals, which Landlord will use its best efforts to
obtain) together with a Tenant Improvement Allowance (increased by 3% on each
anniversary of the Commencement Date for the Initial Premises that occurs prior
to the Effective Date of Tenant's written exercises of its right to lease First
Right Space pursuant to this Paragraph 45) and Additional Allowance in the same
amounts per Rentable Square Foot as shown in the Basic Lease Information with
respect to the initial Premises (except as provided in Paragraph 45(b) above);
(H) The Required Amount of the letter of credit
required pursuant to Paragraph 32(a) and the "Market Capitalization", "Revenue
Criteria" and "Cash Criteria" requirements for the return of the letter of
credit pursuant to Paragraph 32(c) shall be adjusted to the following amounts
based upon the number of additional floors leased by Tenant pursuant to this
Paragraph 45 ("M" means million and "B" means billion):
Additional Number of
Additional Months of Base Rent Market Revenue Cash
Floors plus Additional Charges Capitalization Criteria Criteria
---------- ----------------------- -------------- -------- --------
1 12 $ 850M $100M $65M
2 13 $ 950M $100M $75M
3 14 $ 1.1B $125M $85M
4 15 $1.25B $150M $95M
The parties shall execute a written confirmation of the addition of the Second
Building and the foregoing terms and conditions within thirty (30) days after
either party's request, provided that failure to execute such confirmation shall
not affect the automatic modification of the Lease as provided in this Paragraph
45(c).
(I) In the event Tenant leases two floors in the
Second Building, Tenant shall be entitled to one sign on the Second Building
similar to the two signs on the Building to
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which Tenant is entitled pursuant to Paragraph 41, subject to the terms,
conditions and limitations thereof.
(d) NO BROKERS. Neither party has had any contact or dealings
regarding the Second Building through any licensed real estate broker or other
person who may claim a right to a commission or finder's fee as a procuring
cause of any lease that might be entered into with respect to the Second
Building as contemplated by this Paragraph 45 or otherwise, except for the
broker named in the Basic Lease Information, whose fees or commission, if
earned, shall be paid by Landlord in accordance with a separate agreement with
Landlord. If any other broker or finder makes a claim for a commission or
finder's fee based upon any such contact, dealings, or communications, the party
through whom the broker or finder makes his claim shall be responsible for such
commission or fee, and all costs and expenses (including reasonable attorneys'
fees) incurred by the other party in defending against such claim.
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57
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first above written.
LANDLORD:
CIRCLE STAR CENTER ASSOCIATES, L.P.
a California limited partnership
By: M-D Ventures, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Vice President
TENANT:
NETWORK COMPUTER, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: CEO & President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President & Chief Financial Officer
[STAMP]
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[FLOOR PLAN of the First Floor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇]
1ST FLOOR
EXHIBIT "A"
Page 1 of 2
59
[FLOOR PLAN of the 3rd/4th floor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇]
3RD/4TH FLOOR
EXHIBIT "A"
Page 2 of 2
60
EXHIBIT "B"
WORK LETTER
1. Base Building: Landlord shall furnish and install the office
building, as defined in the plans listed in the attached Exhibit B-1,
"Landlord's Plans," at Landlord's expense ("Base Building").
2. Tenant's Plans: Landlord approves Tenant's use of the architectural
firm known as ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ("Tenant's Architect"). On or before April 1,
1999 Tenant shall submit preliminary plans and specifications including
specifications for finishes for Tenant's proposed tenant improvements
("Preliminary Plans"). Landlord shall have three (3) business days to review and
comment upon, or approve, Tenant's Preliminary Plans, and Landlord's approval
shall not be reasonably withheld or delayed so long as Tenant's Preliminary
Plans are consistent with the Basic Standards as defined below. As part of
Landlord's review of Tenant's Preliminary Plans, Landlord will notify Tenant of
those items, if any, which are "long lead time" items (i.e., items which cannot
reasonably be delivered to the job site early enough to maintain the approved
construction schedule without substantial overtime work), specifying in such
notice the delay in Substantial Completion of the Premises which will be caused
by selection of such items ("Long Lead Time Items"), so long as Tenant's
Preliminary Plans specify sufficient detail (e.g., finishes, materials, etc.) to
allow Landlord to make such determination. Thereafter, in the preparation of the
final Tenant's Plans, Tenant shall have the right to replace such Long Lead Time
Items with other specified items that would not be considered Long Lead Time
Items. On or before Tenant's Plan Delivery Date, as specified in the Basic Lease
Information, Tenant shall submit plans and specifications for Tenant's proposed
tenant improvements within the Premises consistent with Tenant's Preliminary
Plans as approved by Landlord ("Tenant's Plans"). Tenant's Plans shall include
all such information required to prepare construction drawings sufficient to
allow Landlord's contractor to bid and construct said improvements, including
but not limited to those items in Exhibit B-2, "Minimum Information Required."
Such plans shall be subject to Landlord's approval, which shall not be
unreasonably withheld so long as the tenant improvements contemplated therein
are generally generic with drop ceilings throughout, perimeter private offices
around at least 25% of the perimeter of the floor plate, and otherwise
reasonably comparable to the improvements existing at Tenant's existing premises
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Basic Standards"). Landlord's contractor shall prepare
complete mechanical, electrical, plumbing, and other engineering plans for the
installation of the heating, ventilating, air conditioning, electrical and
plumbing to be installed in the Premises, on a design/build basis, and the costs
charged by Landlord's contractor for such services shall be included in the
scope of work by Landlord's contractor for the Tenant Improvements and in the
cost estimate described in paragraph 5 below. The engineering fees for plumbing
and fire sprinkler work shall be competitively bid as design/build with
engineered drawings to be included in Landlord's contractor's scope of work for
the Tenant Improvements.
3. Tenant Improvements: Landlord shall cause Landlord's contractor to
construct, at Tenant's expense, subject to the Tenant Allowance as noted below,
the additional work in addition to the Base Building to complete the Premises
("Tenant Improvements") as required by the plans and specifications approved by
Landlord and Tenant pursuant to this Work Letter. The quantities,
EXHIBIT "B"
1
61
character and manner of installation of all of the foregoing work shall be
subject to the limitations imposed by any applicable regulations, laws,
ordinance, codes and rules.
4. Tenant's Expense: The cost of the Tenant Improvements, as well as
space planning and preparing the working drawings (including Tenant's Plans) for
the Tenant Improvements or any change to the original instruction and/or plans
and specifications shall be paid by Tenant; provided, however, that Landlord
shall provide to Tenant an allowance of the amount specified in the Basic Lease
Information as the "Tenant Allowance". The Tenant Allowance may be applied
toward the following items in respect of the Tenant Improvements: Architectural
and engineering fees, space planning, building permits or other governmental
fees, cost of labor materials and other charges included in the construction
contract for construction of Tenant Improvements. The cost of the Tenant
Improvements to be paid from the Tenant Allowance or by Tenant shall not include
the following (which shall be Landlord's responsibility): (a) costs attributable
to improvements installed outside the demising walls of the Premises; (b) costs
for improvements which are not shown on or described in the Tenant's Plans as
finally approved by Landlord, other than changes required by the City of San
▇▇▇▇▇▇ or other governmental authorities in connection with their review of
Tenant's Plans or issuance of permits, changes necessitated by Tenant Delays (as
defined below), or changes that are requested or approved by Tenant; (c)
attorneys' fees incurred in connection with negotiation of construction
contracts, and attorneys' fees, experts' fees and other costs in connection with
disputes with third parties related to the Tenant Improvements, except to the
extent such disputes result from Tenant's acts or omissions; (d) interest and
other costs incurred by Landlord to finance Landlord's construction costs; (e)
costs incurred as a consequence of delay (other than Tenant Delays),
construction defects or default by Landlord's contractor; (f) costs recoverable
by Landlord upon account of warranties and insurance; (g) restoration costs in
excess of insurance proceeds as a consequence of casualties; (h) penalties and
late charges attributable to Landlord's failure to pay construction costs; (i)
costs to bring the Base Building into compliance with applicable laws and
restrictions at the time building permits are issued for the Tenant
Improvements, including, without limitation, the Americans with Disabilities Act
and environmental law, except to the extent such laws and restrictions are only
triggered by Tenant's acts, improvements or particular use of the Premises; (j)
wages, labor and overhead for overtime and premium time, unless required due to
Tenant Delays; (k) offsite construction management or other general construction
overhead costs incurred by Landlord; and (l) a General Contractor's fee in
excess of that contemplated in Paragraph 5 below. Upon the approval by Landlord
and Tenant of the Landlord's contractor's cost estimate in accordance with
Paragraph 5 below, Tenant shall provide Landlord with a detailed breakdown of
the final costs to be incurred or which have been incurred in connection with
the design and construction of the Tenant Improvements (the "Final Costs").
Prior to the commencement of construction of the Tenant Improvements, Tenant
shall supply Landlord with cash in an amount (the "Over-Allowance Amount") equal
to the difference between the amount of the Final Costs and the Tenant Allowance
(less any portion thereof already disbursed by Landlord, on or before the
commencement of construction of the Tenant Improvements). Interest actually
accrued on the Over-Allowance Amount shall be credited to Tenant and disbursed
with the Over-Allowance Amount. The Over-Allowance Amount shall be disbursed by
Landlord pro rata with the Tenant Allowance as costs are incurred for Tenant
Improvements. Any amounts payable by Tenant under this Work Letter which are in
excess of the Tenant Allowance and Over-Allowance Amount deposited with Landlord
shall be paid by Tenant to Landlord within twenty (20) days of receipt of an
invoice from Landlord. Landlord shall keep full and detailed accounts and shall
exercise such control as may by necessary for the proper financial
EXHIBIT "B"
2
62
management of the construction of the Tenant Improvements and disbursement of
the Tenant Allowance and Over-Allowance Amount. Tenant and Tenant's
representative shall be afforded access, from time to time, upon advance written
or oral notice to Landlord, to Landlord's records, books, correspondence,
instructions, drawings, receipts, invoices, agreements (including, without
limitation, subcontracts and purchase orders), vouchers and other data relating
to the Tenant Improvements and the disbursement of the Tenant Allowance and
Over-Allowance Amount for the purpose of reviewing, auditing and/or copying such
material. Landlord shall, on not less than a monthly basis on or before the
tenth (10th) day of each month, deliver to Tenant a statement showing in
complete detail (itemized by contractor, subcontractor, vendors, consultants,
etc.) all monies paid out or costs incurred by the Landlord in connection with
the Tenant Improvements and the disbursement of the Tenant Allowance and the
Over-Allowance Amount, during the period commencing on the first day of each
month preceding the then current month and ending on the last day of said
preceding month, together with such supporting documentation as may be
reasonably required by Tenant.
In addition, the Tenant Improvements shall include window shades meeting the
following specifications: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 8 Mil Atlantis Mini-Blinds; Color: 190
Bright Aluminum.
5. Cost Estimate: Upon receipt of Tenant's Plans, Landlord shall obtain
a cost estimate for the Tenant Improvements from Landlord's contractor, such
cost estimate to include such detail as may be reasonably requested by Tenant.
Landlord shall require that its general contractor secure independent sealed
bids from three (3) unionized subcontractors mutually acceptable to Landlord and
Tenant for each trade whose costs are in excess of five percent (5%) of the
total cost estimate. All bids shall be submitted to Landlord and Tenant
simultaneously; at Tenant's request, Landlord and Tenant shall open the bids
together at the offices of the Landlord's general contractor. Landlord agrees to
permit Tenant to designate that the lowest bidding subcontractor be selected.
The General Contractor's fee shall be calculated on a "cost plus a fee" basis
where the fee for overhead and profit is four percent (4%) of cost and the
amount charged for general conditions and supervision is approved by Tenant,
such approval not to be unreasonably withheld. Tenant shall not be charged any
fee for Landlord's oversight of the construction of Tenant's Improvements. If
the cost estimate exceeds the Tenant Allowance, the cost estimate shall be
submitted to Tenant. Tenant shall approve or disapprove such estimate within
seven (7) days. Failure to disapprove within such period shall constitute
approval. If disapproved, Tenant shall provide new sufficient instruction within
such seven (7) days for the revision of plans and cost estimates for approval
by Landlord. Tenant shall be obligated to approve the cost estimate if the cost
is within the Tenant Allowance or any greater budget approved by Tenant. If the
cost estimate is in excess of the Tenant Allowance or such greater budget,
Tenant shall provide new sufficient instruction which will reduce the cost
estimate for the Tenant Improvements to a level acceptable to Tenant and within
any allowance provided by Landlord within ten (10) days after receipt of the
cost estimate. In the event that, after receiving Tenant's approval of the cost
estimate based upon Tenant's Plans as approved by Landlord and Tenant, changes
to such plans are requested by any governmental agency or building inspector in
order to obtain any required permits or to proceed with the construction of the
Tenant Improvements, Tenant shall promptly respond to such governmental request
and cause such request to be withdrawn or Tenant's Plans to be revised to comply
with such request; and if such revision causes an increase in the cost of the
Tenant Improvements such increase shall be made by a change order approved by
Tenant. Any delay in achieving Substantial Completion resulting from Tenant's
response to such governmental request or
EXHIBIT "B"
3
63
approving such change order shall be a Tenant Delay provided for in Paragraph 9
below.
6. Construction of Tenant Improvements: After Tenant's approval of the
cost estimate for Tenant's Plans, Landlord shall administer and diligently
prosecute the construction of Tenant Improvements in accordance with Tenant's
Plans; provided, however, that Landlord shall not be required to install any
Tenant Improvements which do not conform to the plans and specifications for the
Base Building, or do not conform to any applicable regulations, laws,
ordinances, codes and rules; such conformity shall be the obligation of Tenant
(other than mechanical, electrical, plumbing and engineering components of the
Tenant Improvements that are design/build by Landlord's contractor, the
conformity of which with Landlord's Plans and applicable laws shall be the
obligation of Landlord). After the cost estimate has been approved by Landlord
and Tenant as provided above, neither party shall have the right to require
extra work or change orders with respect to the construction of the Tenant
Improvements without the prior written consent of the other, which consent shall
not be unreasonably withheld or delayed. All change orders shall specify any
change in the cost estimate as a consequence of the change order. All Tenant
Improvements shall be constructed by Landlord's contractor, which shall be a
reputable, unionized general contractor, subject to approval by Tenant which
approval shall not be unreasonably withheld, who will complete the work in a
good and workmanlike manner and in accordance with the approved Tenant's Plans
and relevant laws and codes. Subject to the limitation on the General
Contractor's fee imposed by Paragraph 5, Tenant approves the use of Devcon
Construction, the General Contractor for the Base Building, as the General
Contractor for the Tenant Improvements.
Tenant shall be entitled to receive copies of all of the general contractor's
progress payment request.
7. Tenant's Contractors: Cable TV connections, telephone, data and
audio-visual equipment and wiring, office equipment and computer wiring, and
furniture and security equipment shall be installed by Tenant's contractors and
shall conform with Landlord's contractor's schedule and work of installation and
shall be handled in such a manner as to maintain harmonious labor relations and
as not to interfere with or delay the work of Landlord's contractors. To the
extent that any such improvements furnished and installed by Tenant's
contractors cause Landlord's contractor to be dependent upon the work of
Tenant's contractors in order for Landlord's contractor to complete its work,
any resulting delays in Landlord's contractor's work shall be "Tenant Delays"
(as defined in Paragraph 9 below). Tenant's contractors, subcontractors and
labor shall be subject to approval by Landlord which approval shall not be
unreasonably withheld or delayed and shall be subject to the reasonable
administrative supervision of Landlord's general contractor and reasonable rules
of the site. Contractors and subcontractors engaged by Tenant shall employ
laborers and means to insure, so far as may be possible, the progress of the
work without interruption on account of strikes, work stoppage or similar causes
for delay. Landlord shall give access and entry to the Leased Premises to
Tenant's contractors as may be reasonably necessary during the course of
construction of the Tenant Improvements, and at various points during
construction as each floor progresses, subject to the requirements of this
Paragraph 7; provided, however, that if such entry is prior to the first day of
the Term such entry shall be subject to all of the terms and conditions of this
Lease except payment of Rent and Additional Charges and Tenant shall not be
allowed to commence business in the Premises.
8. Substantial Completion/Punch List: "Substantial Completion" shall
be defined as when Landlord's contractor has substantially completed all work to
be performed by Landlord in
EXHIBIT "B"
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64
accordance with Tenant's Plans, subject only to (i) the completion or
correction of items on a punch list to be prepared jointly by Landlord, Tenant
and their respective architects which do not substantially interfere with
Tenant's use or occupancy of the Premises (the "Punchlist"), (ii) a certificate
of occupancy, or its equivalent, for the Premises having been obtained, (iii)
all utilities having been turned on and available for use, (iv) all Building
common areas having been substantially completed, and (v) Tenant having
reasonable access to the Premises and use of parking to the extent required by
the Lease. The items on the Punchlist shall be completed by Landlord's
contractor promptly using commercially reasonable efforts.
Landlord agrees to include a provision in its construction contract with its
general contractor requiring retention of one hundred fifty percent (150%) of
the estimated amount of the cost to complete the items on the Punchlist until
the Punchlist is fully completed.
9. Tenant Delays: "Tenant Delays" shall be defined as those delays
caused in achieving Substantial Completion due to: (a) Tenant's failure to
submit (i) Tenant's Plans, (ii) approval of the cost estimates, or (iii)
sufficient instruction to change Tenant's Plans as a result of disapproval of a
cost estimate on or before the dates or time periods called for; (b) Tenant's
change(s) in plans and specifications after said dates that actually delay
construction, but only to the extent that Tenant received prior written notice
from the Landlord of the amount of delay associated with the changes before the
changes were finally approved and authorized by Tenant; (c) Tenant's request for
Long Lead Time Items; (d) any delays caused by Tenant's contractors as set
forth in Paragraph 7, including, without limitation, strikes, work stoppage or
similar delay caused by labor disharmony between Tenant's contractors and
Landlord's contractor, and delays caused by Landlord's contractor's dependence
on any work done by Tenant's contractors; or (e) other delays caused by Tenant
in construction; provided, however, no Tenant Delay shall be deemed to have
occurred unless and until Landlord has given written notice to Tenant specifying
any action or inaction which Landlord is aware of and that may cause a Tenant
Delay. If Tenant does not take appropriate measures within one (1) business day
after Tenant's receipt of such notice to prevent such action or inaction from
occurring, then a Tenant Delay, as set forth in such notice, shall be deemed to
have occurred commencing as of the date Tenant received such notice and
continuing for the number of days the Substantial Completion of the Premises was
in fact delayed as a direct result of such action or inaction; provided,
further, that no such notice shall be required in order for Tenant Delay to be
deemed to have occurred if such delay results from Tenant's failure to perform
any obligation within a specific date or time period.
10. Commencement Date: The Premises shall be deemed completed and
possession delivered and Tenant shall accept the Premises upon Substantial
Completion. Notwithstanding anything to the contrary in the Lease, effective
upon delivery of the Premises to Tenant, Landlord does hereby warrant that, (a)
the construction (as opposed to the design which is Tenant's responsibility) of
the Tenant Improvements was performed in accordance with all rules, regulations,
codes, statutes, ordinances, and laws of all applicable governmental and
quasi-governmental authorities and in a good and ▇▇▇▇▇▇▇-like manner, (b) all
materials and equipment installed therein was new and otherwise of good quality,
(c) the electrical, plumbing, and mechanical systems servicing the Premises are
in working order and in good condition, and (d) the Base Building is in good
condition and water tight. The foregoing warranties shall automatically expire
one year after Substantial Completion. Tenant's obligation under the Lease to
pay Rent and Additional Charges
EXHIBIT "B"
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65
shall commence upon the later of (i) the Scheduled Commencement Date, as
specified in the Basic Lease Information, or (ii) Substantial Completion. If
Landlord shall be delayed in substantial completion as a result of Tenant
Delays, then the Commencement Date, and Tenant's obligation to begin paying Base
Rent and Additional Charges, shall be adjusted to reflect what the Commencement
Date would have been if there had been no Tenant Delays. Notwithstanding the
forgoing, if Tenant Delays occur and, as a result thereof, Landlord reasonably
anticipates that Substantial Completion will not occur on or before the
Scheduled Commencement Date, then at Landlord's sole election and in addition to
any other remedies that may be available to Landlord under the Lease or at law
or in equity, at Landlord's written request Tenant shall commence payment of
Base Rent and Additional Charges on the date one month following the Scheduled
Commencement Date. If Landlord makes such election, then the installment of Base
Rent, and any installments of any components of Additional Charges, that are
first due after Substantial Completion occurs shall be adjusted to reflect the
actual Commencement Date. Landlord's election, as set forth above, shall not
constitute a waiver of any default by Tenant or any other remedy available to
Landlord as a result thereof, to the extent the circumstances giving rise to a
Tenant Delay constitute a default by Tenant hereunder or under the Lease. Within
seven (7) days after written request of Landlord, Tenant agrees to give Landlord
a letter confirming the Commencement Date and certifying that Tenant has
accepted delivery of the Premises and that the condition of the Premises
complies with Landlord's obligations hereunder.
EXHIBIT "B"
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66
EXHIBIT "B-1"
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LANDLORD'S PLANS
The plans and specifications related to Two Circle Star Way as drawn or
assembled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Partners, Inc. as called out below:
GENERAL
A0.0 COVER SHEET
A0.1 GENERAL INFORMATION SHEET/ 1/22/98
TITLE 24 ENERGY COMPLIANCE 1/22/98
CIVIL
C0.2 STORM WATER POLLUTION PREVENTION PLAN 11/14/97
C1.1 LAYOUT AND PAVING PLAN 12/19/97
C1.2 LAYOUT AND PAVING PLAN 11/14/97
C2.1 GRADING PLAN 11/14/97
C2.2 GRADING PLAN 11/14/97
C3.1 UTILITY PLAN 11/14/97
C3.2 UTILITY PLAN 11/14/97
C4.1 DETAILS 11/14/97
C4.2 DETAILS 11/14/97
C4.3 DETAILS 12/19/97
ARCHITECTURAL
A2.1 BUILDING ONE FIRST FLOOR PLAN 2/26/98
A2.2 BUILDING ONE SECOND FLOOR PLAN 1/22/98
A2.3 BUILDING ONE THIRD FLOOR PLAN 1/22/98
A2.4 BUILDING ONE FOURTH FLOOR PLAN 1/22/98
A2.5 ENLARGED CORE PLAN 1/22/98
A2.6 ENLARGED BATHROOM PLANS 1/22/98
A3.1 BUILDING ONE ROOF PLAN 1/22/98
A4.1 BUILDING ONE ELEVATIONS 2/26/98
A4.2 BUILDING ONE ELEVATIONS 1/22/98
A5.1 BUILDING SECTION 1/22/98
A5.2 TYPICAL WALL SECTIONS 1/22/98
A7.1 REFLECTED CEILING PLANS 3/5/97
A7.2 ENLARGED STAIR PLANS AND SECTIONS 1/22/98
A7.3 ENLARGED ELEVATOR PLANS AND SECTIONS 1/22/98
A7.4 DOOR AND HARDWARE SCHEDULE/ROOM 3/11/98
FINISH SCHEDULE
A8.1 EXTERIOR DETAILS 1/22/98
A8.2 DOOR/WINDOW DETAILS 1/22/98
A8.3 ROOF DETAILS 1/22/98
A9.1 WALL TYPES 1/22/98
A9.2 INTERIOR DETAILS 1/22/98
EXHIBIT "B-1"
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67
A9.3 UL ASSEMBLIES 11/14/97
STRUCTURAL
S0.1 GENERAL NOTES 10/6/97
S2.1 BUILDING ONE FOUNDATION/FIRST 10/6/97
FLOOR FRAMING PLAN
S2.2 BUILDING ONE 2ND FLR. FRAMING PLAN 10/6/97
S2.3 BUILDING ONE 3RD FLR. FRAMING PLAN 10/6/97
S2.4 BUILDING ONE 4TH FLR. FRAMING PLAN 10/6/97
S2.5 BUILDING ONE ROOF FRAMING PLAN 10/6/97
S2.5A BUILDING ONE ROOF SCREEN/SLAB 10/6/97
REINFORCING PLAN
S3.1 TYPICAL CONCRETE DETAILS 7/23/97
S3.2 CONCRETE DETAILS NO. 1 10/6/97
S3.3 CONCRETE DETAILS NO. 2 10/6/97
S3.4 CONCRETE DETAILS NO. 3 10/6/97
S5.1 TYPICAL METAL DECK DETAILS NO. 1 10/6/97
S5.2 TYPICAL METAL DECK DETAILS NO. 2 10/6/97
S5.3 TYPICAL STEEL DETAILS 10/6/97
S5.4 COLUMN SCHEDULE AND DETAILS 10/6/97
S5.5 BRACED FRAME ELEVATIONS AND DETAILS 10/6/97
S5.6 STEEL DETAILS NO. 1 10/6/97
S5.7 STEEL DETAILS NO. 2 10/6/97
S9.1 PRECAST PANEL SUPPORT PLAN 10/6/97
S9.2 PRECAST PANEL SUPPORT PLAN 7/30/97
S9.3 PRECAST PANEL SUPPORT DETAILS ▇▇/▇/▇▇
▇▇▇▇▇▇▇▇▇
▇-▇ ▇▇▇▇▇ ▇▇▇ NOTES AND LEGEND 2/6/98
L-2 PHASE ONE LAYOUT AND GRADING PLAN 2/6/98
L-3 PHASE ONE PLATING PLAN 2/6/98
L-4 PHASE ONE IRRIGATION 2/6/98
L-5 PHASE ONE DETAILS 7/28/97
L-6 PHASE ONE DETAILS 11/26/97
L-7 PHASE ONE DETAILS 2/6/98
MECHANICAL
AC0.01 TITLE 24, DRAWING SCHEDULE, MANDATORY 3/10/98
MEASURES, AND GENERAL NOTES 3/10/98
AC0.02 EQUIPMENT SCHEDULE 3/10/98
AC1.01 FIRST FLOOR HVAC PLAN 3/10/98
AC1.02 SECOND FLOOR HVAC PLAN 3/10/98
AC1.03 THIRD FLOOR HVAC PLAN 3/10/98
AC1.04 FOURTH FLOOR HVAC PLAN 3/10/98
AC1.05 ROOF PLAN 3/10/98
AC1.06 ROOF COORDINATION PLAN 3/10/98
AC2.01 PIPING SCHEMATICS AND DETAILS 3/10/98
EXHIBIT "B-1"
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AC7.01 WIRING AND CONTROLS 3/10/98
ELECTRICAL
CIR-E0 COVER SHEET 7/23/97
CIR-SE1 SITE LIGHTING PLAN 7/23/97
CIR-SE2 SITE LIGHTING PLAN 7/23/97
CIR-E1 FIRST FLOOR LIGHTING PLAN 7/23/97
CIR-E2 SECOND FLOOR LIGHTING PLAN 7/23/97
CIR-E3 THIRD FLOOR LIGHTING PLAN 7/23/97
CIR-E4 FOURTH FLOOR LIGHTING PLAN 7/23/97
CIR-E5 FIRST FLOOR POWER PLAN 7/23/97
CIR-E6 SECOND FLOOR POWER PLAN 7/23/97
CIR-E7 THIRD FLOOR POWER PLAN 7/23/97
CIR-E8 FOURTH FLOOR POWER PLAN 7/23/97
CIR-E9 FIRST FLOOR MECHANICAL PLAN 7/23/97
CIR-E10 SECOND FLOOR MECHANICAL PLAN 7/23/97
CIR-E11 THIRD FLOOR MECHANICAL PLAN 7/23/97
CIR-E12 FOURTH FLOOR MECHANICAL PLAN 7/23/97
CIR-E13 ROOF MECHANICAL PLAN 7/23/97
CIR-E14 SINGLE LINE DIAGRAM 11/24/97
CIR-E15 PANEL SCHEDULES 7/23/97
CIR-E16 PANEL SCHEDULES 7/23/97
CIR-E17 TITLE 24 7/23/97
PLUMBING
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇/▇▇/▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇ ABOVE GRADE 12/18/97
P2 2ND FLOOR 12/18/97
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇/▇▇/▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ 12/18/97
P5 ROOF PLAN 12/18/97
FIRE ALARM SYSTEM
FA-1 FIRST FLOOR BUILDING ONE 12/5/97
FA-2 SECOND FLOOR BUILDING ONE 12/5/97
FA-3 THIRD FLOOR BUILDING ONE ▇▇/▇/▇▇
▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BUILDING ONE 12/5/97
FA-5 ROOF PLAN BUILDING ONE 12/5/97
EXHIBIT "B-1"
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69
EXHIBIT "B-2"
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MINIMUM INFORMATION REQUIRED
FLOOR PLANS INDICATING:
1. Location and type of all partitions;
2. Location and type of all doors. Indicate hardware and provide
keying schedule;
3. Location and type of glass partitions, windows and doors. Indicate
framing if not Building Standard;
4. Location of telephone equipment room;
5. Indicate critical dimensions necessary for construction;
6. Location of all Building Standard electrical items (outlets,
switches, telephone outlets). Building Standard lighting will be
subject to approval by Landlord's architect and contractor;
7. Location and type of all non-Building Standard electrical items,
including lighting.
8. Location and type of equipment that will require special
electrical requirements. Provide manufacturer's specifications for
use and operation;
9. Location, weight per square foot, and description of any
exceptionally heavy equipment or filing system exceeding 50 lbs.
psf live load;
10. Requirements for special air conditioning or ventilation;
11. Type and color of floor covering;
12. Location, type, and color of wall covering;
13. Locations, type and color of Building Standard and non-Building
Standard paint or finishes;
14. Location and type of plumbing;
15. Location and type of kitchen equipment.
EXHIBIT "B-2"
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DETAILS SHOWING:
1. All millwork with verified dimensions (such dimensions to be
verified by Landlord's contractor in the field) and dimensions
of all equipment to be built in;
2. Corridor entrance;
3. Bracing or support of special walls, glass partitions, etc.,
if desired.
EXHIBIT "B-2"
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71
EXHIBIT "C"
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators
and stairways shall not be obstructed by Tenant or used by Tenant for any
purpose other than for ingress to and egress from the Premises. The halls,
passages, exits, entrances, elevators and stairways are not for the use of the
general public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgement of the
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons whom Tenant
normally deals in the ordinary course of Tenant's business unless such persons
are engaged in illegal activities. Tenant, and Tenant's employees or invitees,
shall not go upon the roof of the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice visible
from the exterior of the Premises shall be inscribed, painted, affixed,
installed or otherwise displayed by Tenant either on the Premises or any part of
the Building without the prior written consent of Landlord, and Landlord shall
have the right to remove any such sign, placard, picture, name, advertisement or
notice without notice to and at the expense of the Tenant.
If Landlord shall have given such consent to Tenant at any
time, whether before or after the execution of the Lease, such consent shall
not in any way operate as a waiver or release of any of the provisions hereof
or of the Lease, and shall be deemed to relate only to the particular sign,
placard, picture, name, advertisement or notice so consented to by Landlord and
shall not be construed as dispensing with the necessity of obtaining the
specific written consent of Landlord with respect to any other such sign,
placard, picture, name, advertisement or notice. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of the Tenant by a person approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of tenants (including
subtenants) only and Landlord reserves the right to exclude any other names
therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window, door or patio on the
Premises without the prior written consent of Landlord. In any event with the
prior written consent of Landlord, all such items shall be installed inboard of
Landlord's window coverings and shall not in any way be visible from the
exterior of the Building. No articles shall be placed or kept on the window
▇▇▇▇▇ so as to be visible from the exterior of the Building. No articles shall
be placed against glass partitions or doors which might appear unsightly from
outside of Building.
5. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 a.m. and at all hours on Saturdays, Sundays and
holidays all persons who do not possess a building access card provided by
Landlord or who are not accompanied by Tenant's employees. Landlord will furnish
access cards to the persons for whom Tenant requests the same in writing. Tenant
shall be responsible for all persons from who it requests access cards and shall
be liable to Landlord for all
EXHIBIT "C"
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72
acts of such persons. Landlord shall in no case be liable for damages for error
with regard to the admission to or exclusion from the Building of any person.
During the continuance of any invasion, mob, riot, public excitement
or other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building by closing the
doors, or otherwise, for the safety of tenants and protection of the Building
and property in the Building.
6. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise agreed to
by Landlord in writing. Except with the written consent of Landlord, no person
or persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness of the Premises. Landlord shall not
in any way be responsible to Tenant for any loss of property on the Premises,
however occurring, or for any damage done to the effects of Tenant by the
janitor or any other employee or any other person.
7. Tenant shall not obtain for use upon the Premises ice, drinking
water, food, beverage, towel or other similar services except through
facilities approved in writing by Landlord and under regulations fixed by
Landlord, or accept barbering or bootblacking services in the Premises except
from persons authorized by Landlord. Tenant may have a Lunchroom/Break room in
the Premises that has a refrigerator and microwave.
8. Tenant shall see that the doors of the Premises are closed and
securely locked and must observe strict care and caution that all water faucets
or water apparatus are entirely shut off before Tenant or its employees leave
such Premises, and that all utilities shall likewise be carefully shut off, so
as to prevent waste or damage. On multiple-tenancy floors, all tenants shall
keep the door or doors to the Building corridors closed at all times except for
ingress and egress.
9. As more specifically provided in the Lease, Tenant shall not waste
electricity, water or air conditioning and agrees to cooperate fully with
Landlord to assure the most effective operation of the Building's heating and
air conditioning, and shall refrain from attempting to adjust any controls
other than room thermostats installed for Tenant's use.
10. Tenant shall not alter any lock or access device or install a new
or additional lock or access device or any bolt on any door of the Premises
without the prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock.
11. Tenant shall not make or have made additional copies of any keys
or access devices provided by Landlord. Tenant, upon the termination of the
tenancy, shall deliver to Landlord all the keys or access devices for the
Building, offices, rooms and toilet rooms which shall have been furnished to
Tenant or which Tenant shall have had made. In the event of the loss of any
keys or access devices so furnished by Landlord, Tenant shall pay Landlord
therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind
EXHIBIT "C"
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73
whatsoever shall be thrown therein, and the expense of any breakage, stoppage
or damage resulting from the violation of this rule by Tenant or Tenant's
employees or invitees shall be borne by Tenant.
13. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material other than
limited quantities necessary for the operation or maintenance of office or
office equipment. Tenant shall not use any method of heating or air
conditioning other than supplied by Landlord.
14. Tenant shall not use, keep or permit to be used or kept in the
Premises any foul or noxious gas or substance or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought or kept in or about the Premises or the
Building.
15. No cooking shall be done or permitted by Tenant on the Premises
(except that use by the Tenant of Underwriter's Laboratory approved equipment
for the preparation of coffee, tea, hot chocolate and similar beverages for
Tenant and its employees shall be permitted, provided that such equipment and
use are in accordance with all applicable federal, state and city laws, codes,
ordinances, rules and regulations), nor shall Premises be used for lodging. See
Paragraph 7.
16. Except with the prior written consent of Landlord, Tenant shall not
sell, or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises, nor
shall Tenant carry on, or permit or allow any employee or other person to carry
on, the business of stenography, typewriting or any similar business in or from
the Premises for the service or accommodation of occupants of any other portion
of the Building, nor shall the Premises be used for the storage of merchandise
(other than incidental merchandise that Tenant may have on hand from time to
time) or for manufacturing of any kind, or the business of a public ▇▇▇▇▇▇ shop
or beauty parlor, nor shall the Premises be used for any improper, immoral or
objectionable purpose, or any business or activity other than that specifically
provided for in Tenant's Lease.
17. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain and comply with Landlord's reasonable
instructions in their installation.
18. Landlord will direct electricians as to where and how telephone,
telegraph and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the written
approval of Landlord, which shall not be unreasonably withheld.
19. Tenant shall not install any radio or television antenna (not
including the satellite antenna referred to in Paragraph 44 of the Lease),
loudspeaker or any other device on the exterior walls or the roof of the
Building. Tenant shall not interfere with radio or television broadcasting or
reception from or in the Building or elsewhere.
20. Tenant shall not lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved in writing by Landlord.
EXHIBIT "C"
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74
The expense of repairing any damage resulting from a violation of this rule by
Tenant or Tenant's contractors, employees or invitees or the removal of any
floor covering shall be borne by Tenant.
21. The freight elevator shall be available for use by all tenants in
the Building, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No furniture, freight, equipment, materials,
supplies, packages, merchandise or other property will be received in the
Building or carried up or down the elevators except between such hours and in
such elevators as shall be designed by Landlord.
Landlord shall have the right to prescribe the weight, size,
and position of all safes, furniture or other heavy equipment brought into the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on wood strips of such thickness as determined by Landlord to be
necessary to properly distribute the weight thereof. Landlord will not be
responsible for loss of or damage to any such safe, equipment or property from
any cause, and all damage done to the Building by moving or maintaining any such
safe, equipment or other property shall be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant
which cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
22. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Tenant shall not ▇▇▇▇, use double-sided adhesive tape
on, or drive nails, screw or drill into, the partitions, woodwork or plaster or
in any way deface the Premises or any part thereof, without repairing any
resulting damage. Tenant may hang pictures on walls in the Premises. Any damage
to the walls caused by ▇▇▇▇▇▇ bolts, or like hanging materials, will be repaired
by Tenant.
23. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those equipped with
rubber tires and side guards or such other material-handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by Tenant
into or kept in or about the Premises.
24. Tenant shall store all trash and garbage within the interior of the
Premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the
jurisdiction in which the Premises is located, without violation of any law or
ordinance governing such disposal. All trash, garbage and refuse disposal shall
be made only through entryways and elevators provided for such purposes and at
such times as Landlord shall designate.
25. Canvassing, soliciting, distribution of handbills or any other
written material and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent the same. Tenant shall not make room-to-room solicitation
of business from other tenants in the Building.
EXHIBIT "C"
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75
26. Landlord shall have the right, exercisable without notice and
without liability to Tenant, to change the name and address of the Building.
27. Landlord reserves the right to exclude or expel from the Building
any person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the rules or regulations of
the Building.
28. Without the prior written consent of Landlord, Tenant shall not
use the name of the Building in connection with or in promoting or advertising
the business of Tenant except as Tenant's address. Tenant may use Project's
name on its stationery and business cards.
29. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
30. Tenant assumes any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed, unless caused by the gross
negligence or willful misconduct of Landlord, its agents, servants, or
employees ("Landlord Parties").
31. The requirements of Tenant will be attended to only upon
application at the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and no
employees will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
32. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Building.
33. Landlord reserves the right to make such other and reasonable
rules and regulations as in its judgment may from time to time be needed for
safety and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such Rules
and Regulations hereinafter stated and any additional rules and regulations
which are adopted. No new Rule or Regulation shall be designed to discriminate
solely against Tenant.
34. Tenant shall be responsible for the observance of all of the
foregoing Rules and Regulations by Tenant's employees, agents, clients,
customers, invitees and guests.
35. Unless otherwise defined, terms used in these Rules and
Regulations shall have the same meaning as in the Lease.
EXHIBIT "C"
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76
EXHIBIT "D"
--------------------------------------------------------------------------------
FORM OF TENANT ESTOPPEL CERTIFICATE
TO: _________________, or Assignee ("Lender"), and/or whom else it may concern:
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee ("Tenant") under that certain lease dated
________, 19___, ("Lease"), by and between ___________________________
as lessor ("Landlord") and _________________________________ as Tenant,
covering those certain premises commonly known and designated as
_________________________ ("Premises").
2. The Lease has not been modified, changed, altered, assigned,
supplemented or amended in any respect (except as indicated below; if
none, state "none"). To the best of Tenant's knowledge, the Lease is
not in default and is valid and in full force and effect on the date
hereof. The Lease is the only Lease or agreement between the Tenant and
the Landlord affecting or relating to the Premises. The Lease
represents the entire agreement between the Landlord and the Tenant
with respect to the Premises, ________________.
3. The Tenant is not entitled to,and has made no agreement(s) with the
Landlord or its agents or employees concerning free rent, partial rent,
rebate of rent payments, credit or offset or deduction in rent, or any
other type of rental concession, including, without limitation, lease
support payments or lease buy-outs (except as indicated below; if none,
state "none"), _______________________________________________________
____________________________________________________________________.
4. The Tenant has accepted and now occupies the Premises, and is and has
been open for business since _______________, 19___. The Lease term
began ___________, 19____. The termination date of the present term of
the lease, excluding unexercised renewals, is ________________, 19____.
5. The tenant has paid rent for the Premises for the period up to and
including ______________________, 19___. The fixed minimum rent and any
additional rent (including the Tenant's share of tax increases and cost
of living increases) payable by the Tenant presently is $_____________
per month. No such rent has been paid more than two (2) months in
advance of its due date, except as indicated below (if none, state
"none"). The Tenant's security deposit is $_______________.
6. To the best of Tenant's knowledge, no event has occurred and no
condition exists which, with the giving notice or the lapse of time or
both, will constitute a default under the Lease. To the
EXHIBIT "D"
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77
best of Tenant's knowledge, the Tenant has no existing defenses or
offsets against the enforcement of this Lease by the Landlord, except
_____________________________.
7. The Tenant has received or will receive payment or credit for tenant
improvement work in the total amount $___________________ (or if other
than cash, describe below; if none, state "none"). To the best of
Tenant's knowledge, all conditions under this Lease to be performed to
date by the Landlord have been satisfied. All required contributions by
the Landlord to the Tenant on account of Tenant's tenant improvements
have been received by the Tenant, except ______________________________
____________________________________________________.
8. The Lease contains, and the Tenant has, no outstanding options or
rights of first refusal to purchase the Premises or any part thereof or
all or any part of the real property of which the Premises are a part.
9. No actions, whether voluntary or otherwise, are pending against the
Tenant or any general partner of the Tenant under the bankruptcy laws
of the United States or any state thereof.
10. The Tenant has not sublet the Premises to any sublessee and has not
assigned any of its rights under the Lease, except as indicated below
(if none, state "none"). No one except the Tenant and its employees
occupies the Premises. ________________________________________________
___________________.
11. The address for notices to be sent to the Tenant is as set forth in the
Lease.
12. Except as otherwise provided in the Lease, the Premises have not been
used and the Tenant does not plan to use the Premises for any
activities which, directly or indirectly, involve the use, generation,
treatment, storage, transportation or disposal of any petroleum product
or any toxic or hazardous chemical, material, substance, pollutant or
waste.
13. (INCLUDE THIS PARAGRAPH FOR LOAN TRANSACTIONS.) The Tenant acknowledges
that all the interest of the Landlord in and to the Lease is being duly
assigned to Lender, and that pursuant to the terms thereof, all rent
payments under the Lease shall continue to be paid to the Landlord in
accordance with the terms of the Lease unless and until the Tenant is
notified otherwise in writing by Lender or its successors or assigns.
It is particularly noted that:
(a) Under the provisions of this assignment, the Lease cannot be
terminated (either directly or by the exercise of any option
which could lead to termination) or modified in any of its
terms, or consent be given to the release of any party having
liability thereon, without the prior written consent of Lender
or it successors or assigns, and without such consent, no rent
may be collected or accepted more than two (2) months in
advance.
(b) The interest of the Landlord in the Lease has been assigned to
Lender for the purposes specified in the assignment. Lender,
or its successors or assigns, assumes no duty, liability or
obligation whatsoever under the Lease or any extension or
renewal thereof.
EXHIBIT "D"
2
78
(c) Any notices sent to Lender or its affiliates should be sent by
registered mail and addressed as follows: ____________________
__________________________________.
14. Tenant agrees to give any Mortgagee and/or Trust Deed Holders
(Mortgagee"), by registered mail, a copy of any notice of default
served upon the Landlord, provided that prior to such notice Tenant has
been notified in writing (by way of Notice of Assignment of Rents and
Leases, or otherwise), of the address of such Mortgagee. Tenant further
agrees that if Landlord shall have failed to cure such default within
the time provided for in this Lease, then the Mortgagee shall have an
additional sixty (60) days within which to cure such default of it such
default cannot be cured within that time, then such additional time as
may be necessary to cure such default shall be granted if within such
sixty (60) days Mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such
cure), in which event the Lease shall not be terminated while such
remedies are being so diligently pursued.
15. This certification is made to induce Lender to make certain fundings,
knowing that Lender relies upon the truth of this certification in
disbursing said funds.
16. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Tenant.
DATED THIS _________________________ DAY OF ____________________________, 19___.
-----------------------------------
(Tenant)
By:
-------------------------------
Its:
--------------------------
Date:
EXHIBIT "D"
3
79
The undersigned hereby certifies that the certifications set forth
above are true as of the date hereof.
--------------------------------------------
(Owner/Landlord)
By:
-----------------------------------
Its:
-----------------------------
Date:
-----------------------------
EXHIBIT "D"
4
80
FORM OF LETTER OF CREDIT
DATE:
--------------
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER
----------------
BENEFICIARY APPLICANT
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
ATTN:
------------------------------
AMOUNT: $
--------------------------
EXPIRATION:
------------------------
We hereby establish in your favor our irrevocable standby letter of
credit no. ______________ which is available with [BANK] by payment against
presentation of the original of this letter of credit and your draft at sight
drawn on [BANK].
This letter of credit shall be deemed automatically extended without
amendment for periods of one (1) year unless at least 30 (thirty) days prior to
the then current expiration date, we notify you by registered mail or overnight
courier service at the above address, that we elect not to renew this letter
of credit.
This letter of credit is transferable. Transfer of this letter of
credit is subject to our receipt of our standard form of beneficiary's
instructions regarding the transfer accompanied by the original letter of credit
and amendment(s) if any. Costs or expenses of such transfer shall be for the
account of the beneficiary.
We hereby agree with the beneficiary that the draft drawn under and in
compliance with the terms of this letter of credit will be duly honored upon
presentation, as specified herein.
This letter of credit is subject to the uniform customs and practice
for the documentary letter of credit (1993 revision) international chamber of
commerce publication no. 500 and engaged us pursuant to the terms therein.
EXHIBIT "F"
81
EXHIBIT "E"
--------------------------------------------------------------------------------
ENCUMBRANCES
1. Ground Lease: That certain Lease between Mozad, L.P., as Lessor and
Circle Star Center Associates, L.P., as Lessee, dated
October 15, 1997.
2. C, C&R's: "Declaration of Covenants, Conditions and Restrictions"
dated June 24, 1997 by and between Mozad, L.P. and
Homestead Village Incorporated.
3. Other: "Approved Conditional Use Permit - Office Complex, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇," effective date
June 12, 1997.
EXHIBIT "E"
1
82
Exhibit "G"
Description of Second Building: The Second Building is the same size and a
mirror image of the Building and will be located as set forth on Schedule 1
attached hereto and incorporated herein by reference.
Exhibit "G"
83
[MAP of One Circle Star Way showing buildings and parking spaces]
SCHEDULE 1 to
EXHIBIT "G"
84
[LIBERATE LETTERHEAD]
August 9, 1999
Lease Administrator
Oracle Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: TERMINATION OF ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Greetings,
Pursuant to the letter (attached) dated 5/3/99 that modifies the Sublease,
Furniture and Maintenance Agreements between Oracle Corporation and Network
Computer (now known as Liberate Technologies) dated 9/17/97, Liberate
Technologies hereby gives notice that it will invoke its option to Early
Termination on Monday, 9/13/99.
If you have any questions or concerns regarding this matter, please do not
hesitate to contact me at ▇▇▇.▇▇▇.▇▇▇▇.
Sincerely,
/s/ ▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇ ▇▇▇▇▇▇▇
Senior Director,
Operations
Cc: Oracle Legal Dept., Box 50P7
▇▇▇▇▇ ▇▇▇▇▇▇
File
85
Network Computer, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
The purpose of this letter is to provide the terms and conditions of the early
termination (the "Early Termination") of the following three agreements
(collectively, the "Agreements") between Network Computer, Inc. ("NCI") and
Oracle Corporation ("Oracle"): Sublease Agreement, dated September 17, 1997 (the
"Sublease Agreement"), Furniture and Equipment Lease, dated September 17, 1997,
as amended February 1, 1999, and Maintenance Services Agreement, dated
September 17, 1997.
If you agree with the terms and conditions of the Early Termination of the
Agreements, please execute this letter below and return it to the undersigned.
Oracle and NCI shall mutually agree on the date of the Early Termination which
shall be no less than thirty (30) days, but no more than sixty (60) days,
following NCI's written notice to Oracle regarding such date. Oracle and NCI
agree that their respective obligations under the Agreements shall cease after
the date of the Early Termination. Notwithstanding the above, NCI shall be
responsible for all of its obligations under the Agreements that have accrued
through the date of the Early Termination, including without limitation, NCI's
obligations related to the termination of the Agreements.
ORACLE CORPORATION
By: /s/ [ILLEGIBLE]
Name: [ILLEGIBLE]
Title: VP AND CORPORATE TREASURER
Network Computer, Inc. agrees with the terms and conditions of the Early
Termination of the Agreements.
NETWORK COMPUTER, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: PRESIDENT & CEO [STAMP]
[STAMP]
86
[ORACLE LETTERHEAD]
TERMINATION OF GUARANTY OF LEASE
This Termination of Guaranty of Lease ("Termination Agreement") is made
as of September 8, 1999, by and between CIRCLE STAR CENTER ASSOCIATES, L.P., a
California limited partnership ("Landlord"), and ORACLE CORPORATION, A Delaware
corporation ("Guarantor").
WITNESSETH:
WHEREAS, Landlord has entered into that certain Lease Agreement dated
April 27, 1999 (the "Lease") with Liberate Technologies (formerly named
Network Computer, Inc.) ("Tenant") for certain premises in the building located
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇; and
WHEREAS, in connection with the execution and delivery of the Lease,
Guarantor made and entered into a Guaranty of Lease dated April 27, 1999, in
favor and for the benefit of Landlord with respect to the Tenant's obligations
under the Lease (the "Guaranty of Lease"); and
WHEREAS, pursuant to paragraph 23 of the Guaranty of Lease, the
Guaranty of Lease is to terminate upon the occurrence of certain events as
specified therein (the "Termination Events"); and
WHEREAS, the Termination Events have occurred and Landlord and
Guarantor desire to enter into this Termination Agreement to acknowledge the
termination of the Guaranty of Lease;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Guarantor hereby acknowledge and agree that, as of
the date hereof, the Guaranty of Lease is terminated and shall be of no further
force and effect, and Guarantor is hereby released of any further liability or
obligation under the Guaranty of Lease. No further notice to or approval of
Guarantor shall be required under the Lease, including the provisions of
paragraphs 9, 26 and 45 thereof.
This Termination Agreement shall be binding upon and inure to the
benefit of Landlord and Guarantor and their respective successors and assigns.
This Termination Agreement shall be governed by and construed in accordance with
the laws of the State of California.
87
IN WITNESS WHEREOF, Landlord and Guarantor have executed this
Termination Agreement as of the day and year first above written.
LANDLORD: CIRCLE STAR CENTER ASSOCIATES, L.P.,
a California limited partnership
By: M-D VENTURES, INC.,
Its: General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
President
GUARANTOR: ORACLE CORPORATION
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer
ACKNOWLEDGEMENT OF LANDLORD AND TENANT
Circle Star Center Associates, L.P., as Landlord, and Liberate
Technologies (formerly named Network Computer, Inc.), as Tenant, under the
above-described Lease hereby acknowledge the termination of the Guaranty of
Lease provided for hereinabove and agree that the consent and approval of, and
notice to, Guarantor shall no longer be required with respect to any actions
taken, elections made or options exercised by Tenant under the Lease, including,
without limitation, Paragraph 9 - Assignment and Subletting and Paragraph 45 -
Second Building.
LANDLORD: CIRCLE STAR CENTER ASSOCIATES, L.P.,
a California limited partnership
By: M-D VENTURES, INC.,
Its: General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
President
2
88
TENANT: LIBERATE TECHNOLOGIES,
a Delaware corporation
By /s/ [ILLEGIBLE]
---------------------------------
Its Vice President & General Counsel
---------------------------------
3
89
[ORACLE LETTERHEAD]
CERTIFICATE OF OFFICER
OF
ORACLE CORPORATION
I, the undersigned, hereby certify that I am the duly elected,
qualified and acting Vice President and Treasurer of Oracle Corporation, a
Delaware corporation ("Oracle"), and as such, I do hereby certify to Circle Star
Center Associates, L.P., a California limited partnership ("Landlord"), pursuant
to Paragraph 23 of that certain Guaranty of Lease, made as of April 27, 1999, by
Oracle for the benefit of Landlord in support of the obligations of Liberate
Technologies, a Delaware corporation formerly known as Network Computer, Inc.
("Tenant"), and represent and warrant to Landlord on behalf of Oracle that:
Based on the information supplied by Tenant to Oracle consisting of
effective registration statements filed by Tenant with the Securities and
Exchange Commission and a Certificate of Tenant's Secretary, dated as of August
24, 1999 (attached hereto), on or about August 2, 1999, Tenant completed an
initial public offering which resulted in Tenant raising a minimum of
$40,000,000 (net available to Tenant after payment of all costs associated with
such initial public offering).
IN WITNESS WHEREOF, I have executed this Certificate on this 8th day
of September, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Treasurer
90
[THE MOZART DEVELOPMENT COMPANY LETTERHEAD]
October 11, 1999
▇▇ ▇▇▇▇▇▇▇
Liberate Technologies
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Ed:
Please find attached a fully executed copy of the Termination of Guaranty of
Lease by and between Circle Star Center Associates, L.P. (Landlord) and Oracle
Corporation (Guarantor), dated September 8, 1999.
Sincerely,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
jfy
Attachment
91
CONFIRMATION OF ADDITION
OF SECOND BUILDING
Circle Star Center Associates, L.P. as "Landlord" and Liberate
Technologies (previously known as Network Computer, Inc.) as "Tenant" pursuant
to that certain Lease Agreement dated April 27, 1999 ("Lease") hereby confirm
the following:
1. On September 8, 1999, Tenant exercised its option to lease the
entire Second Building pursuant to Tenant's "First Right of Offer" set forth in
Paragraph 45.
2. The "Landlord's Construction Period" pursuant to Paragraph 45(c)(2)
shall be 12 weeks.
3. The "Required Amount" of the letter of credit referred to in
Paragraph 32(a) and 45(c)(3)(H) shall be increased to an aggregate of
$8,787,609 and is required to be increased to this amount immediately.
"LANDLORD"
Circle Star Center Associates, L.P.,
a California limited partnership
By: M-D Ventures, Inc.
Its: General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇▇▇, President
"TENANT"
Liberate Technologies,
a Delaware corporation
/s/ [ILLEGIBLE] [STAMP]
----------------------------
By:
-----------------------
Its:
-----------------------
92
[Building floor plan for subleased premises showing office layout]
EXHIBIT B - DEPICTION OF SUBLEASED PREMISES
93
EXHIBIT C
SCHEDULE OF PERSONAL PROPERTY
- Furniture
o (68) Steelcase Ansur partition system 8' x 8' cubicles (powered and
wired). Each cube contains: (2) Corner Surfaces, (1) "Visitor"
Surface, (1) Straight Surface, 66"h x 48"w panels, (1) Overhead
Shelf w/tasklight, (1) Overhead locking bin w/tasklight, (2) Fixed
Pedestals.
o Furniture in Offices: (20) 2-person private offices, (7) 1-person
offices, (7) 3-person offices. Each office contains 30"d surfaces,
(1) Overhead Bin or (1) Overhead Shelf w/tackboard and tasklight
per person, (1) BBF pedestal.
o (6) Conference Rooms with laminate tables various sizes
o (2) Break out areas with misc. "soft" seating
o (134) Steelcase Turnstone Springboard Chairs
o (50) Sweeper Stacker side chairs
- Telephone System
o That portion of a Lucent Definity GSI (PBX) with Lucent Intuity
w/Aria Interface voicemail capable of supporting up to 140 people
in a normal office environment.
- Data System
o Cisco ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ Switch. Dual Power supply, 4 100 Meg EN
Blades Ser. # WS-X6248-RJ-45, 2 Gig Ethernet Blades with Flash
WS-X6K-SUP1A-2GE
- Wiring
o All cubicles and office desks wired with (4) CAT 5 (4) pair cables
configured for (3) Ethernet and (1) Telephone (splitable). Cable
and components by Lucent. Installed & tested by Lucent certified
contractor.
- Equipment
o Copier - Minolta Di520
o Fax Machine - Panasonic DX1000 with email
o Espresso Machine & Grinder - Rio Jr. SME & Rio Grinder