EXHIBIT 10.18
LEASE AGREEMENT
between
EOP-BAY PARK PLAZA, L.L.C.
as "Landlord"
and
CROSSWORLDS SOFTWARE, INC.
as "Tenant"
TABLE OF CONTENTS
SECTION PAGE
1. PREMISES ......................................... 4
2. TERM; POSSESSION ................................. 4
3. RENT ............................................. 5
4. SECURITY DEPOSIT ................................. 8
5. USE AND COMPLIANCE WITH LAWS ..................... 8
6. ALTERATIONS ...................................... 11
7. MAINTENANCE AND REPAIRS .......................... 12
8. TENANT'S TAXES ................................... 13
9. UTILITIES AND SERVICES ........................... 14
10. EXCULPATION AND INDEMNIFICATION .................. 15
11. INSURANCE ........................................ 15
12. DAMAGE OR DESTRUCTION ............................ 17
13. CONDEMNATION ..................................... 19
14. ASSIGNMENT AND SUBLETTING ........................ 20
15. DEFAULT AND REMEDIES ............................. 23
16. LATE CHARGE AND INTEREST ......................... 25
17. WAIVER ........................................... 25
18. ENTRY, INSPECTION AND CLOSURE .................... 25
19. SURRENDER AND HOLDING OVER ....................... 26
20. ENCUMBRANCES ..................................... 27
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS ... 27
22. NOTICES .......................................... 28
23. ATTORNEY'S FEES .................................. 28
24. QUIET POSSESSION ................................. 28
25. SECURITY MEASURES ................................ 28
26. FORCE MAJEURE .................................... 29
27. RULES AND REGULATIONS ............................ 29
28. LANDLORD'S LIABILITY ............................. 29
29. CONSENTS AND APPROVALS ........................... 29
30. BROKERS .......................................... 30
31. RELOCATION OF PREMISES ........................... 30
32. ENTIRE AGREEMENT ................................. 30
33. MISCELLANEOUS .................................... 30
34. AUTHORITY ........................................ 31
35. CONDITION ........................................ 31
i
INDEX OF DEFINED TERMS
Additional Rent........................................... 7
Allowance................................................. Exhibit B
Alterations............................................... 11
Award..................................................... 19
Broker.................................................... 30
Building.................................................. 4
Building Rules............................................ 29
Building Systems.......................................... 9
Business Days............................................. 14
Business Hours............................................ 14
Claims.................................................... 15
Commencement Date......................................... 4
Condemnation.............................................. 19
Condemnor................................................. 19
Controls.................................................. 13
Date of Condemnation...................................... 19
Encumbrance............................................... 27
Environmental Losses...................................... 9
Environmental Requirements................................ 9
Event of Default.......................................... 23
Excess Costs.............................................. Exhibit B
Expiration Date........................................... 4
Handled by Tenant......................................... 9
Handling by Tenant........................................ 9
Hazardous Materials....................................... 9
HVAC...................................................... 9
Interest Rate............................................. 25
Land...................................................... 4
Landlord.................................................. 4
Laws...................................................... 5
Mortgagee................................................. 20.2
Operating Costs........................................... 5
Parking Facility.......................................... 4
Permitted Hazardous Materials............................. 10
Plans..................................................... Exhibit B
Plans Due Date............................................ Exhibit B
Premises.................................................. 4
Project................................................... 4
Property.................................................. 4
Property Manager.......................................... 16
Rental Tax................................................ 13
Representatives........................................... 9
Scheduled Commencement Date...............................
Service Failure........................................... 14
Substantial Completion.................................... 5
ii
Taxes..................................................... 6
Tenant.................................................... 4
Tenant Delays............................................. 5
Tenant Improvements....................................... Exhibit B
Tenant's Share............................................ 7
Tenant's Taxes............................................ 13
Term...................................................... 4
Trade Fixtures............................................ 12
Transfer.................................................. 20
Transferee................................................ 20
Visitors.................................................. 9
Work Letter............................................... Exhibit B
iii
BASIC LEASE INFORMATION
Lease Date: For identification purposes only, the date of this Lease is
October 24, 2000.
Landlord: EOP-BAY PARK PLAZA, L.L.C., a DelaWare limited liability
company
Tenant: CROSSWORLDS SOFTWARE, INC., a Delaware corporation
Project: Bay Park Plaza
Building: 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000
Rentable Area of
Building: 117,158
Premises: 44,455 rentable square feet as follows:
Floor: 1/st/
Suite Number: 100
Rentable area: 20,978 square feet
Floor: 2/nd/
Suite Number: 200
Rentable area: 23,477 square feet
Term: 96 Months (plus any partial month at the beginning of the
Term)
Scheduled
Commencement Date: The Term shall commence 14 days after Landlord delivers
written notice to the Tenant that the prior tenant has
vacated the Premises. Landlord and Tenant anticipate that the
Commencement Date shall be August 15, 2001. In the event
that the Commencement Date is not August 15, 2001, Landlord
and Tenant shall enter into a commencement letter agreement
in the form attached as Exhibit D setting forth the
Commencement Date.
Expiration Date: July 31, 2009
Base Rent: Months Monthly Rent $/rsf/month
1-12 $288,957.50 $6.50/rsf/mo.
13-24 $300,515.80 $6.76/rsf/mo.
25-36 $312,518.65 $7.03/rsf/mo.
37-48 $324,966.05 $7.31/rsf/mo.
49-60 $337,858.00 $7.60/rsf/mo.
1
61-72 $351,639.05 $7.9l/rsf/mo.
73-84 $365,420.10 $8.22/rsf/mo.
85-96 $380,090.25 $8.55/rsf/mo.
Maintenance, This is a "triple net lease" where Tenant is responsible
Operating Costs and for maintenance, operating costs and taxes, all in
Taxes: accordance with the applicable provisions of the Lease.
Tenant's Share: 37.9445% (consisting of (i) 17.9057% with respect to Suite
100 and (ii) 20.0388% with respect to Suite 200.
Security Deposit: n/a
Landlord's Address EOP Operating Limited Partnership
for Payment of Rent: as agent for EOP-Bay Park Plaza, L.L.C.
File 72845 X.X. Xxx 00000
Xxx Xxxxxxxxx, XX 00000-0000
Business Hours: 8:00 a.m. to 7:00 p.m., Monday - Friday, holidays excluded
Standard Electrical .6 kilowatt-hours per rentable square foot per month during
Usage: Business Hours as defined above
Landlord's Address EOP-Bay Park Plaza, L.L.C., a Delaware limited liability company
For Notices: c/o Equity Office Properties
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Property Manager
with a copy to:
EOP-Bay Park Plaza, L.L.C., a Delaware limited liability company
c/o Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Regional Counsel -- Pacific Region
Tenant's Address 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
for Notices: Xxxxxxxxxx, XX 00000
Broker(s): CB Xxxxxxx Xxxxx, Inc.
Guarantor(s): n/a
Property Manager: ________________________________
2
Additional Provisions: Parking
Letter of Credit
Contingency
Exhibits:
Exhibit A-1: The Premises -- Suite 100
Exhibit A-2: The Premises -- Suite 200
Exhibit B: Work Letter
Exhibit C: Building Rules
Exhibit D: Additional Provisions
Exhibit E: Sample Letter of Credit
The Basic Lease Information set forth above is part of the Lease and
capitalized terms shall be terms in the Lease. In the event of any conflict
between any Basic Lease Information and the Lease, the Lease shall control.
3
THIS LEASE is made as of the Lease Date set forth in the Basic Lease
Information, by and between the Landlord identified in the Basic Lease
Information ("Landlord"), and the Tenant identified in the Basic Lease
Information ("Tenant"). Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon the terms and subject to the conditions of this Lease, the
office space identified in the Basic Lease Information (the "Premises"), in
the Building identified in the Basic Lease Information (the "Building"). The
approximate configuration and location of the Premises is shown on XXXXXXXX X-
0, X-0 AND A-3. Landlord and Tenant agree that the rentable area of the
Premises for all purposes under this Lease shall be the Rentable Area
specified in the Basic Lease Information. The Project identified in the Basic
Lease Information (the "Project") includes the Building, the parking
facilities serving the Building (the "Parking Facility"), and the parcel(s) of
Land on which the Building and the Parking Facility are situated (the "Land").
The Building, the Parking Facility and the Land are sometimes collectively
referred to in this Lease as the Property.
2. TERM; POSSESSION. The term of this Lease (the "TERM") shall commence on
the Commencement Date as described below and, unless sooner terminated, shall
expire on the Expiration Date set forth in the Basic Lease Information (the
"Expiration Date"). The "Commencement Date" shall be 14 days after Landlord
delivers written notice to Tenant that the prior tenant has vacated the
Premises. Landlord shall notify Tenant in writing of the projected
Commencement Date of the Lease within 5 days of determining said date.
Landlord shall also notify Tenant in writing within 5 days if the said
projected Commencement Date is changed. When the Commencement Date has been
established, Landlord and Tenant shall confirm the Commencement Date and
Expiration Date in a commencement letter in the form attached as Exhibit D.
Landlord and Tenant further acknowledge and agree that the Commencement Date
may occur, and Tenant's obligation to pay Base Rent (as defined in Section 3
below) and perform the other obligations of Tenant under this Lease may
commence before the date Landlord has tendered possession of the Premises to
Tenant with the Tenant Improvements Substantially Complete. For purposes
hereof, the Tenant Improvements shall be deemed to be "Substantially
Completed" when they have been completed in accordance with the Plans (as
defined in Exhibit B attached hereto) except for finishing details, minor
omissions, decorations and mechanical adjustments of the type normally found
on an architectural "punch list". (The definition of Substantially Completed
shall also define the terms "Substantially Complete" and "Substantial
Completion"). Subject to Landlord's obligation, if any, to perform Tenant
Improvements and Landlord's obligations under Section 6 hereof, the Premises
are accepted by Tenant in "as is" condition and configuration. By taking
possession of the Premises, Tenant agrees that the Premises are in good order
and satisfactory condition, and that there are no representations or
warranties by Landlord regarding the condition of the Premises or the
Building. If Landlord is delayed delivering possession of the Premises, or any
portion thereof, or any other space due to the holdover or unlawful possession
of such space by any party, Landlord shall use reasonable efforts to obtain
possession of the space. The Commencement Date shall be delayed to the extent
that Landlord fails to deliver possession of the Premises for any reason
including but not limited to, holding over by prior occupants. Any such delay
in the Commencement Date shall not subject Landlord to any liability for any
loss or damage resulting therefrom. If the Commencement Date is delayed, the
Termination Date under the Lease shall not be similarly extended.
4
Notwithstanding anything herein to the contrary, if the Tenant Improvements in
the Premises are incomplete on the Commencement Date for any reason whatsoever
(other than as a result of holding over by prior occupants, in which event the
above paragraph shall control with respect to the period that Landlord is
delayed in delivering the Premises as a consequence of such holdover), the
Commencement Date shall not be postponed or delayed. Instead, Tenant
acknowledges that the Tenant Improvements will be performed in the Premises
during Business Hours subsequent to the Commencement Date. Landlord and Tenant
agree to cooperate with each other in order to enable the Tenant Improvements
to be performed by Landlord in a timely manner and with as little
inconvenience to the operation of Tenant's business as is reasonably possible.
Notwithstanding anything herein to the contrary, any delay in the completion
of the Tenant Improvements or inconvenience suffered by Tenant during the
performance of the Tenant Improvements shall not subject Landlord to any
liability for any loss or damage resulting therefrom or entitle Tenant to any
credit, abatement or adjustment of Base Rent or other sums payable under the
Lease. Landlord shall proceed with due diligence to Substantially Complete the
Tenant Improvements within a reasonable amount of time following the
Commencement Date.
3. RENT.
3.1 Base Rent. Tenant agrees to pay to Landlord the Base Rent set forth
in the Basic Lease Information, without prior notice or demand, on the first
day of each and every calendar month during the Term, except that Base Rent
for the first full calendar month in which Base Rent is payable shall be paid
upon execution of this Lease and Base Rent for any partial month at the
beginning of the Term shall be paid on the Commencement Date. Base Rent for
any partial month at the beginning or end of the Term shall be prorated based
on the actual number of days in the month.
3.2 Additional Rent: Operating Costs and Taxes.
(a) Definitions.
(1) "Operating Costs" means all costs of managing, operating,
maintaining and repairing the Property, including all costs, expenditures,
fees and charges for: (A) operation, maintenance and repair of the Property
(including maintenance, repair and replacement of glass, the roof covering or
membrane, and landscaping); (B) utilities and services (including
telecommunications facilities and equipment, recycling programs and trash
removal), and associated supplies and materials; (C) compensation (including
employment taxes and fringe benefits) for persons (below the level of building
manager) who perform duties in connection with the operation, maintenance and
repair of the Building, such compensation to be appropriately allocated for
persons who also perform duties unrelated to the Building; (D) property
(including coverage for earthquake and flood if carried by Landlord),
liability, rental income and other insurance relating to the Property, and
expenditures for deductible amounts paid under such insurance, which shall be
charged in the manner set forth in clause (G) below if the cost incurred is
one which would normally be capitalized; (E) licenses, permits and
inspections; (F) complying with the requirements of any law, statute,
ordinance or governmental rule or regulation or any orders pursuant thereto
(collectively "Laws") which shall be charged in the manner set forth in clause
(G) below if the cost incurred is one which would normally be capitalized; (G)
amortization
5
of capital improvements or repairs which would normally be capitalized under
generally accepted accounting practices required to comply with Laws, or which
are intended to reduce Operating Costs or improve the utility, efficiency or
capacity of any Building System, with interest on the unamortized balance at
the rate paid by Landlord on funds borrowed to finance such capital
improvements (or, if Landlord finances such improvements out of Landlord's
funds without borrowing, the rate that Landlord would have paid to borrow such
funds, as reasonably determined by Landlord), over such useful life as
Landlord shall reasonably determine; (H) an office in the Project for the
management of the Property, including expenses of furnishing and equipping
such office and the rental value of any space occupied for such purposes; (I)
property management fees which shall not exceed those commercially reasonable
fees which would be charged by a reputable third party property manager; (J)
accounting, legal and other professional services incurred in connection with
the operation of the Property which benefit the Premises and/or the common
areas and the calculation of Operating Costs and Taxes; (K) a reasonable
allowance for depreciation on machinery and equipment used to maintain the
Property and on other personal property owned by Landlord in the Property
(including window coverings and carpeting in common areas), provided that such
machinery, equipment and/or personal property benefit the Premises and/or the
common areas; (L) contesting the validity or applicability of any Laws that
may affect the Premises and/or the common areas; (M) the Building's share of
any shared or common area maintenance fees and expenses; and (N) any other,
expense or charge, whether or not hereinbefore described, which in accordance
with generally accepted property management practices would be considered an
expense of managing, operating, maintaining and repairing the Property.
Operating Costs for any year during which average occupancy of the Building is
less than one hundred percent (100%) shall be calculated based upon the
Operating Costs that would have been incurred if the Building had an average
occupancy of one hundred percent (100%) during the entire calendar year.
Operating Costs shall not include (i) capital improvements (except as
otherwise provided above); (ii) costs of special services rendered to
individual tenants (including Tenant) for which a special charge is made;
(iii) interest and principal payments on loans or indebtedness secured by the
Building; (iv) costs of improvements for Tenant or other tenants of the
Building; (v) costs of services or other benefits of a type which are not
available to Tenant but which are available to other tenants or occupants, and
costs for which Landlord is reimbursed by Building other than through payment
of tenants' shares of increases in Operating Costs and Taxes; (vi) leasing
commissions, attorneys' fees and other expenses incurred in connection with
leasing space in the Building or enforcing such leases; (vii) depreciation or
amortization, other than as specifically enumerated in the definition of
Operating Costs above; (viii) costs, fines or penalties incurred due to
Landlord's violation of any Law; (ix) any costs or expenses incurred with
respect to Hazardous Materials, except to the extent the presence of such
Hazardous Materials in, on, under or about the Premises or Property was caused
by Tenant or Tenant's employees, agents, contractors or invitees, and (x)
costs incurred by Landlord for the repair of structural defects.
(2) "Taxes" means: all real property taxes and general, special or
district assessments or other governmental impositions, of whatever kind,
nature or origin, imposed on or by reason of the ownership or use of the
Property; governmental charges, fees or assessments for transit or traffic
mitigation (including area-wide traffic improvement assessments and
transportation system management fees), housing, police, fire or other
governmental service or purported benefits to the Property; personal property
taxes assessed on the personal property of Landlord used in the operation of
the Property; service payments in lieu of taxes and taxes and assessments of
every kind and nature whatsoever levied or assessed in addition to, in lieu of
or in
6
substitution for existing or additional real or personal property taxes on the
Property or the personal property described above; any increases in the
foregoing caused by changes in assessed valuation, tax rate or other factors
or circumstances; and the reasonable cost of contesting by appropriate
proceedings the amount or validity of any taxes, assessments or charges
described above. To the extent paid by Tenant or other tenants as "Tenant's
Taxes" (as defined in Section 8 - Tenant's Taxes), "Tenant's Taxes" shall be
excluded from Taxes. The term "Taxes" shall not include any inheritance taxes
or federal or state income taxes of Landlord.
(3) "Tenant's Share" means the Rentable Area of the Premises
divided by the total Rentable Area of the Building, as set forth in the Basic
Lease Information. If the Rentable Area of the Building is changed or the
Rentable Area of the Premises is changed by Tenant's leasing of additional
space hereunder or for any other reason, Tenant's Share shall be adjusted
accordingly.
(b) Additional Rent.
(1) Tenant shall pay Landlord as "Additional Rent" for each
calendar year or portion thereof during the Term Tenant's Share of the sum of
(x) Operating Costs, and (y) Taxes.
(2) Prior to the Commencement Date, Landlord shall notify Tenant
of Landlord's estimate of Operating Costs, Taxes and Tenant's Additional Rent
for the first partial calendar year. Prior to each calendar year thereafter,
Landlord shall notify Tenant of Landlord's estimate of Operating Costs, Taxes
and Tenant's Additional Rent for the following calendar year. Commencing on
the Commencement Date, and commencing on the first day of January of each
subsequent calendar year and continuing on the first day of every month
thereafter in such year, Tenant shall pay to Landlord one-twelfth (1/12th) of
the estimated annual Additional Rent. If Landlord thereafter estimates that
Operating Costs or Taxes for such year will vary from Landlord's prior
estimate, Landlord may, by notice to Tenant, revise the estimate for such
year (and Additional Rent shall thereafter be payable based on the revised
estimate).
(3) As soon as reasonably practicable after the end of each
calendar year, Landlord shall furnish Tenant a statement with respect to such
year, showing Operating Costs, Taxes and Additional Rent for the year, and the
total payments made by Tenant with respect thereto. Unless Tenant raises any
objections to Landlord's statement within ninety (90) days after receipt of
the same, such statement shall conclusively be deemed correct and Tenant shall
have no right thereafter to dispute such statement or any item therein or the
computation of Additional Rent based thereon. If Tenant does object to such
statement, Landlord shall provide Tenant with reasonable verification of the
figures shown on the statement and the parties shall negotiate in good faith
to resolve any disputes. Any objection of Tenant to Landlord's statement and
resolution of any dispute shall not postpone the time for payment of any
amounts due Tenant or Landlord based on Landlord's statement, nor shall any
failure of Landlord to deliver Landlord's statement in a timely manner relieve
Tenant of Tenant's obligation to pay any amounts due Landlord based on
Landlord's statement.
(4) If Tenant's Additional Rent as finally determined for the
year exceeds the total payments made by Tenant on account thereof, Tenant
shall pay Landlord the deficiency within ten (10) days of Tenant's receipt
of Landlord's statement. If the total payments
7
made by Tenant on account thereof exceed Tenant's Additional Rent as finally
determined for the year, Tenant's excess payment shall be credited toward the
rent next due from Tenant under this Lease. For any partial calendar year at
the beginning or end of the Term, Additional Rent shall be prorated on the
basis of a 365-day year by computing Tenant's Share of the increases in
Operating Costs and Taxes for the entire year and then prorating such amount
for the number of days during such year included in the Term. Notwithstanding
the termination of this Lease, Landlord shall pay to Tenant or Tenant shall
pay to Landlord, as the case may be, within ten (10) days after Tenant's
receipt of Landlord's final statement for the calendar year in which this
Lease terminates, the difference between Tenant's Additional Rent for that
year, as finally determined by Landlord, and the total amount previously paid
by Tenant on account thereof.
If for any reason Taxes for any year during the Term are reduced, refunded or
otherwise changed, Tenant's Additional Rent shall be adjusted accordingly. If
Taxes are temporary1y reduced as a result of space in the Building being
leased to a tenant that is entitled to an exemption from property taxes or
other taxes, then for purposes of determining Additional tent for each year in
which Taxes are reduced by any such exemption, Taxes for such year shall be
calculated on the basis of the amount the Taxes for the year would have been
in the absence of the exemption. The obligations of Landlord to refund any
overpayment of Additional Rent and of Tenant to pay any Additional Rent not
previously paid shall survive the expiration of the Term.
3.3 Payment of Rent. All amounts payable or reimbursable by Tenant under
this Lease, including late charges and interest, shall constitute rent and
shall be payable and recoverable as rent in the manner provided in this Lease.
All sums payable to Landlord on demand under the terms of this Lease shall be
payable within ten (10) days after notice from Landlord of the amounts due.
All rent shall be paid without offset, recoupment or deduction in lawful money
of the United States of America to Landlord at Landlord's Address for Payment
of Rent as set forth in the Basic Lease information, or to such other person
or at such other place as Landlord may from time to time designate.
4. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord the sum set forth in the Basic Lease Information, if any, in cash, as
security for the performance of Tenant's obligations under this Lease.
Landlord may (but shall have no obligation to) use the security deposit or any
portion thereof to cure any Event of Default under this Lease or to compensate
Landlord for any damage Landlord incurs as a result of Tenant's failure to
perform any of Tenant's obligations hereunder. In such event Tenant shall
immediately pay to Landlord an amount sufficient to replenish the security
deposit to the sum initially deposited with Landlord. At the expiration or
termination of this Lease, Landlord shall return to Tenant such portion of the
security deposit or the balance thereof then held by Landlord and not applied
as provided above. Landlord may commingle the security deposit with Landlord's
general and other funds, and Landlord shall not be required to pay interest on
the security deposit to Tenant.
5. USE AND COMPLIANCE WITH LAWS.
5.1 Use. The Premises shall be used for general business office purposes
and for no other use or purpose. Tenant shall comply with all present and
future Laws relating to Tenant's use or occupancy of the Premises (and make
any repairs, alterations or improvements as required to comply with all such
Laws), and shall observe the "Building Rules" (as defined in Section 27 - Rules
and Regulations). Tenant shall not be required to construct or pay the cost of
complying
8
with any covenants, conditions, restrictions and encumbrances, underwriter's
requirements or rules regulations, statutes, ordinances, laws and building
codes requiring construction of improvements in the Premises which are
properly capitalized under general accounting principles, unless such
compliance is necessitated solely because of Tenant's particular use of the
Premises. Tenant shall not do, bring, keep or sell anything in or about the
Premises that is prohibited by, or that will cause a cancellation of or an
increase in the existing premium for, any insurance policy covering the
Property or any part thereof. Tenant shall not permit the Premises to be
occupied or used in any manner that will constitute waste or a nuisance, or
disturb the quiet enjoyment of or otherwise annoy other tenants in the
Building. Without limiting the foregoing, the Premises shall not be used for
educational activities, practice of medicine or any of the healing arts,
providing social services, or for any governmental use (including embassy or
consulate use). Tenant shall not, without the prior consent of Landlord, (i)
bring into the Building or the Premises anything that may cause substantial
noise, odor or vibration, overload the floors in the Premises or the Building
or any of the heating, ventilating and air-conditioning ("HVAC"), mechanical,
elevator, plumbing, electrical, fire protection, life safety, security or
other systems in the Building ("Building Systems"), or jeopardize the
structural integrity of the Building or any part thereof; (ii) connect to the
utility systems of the Building any apparatus, machinery or other equipment
other than typical office equipment; or (iii) connect (directly, or
indirectly through use of intermediate devices, electrified strip molding, or
otherwise) to any electical circuit in the Premises any equipment or other
load with aggregate electrical power requirements in excess of 80% of the
rated capacity of the circuit.
5.2 Hazardous Materials.
(a) Definitions.
(1) "Hazardous Materials" shall mean any substance: (A)
that now or in the future is regulated or governed by, requires investigation
or remediation under, or is defined as a hazardous waste, hazardous substance,
pollutant or contaminant under any governmental statute, code, ordinance,
regulation, rule or order, and any amendment thereto, including for example
only the Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. (S)9601 et seq., and the Resource Conservation and Recovery Act, 42
U.S.C. (S)6901 et seq., or (B) that is toxic, explosive, corrosive, flammable,
radioactive, carcinogenic, dangerous or otherwise hazardous, including
gasoline, diesel fuel, petroleum hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, radon and urea formaldehyde foam insulation.
(2) "Environmental Requirements" shall mean all present
and future Laws, orders, permits, licenses, approvals, authorizations and
other requirements of any kind applicable to Hazardous Materials.
(3) "Handled by Tenant" and "Handling by Tenant" shall
mean and refer to any installation, handling, generation, storage, use,
disposal, discharge, release, abatement, removal, transportation, or any other
activity of any type by Tenant or its agents, employees, contractors,
licensees, assignees, sublessees, transferees or representatives
(collectively, "Representatives") or its guests, customers, invitees, or
visitors (collectively, "Visitors"), at or about the Premises in connection
with or involving Hazardous Materials.
(4) "Environmenta Losses" shall mean all costs and
expenses of any kind, damages, including foreseeable and unforeseeable
consequential damages, fines and penalties
9
incurred in connection with any violation of and compliance with Environmental
Requirements and all losses of any kind attributable to the diminution of
value, loss of use or adverse effects on marketability or use of any portion
of the Premises or Property.
(b) Tenant's Covenants. No Hazardous Materials shall be Handled by
Tenant at or about the Premises or Property without Landlord's prior written
consent, which consent may be granted, denied, or conditioned upon compliance
with Landlord's requirements, all in Landlord's absolute discretion.
Notwithstanding the foregoing, normal quantities and use of those Hazardous
Materials customarily used in the conduct of general office activities, such
as copier fluids and cleaning supplies ("Permitted Hazardous Materials"), may
be used and stored at the Premises without Landlord's prior written consent,
provided that Tenant's activities at or about the Premises and Property and
the Handling by Tenant of all Hazardous Materials shall comply at all times
with all Environmental Requirements. At the expiration or termination of the
Lease, Tenant shall promptly remove from the Premises and Property all
Hazardous Materials Handled by Tenant at the Premises or the Property. Tenant
shall keep Landlord fully and promptly informed of all Handling by Tenant of
Hazardous Materials other than Permitted Hazardous Materials. Tenant shall be
responsible and liable for the compliance with all of the provisions of this
Section by all of Tenant's Representatives and Visitors, and all of Tenant's
obligations under this Section (including its indemnification obligations
under paragraph (e) below) shall survive the expiration or termination of this
Lease.
(c) Compliance. Tenant shall at Tenant's expense promptly take all
actions required by any governmental agency or entity in connection with or as
a result of the Handling by Tenant of Hazardous Materials at or about the
Premises or Property, including inspection and testing, performing all
cleanup, removal and remediation work required with respect to those Hazardous
Materials, complying with all closure requirements and post-closure
monitoring, and filing all required reports or plans. All of the foregoing
work and all Handling by Tenant of all Hazardous Materials shall be performed
in a good, safe and workmanlike manner by consultants qualified and licensed
to undertake such work and in a manner that will not interfere with any other
tenant's quiet enjoyment of the Property or Landlord's use, operation, leasing
and sale of the Property. Tenant shall deliver to Landlord prior to delivery
to any governmental agency, or promptly after receipt from any such agency,
copies of all permits, manifests, closure or remedial action plans, notices,
and all other documents relating to the Handling by Tenant of Hazardous
Materials at or about the Premises or Property. If any lien attaches to the
Premises or the Property in connection with or as a result of the Handling by
Tenant of Hazardous Materials, and Tenant does not cause the same to be
released, by payment, bonding or otherwise, within ten (10) days after the
attachment thereof, Landlord shall have the right but not the obligation to
cause the same to be released and any sums expended by Landlord in connection
therewith shall be payable by Tenant on demand.
(d) Landlord's Rights. Landlord shall have the right, but not the
obligation, to enter the Premises at any reasonable time upon reasonable
notice, except that in the case of an emergency notice shall not be required,
(i) to confirm Tenant's compliance this Section, and (ii) to perform Tenant's
obligations under this Section if Tenant has failed to do so after reasonable
notice to Tenant. Landlord shall also have the right to engage qualified
Hazardous Materials consultants to inspect the Premises and review the
Handling by Tenant of Hazardous Materials, including review of all permits,
reports, plans, and other documents regarding same. Tenant shall pay to
Landlord on demand the costs of Landlord's consultant's fees and all costs
10
incurred by Landlord in performing Tenant's obligations under this Section.
Landlord shall use reasonable efforts to minimize any interference with
Tenant's business caused by Landlord's entry into the Premises, but Landlord
shall not be responsible for any interference caused thereby.
(e) Tenant's Indemnification. Tenant agrees to indemnify, defend
and hold harmless Landlord and its partners or members and its or their
partners, members, directors, officers, shareholders, employees and agents
from all Environmental Losses and all other claims, actions, losses, damages,
liabilities, costs and expenses of every kind, including reasonable
attorneys', experts' and consultants' fees and costs, incurred at any time and
arising from or in connection with the Handling by Tenant of Hazardous
Materials at or about the Property or Tenant's failure to comply in full with
all Environmental Requirements with respect to the Premises.
6. ALTERATIONS.
6.1 Tenant shall not make any alterations, improvements or changes to
the Premises (including installation of any security system or telephone or
data communication wiring), other than the Tenant Improvements
("Alterations"), without Landlord's prior written consent (provided, however,
that Tenant shall not be required to obtain Landlord's prior approval for
minor, non-structural Alterations that do not affect any of the Building
Systems, are not visible from the exterior of the Premises, and cost less than
Ten Thousand Dollars ($10,000.00), so long as Tenant gives Landlord notice of
the proposed Alterations at least ten (10) days prior to commencement of the
Alterations and complies with all of the following provisions, except that
Tenant shall not be required to obtain Landlord's approval of any plans or
specifications therefor). Any such Alterations shall be completed by Tenant at
Tenant's sole cost and expense: (i) with due diligence, in a good and
workmanlike manner, using new materials; (ii) in compliance with plans and
specifications approved (which approval shall not be unreasonably withheld or
delayed) by Landlord; (iii) in compliance with the construction rules and
regulations promulgated by Landlord from time to time; (iv) in accordance with
all applicable Laws (including all work, whether structural or non-structural,
inside or outside the Premises, required to comply fully with all applicable
Laws and necessitated by Tenant's work); and (v) subject to all conditions
which Landlord may in Landlord's discretion impose. Such conditions may
include requirements for Tenant to: (i) provide payment or performance bonds
or additional insurance (from Tenant or Tenant's contractors, subcontractors
or design professionals); (ii) use contractors or subcontractors designated by
Landlord; and (iii) remove all or part of the Alterations prior to or upon
expiration or termination of the Term, as designated by Landlord. If any work
outside the Premises, or any work on or adjustment to any of the Building
Systems, is required in connection with or as a result of Tenant's work, such
work shall be performed at Tenant's expense by contractors designated by
Landlord. Landlord's right to review and approve (or withhold approval of)
Tenant's plans, drawings, specifications, contractor(s) and other aspects of
construction work proposed by Tenant is intended solely to protect Landlord,
the Property and Landlord's interests. No approval or consent by Landlord
shall be deemed or construed to be a representation or warranty by Landlord as
to the adequacy, sufficiency, fitness or suitability thereof or compliance
thereof with applicable Laws or other requirements. Except as otherwise
provided in Landlord's consent, all Alterations shall upon installation become
part of the realty and be the property of Landlord.
6.2 Before making any Alterations, Tenant shall submit to Landlord for
Landlord's prior approval reasonably detailed final plans and specifications
prepared by a licensed architect or
11
engineer, a copy of the construction contract, including the name of the
contractor and all subcontractors proposed by Tenant to make the Alterations and
a copy of the contractor's license. Tenant shall reimburse Landlord upon demand
for any expenses incurred by Landlord in connection with any Alterations made by
Tenant, including reasonable fees charged by Landlord's contractors or
consultants to review plans and specifications prepared by Tenant to update the
existing as-built plans and specifications of the Building to reflect the
Alterations. Tenant shall obtain all applicable permits, authorizations and
governmental approvals and deliver copies of the same to Landlord before
commencement of any Alterations.
6.3 Tenant shall keep the Premises and the Property free and clear of all
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant. If any such lien attaches to the Premises or the Property,
and Tenant does not cause the same to be released by payment, bonding or
otherwise within ten (10) days after the attachment thereof, Landlord shall have
the right but not the obligation to cause the same to be released, and any sums
expended by Landlord in connection therewith shall be payable by Tenant on
demand with interest thereon from the date of expenditure by Landlord at the
Interest Rate (as defined in Section 15.2 - Interest). Tenant shall give
Landlord at least ten (10) days' notice prior to the commencement of any
Alterations and cooperate with Landlord in posting and maintaining notices of
non-responsibility in connection therewith.
6.4 Subject to the provisions of Section 5 - Use and Compliance with Laws
and the foregoing provisions of this Section, Tenant may install and maintain
funishings, equipment, movable partitions, business equipment and other trade
fixtures ("Trade Fixtures") in the Premises, provided that the Trade Fixtures do
not become an integral part of the Premises or the building. Tenant shall
promptly repair any damage to the Premises or the Building caused by any
installation or removal of such Trade Fixtures.
7. MAINTENANCE AND REPAIRS.
7.1 By taking possession of the Premises Tenant agrees that the Premises
are then in a good and tenantable condition. During the Term, Tenant at Tenant's
expense but under the direction of Landlord, shall repair and maintain the
Premises, including the interior walls, floor coverings, ceiling (ceiling tiles
and grid), Tenant Improvements, Alterations, fire extinguishers, outlets and
fixtures, and any appliances (including dishwashers, hot watet heaters and
garbage disposers) in the Premises, in reasonably good order, and keep the
Premises in a clean, safe and orderly condition.
7.2 Landlord shall maintain or cause to be maintained in reasonably good
order, condition and repair, the structural portions of the roof, foundations,
floors and exterior walls of the Building, the Building Systems, all structural
parts of the Building and the public and common areas of the Property, such as
elevators, stairs, corridors and restrooms, all of which shall be included as a
part of Operating Costs, subject to the terms and conditions contained in
Section 3.2 of this Lease; provided, however, that Tenant shall pay the cost of
repairs for damage occasioned by Tenant's use of the Premises or the Property or
any act or omission of Tenant or Tenant's Representatives or Visitors. Landlord
shall be under no obligation to inspect the Premises. Tenant shall promptly
report in writing to Landlord any defective condition known to Tenant which
Landlord is required to repair, and Landlord shall diligently proceed to repair
such condition. As a material part of the consideration for this Lease, Tenant
hereby waives any benefits of any
12
applicable existing or future Law, including the provisions of California Civil
Code Sections 1932(1), 1941 and 1942, that allows a tenant to make repairs at
its landlord's expense.
7.3 Provided that Tenant's rights and benefits are not materia1ly,
adversely affected thereby, Landlord hereby reserves the right, at any time and
from time to time, without liability to Tenant, and without constituting an
eviction, constructive or otherwise, or entitling Tenant to any abatement of
rent or to terminate this Lease or otherwise releasing Tenant from any of
Tenant's obligations under this Lease:
(a) To make alterations, additions, repairs, improvements to
or in or to decrease the size of area of, all or any part of the Building, the
fixtures and equipment therein, and the Building Systems (provided,
however, that Landlord shall not decrease the size of area of the Premises
except to the extent required to comply with applicable legal requirements or
regulations, and then only to the minimum extent necessary);
(b) To change the Building's name or street address;
(c) To install and maintain any and all signs on the exterior
and interior of the Building;
(d) To reduce, increase, enclose or otherwise change at any
time and from time to time the size, number, location, lay-out and nature of
the common areas and other tenancies and premises in the Property and to
create additional rentable area through use or enclosure of common areas; and
(e) If any governmental authority promulgates or revises any
Law or imposes mandatory or voluntary controls or guidelines on Landlord or
the Property relating to the use or conservation of energy or utilities or the
reduction of automobile or other emissions or reduction or management of
traffic or parking on the Property (collectively "Contro1s"), to comply with
such Controls, whether mandatory or voluntary, or make any alterations to the
Property related thereto.
8. TENANT'S TAXES. "Tenant's Taxes" shall mean (a) all taxes, assessments,
license fees and other governmental charges or impositions levied or assessed
against or with respect to Tenant's personal property or Trade Fixtures in
the Premises, whether any such imposition is levied directly against Tenant or
levied against Landlord or the Property, (b) all rental, excise, sales or
transaction privilege taxes arising out of this Lease (excluding, however,
state and federal personal or corporate income taxes measured by the income of
Landlord from all sources and excluding inheritance taxes) imposed by any
taxing authority upon landlord or upon Landlord's receipt of any rent payable
by Tenant pursuant to the terms of this lease ("Rental Tax"), and (c) any
increase in taxes attributable to inclusion of a value placed on Tenant's
personal property, Trade Fixtures or Alterations. Tenant shall pay any Rental
Tax to landlord in addition to and at the same time as Base Rent is payable
under this Lease, and shall pay all other Tenant's Taxes before delinquency
(and, at Landlord's request, shall furnish Landlord satisfactory evidence
thereof). If Landlord pays Tenant's Taxes or any portion thereof, Tenant shall
reimburse Landlord upon demand for the amount of such payment, together with
interest at the Interest Rate from the date of Landlord's payment to the date
of Tenant's reimbursement.
13
9. UTILITIES AND SERVICES.
9.1 Description of Services. Landlord shall furnish to the Premises
reasonable amounts of electricity, water, heat and air-conditioning, and
janitorial service for the uses contemplated hereunder. Landlord shall also
furnish normal fluorescent tube replacement, window washing, elevator service,
and common area toilet room supplies. Landlord shall furnish heat, ventilation
and air-conditioning during the Business Hours specified in the Basic Lease
Information ("Business Hours") on weekdays except public holidays ("Business
Days"). Any additional utilities or services that Landlord may agree to provide
(including lamp or tube replacement for other than Building Standard lighting
fixtures) shall be at Tenant's sole expense.
9.2 Payment for Additional Utilities and Services.
(a) Upon request by Tenant in accordance with the procedures
established by Landlord from time to time for furnishing HVAC service at times
other than Business Hours on Business Days, Landlord shall furnish such service
to Tenant and Tenant shall pay for such services on an hourly basis at the then
prevailing rate established for the Building by Landlord.
(b) If the temperature otherwise maintained in any portion of the
Premises by the HVAC systems of the Building is affected as a result of (i)
any lights, machines or equipment used by Tenant in the Premises, or (ii) the
occupancy of the Premises by more than one person per 150 square feet of
rentable area, then Landlord shall, following reasonable thirty (30) days for
Tenant to correct the situation, have the right to install any machinery or
equipment reasonably necessary to restore the temperature, including
modifications to the standard air-conditioning equipment. The cost of any such
equipment and modifications, including the cost of installation and any
additional cost of operation and maintenance of the same, shall be paid by
Tenant to Landlord upon demand.
(c) If Tenant's usage of electricity exceeds the Building's Standard
Electrical Usage as set forth in the Basic Lease Information, Landlord may
determine the amount of such excess use by any reasonable means (including the
installation, following reasonable notice to Tenant and thirty (30) days for
Tenant to correct the situation, at Landlord's request but at Tenant's expense
of a separate meter or other measuring device) and charge Tenant for the cost of
such excess usage. In addition, Landlord may impose a reasonable charge for the
use of any additional or unusual janitorial services required by Tenant because
of any unusual Tenant Improvements or Alterations, the carelessness of Tenant or
the nature of Tenant's business (including hours of operation).
9.3 Interruption of Services. In the event of an interruption in or
failure or inability to provide any services or utilities to the Premises or
Building for any reason (a "Service Failure"), such Service Failure shall not,
regardless of its duration, impose upon Landlord any liiability whatsoever,
constitute an eviction of Tenant, constructive or otherwise, entitled Tenant to
an abatement of rent or to terminate this Lease or otherwise release Tenant from
any of Tenant's obligations under this Lease. Tenant hereby waives any benefits
of any applicable existing or future Law, including the provisions of California
Civil Code Section 1932(1), permitting the termination of this Lease due to such
interruption, failure or inability.
14
10. EXCULPATION AND INDEMNIFICATION.
10.1 Except to the extent caused by the negligence or breach of this
Lease by Landlord or its employees, agents, contractors or invitees, Landlord
shall not be liable to Tenant for any loss, injury or other damage to any
person or property (including Tenant or Tenant's property) in or about the
Premises or the Property from any cause (including defects in the Property or
in any equipment in the Property; fire, explosion or other casualty; bursting,
rupture, leakage or overflow of any plumbing or other pipes or lines,
sprinklers, tanks, drains, drinking fountains or washstands in, above, or
about the Premises or the Property; or acts of other Tenants in the Property).
Tenant hereby waives all claims against Landlord for such damage and the cost
and expense of defending against claims relating to such damage, except that
Landlord shall indemnify Tenant harmless from and against any claims, actions,
liabilities, damages, costs or expenses, including reasonable attorneys' fees
and costs incurred in defending against the same ("Claims") for such damages,
to the extent the same are caused by the willful or negligent acts or
omissions of Landlord or its employees, agents, contractors, invitees or
authorized representatives. In no event, however, shall Landlord be liable to
Tenant for any punitive or consequential damages or damages for loss of
business by Tenant.
10.2 Tenant shall indemnify, defend and hold Landlord harmless from and
against Claims arising from (a) the acts or omissions of Tenant or Tenant's
Representatives or Visitors in or about the Property, or (b) any construction or
other work undertaken by Tenant on the Premises (including any design defects),
or (c) any breach or default under this Lease by Tenant, or (d) any accident,
injury or damage, howsoever and by whomsoever caused, to any person or property,
occurring in or about the Premises during the Term; excepting only such Claims
for any accident, injury or damage to the extent they are caused by the
negligent or willful acts or omissions of Landlord or its employees, agents,
contractors, invitees or authorized representatives.
10.3 The obligations of the parties under this Section 10 shall survive
the expiration or termination of this Lease.
11. INSURANCE.
11.1 Tenant's Insurance.
(a) Tenant shall maintain in full force throughout the Term,
commercial general liability insurance providing coverage on an occurrence form
basis with limits of not less than Two Million Dollars ($2,000,000.00) each
occurrence for bodily injury and property damage combined, Two Million Dollars
($2,000,000.00) annual general aggregate, and Two Million Dollars
($2,000,000.00) products and completed operations annual aggregate. Tenant's
liability insurance policy or policies shall: (i) include premises and
operations liability coverage, products and completed operations liability
coverage, broad form property damage coverage including completed operations,
blanket contractual liability coverage including, to the maximum extent
possible, coverage for the indenmification obligations of Tenant under this
Lease, and personal and advertising injury coverage; (ii) provide that the
insurance company has the duty to defend all insureds under the policy; (iii)
provide that defense costs are paid in addition to and do not deplete any of the
policy limits; (iv) cover liabilities arising out of or incurred in connection
with Tenant's use or occupancy of the Premises or the Property; and (v) extend
coverage to cover liability for the actions of Tenant's Representatives.
15
(b) Tenant shall at all times maintain in effect with respect to any
Alterations installed by Tenant or in which Tenant has a financial interest and
Tenant's Trade Fixtures and personal property, commercial property insurance
providing coverage, at a minimum, for "broad form" perils, to the extent of 80%
of the full replacement cost of covered property. Tenant may carry such
insurance under a blanket policy, provided that such policy provides equivalent
coverage to a separate policy. During the Term, the proceeds from any such
policies of insurance shall be used for the repair or replacement of the
Alterations, Trade Fixtures and personal property so insured. Landlord shall be
provided coverage under such insurance to the extent of its insurable interest
and, if requested by Landlord, both Landlord and Tenant shall sign all documents
reasonably necessary or proper in connection with the settlement of any claim or
loss under such insurance. Landlord will have no obligation to carry insurance
on any Alterations or on Tenant's Trade Fixtures or personal property.
(c) Each policy of insurance required under this Section shall: (i)
be in a form, and written by an insurer, reasonably acceptable to Landlord,
(ii) be maintained at Tenant's sole cost and expense, and (iii) require at
least thirty (30) days' written notice to Landlord prior to any cancellation,
change or lapse of insurance coverage. Insurance companies issuing such
policies shall have rating classifications of "A" or better and financial size
category ratings of "VII" or better according to the latest edition of the A.M.
Best Key Rating Guide. All insurance companies issuing such policies shall be
licensed to do business in the state where the Property is located. Any
deductible amount under such insurance shall not exceed $5,000. Tenant shall
provide to Landlord, upon request, evidence that the insurance required to be
carried by Tenant pursuant to this Section, including any endorsement effecting
the additional insured status, is in full force and effect and that premiums
therefor have been paid.
(d) Tenant shall increase the amounts of insurance as required by
any Mortgagee, and, not more frequently than once every three (3) years, as
recommended by Landlord's insurance broker, if, in the reasonable opinion of
either of them, the amount of insurance then required under this Lease is not
adequate. Any limits set forth in this Lease on the amount or type of coverage
required by Tenant's insurance shall not limit the liability of Tenant under
this Lease.
(e) Each policy of liability insurance required by this Section
shall: (i) contain a cross liability endorsement or separation of insureds
clause; (ii) provide that any waiver of subrogation rights or release prior to a
loss does not void coverage; (iii) provide that it is primary to and not
contributing with, any policy of insurance carried by Landlord covering the
same loss; (iv) provide that any failure to comply with the reporting provisions
shall not affect coverage provided to Landlord, its partners, property managers
and Mortgagees; and (v) name Landlord, its partners, the Property Manager
identified in the Basic Lease Information (the "Property Manager"), and such
other parties in interest as Landlord may from time to time reasonably designate
to Tenant in writing, as additional insureds. Such additional insureds shall be
provided the same extent of coverage as provided to Tenant under such policies.
All endorsements effecting such additional insured status shall be acceptable to
Landlord and shall be acceptable to Landlord and shall be at least as broad as
additional insured endorsement form number CG 20 11 11 85 promulgated by the
Insurance Services Office.
(f) Prior to occupancy of the Premises by Tenant, and not less than
thirty (30) days prior to expiration of any policy thereafter, Tenant shall
furnish to Landlord a certificate of
16
insurance reflecting that the insurance required by this Section is in force,
accompanied by an endorsement showing the required additional insureds
satisfactory to Landlord in substance and form. Notwithstanding the requirements
of this paragraph, Tenant shall at Landlord's request provide to Landlord a
certified copy of each insurance policy required to be in force at any time
pursuant to the requirements of this Lease or its Exhibits.
11.2 Landlord's Insurance. During the Term, Landlord shall maintain in
effect insurance on the Building against "broad form' perils (to the extent such
coverages are available), with responsible insurers, insuring the Building and
the Tenant Improvements in an amount equal to at least eighty percent (80%) of
the replacement cost thereof, excluding land, foundations, footings and
underground installations. Landlord may, but shall not be obligated to, carry
insurance against additional perils and/or in greater amounts.
11.3 Waiver of Subrogation. Notwithstanding any provisions to the
contrary in this Lease, Landlord and Tenant each hereby waive any right of
recovery against the other and the partners, members, shareholders, officers,
directors and authorized representatives of the other for any loss or damage
that is covered by any policy of property insurance maintained by either party
(or would normally be covered by any policy of insurance required by this Lease
to be maintained) with respect to the Premises or the Property or any operation
therein. If any such policy of insurance relating to this Lease or to the
Premises or the Property does not permit the foregoing waiver or if the coverage
under any such policy would be invalidated as a result of such waiver, the
party maintaining such policy shall obtain from the insurer under such policy
a waiver of all right of recovery by way of subrogation against either party in
connection with any claim, loss or damage covered by such policy.
12. DAMAGE OR DESTRUCTION.
12.1 Landlord's Duty to Repair.
(a) If all or a substantial part of the Premises are rendered
untenantable or inaccessible by damage to all or any part of the Property from
fire or other casualty then, unless either party is entitled to and elects to
terminate this Lease pursuant to Sections 12.2 - Landlord's Right to Terminate
and 12.3 - Tenant's Right to Terminate, Landlord shall, at its expense, use
reasonable efforts and diligently proceed to repair and restore the Premises
and/or the Property, as the case may be, to substantially their former condition
to the extent permitted by then applicable Laws; provided, however, that in no
event shall Landlord have any obligation for repair or restoration beyond the
extent of insurance proceeds received by Landlord for such repair or restoration
(plus any deductible amount), or for any of Tenant's personal property, Trade
Fixtures or Alterations.
(b) If Landlord is required or elects to repair damage to the
Premises and/or the Property, this Lease shall continue in effect. Tenant's
Base Rent and Additional Rent from the date of the casualty through the date of
substantial completion of the repair (or termination of this Lease pursuant to
this Article 12) shall be abated with regard to any portion of the Premises
that Tenant is prevented from using by reason of such damage or its repair. In
no event shall Landlord be liable to Tenant by reason of any injury to or
interference with Tenant's business or property arising from fire or other
casualty or by reason of any repairs to any part of the Property necessitated
by such casualty.
17
12.2 Landlord's Right to Terminate. Landlord may elect to terminate this
Lease following damage by fire or other casualty under the following
circumstances:
(a) If, in the reasonable judgment of Landlord, the Premises and
the Property cannot be substantially repaired and restored under applicable
Laws within one (1) year from the date of the casualty;
(b) If, in the reasonable judgment of Landlord, adequate proceeds
(with the addition of any deductible amount) are not, for any reason, made
available to Landlord from Landlord's insurance policies (and/or from
Landlord's funds made available for such purpose, at Landlord's sole option)
to make the required repairs;
(c) If the Building is damaged or destroyed to the extent that, in
the reasonable judgment of Landlord, the cost to repair and restore the Building
would exceed twenty five percent (25%) of the full replacement cost of the
Building, whether or not the Premises are at all damaged or destroyed; or
(d) If the fire or other casualty occurs during the last year of
the Term.
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of
this Section 12.2 occur or arise, Landlord shall notify Tenant in writing of
that fact as soon as reasonably practicable, but in all events within one
hundred and twenty (120) days after the date of the casualty and in such
notice Landlord shall also advise Tenant whether Landlord has elected to
terminate this Lease as provided above.
12.3 Tenant's Right to Terminate. If all or a substantial part of the
Premises are rendered untenantable or inaccessible by damage to all or any part
of the Property from fire or other casualty, then Tenant's Base Rent and
Additional Rent from the date of the casualty through the date of substantial
completion of the repair or termination of this Lease pursuant to this Article
12, and Tenant may elect to terminate this Lease under the following
circumstances:
(a) Where Landlord fails to commence the required repair within
one hundred and twenty (120) days after the date of the casualty, in which
event Tenant may elect to terminate this Lease upon notice to Landlord given
within ten (10) days after such one hundred and twenty (120) day period.
(b) In the circumstance described in Subsection 12.2(a) above; in
which event Tenant may elect to terminate this Lease by giving Landlord notice
of such election to terminate within thirty (30) days after Landlord's notice
to Tenant pursuant to Section 12.2 - Landlord's Right to Terminate.
Notwithstanding anything herein to the contrary, in the event a casualty to
50% or more of the Premises results in Tenant being unable to operate its
business in the entire Premises (and Tenant actually ceases to operate its
business in the entire premises) and provided that the casualty is not caused
by or attributable to Tenant or any of Tenant's Representatives, Tenant's Base
Rent and Additional Rent for the entire Premises shall xxxxx during the period
of untenantability pursuant to the terms hereof.
18
12.4 Waiver. Landlord and Tenant each hereby waive the provisions of
California Civil Code Sections 1932(2), 1933(4) and any other applicable
existing or future Law permitting the termination of a lease agreement in the
event of damage or destruction under any circumstances other than as provided in
Sections 12.2 - Landlord's Right to Terminate and 12.3 - Tenant's Right to
Terminate.
13. CONDEMNATION.
13.1 Definitions.
(a) "Award" shall mean all compensation, sums, or anything of value
awarded, paid or received on a total or partial Condemnation.
(b) "Condemnation" shall mean (i) a permanent taking (or a temporary
taking for a period extending beyond the end of the Term) pursuant to the
exercise of the power of condemnation or eminent domain by any public or quasi-
public authority, private corporation or individual having such power
("Condemnor"), whether by legal proceedings or otherwise, or (ii) a voluntary
sale or transfer by Landlord to any such authority, either under threat of
condemnation or while legal proceedings for condemnation are pending.
(c) "Date of Condemnation" shall mean the earlier of the date that
title to the property taken is vested in the Condemnor or the date the Condemnor
has the right to possession of the property being condemned.
13.2 Effect on Lease.
(a) If the Premises are totally taken by Condemnation, this Lease
shall terminate as of the Date of Condemnation. If a portion but not all of the
Premises is taken by Condemnation, this Lease shall remain in effect; provided,
however, that if the portion of the Premises remaining after the Condemnation
will be unsuitable for Tenant's continued use, then upon notice to Landlord
within thirty (30) days after Landlord notifies Tenant of the Condemnation,
Tenant may terminate this Lease effective as of the Date of Condemnation.
(b) If twenty five percent (25%) or more of the Land or of the
Parking Facility or of the floor area in the Building is taken by Condemnation,
or if as a result of any Condemnation the Building is no longer reasonably
suitable for use as an office building, whether or not any portion of the
Premises is taken, Landlord may elect to terminate this Lease, effective as of
the Date of Condemnation, by notice to Tenant within thirty (30) days after the
Date of Condemnation.
(c) If all or a portion of the Premises is temporarily taken by a
Condemnor for a period not extending beyond the end of the Term, this Lease
shall remain in full force and effect.
13.3 Restoration. If this Lease is not terminated as provided in Section
13.2 - Effect on Lease, Landlord, at its expense, shall diligently proceed to
repair and restore the Premises to substantially its former condition (to the
extent permitted by then applicable Laws) and/or repair and restore the Building
to an architecturally complete office building; provided however, that
Landlord's obligations to so repair and restore shall be limited to the amount
of any Award
19
received by Landlord and not required to be paid to any Mortgagee (as defined in
Section 20.2 below). In no event shall Landlord have any obligation to repair or
replace any improvements in the Premises beyond the amount of any Award received
by Landlord for such repair or to repair or replace any of Tenant's personal
property. Trade Fixtures, or Alterations.
13.4 Abatement and Reduction of Rent. If any portion of the Premises is
taken in a Condemnation or is rendered permanently untenantable by repairs
necessitated by the Condemnation, and this Lease is not terminated, the Base
Rent and Additional Rent payable under this Lease shall be proportionally
reduced as of the Date of Condemnation based upon the percentage of rentable
square feet in the Premises so taken or rendered permanently untenantable. In
addition, if this Lease remains in effect following a Condemnation and Landlord
proceeds to repair and restore the Premises, the Base Rent and Additional Rent
payable under this Lease shall be abated during the period of such repair or
restoration to the extent such repairs prevent Tenant's use of the Premises.
13.5 Awards. Any Award made shall be paid to Landlord, and Tenant hereby
assigns to Landlord, and waives all interest in or claim to, any such Award,
including any claim for the value of the unexpired Term; provided, however, that
Tenant shall be entitled to receive, or to prosecute a separate claim for, an
Award for a temporary taking of the Premises or a portion thereof by a Condemnor
where this Lease is not terminated (to the extent such Award relates to the
unexpired Term), or an Award or portion thereof separately designated for
relocation expenses or the interruption of or damage to Tenant's business or as
compensation for Tenant's personal property, Trade Fixtures or Alterations.
13.6 Waiver. Landlord and Tenant each hereby waive the provisions of
California Code of Civil Procedure Section 1265.130 and any other applicable
existing or future Law allowing either party to petition for a termination of
this Lease upon a partial taking of the Premises and/or the Property.
14. ASSIGNMENT AND SUBLETTING.
14.1 Landlord's Consent Required. Tenant shall not assign, mortgage,
pledge, hypothecate or encumber this Lease or any interest therein, or sublet or
license or permit the use or occupancy of the Premises or any part thereof by or
for the benefit of anyone other than Tenant, or in any other manner transfer all
or any part of Tenant's interests under this Lease (each and all a "Transfer"),
without the prior written consent of Landlord (except as provided in Section
14.9 below), which (subject to the other provisions of this Section 14) shall,
not be unreasonably withheld. If Tenant is a business entity, any direct or
indirect transfer of fifty percent (50%) or more of the ownership interest of
the entity (whether in a single transaction or in the aggregate through more
than one transaction) shall be deemed a Transfer. Notwithstanding any provision
in this Lease to the contrary, Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber all or any portion of Tenant's interest under this Lease.
14.2 Reasonable Consent.
(a) If Tenant complies with the following conditions, Landlord shall
not unreasonably withhold or delay its consent of the subletting of the Premises
or any portion thereof or the assignment of this Lease. Prior to any proposed
Transfer, Tenant shall submit in writing to
20
Landlord (i) the name and legal composition of the proposed assignee, subtenant,
user or other transferee (each a "Transferee"); (ii) the nature of the business
proposed to be carried on in the Premises; (iii) a current balance sheet, income
statements for the last two years and such other reasonable financial and other
information concerning the proposed Transferee as Landlord may request; and (iv)
a copy of the proposed assignment, sublease or other agreement governing the
proposed Transfer. Within fifteen (15) Business Days after Landlord receives all
such information it shall notify Tenant whether it approves or disapproves such
Transfer or if it elects to proceed under Section 14.7 - Landlord's Right to
Space.
(b) The parties hereto agree and acknowledge that, among other
circumstances for which Landlord could reasonably withhold consent to a proposed
Transfer, it shall be reasonable for Landlord to withhold consent where (i) the
proposed Transferee does not intend itself to occupy the entire portion of the
Premises assigned or sublet, (ii) Landlord reasonably disapproves of the
Transferee's business operating ability or history, reputation or
creditworthiness or the character of the business to be conducted by the
Transferee at the Premises, (iii) the Transferee is a governmental agency or
unit or an existing tenant in the Project, (iv) the proposed Transfer would
violate any "exclusive" rights of any tenants in the Project, (v) the rental and
other consideration payable by the Transferee is less than that currently being
paid by tenants under new leases of comparable space in the Building, or (vi)
Landlord otherwise determines that the proposed Transfer would have the effect
of decreasing the value of the Building or increasing the expenses associated
with operating, maintaining and repairing the Property. In no event may Tenant
publicly offer or advertise all or any portion of the Premises for assignment or
sublease at a rental less than that then sought by Landlord for a direct lease
(non-sublease) of comparable space in the Project.
14.3 Excess Consideration. If Tenant Transfers all or part of the
Premises before the 2nd anniversary of the Commencement Date, the sublease term
is no more than 30 months, and Landlord consents to such Transfer, (i) Landlord
shall not exercise its right to terminate the Lease pursuant to Section 14.7 and
(ii) Tenant shall pay to Landlord as additionional rent, within ten (10) days
after receipt by Tenant, fifty percent (50%) of any consideration paid by the
Transferee for the Transfer, including, in the case of a sublease, the excess
rent and other consideration paid the subtenant over the amount of Base Rent and
Additional Rent payable hereunder applicable to the subleased space. If Tenant
Transfers all or part of the Premises beyond the 3rd anniversary of the
Commencement Date and Landlord consents to such Transfer, (i) Landlord may
exercise its right to terminate the Lease pursuant to Section 14.7 and (ii)
Tenant shall pay to Landlord as additional rent, within ten (10) days after
receipt by Tenant, seventy five percent (75%) of any consideration paid by the
Transferee for the Transfer, including, in the case of a sublease, the excess of
the rent and other consideration paid the subtenant over the amount of Base Rent
and Additional Rent payable hereunder applicable to the subleased space. In
determining excess rent in connection with an assignment or subletting, Tenant
may deduct the following expenditures resulting from such subletting or
assignment: (1) brokerage and marketing fees; (ii) legal fees; (iii)
construction cost; and (iv) financial concessions granted in such sublease or
assignment.
14.4 No Release Of Tenant. No consent by Landlord to any Transfer shall
relieve Tenant of any obligation to be performed by Tenant under this Lease,
whether occurring before or after such consent, assignment, subletting or other
Transfer. Each Transferee shall be jointly and severally liable with Tenant (and
Tenant shall be jointly and severally liable with each Transferee) for the
payment of rent (or, in the case of a sublease, rent in the amount set forth in
the sublease)
21
and for the performance of all other terms and provisions of this Lease. The
consent by Landlord to any Transfer shall not relieve Tenant or any such
Transferee from the obligation to obtain Landlord's express prior written
consent to any subsequent Transfer by Tenant or any Transferee. The acceptance
of rent by Landlord from any other person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any Transfer.
14.5 Expenses and Attorneys' Fees. Tenant shall pay to Landlord on demand
all costs and expenses (including reasonable attorneys' fees) incurred by
Landlord in connection with reviewing or consenting to any proposed Transfer
(including any request for consent to, or any waiver of Landlord's rights in
connection with, any security interest in any of Tenant's property at the
Premises).
14.6 Effectiveness of Transfer. Prior to the date on which any permitted
Transfer (whether or not requiring Landlord's consent) becomes effective, Tenant
shall deliver to Landlord a counterpart of the fully executed Transfer document
and Landlord's standard form of Consent to Assignment or Consent to Sublease
executed by Tenant and the Transferee in which each of Tenant and the Transferee
confirms its obligations pursuant to this Lease. Failure or refusal of a
Transferee to execute any such instrument shall not release or discharge the
Transferee from liability as provided herein. The voluntary, involuntary or
other surrender of this Lease by Tenant, or a mutual cancellation by Landlord
and Tenant, shall not work a merger, and any such surrender or cancellation
shall, at the option of Landlord, either terminate all or any existing subleases
or operate as an assignment to Landlord of any or all of such subleases.
14.7 Landlord's Right to Space. Notwithstanding any of the above provisions
of this Section to the contrary, if Tenant notifies Landlord that it desires to
enter into a Transfer, Landlord, in lieu of consenting to such Transfer, may
elect (x) in the case of an assignment or a sublease of the entire Premises, to
terminate this Lease in its entirety, or (y) in the case of a sublease of less
than the entire Premises for a term substantially equal to the remaining Term of
this Lease, to terminate this Lease as it relates to the space proposed to be
subleased by Tenant. In such event, this Lease will terminate (or the space
proposed to be subleased will be removed from the Premises subject to this Lease
and the Base Rent and Tenant's Share under this Lease shall be proportionately
reduced) on the date the Transfer was proposed to be effective, and Landlord may
lease such space to any party, including the prospective Transferee identified
by Tenant.
14.8 Assignment of Sublease Rents. Tenant hereby absolutely and
irrevocably assigns to Landlord any and all rights to receive rent and other
consideration from any sublease and agrees that Landlord, as assignee or as
attorney-in-fact for Tenant for purposes hereof, or a receiver for Tenant
appointed on Landlord's application may (but shall not be obligated to) collect
such rents and other consideration and apply the same toward Tenant's
obligations to Landlord under this Lease; provided, however, that Landlord
grants to Tenant at all times prior to occurrence of any breach or default by
Tenant a revocable license to collect such rents (which license shall
automatically and without notice be and be deemed to have been revoked and
terminated immediately upon any Event of Default).
14.9 Transfer to Affiliate. Tenant may assign this Lease or sublet the
Premises or any portion thereof, without Landlord's consent, to any corporation
or other entity that controls, is controlled by, or is under common control with
Tenant, or to any corporation or other entity resulting from a merger or
consolidation with Tenant, or to any person or entity that acquires
22
substantially all the assets of Tenant as a going concern (collectively, an
"Affiliate"), provided that the Affiliate assumes in writing all of Tenant's
obligations under this Lease.
15. DEFAULT AND REMEDIES.
15.1 Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" by Tenant.
(a) Tenant fails to make any payment of rent when due, or any amount
required to replenish the security deposit as provided in Section 4 above, if
payment in full is not received by Landlord within three(3) business days after
written notice that it is due.
(b) Tenant abandons the Premises and fails to pay rent.
(c) Tenant fails to deliver any estoppel certificate requested by
Landlord within the period described in subsection 21.1 below.
(d) Tenant violates the restrictions on Transfer set forth in
Section 14 - Assignment and Subletting.
(e) Tenant ceases doing business as a going concern; makes an
assignment for the benefit of creditors; is adjudicated an insolvent, files a
petition (or files an answer admitting the material allegations of a petition)
seeking relief under any state or federal bankruptcy or other statute, law or
regulation affecting creditors' rights; all or substantially all of Tenant's
assets are subject to judicial seizure or attachment and are not released within
30 days, or Tenant consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for Tenant or for all or any substantial part of Tenant's
assets.
(f) Tenant fails, within ninety (90) days after the commencement of
any proceedings against Tenant seeking relief under state or federal bankruptcy
or other statute, law or regulation affecting creditors' rights, to have such
proceedings dismissed, or Tenant fails, within ninety (90) days after an
appointment, without Tenant's consent or acquiescence, of any trustee, receiver
or liquidator for Tenant or for all or any substantial part of Tenant's assets,
to have such appointment vacated.
(g) Tenant fails to perform or comply with any provision of this
Lease other than those described in (a) through (f) above, and does not fully
cure such failure within fifteen (15) days after notice to Tenant or, if such
failure cannot be cured within such fifteen (15) day period, Tenant fails within
such fifteen (15) day period to commence, and thereafter diligently proceed
with, all actions necessary to cure such failure as soon as reasonably possible
but in all events within ninety (90) days after such notice; provided, however,
that if Landlord in Landlord's reasonable judgement determines that such failure
cannot or will be cured by Tenant within such ninety (90) days, then such
failure shall constitute an Event of Default immediately upon such notice to
Tenant.
(h) Tenant is in default beyond any notice and cure period under any
other lease or agreement with Landlord, including, without limitation, that
certain lease agreement dated December 6, 1996 between Landlord (as successor-
in-interest to Bay Park Plaza Associates, L.P.)
23
and Tenant (as successor-in-interest to Crossroads Software, Inc.) for space in
the building commonly known as Bay Park Plaza I in the Project.
15.2 Remedies. Upon the occurrence of an Event of Default, Land1ord shall
have the following remedies, which shall not be exclusive but shall be
cumulative and shall be in addition to any other remedies now or hereafter
allowed by law:
(a) Landlord may terminate Tenant's right to possession of the
Premises at any time by written notice to Tenant, and such termination of
Tenant's right to possession shall terminate the Lease. Tenant expressly
acknowledges that in the absence of such written notice from Landlord, no other
act of Landlord, including re-entry into the Premises, efforts to relet the
Premises, reletting of the Premises for Tenant's account, storage of Tenant's
personal property and Trade Fixtures, acceptance of keys to the Premises from
Tenant or exercise of any other rights and remedies under this Section, shall
constitute an acceptance of Tenant's surrender of the Premises or constitute a
termination of this Lease or of Tenant's right to possession of the Premises.
Upon such termination in writing of Tenant's right to possession of the
Premises, as herein provided, this Lease shall terminate and Landlord shall be
entitled to recover damages from Tenant as provided in California Civil Code
Section 1951.2 and any other applicable existing or future Law providing for
recovery of damages for such breach, including the worth at the time of award of
the amount by which the rent which would be payable by Tenant hereunder for the
remainder of the Term after the date of the award of damages, including
Additional Rent as reasonably estimated by Landlord, exceeds the amount of such
rental loss as Tenant proves could have been reasonably avoided, discounted at
the discount rate published by the Federal Reserve Bank of San Francisco for
member banks at the time of the award plus one percent (1%).
(b) Landlord shall have the remedy described in California Civil
Code Section 1951.4 so long as Landlord does not terminate Tenant's right to
possession. (Landlord may continue this Lease in effect after Tenant's breach
and abandonment and recover rent as it becomes due, if Tenant has the right to
sublet or assign, subject only to reasonable limitations).
(c) Landlord may cure the Event of Default at Tenant's expense. If
Landlord pays any sum or incurs any expense in curing the Event of Default,
Tenant shall reimburse Landlord upon demand for the amount of such payment or
expense with interest at the Interest Rate from the date the sum is paid or
the expense is incurred until Landlord is reimbursed by Tenant.
(d) Landlord may remove all Tenant's property from the Premises,
and such property may be stored by Landlord in a public warehouse or elsewhere
at the sole cost and for the account of Tenant. If Landlord does not elect to
store any or all of Tenant's property left in the Premises, Landlord may
consider such property to be abandoned by Tenant, and Landlord may thereupon
dispose of such property in any manner deemed appropriate by Landlord. Any
proceeds realized by Landlord on the disposal of any such property shall be
applied first to offset all expenses of storage and sale, then credited against
Tenant's outstanding obligations to Landlord under this Lease, and any balance
remaining after satisfaction of all obligations of Tenant under this Lease
shall be delivered to Tenant.
24
16. LATE CHARGE AND INTEREST.
16.1 Late Charge. If any payment of rent is not received by Landlord
when due, Tenant shall pay to Landlord on demand as a late charge an additional
amount equal to four percent (4%) of the overdue payment. A late charge shall
not be imposed more than once on any particular installment not paid when due,
but imposition of a late charge on any payment not made when due does not
eliminate or supersede late charges imposed on other (prior) payments not made
when due or preclude imposition of a late charge on other installments or
payments not made when due.
16.2 Interest. In addition to the late charges referred to above, which
are intended to defray Landlord's costs resulting from late payments, any
payment from Tenant to Landlord not paid when due shall at Landlord's option
bear interest from the date due until paid to Landlord by Tenant at the rate of
fifteen percent (15%) per annum or the maximum lawful rate that Landlord may
charge to Tenant under applicable laws, whichever is less (the "Interest Rate").
Acceptance of any late charge and/or interest shall not constitute a waiver of
Tenant's default with respect to the overdue sum or prevent Landlord from
exercising any of its other rights and remedies under this Lease.
17. WAIVER. No provisions of this Lease shall be deemed waived by either party
unless such waiver is in a writing signed by the waiving party. The waiver by
either party of any breach of any provision of this Lease shall not be deemed a
waiver of such provision or of any subsequent breach of the same or any other
provision of this Lease. No delay or omission in the exercise of any right or
remedy of one party upon any default by the other party shall impair such right
or remedy or be construed as a waiver. Landlord's acceptance of any payments of
rent due under this Lease shall not be deemed a waiver of any default by Tenant
under this Lease (including Tenant's recurrent failure to timely pay rent) other
than Tenant's nonpayment of the accepted sums, and no endorsement or statement
on any check or accompanying any check or payment shall be deemed an accord and
satisfaction. The consent to or approval of any act requiring consent or
approval of the other party shall not be deemed to waive or render unnecessary
consent to or approval of any subsequent act requiring consent.
18. ENTRY, INSPECTION AND CLOSURE. Upon reasonable oral or written notice to
Tenant (and without notice in emergencies), Landlord and its authorized
representatives may enter the Premises at all reasonable times to determine
whether the Premises are in good condition, to determine whether Tenant is
complying with its obligations under this Lease, to perform any maintenance or
repair of the Premises or the Building that Landlord has the right or obligation
to perform, to install or repair improvements for other tenants where access to
the Premises is required for such installation or repair, to serve, post or keep
posted any notices required or allowed under the provisions of this Lease, to
show the Premises to prospective brokers, agents, buyers, transferees,
Mortgagees or tenants, or to do any other act or thing necessary for the safety
or preservation of the Premises or the Building. When reasonably necessary
Landlord may temporarily close entrances, doors, corridors, elevators or other
facilities in the Building without liability to Tenant by reason of such
closure. Landlord shall conduct its activities under this Section in a manner
that will minimize inconvenience to Tenant without incurring additional expense
to Landlord. In no event shall Tenant be entitled to an abatement of rent on
account of any entry by Landlord, and Landlord shall not be liable in any manner
for any inconvenience, loss of business or other damage to Tenant or other
persons arising out of Landlord's entry on the Premises in accordance with this
Section. No action by Landlord pursuant to this paragraph shall
25
constitute an eviction of Tenant, constructive or otherwise, entitle Tenant to
an abatement of rent or to terminate this Lease or otherwise release Tenant
from any of Tenant's obligations under this Lease.
19. SURRENDER AND HOLDING OVER.
19.1 Surrender. Upon the expiration or termination of this Lease, Tenant
shall surrender the Premises and all Tenant Improvements and Alterations to
Landlord broom clean and in their original condition, except for reasonable wear
and tear, damage from casualty or condemnation and any changes resulting from
approved Alterations; provided, however, that prior to the expiration or
termination of this Lease Tenant shall remove all telephone and other cabling
installed in the Building by Tenant and remove from the Premises all Tenant's
personal property, Trade Fixtures and Alterations that Tenant has the right or
is required by Landlord to remove under the provisions of this Lease, and
repair any damage caused by such removal. If such removal is not completed
before the expiration or termination of the Term, Landlord shall have the right
(but no obligation) to remove the same, and Tenant shall pay Landlord on demand
for all costs of removal and storage thereof and for the rental value of the
Premises for the period from the end of the Term through the end of the time
reasonably required for such removal. Landlord shall also have the right to
retain or dispose of all or any portion of such property if Tenant does not pay
all such costs and retrieve the property within ten (10) days after receipt of
notice from Landlord (in which event title to all such property described in
Landlord's notice shall be transferred to and vest in Landlord). Tenant waives
all Claims against Landlord for any damage or loss to Tenant resulting from
Landlord's removal, storage, retention, or disposition of any such property
except with respect to Landlord's gross negligence or willful misconduct. Upon
expiration or termination of this Lease or of Tenant's possession, whichever is
earliest, Tenant shall surrender all keys to the Premises or any other part of
the Building and shall deliver to Landlord all keys for or make known to
Landlord the combination of locks on all safes, cabinets and vaults that may be
located in the Premises. Tenant's obligations under this Section shall survive
the expiration or termination of this Lease.
19.2 Holding Over. If Tenant (directly or through any Transferee or other
successor-in-interest of Tenant) remains in possession of the Premises after the
expiration or termination of this Lease, 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 twice the Base Rent payable in the last full month prior to the
termination hereof. Acceptance by Landlord of rent after such termination shall
not constitute a renewal of this Lease; and nothing contained in this provision
shall be deemed to waive Landlord's right of re-entry or any other right
hereunder or at law. Tenant shall indemnify, defend and hold Landlord harmless
from and against all Claims arising or resulting directly or indirectly from
Tenant's failure to timely surrender the Premises, including (i) any rent
payable by or any loss, cost, or damages claimed by any prospective tenant of
the Premises, and (ii) Landlord's damages as a result of such prospective
tenant rescinding or refusing to enter into the prospective lease of the
Premises by reason of such failure to timely surrender the Premises.
26
20. ENCUMBRANCES.
20.1 Subordination. This Lease is expressly made subject and subordinate
to any mortgage, deed of trust, ground lease, underlying lease or like
encumbrance affecting any part of the Property or any interest of Landlord
therein which is now existing or hereafter executed or recorded
("Encumbrance"); provided, however, that such subordination shall only be
effective, as to future Encumbrances, if the holder of the Encumbrance
agrees that this lease shall survive the termination of the Encumbrance by lapse
of time, foreclosure or otherwise so long as Tenant is not in default under this
Lease. Provided the conditions of the preceding sentence are satisfied, Tenant
shall execute and deliver to Landlord, within ten (10) days after written
request therefor by Landlord and in a form reasonably requested by Landlord, any
additional documents evidencing the subordination of this Lease with respect
to any such Encumbrance and the nondisturbance agreement of the holder of any
such Encumbrance. If the interest of Landlord in the Property is transferred
pursuant to or in lieu of proceedings for enforcement of any Encumbrance, Tenant
shall immediately and automatically attorn to the new owner, and this Lease
shall continue in full force and effect as a direct lease between the purchaser
and Tenant on the terms and conditions set forth in this Lease. Landlord agrees
to use reasonable efforts to obtain, at Tenant's sole cost and expense, a non-
disturbance agreement from the holder of any existing Encumbrance under which
the holder of the Encumbrance shall agree that this lease shall survive the
termination of the Encumbrance by lapse of time, foreclosure, or otherwise so
long as Tenant is not in default under this lease beyond any applicable cure
period.
20.2 Mortgagee Protection. Tenant agrees to give any holder of any
Encumbrance covering any part of the Property ("Mortgagee"), by registered mail,
a copy of any notice of default served upon 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. If Landlord
shall have failed to cure such default within thirty (30) days from the
effective date of such notice of default, then the Mortgagee shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
to cure such default (including the time necessary to foreclose or otherwise
terminate its Encumbrance, if necessary to effect such cure), and this Lease
shall not be terminated so long as such remedies are being diligently pursued.
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
21.1 Estoppel Certificates. Within twenty (20) days after written request
therefor, Tenant shall execute and deliver to Landlord, in a form provided by or
reasonably satisfactory to Landlord, a certificate stating, to the extent true,
that this Lease is in full force and effect, describing any amendments or
modifications hereto, acknowledging that this Lease is subordinate or prior, as
the case may be, to any Encumbrance and stating any other information Landlord
may reasonably request, including the Term, the monthly Base Rent, the date to
which Rent has been paid, the amount of any security deposit or prepaid rent,
whether either party hereto is in default under the terms of the Lease, and
whether Landlord has completed its construction obligations hereunder (if any).
Any person or entity purchasing, acquiring an interest in or extending financing
with respect to the Property shall be entitled to rely upon any such
certificate. If Tenant fails to deliver such certificate within twenty (20) days
after Landlord's second written request therefor, Tenant shall be liable to
Landlord for any damages incurred by Landlord including any profits or other
benefits from any financing of the Property or any interest therein which are
lost or
27
made unavailable as a result, directly or indirectly, of Tenant's failure or
refusal to timely execute or deliver such estoppel certificate.
21.2 Financial Statements. Upon request by Landlord, not more than once
a year, Tenant shall deliver to Landlord a copy of Tenant's financial statements
(including at least a year end balance sheet and a statement of profit and loss)
for each of the three most recently completed years, prepared in accordance
with generally accepted accounting principles (and, if such is Tenant's normal
practice, audited by an independent certified public accountant), all then
available subsequent interim statements, and such other financial information
as may reasonably be requested by Landlord or required by any Mortgagee.
22. NOTICES. Any notice, demand, request, consent or approval that either
party desires or is required to give to the other party under this Lease shall
be in writing and shall be served personally, delivered by messenger or courier
service, or sent by U.S. certified mail, return receipt requested, postage
prepaid, addressed to the other party at the party's address for notices set
forth in the Basic Lease Information. Notices delivered personally will be
effective immediately upon receipt (or refusal of delivery or receipt); notices
sent by independent messenger or courier service will be effective one (1) day
after acceptance by the independent service for delivery; notices sent by mail
in accordance with this Section will be effective upon the date certified by the
U.S. Post Office for delivery or refusal to accept delivery. Either party may
change its address for notices hereunder by a notice to the other party
complying with this Section. If Tenant sublets the Premises, notices from
Landlord shall be effective on the subtenant when given to Tenant pursuant to
this Section.
23. ATTORNEYS' FEES.
23.1 Disputes between Landlord and Tenant. In the event of any litigation
or arbitration regarding any rights and obligations under this Lease, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
court costs in addition to any other relief which may be granted. The
"prevailing party" shall mean the party receiving substantially the relief
desired, whether by settlement, dismissal, summary judgment, judgment, or
otherwise.
23.2 Other Litigation. If Landlord, without fault on Landlord's part, is
made a party to any litigation instituted by Tenant or by any third party
against Tenant, or by or against any Transferee or other occupant of the
Premises or otherwise arising out of or resulting from any act or transaction of
Tenant or of any such Transferee or occupant, Tenant shall hold Landlord
harmless from any judgment rendered against Landlord or the Premises or any part
thereof, and reimburse Landlord upon demand for all costs and expenses,
including reasonable attorneys' fees, incurred by Landlord in or in connection
with such litigation.
24. QUIET POSSESSION. Subject to Tenant's full and timely performance of all
of Tenant's obligations under this Lease and subject to the terms of this Lease,
inc1uding Section 20 - Encumbrances, Tenant shall have the quiet possession of
the Premises throughout the Term as against any persons or entities lawfully
claiming by, through or under Landlord.
25. SECURITY MEASURES. Landlord may, but shall be under no obligation to,
implement security measures for the Property, such as the registration or search
of all persons entering or leaving the Building, requiring identification for
access to the Building, evacuation of the Building
28
for cause, suspected cause, or for drill purposes, the issuance of magnetic pass
cards or keys for Building or elevator access and other actions that Landlord
deems necessary or appropriate to prevent any threat of property loss or damage,
bodily injury or business interruption; provided, however, that such measures
shall be implemented in a way as not to inconvenience tenants of the Building
unreasonably. Landlord shall at all times have the right to change, alter or
reduce any such security services or measures. Tenant shall cooperate and comply
with, and cause Tenant's Representatives and Visitors to cooperate and comply
with, such security measures. Landlord, its agents and employees shall have no
liability to Tenant or its Representatives or Visitors for the implementation or
exercise of, or the failure to implement or exercise, any such security
measures or for any resulting disturbance of Tenant's use or enjoyment of the
Premises.
26. FORCE MAJEURE. If Landlord is delayed, interrupted or prevented from
performing any of its obligations under this Lease, including its obligations
under the Work Letter (if any), and such delay, interruption or prevention is
due to fire, act of God, governmental act or failure to act, labor dispute,
unavailability of materials or any cause outside the reasonable control of
Landlord, then the time for performance of the affected obligations of Landlord
shall be extended for a period equivalent to the period of such delay,
interruption or prevention.
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the
rules and regulations attached to and made a part of this Lease as Exhibit C to
the extent those rules and regulations are not in conflict with the terms of
this Lease, as well as any reasonable rules and regulations hereafter adopted
by Landlord for all tenants of the Building, upon notice to Tenant thereof
(collectively, the "Building Rules"). Landlord shall not be responsible to
Tenant or to any other person for any violation of, or failure to observe, the
Building Rules by any other tenant or other person.
28. LANDLORD'S L1ABILITY. The term "Landlord," as used in this Lease, shall
mean only the owner or owners of the Building at the time in question. In the
event of any conveyance of title to the Building, then from and after the date
of such conveyance, the transferor Landlord shall be relieved of all liability
with respect to Landlord's obligations to be performed under this Lease after
the date of such conveyance, except that the transferor Landlord will not be
relieved of its obligation under this Lease to return any security deposit to
Tenant unless and until the transferor Landlord shall have transferred any such
security deposit to the successor Landlord. Notwithstanding any other term or
provision of this Lease, the liability of Landlord for its obligations under
this Lease is limited solely to Landlord's interest in the Building, including
insurance proceeds, as the same may from time to time be encumbered, and no
personal liability shall at any time be asserted or enforceable against any
other assets of Landlord or against Landlord's partners or members or its or
their respective partners, shareholders, members, directors, officers or
managers on account of any of Landlord's obligations or actions under this
Lease.
29. CONSENTS AND APPROVALS.
29.1 Determination in Good Faith. Wherever the consent, approval, judgment
or determination of Landlord is required or permitted under this Lease, Landlord
may exercise its good faith business judgment in granting or withholding such
consent or approval or in making such judgment or determination without
reference to any extrinsic standard of reasonableness, unless the provision
providing for such consent, approval, judgment or determination specifies that
29
Landlord's consent or approval is not to be unreasonably withheld, or that such
judgment or determination is to be reasonable, or otherwise specifies the
standards under which Landlord may withhold its consent. If it is determined
that Landlord failed to give its consent where it was required to do so under
this Lease, Tenant shall be entitled to injunctive relief but shall not to be
entitled to monetary damages or to terminate this Lease for such failure.
29.2 No Liability Imposed on Landlord. The review and/or approval by
Landlord of any item or matter to be reviewed or approved by Landlord under the
terms of this Lease or any Exhibits or Addenda hereto shall not impose upon
Landlord any liability for the accuracy or sufficiency of any such item or
matter or the quality or suitability of such item for its intended use. Any such
review or approval is for the sole purpose of protecting Landlord's interest in
the Property, and no third parties, including Tenant or the Representatives and
Visitors of Tenant or any person or entity claiming by, through or under Tenant,
shall have any rights as a consequence thereof.
30. BROKERS. Landlord shall pay the fee or commission of the broker or brokers
identified in the Basic Lease Information (the "Broker") in accordance with
Landlord's separate written agreement with the Broker, if any. Each party
warrants and represents to the other that in the negotiating or making of this
Lease neither party nor anyone acting on the behalf of the other party has dealt
with any broker or finder who might be entitled to a fee or commission for this
Lease other than the Broker. Each party shall indemnify and hold the other
harmless from any claim or claims, including costs, expenses and attorney's fees
incurred by the other party asserted by any other broker or finder for a fee or
commission based on any dealings with or statements made by the indemnifying
party.
31. RELOCATION OF PREMISES. Intentionally omitted.
32. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda
attached hereto, and the documents referred to herein, if any, constitute the
entire agreement between Landlord and Tenant with respect to the leasing of
space by Tenant in the Building, and supersede all prior or contemporaneous
agreements, understandings, proposals and other representations by or between
Landlord and Tenant, whether written or oral. Neither Land1ord nor Landlord's
agents have made any representations or warranties with respect to the Premises,
the Building, the Project or this Lease except as expressly set forth herein,
and no Tights, easements or licenses shall be acquired by Tenant by implication
or otherwise unless expressly set forth herein. The submission of this Lease
for examination does not constitute an option for the Premises and this Lease
shall become effective as a binding agreement only upon execution and delivery
thereof by Landlord to Tenant.
33. MISCELLANEOUS. This Lease may not be amended or modified except by a
writing signed by Landlord and Tenant. Subject to Section 14 - Assignment and
Subletting and Section 28 - Landlord's Liability, this Lease shall be binding on
and shall inure to the benefit of the parties and their respective successors,
assigns and legal representatives. The determination that any provisions hereof
may be void, invalid, illegal or unenforceable shall not impair any other
provisions hereof and all such other provisions of this Lease shall remain in
full force and effect. The unenforceability, invalidity or illegality of any
provision of this lease under particular circumstances shall not render
unenforceable, invalid or illegal other provisions of this Lease, or the same
provisions under other circumstances. This Lease shall be construed and
interpreted in
30
accordance with the laws (excluding conflict of laws principles) of the State in
which the Building is located. The provisions of this Lease shall be construed
in accordance with the fair meaning of the language used and shall not be
strictly construed against either party. When required by the context of this
Lease, the singular includes the plural. Wherever the term "including" is used
in this Lease, it shall be interpreted as meaning "including, but not limited
to" the matter or matters thereafter enumerated. The captions contained in this
Lease are for purposes of convenience only and are not to be used to interpret
or construe this Lease. If more than one person or entity is identified as
Tenant hereunder, the obligations of each and all of them under this Lease shall
be joint and several. Time is of the essence with respect to this Lease, except
as to the conditions relating to the delivery of possession of the Premises to
Tenant. Neither Landlord nor Tenant shall record this Lease.
34. AUTHORITY. If Tenant is a corporation, partnership, limited liability
company or other form of business entity, each of the persons executing this
Lease on behalf of Tenant warrants and represents that Tenant is a duly
organized and validly existing entity, that Tenant has full right and authority
to enter into this Lease and that the persons signing on behalf of Tenant are
authorized to do so and have the power to bind Tenant to this Lease. Tenant
shall provide Landlord upon request with evidence reasonably satisfactory to
Landlord confirming the foregoing representations.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of
the date first above written.
TENANT: LANDLORD:
CROSSWORLDS SOFTWARE, INC., EOP-BAY PARK PLAZA, L.L.C., a
a Delaware corporation Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx By: EOP Operating Limited Partnership
-----------------------
Name: Xxxxxx X. Xxxxxxx a Delaware limited partnership, its
---------------------
Title: President & CEO sole member
--------------------
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its general partner
By: _______________________
Name: _____________________
Title: ____________________
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------
Title: Senior Vice President
-------------------------
31
EXHIBIT A-1
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF OCTOBER 24, 2000
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., AS LANDLORD,
AND
CROSSWORLDS SOFTWARE INC., AS TENANT ("LEASE")
THE PREMISES
------------
Tenant AJA
------------
Landlord RFD
-----------
Suite 100, 20,978 rsf
Rectangular diagram of the floor plan for suite 100
EXHIBIT A-2
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF OCTOBER 24, 2000
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., AS LANDLORD,
AND
CROSSWORLDS SOFTWARE INC., AS TENANT ("LEASE")
THE PREMISES
------------
Tenant AJA
------------
Landlord RFD
-----------
Suite 200, 23,477 rsf
Rectangular diagram of the floor plan for suite 200.
2
EXHIBIT B
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF OCTOBER 24, 2000
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., AS LANDLORD,
AND
CROSSWORLDS SOFTWARE INC., AS TENANT ("LEASE")
WORK LETTER
-----------
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy. All
improvements described in this Work Letter to be constructed in and upon
the Premises by Landlord are hereinafter referred to as the "Tenant
Improvements." It is agreed that construction of the Tenant Improvements
will be completed at Tenant's sole cost and expense, subject to the
Allowance (as defined below). Landlord shall enter into a direct contract
for the Tenant Improvements with Commercial Interior Contractors. In
addition, Landlord shall have the right to select and/or approve of any
subcontractors used in connection with the Tenant Improvements.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called "Plans")
necessary to construct the Tenant Improvements, which plans shall be
subject to approval by Landlord and Landlord's architect and engineers and
shall comply with their requirements to avoid aesthetic or other conflicts
with the design and function of the balance of the Building. Tenant shall
be responsible for all elements of the design of Tenant's plans (including,
without limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the premises and
the placement of Tenant's furniture, appliances and equipment), and
Landlord's approval of Tenant's plans shall in no event relieve Tenant of
the responsibility for such design. If requested by Tenant, Landlord's
architect will prepare the Plans necessary for such construction at
Tenant's cost. Whether or not the layout and Plans are prepared with the
help (in whole or in part) of Landlord's architect, Tenant agrees to remain
solely responsible for the timely preparation and submission of the Plans
and for all elements of the design of such Plans and for all costs related
thereto.
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any construction
of Tenant Improvements, shall submit to Tenant a written estimate setting
forth the anticipated cost of the Tenant Improvements, including but not
limited to labor and materials, contractor's fees and permit fees. Within
three (3) Business Days thereafter, Tenant shall either notify Landlord in
writing of its approval of the cost estimate, or specify its objections
thereto and any desired changes to the proposed Tenant Improvements. In the
event Tenant notifies Landlord of such objections and desired changes,
Tenant shall work with Landlord to reach a mutually acceptable alternative
cost estimate.
4. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of
determining the actual cost of the items described therein. The amounts
payable by Tenant hereunder constitute Rent payable pursuant to this
Lease, and the failure to timely pay same constitutes an Event of
Default under this Lease.
5. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to
the drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon
demand. Promptly upon completion of the revisions, Landlord shall notify
Tenant in writing of the increased cost which will be chargeable to
Tenant by reason of such change, addition or deletion. Tenant, within
one (1) Business Day, shall notify Landlord in writing whether it
desires to proceed with such change, addition or deletion. In the
absence of such written authorization, Landlord shall have the option
to continue work on the Premises disregarding the requested change,
addition or alteration, or Landlord may elect to discontinue work on the
Premises until it receives notice of Tenant's decision, in which event
Tenant shall be responsible for any Delay in completion of the Premises
resulting therefrom. In the event such revisions result in a higher
estimate of the cost of construction and/or higher actual construction
costs which exceed the Allowance, such increased estimate or costs shall
be deemed Excess Costs pursuant to Paragraph 4 hereof and Tenant shall
pay such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand.
6. Following approval of the Plans and the payment by Tenant of the
required portion of the Excess Costs, if any, Landlord shall cause the
Tenant Improvements to be constructed substantially in accordance with
the approved Plans. Landlord shall notify Tenant of substantial
completion of the Tenant Improvements.
7. Landlord, provided Tenant is not in default, agrees to provide Tenant
with an allowance (the "Allowance") in an amount not to exceed One
Hundred Thirty-Three Thousand Three Hundred Sixty-Five and 00/100
Dollars ($133,365.00) (i.e., $3.00 per rentable square foot of
the Premises) to be applied toward the cost of the Tenant Improvements
in the Premises. In the event the Allowance shall not be sufficient to
complete the Tenant Improvements, Tenant shall pay the Excess Costs,
plus any applicable state sales or use tax thereon, as prescribed in
paragraph 4 above. In the event the Allowance exceeds the cost of
Tenant Improvements, any remaining Allowance shall accrue to the sole
benefit of Landlord, it being agreed that Tenant shall not be entitled
to any credit, offset, abatement or payment with respect thereto.
Landlord shall be entitled to deduct from the Allowance a construction
management fee for Landlord's oversight of the Tenant Improvements in an
amount equal to one and one-half percent (1 1/2%) of the total cost of
the Tenant Improvements.
8. This Exhibit B shall not be deemed applicable to any additional space
added to the original Premises at any time or from time to time, whether
by any options under this Lease or otherwise, or to any portion of the
original Premises or any additions to the Premises in the event of a
renewal or extension of the original Term of this Lease, whether by any
options under this Lease or otherwise, unless expressly so provided in
this Lease or any amendment or supplement to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit as
of the date first above written.
TENANT: LANDLORD:
CROSSWORLDS SOFTWARE, INC., EOP-BAY PARK PLAZA, L.L.C., a
a Delaware corporation Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx By: EOP Operating Limited Partnership
----------------------- a Delaware limited partnership, its
Name: Xxxxxx X. Xxxxxxx sole member
---------------------
Title: President & CEO By: Equity Office Properties Trust,
-------------------- a Maryland real estate investment
trust, its general partner
By: _______________________
Name: _____________________
Title: ____________________
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------
Title: Senior Vice President
-------------------------
EXHIBIT C
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF OCTOBER 24, 2000
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., AS LANDLORD,
AND
CROSSWORLDS SOFTWARE INC., AS TENANT ("LEASE")
BUILDING RULES
--------------
The following Building Rules are additional provisions of the foregoing
Lease to which they are atttached. The capitalized terms used herein have the
same meanings as these terms are given in the Lease.
1. Use of Common Areas. Tenant will not obstruct the sidewalks, halls,
passages, exits, entrances, elevators or stairways of the Building ("Common
Areas"), and Tenant will not use the Common Areas for any purpose other than
ingress and egress to and from the Premises. The Common Areas, except for the
sidewalks are not open to the general public and Landlord reserves the right to
control and prevent access to the Common Areas of any person whose presence, in
Landlord's opinion, would be prejudicial to the safety, reputation and interests
of the Building and its tenants.
2. No Access to Roof. Tenant has no right of access to the roof of the
Building and will not install, repair or replace any antenna, aerial, aerial
wires, fan, air-conditioner or other device on the roof of the Building, without
the prior written consent of Landlord. Any such device installed without such
written consent is subject to removal at Tenant's expense without notice at any
time. In any event Tenant will be liable for any damages or repairs incurred or
required as a result of its installation, use, repair, maintenance or removal of
such devices on the roof and agrees to indemnify and hold harmless Landlord from
any liability, loss, damage, cost or expense, including reasonable attorneys'
fees, arising from any activities of Tenant or of Tenant's Representatives on
the roof of the Building.
3. Signage. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the Premises will be inscribed, painted, affixed or
otherwise displayed by Tenant on or in any part of the Building without the
prior written consent of Landlord. Landlord reserves the right to adopt and
furnish Tenant with general guidelines relating to signs in or on the Building.
All approved signage will be inscribed, painted or affixed at Tenant's expense
by a person approved by Landlord, which approval will not be unreasonably
withheld.
4. Prohibited Uses. The Premises will not be used for manufacturing, for
the storage of merchandise held for sale to the general public, for lodging or
for the sale of goods to the general public. Tenant will not permit any food
preparation on the Premises except that Tenant may use Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar beverages
so long as such use is in accordance with all applicable federal, state and city
laws, codes, ordinances, rules and regulations. Tenant may also use microwave
ovens.
5. Janitorial Services. Tenant will not employ any person for the
purpose of cleaning the Premises or permit any person to enter the Building for
such purpose other than Landlord's janitorial service, except with Landlord's
prior written consent. Tenant will not necessitate, and will be liable for the
cost of, any undue amount of janitorial labor by reason of Tenant's carelessness
in or indifference to the preservation of good order and cleanliness in the
Premises. Janitorial service will not be furnished to areas in the Premises on
nights when such areas are occupied after 9:30 p.m., unless such service is
extended by written agreement to a later hour in specifically designated areas
of the Premises.
6. Keys and Locks. Landlord will furnish Tenant, free of charge, two
keys to each door or lock in the Premises along with an access code for each
employee of Tenant for after hours access to the Building. Landlord may make a
reasonable charge for any additional or replacement keys. Tenant will not
duplicate any keys, alter any locks or install any new or additional lock or
bolt on any door of its Premises or on any other part of the Building without
the prior written consent of Landlord and, in any event, Tenant will provide
Landlord with a key for any such lock. On the termination of the Lease, Tenant
will deliver to Landlord all keys to any locks or doors in the Building which
have been obtained by Tenant.
7. Freight. Upon not less than twenty four hours prior notice to
Landlord, which notice may be oral, an elevator will be made available for
Tenant's use for transportation of freight, subject to such scheduling as
Landlord in its discretion deems appropriate. Tenant shall not transport freight
in loads exceeding the weight limitations of such elevator. Landlord reserves
the right to prescribe the weight, size and position of all equipment,
materials, furniture or other property brought into the Building, and no
property will be received in the Building or carried up or down the freight
elevator or stairs except during such hours and along such routes and by such
persons as may be designated by Landlord. Landlord reserves the right to require
that heavy objects will stand on wood strips of such length and thickness as is
necessary to properly distribute the weight. Landlord will not be responsible
for loss of or damage to any such property from any cause, and Tenant will be
liable for all damage or injuries caused by moving or maintaining such property.
8. Nuisances and Dangerous Substances. Tenant will not conduct itself or
permit Tenant's Representatives of Visitors to conduct themselves, in the
Premises or anywhere on or in the Property in a manner which is offensive or
unduly annoying to any other Tenant or Landlord's property managers. Tenant will
not install or operate any phonograph, radio receiver, musical instrument, or
television or other similar device in any part of the Common Areas and shall not
operate any such device installed in the premises in such manner as to disturb
or annoy other tenants of the Building. Tenant will not use or keep in the
Premises or the Property any kerosene, gasoline or other combustible fluid or
material other than limited quantities thereof reasonably necessary for the
maintenance of office equipment, or, without Landlord's prior written approval,
use any method of heating or air conditioning other than that supplied by
Landlord. Tenant will not use or keep any foul or noxious gas or substance in
the Premises or permit or suffer the Premises to be occupied or usd in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors or vibrations, or interfere in any way with other tenants
or those having business therein. Tenant will not bring or keep any animals in
or about the Premises or the Property.
9. Building Name and Address. Without Landlord's written consent, Tenant
will not use the name of the Building in connection with or in promoting or
advertising Tenant's business except as Tenant's address.
2
10. Building Directory. A directory for the Building will be provided for
the display of the name and location of tenants. Landlord reserves the right to
approve any additional names Tenant desires to place in the directory and, if so
approved, Landlord may assess a reasonable charge for adding such additional
names.
11. Window Coverings. No curtains, draperies, blinds, shutters, shades,
awnings, screens or other coverings, window ventilators, hangings decorations
or similar equipment shall be attached to, hung or placed in, or used in or with
any window of the Building without the prior written consent of Landlord, and
Landlord shall have the right to control all lighting within the Premises that
may be visible from the exterior of the Building.
12. Floor Coverings. Tenant will not lay or otherwise affix linoleum,
tile, carpet or any other floor covering to the floor of the Premises in any
manner except as approved in writing by Landlord. Tenant will be liable for the
cost of repair of any damage resulting from the violation of this rule or the
removal of any floor covering by Tenant or its contractors, employees or
invitees.
13. Wiring and Cabling Installations. Landlord will direct Tenant's
electricians and other vendors as to where and how data, telephone, and
electrical wires and cables are to be consent of Landlord. The location of
burglar alarms, smoke detectors, telephones, call boxes and other office
equipment affixed to the Premises shall be subject to the written approval of
Landlord.
14. Office Closing Procedures. Tenant will see that the doors of the
Premises are closed and locked and that all water faucets, water apparatus and
utilities are shut off before Tenant or its employees leave the Premises, so as
to prevent waste or damage. Tenant will be liable for all damage in injuries
sustained by other tenants or occupants of the Building or Landlord resulting
from Tenant's carelessness in this regard or violation of this rule. Tenant will
keep the doors to the Building corridors closed at all times except for ingress
and egress.
15. Plumbing Facilities. 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 whatsoever shall be
disposed of therein. Tenant will be liable for any breakage, stoppage or damage
resulting from the violation of this rule by Tenant, its employees or invitees.
16. Use of Hand Trucks. Tenant will not use or permit to be used in the
Premises or in the Common Areas any hand trucks, carts or dollies except those
equipped with rubber tires and side guards or such other equipment as Landlord
may approve.
17. Refuse. Tenant shall store all Tenant's trash and garbage within the
Premises or in other facilities designated By Landlord for such purpose. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of removing and disposing of
trash and garbage in the city in which the Building is located without being in
violation of any law or ordinance governing such disposal. All trash and garbage
removal shall be made in accordance with directions issued from time to time by
Landlord, only through such Common Areas provided for such purposes and at such
times as Landlord may designate. Tenant shall comply with the requirements of
any recycling program adopted by Landlord for the Building.
3
18. Soliciting. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building are prohibited, and
Tenant will cooperate to prevent the same.
19. Parking. Tenant will use, and cause Tenant's Representatives and
Visitors to use, the parking spaces to which Tenant is entitled under the Lease
in a manner consistent with Landlord's directional signs and markings in the
Parking Facility. Specifically, but without limitation, Tenant will not park, or
permit Tenant's Representatives or visitors to park, in a manner that impedes
access to and from the Building or the Parking Facility or that violates space
reservations for handicapped drivers registered as such with the California
Department of Motor Vehicles. Landlord may use such reasonable means as may be
necessary to enforce the directional signs and markings in the Parking Facility,
including but not limited to towing services, and Landlord will not be liable
for any damage to vehicles towed as a result of non-compliance with such parking
regulations.
20. Fire, Security and Safety Regulations. Tenant will comply with all
safety, security, fire protection and evacuation measures and procedures
established by Landlord or any governmental agency.
21. Responsibility for Theft. 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.
22. Sales and Auctions. Tenant will not conduct or permit to be conducted
any sale by auction in, upon or from the Premises or elsewhere in the Property,
whether said auction be voluntary, involuntary, pursuant to any assignment for
the payment of creditors or pursuant to any bankruptcy or other insolvency
proceeding.
23. Waiver of Rules. Landlord may waive any one or more of these Building
Rules for the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such Building Rules in favor of any
other tenant or tenants nor prevent Landlord from thereafter enforcing these
Building Rules against any or all of the tenants of the Building.
24. Effect on Lease. These Building Rules are in addition to, and shall
not be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Violation of these Building
Rules constitutes a failure to fully perform the provisions of the Lease, as
referred to in Section 15.1 - "Events of Default".
25. Non-Discriminatory Enforcement. Subject to the provisions of the Lease
(and the provisions of other leases with respect to other tenants), Landlord
shall use reasonable efforts to enforce these Building Rules in a non-
discriminatory manner, but in no event shall Landlord have any liability for any
failure or refusal to do so (and Tenant's sole and exclusive remedy for any such
failure or refusal shall be injunctive relief preventing Landlord from enforcing
any of the Building Rules against Tenant in a manner that discriminates against
Tenant.
26. Additional and Amended Rules. Landlord reserves the right to rescind
or amend these Building Rules and/or adopt any other and reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Building and for the preservation of good order
therein.
4
EXHIBIT D
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF _______,2000
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., AS LANDLORD,
AND
CROSSWORLDS SOFTWARE INC., AS TENANT ("LEASE")
COMMENCEMENT LETTER
-------------------
(EXAMPLE)
Date ______________________
Tenant ______________________
Address ______________________
______________________
Re: Commencement Letter with respect to that certain Lease dated as of the
_____ day of __________, _____, by and between EOP-BAY PARK PLAZA, L.L.C.,
a Delaware limited liability company, as Landlord, and CROSSWORLDS
SOFTWARE, INC., a Delaware corporation, as Tenant, for 44,455 rentable
square feet on the 1/st/ and 2/nd/ floors of the Building located at 000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, California.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is ________________________;
2. The Termination Date of the Lease is _________________________.
Please acknowledge your acceptance of possession and agreement to the terms
set forth above by signing all 3 counterparts of this Commencement Letter in the
space provided and returning 2 fully executed counterparts to my attention.
Sincerely,
__________________________________
Property Manager
Agreed and Accepted:
Tenant: _______________________
By: _______________________
Name: _______________________
Title: _______________________
Date: _______________________
EXHIBIT E
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF OCTOBER 24, 2000
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., AS LANDLORD,
AND
CROSSWORLDS SOFTWARE INC., AS TENANT ("LEASE")
ADDITIONAL PROVISIONS RIDER
---------------------------
1. Parking.
(a) Landlord shall provide Tenant, on an unassigned, non-
exclusive and unlabelled basis, two hundred twenty eight (228) parking
spaces in the Parking Facility during the initial Term; provided, however,
that ten percent (10%) of such spaces may be designated by Landlord as
Building visitors' parking. If Tenant leases additional office space
pursuant to this Lease, Landlord shall provide Tenant, also on an
unassigned, non-exclusive and unlabelled basis, three and three tenths
(3.3) additional parking spaces in the Parking Facility for each one
thousand (1,000) rentable square feet of additional office space leased to
Tenant. Up to ten percent (10%) of such additional parking spaces may also
be designated by Landlord as Building visitors' parking.
(b) The parking spaces to be made available to Tenant hereunder
may contain a reasonable mix of spaces for compact cars. Landlord shall
take reasonable actions to ensure the availability of the parking spaces
leased by Tenant, but Landlord does not guarantee the availability of
those spaces at all times against the actions of other tenants of the
Building and users of the Parking Facility. Access to the Parking Facility
may, at Landlord's option, be regulated by card, pass, bumper sticker,
decal or other appropriate identification issued by Landlord.
(c) Assignment and Subletting. Notwithstanding the provisions
of Section 14 - "Assignment and Subletting" hereof, Tenant shall not assign
its rights to the parking spaces or any interest therein, or sublease or
otherwise allow the use of all or any part of the parking spaces to or by
any other person, except with Landlord's prior written consent, which may
be granted or withheld by Landlord in its sole discretion or in connection
with an assignment or subletting permitted under Section 14 of the Lease.
In the event of any separate assignment or sublease of parking space rights
that is approved by Landlord, Landlord shall be entitled to receive, as
Additional Rent hereunder, one hundred percent (100%) of any profit
received by Tenant in connection with such assignment or sublease.
(d) Condemnation, Damage or Destruction. In the event the
Parking Facility is the subject of a Condemnation, or is damaged or
destroyed, and this Lease is not terminated, and if in such event the
available number of parking spaces in the Parking Facility is permanently
reduced, then Tenant's rights to use parking spaces hereunder may, at the
election of Landlord, thereafter be reduced in proportion to the reduction
of the total number of parking spaces in the Parking Facility. In such
event, Landlord reserves the right to reduce the number of parking spaces
to which Tenant is
2
entitled or to relocate some or all of the parking spaces to which Tenant
is entitled to other areas in the Parking Facility.
2. Letter of Credit.
Landlord and Tenant agree that Tenant shall deliver to Landlord an
irrevocable standby letter of credit on the form attached hereto as Exhibit F
and issued by a financial institution ("Issuer"), reasonably satisfactory to
Landlord. The parties further agree that the total amount of the security
required to secure the payment of Rent for the Premises is Four Million One
Hundred Twenty-Eight Thousand Nine Hundred Eighty and 00/100 Dollars
($4,128,980.00). Tenant shall deliver to Landlord a Letter of Credit (i) upon
execution of this Lease in the amount of One Million Three Hundred Seventy Six
Thousand Three Hundred Twenty-Six and 66/100 Dollars ($1,376,326.66), (ii) by
February 1, 2001 in the amount of One Million Three Hundred Thousand Three
Hundred Twenty-Six and 67/100 Dollars ($1,376,326.67) and (iii) on the
Commencement Date in the amount of One Million Three Hundred Thousand Three
Hundred Twenty-Six and 67/100 Dollars ($1,376,326.67). The Letter of Credit
shall name Landlord as the beneficiary thereunder, permit partial draws, and
provide that draws thereunder will be honored upon receipt by Issuer of a
written statement signed by Landlord specifying the amount to be paid by Issuer
to Landlord and certifying that (i) there exists an Event of Default as that
term is defined in this Lease, and (ii) Landlord is entitled under the terms and
conditions of this Lease to the payment by Tenant of the amount specified.
Landlord shall be entitled to draw the entire amount under the Letter of Credit
if Tenant does not deliver to Landlord an extension or replacement for the
Letter of Credit in substantially the form of the initial Letter of Credit and
in the amount then required under this Lease no later than sixty (60) days
before the expiration date of the then existing Letter of Credit. Upon delivery
of any such replacement letter of credit, Landlord shall return to Tenant the
original Letter of Credit. Landlord shall be entitled to draw amounts under the
Letter of Credit required from time to time to cure any Event of Default under
this Lease or to compensate Landlord for any damage Landlord incurs as a result
of Tenant's failure to perform any of Tenant's obligations hereunder. All of the
provisions herein concerning relief from the obligation to maintain the Letter
of Credit and to reduce the amount of the Letter of Credit shall apply to such
funds held by Landlord. If the requirement of the Letter of Credit would be
waived, Landlord shall return such funds to Tenant. If the requirement for the
amount of the Letter of Credit would be reduced, Landlord shall return that
portion of the funds to Tenant which is equal to the amount of such reduction
each time such reduction would occur.
Landlord shall release the Letter of Credit within sixty (60) days after
the expiration of this Lease if, as of such date, no Event of Default on the
part of Tenant then exists and no event or condition then exists which, with
notice or the passage of time, would become an Event of Default on the part of
Tenant. Promptly following Tenant's cure of any such Event of Default or default
of which Landlord has given Tenant written notice, Landlord shall release the
Letter of Credit. Provided that as of the effective date of any reduction of the
Letter of Credit there exists neither an Event of Default nor an event or
condition which, with notice or the passage of time, would become an Event of
Default on the part of Tenant, the amount of the Letter of Credit shall be
reduced as follows: (1) $3,612,857.50 effective as of July 31, 2004; (2)
$3,096,735.00 effective as of July 31, 2005; (3) $2,580,612.50 effective as of
July 31, 2006; (4) $2,064,490.00 effective as of July 31, 2007; and (5)
$1,548,367.50 effective as of July 31, 2008. Such reduction shall be
accomplished by having Tenant provide Landlord with a substitute Letter of
Credit in the reduced amount.
3. Contingency. This Lease is specifically contingent upon the modification
of that certain lease dated January 30, 1998 (the "Prior Tenant Lease"), by and
between Landlord (as successor in interest to Bay Park Plaza Associates, L.P., a
California limited partnership), and Franklin
3
Resources, Inc., a Delaware corporation ("Prior Tenant") relating to the
Premises (i.e., Xxxxx 000, Xxxxx 000 and Suite 300). Landlord currently is
negotiating the terms of an agreement with Prior Tenant to amend the Prior
Tenant Lease (the "Prior Tenant Reduction Amendment") whereby the Prior
Tenant's lease of the Premises will be terminated. If Landlord fails to enter
into the Prior Tenant Reduction Amendment with Prior Tenant in form and
substance satisfactory to Landlord on or before the later of (i) August 31,
2000, or (ii) five (5) days following the date this Lease, executed by Tenant,
together with all prepaid rental, security deposits and letter of credit
required hereunder, is delivered to Landlord, then Landlord may terminate this
Lease by providing written notice thereof to Tenant.
4. Utility Deregulation. Notwithstanding anything to the contrary set forth in
this Lease, Operating Costs shall include, to the extent permitted by applicable
laws, a fee for the services provided by Landlord in connection with the
selection of utility companies and the negotiation and administration of
contracts for electricity, provided that such fee shall not exceed fifty percent
(50%) of any savings obtained by Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit as of
the date first above written.
TENANT: LANDLORD:
CROSSWORLDS SOFTWARE, INC., EOP-BAY PARK PLAZA, L.L.C., a
a Delaware corporation Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx By: EOP Operating Limited Partnership,
------------------------- a Delaware limited partnership, its
Name: Xxxxxx X. Xxxxxxx sole member
-----------------------
Title: President & CEO By: Equity Office Properties Trust,
---------------------- a Maryland real estate
investment trust, its general
partner
By: /s/ Xxxxxx X. Xxxxxxxx
By: ________________________ -------------------------
Name: _______________________ Name: Xxxxxx X. Xxxxxxxx
Title: ______________________ -----------------------
Title: Senior Vice President
----------------------
4
EXHIBIT F
SAMPLE LETTER OF CREDIT
_______________________________
[Name of Financial Institution]
Irrevocable Standby Letter of Credit
No._________________________________
Issuance Date:______________________
Expiration Date:____________________
Applicant:__________________________
Beneficiary
-----------
EOP-BAY PARK PLAZA, L.L.C., a Delaware limited liability company
0000 Xxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Leasing Director
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of_____________
______________________________ U.S. Dollars (______________) available for
payment at sight by your draft drawn on us when accompanied by the following
documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ____________ U.S. Dollars
($___________) under your Irrevocable Standby Letter of Credit No.______
represents funds due and owing to us as a result of the Applicant's failure
to comply with one or more of the terms of that certain lease by and
between ______________________, as landlord, and ______________, as
tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least
sixty (60) days prior to such expiration date or applicable anniversary thereof,
we notify you in writing by certified mail, return receipt requested, that we
elect not to so renew this Irrevocable Standby Letter of Credit. A copy of any
such notice shall also be sent to: Equity Office Properties Trust, 0 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Senior Vice-
President-Treasurer.
In addition, provided that you have not provided us with written notice of
Applicant's default under the above referenced lease prior to the effective date
of any reduction, the amount of this Irrevocable Standby Letter of Credit shall
automatically reduce in accordance with the following schedule:
Effective Date of Reduction New Reduced Amount of Letter of Credit
5
In addition to the foregoing, we understand and agree that you shall be
entitled to draw upon this Irrevocable Standby Letter of Credit in accordance
with 1 and 2 above in the event that we elect not to renew this Irrevocable
Standby Letter of Credit and, in addition, you provide us with a dated statement
purportedly signed by one of Beneficiary's officers stating that the Applicant
has failed to provide you with an acceptable substitute irrevocable standby
letter of credit in accordance with the terms of the above referenced lease. We
further acknowledge and agree that: (a) upon receipt of the documentation
required herein, we will honor your draws against this Irrevocable Standby
Letter of Credit without inquiry into the accuracy of Beneficiary's signed
statement and regardless of whether Applicant disputes the content of such
statement; (b) this Irrevocable Standby Letter of Credit shall permit partial
draws and, in the event you elect to draw upon less than the full stated amount
hereof, the stated amount of this IrrevocabLe Standby Letter of Credit shall be
automatically reduced by the amount of such partial draw; and (c) you shall be
entitled to assign your interest in this Irrevocable Standby Letter of Credit
from time to time without our approval and without charge. In the event of an
assignment, we reserve the right to require reasonable evidence of such
assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at _____________________________
to the attention of ______________________________.
Very truly yours,
____________________________
____________________________
[name]
____________________________
[title]
6
