Xxxx Xxxxxxxx Xxxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxxx
("the Project")
FIRST AMENDMENT
Date: June 10, 1997
LANDLORD: Beacon Properties, L.P., successor-in-interest to WRC
Properties, Inc.
TENANT: Silicon Valley Bank, a California banking corporation
LEASE EXECUTION DATE:
March 8, 1995
EXISTING PREMISES:
The entirety of the building now known as and numbered 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx. The Existing Premises
consist of two floors and contain approximately 100,729
rentable square feet. The Existing Premises are shown on
Exhibit A to the Lease.
TERMINATION DATE:
May 31, 2005
PREVIOUS LEASE AMENDMENTS:
None
ADDITIONAL PREMISES:
The entirety of the two-story Building in the Project, known
as 0000 Xxxxxx Xxxxx. The Additional Premises contain
approximately 56,448 rentable square feet and are
substantially as shown on Exhibit A, First Amendment, Sheets 1
and 2.
WHEREAS, Tenant desires to lease additional premises in the Project, to
wit, the Additional Premises;
WHEREAS, Landlord is willing to lease the Additional Premises to Tenant on
the terms and conditions hereinafter set forth;
NOW THEREFORE, the above-referenced lease ("Lease") is hereby amended as
follows:
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1. DEMISE OF ADDITIONAL PREMISES
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
takes from the Landlord, the Additional Premises for a term commencing as of
the Commencement Date in respect of the Additional Premises, as hereinafter
defined. Said demise of the Additional Premises shall be upon the terms and
conditions set forth in this First Amendment and upon all of the terms and
conditions of the Lease applicable to the Existing Premises (including,
without limitation, Tenant's extension options pursuant to Paragraph 40 of
the Lease, which shall apply to the Existing Premises together with the
Additional Premises) to the extent not inconsistent with the provisions of
this First Amendment.
2. COMMENCEMENT DATE IN RESPECT OF THE ADDITIONAL PREMISES; TENANT'S
TERMINATION RIGHT
A. The Commencement Date in respect of the Additional Premises shall be
the later of: (x) December 1, 1997, or (y) the date that the present tenant
("Present Tenant") of the Additional Premises vacates the Additional Premises.
B. Notwithstanding anything to the contrary herein contained, if, for
any reason the Commencement Date has not occurred on or before May 1, 1998,
then Tenant shall have the right to cancel this First Amendment as follows.
Tenant may exercise its cancellation right under this Subparagraph B by
giving Landlord written notice ("Cancellation Notice") at any time after May
1, 1998, but on or before the occurrence of the Commencement Date. If the
Commencement Date does not occur on or before the date thirty (30) days after
Landlord receives the Cancellation Notice, then this First Amendment shall be
void and without further force or effect and neither party shall have any
further obligation to the other party with respect to this First Amendment.
If the Commencement Date does occur on or before the date thirty (30) days
after Landlord receives the Cancellation Notice, then Tenant shall have no
right to cancel this First Amendment.
C. Landlord hereby agrees that if the Present Tenant holds over in the
Additional Premises after November 30, 1997:
(i) Landlord shall take all reasonable measures (including, without
limitation, promptly commencing and diligently prosecuting summary
proceedings) to recover possession of the Additional Premises as promptly as
possible; and
(ii) Landlord shall pay to Tenant the amount of Premium Hold-Over
Rent, as hereinafter defined, which Landlord actually receives from the Present
Tenant on account of the occupancy of the Additional Premises by the Present
Tenant after November 30, 1997, after first deducting any costs incurred by
Landlord (including, attorneys fees) which are not otherwise paid or reimbursed
by Present Tenant in collecting such Premium Hold-Over Rent. Tenant shall have
no right to receive any
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Premium Hold-Over Rent unless and until Landlord has been fully paid for all
other amounts due from the Present Tenant on account of its occupancy of the
Additional Premises (including, without limitation, all rental due in respect
of the period prior to November 30, 1997 and the Base Hold-Over Rent, as
hereinafter defined).
D. Landlord represents to Tenant that, pursuant to Landlord's lease
with the Prior Tenant, if the Prior Tenant holds over in the Additional
Premises after November 30, 1997, the Prior Tenant is required to pay to
Landlord a hold over charge in the amount of one hundred twenty-five (125%)
percent of the amount of base rent which was payable by the Prior Tenant
immediately preceding November 30, 1997. Landlord represents to Tenant that
said hold over charge is equal to the monthly base rent payable by the Prior
Tenant immediately preceding November 30, 1997 in the amount of
approximately $80,600.00 (which amount is referred to herein as "Base
Hold-Over Rent") plus a monthly premium charge in the amount of approximately
$20,150.00 (which charge is referred to herein as "Premium Hold-Over Rent").
3. RENT COMMENCEMENT DATE IN RESPECT OF THE ADDITIONAL PREMISES
A. Tenant's obligation to pay net Monthly Rent and other charges due
under the Lease in respect of the Additional Premises shall not commence to
accrue until the date ("Rent Commencement Date") which is the earliest to
occur of the following dates: (i) the date that Tenant substantially
completes Tenant's Additional Premises Work, as hereinafter defined, (ii) the
date that Tenant first commences to use the Additional Premises, or any
portion thereof, for business purposes, or (ii) the Outside Date, as
hereinafter defined.
B. The "Outside Date" shall be defined as one hundred twenty (120) days
after the Commencement Date, provided however, that in the event of any
Landlord Delay, as hereinafter defined, the Outside Date shall be extended
the length of time that Tenant is in fact delayed in the performance of
Tenant's Additional Premises Work by reason of such Landlord Delay.
C. For the purposes hereof, a "Landlord Delay" shall be defined as: (i)
any act by Landlord taken without justification pursuant to the Lease, or
(ii) the failure of performance by Landlord of any obligation under the Lease
within the time period in which Landlord is required, under the Lease, to
act, to the extent that such failure is not justified under the Lease.
Except (if applicable) with respect to the removal of the Prior Tenant
Fixtures in the circumstances set forth in Paragraph 5.B(ii) of this First
Amendment, no event shall be considered to be a Landlord Delay unless: (iv)
Landlord has received written notice ("Delay Notice") from Tenant advising
Landlord of such Event and of the fact that such Event may cause a Landlord
Delay, and (v) Landlord fails to eliminate such cause for delay on or before
the date five (5) business days after Landlord receives the Delay Notice.
Tenant agrees to use reasonable efforts to mitigate the impact of any
Landlord Delay, provided however, that this sentence shall not be
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construed to impose on Tenant the obligation to engage extra work crews, or
pay overtime, or otherwise incur any extraordinary cost in order to expedite
Tenant's build-out, unless Landlord agrees in writing to pay for the cost of
such measures.
D. When the actual Commencement Date in respect of the Additional
Premises and Rent Commencement Date are determined, the parties shall execute
a Commencement Date Memorandum setting forth such dates, substantially in the
form attached to the Lease as Exhibit E.
4. NET MONTHLY RENT PAYABLE IN RESPECT OF THE ADDITIONAL PREMISES
A. The Net Monthly Rent payable in respect of the Additional Premises
shall be as follows:
LEASE YEAR NET MONTHLY RENT
1 $85,800.96
2 $89,233.00
3 $92,802.32
4 $96,514.41
5 $100,374.99
6 $104,389.99
7 $108,565.58
8 $112,908.21
B. For the purposes of this First Amendment, "Lease Year" shall be
defined as any twelve month period during the term of the Lease in respect of
the Additional Premises commencing as of the Rent Commencement Date, or as of
any anniversary of the Rent Commencement Date.
C. The net Monthly Rent in respect of the Additional Premises shall be
subject to adjustment as provided in Paragraph 7 of this First Amendment.
Additionally, Tenant shall pay, together with the net Monthly Rent in respect
of the Additional Premises, the estimated monthly Building Maintenance
Expenses in respect of the Additional Premises, and Tenant's Percentage in
respect of the Additional Premises of the estimated monthly Common Area
Expenses, as adjusted from time to time hereunder, and a management fee not
to exceed two (2.0%) percent of the net Monthly Rent payable in respect of
the Additional Premises.
D. Tenant shall, on the Rent Commencement Date, pay to Landlord the
following amounts to be applied toward the Rent due in respect of the
Additional Premises for the first month of the first Lease Year:
Monthly Rent (net) $85,800.96
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Building Maintenance Expenses
and Tenant's Percentage of
Common Area Expenses $14,489.00
--------------------------------------------------
Total $100,289.96
5. CONDITION OF ADDITIONAL PREMISES; REMOVAL OF PRIOR TENANT FIXTURES
A. Except as provided in Paragraphs 5.B and 5.C of this First Amendment
and except for the Landlord agreements as set forth in Paragraphs 11 and 12
of this First Amendment, Tenant shall take the Additional Premises "as-is",
in the condition in which the Additional Premises are in as of the
Commencement Date in respect of the Additional Premises, without any
obligation on the part of the Landlord to prepare or construct the Additional
Premises for Tenant's occupancy, and without any representation or warranty
by Landlord as to the condition of the Additional Premises. Without limiting
the foregoing, the following provisions of the Lease shall have no
applicability to the Additional Premises:
- The first two sentences of Paragraph 10
- Paragraph 11.B(ii)
- Paragraph 7 of Exhibit D
- Exhibit F
B. Reference is made to the facts that: (i) the prior tenant of the
Additional Premises ("ACS") has installed certain fixtures in the Additional
Premises, referred to herein as the "Prior Tenant Fixtures" and described in
this Paragraph 5.B, and (ii) ACS is required, pursuant to its lease with
Landlord, to remove the Prior Tenant Fixtures from the Additional Premises on
or before the expiration of the term of its lease with Landlord. The
following provisions of this Paragraph 5.B are intended to deal with the
possibility that ACS may not remove the Prior Tenant Fixtures from the
Additional Premises on a timely basis.
(i) The "Prior Tenant Fixtures" are defined as the following items
presently located in the Additional Premises:
- Raised computer room flooring on the first floor;
- Computer room Xxxxxxx units and condensers;
- UPS and batteries;
- Computer room fire protection equipment, including halon system
and permanent water leak detection panel;
- Back-up generator (located exterior to the Additional Premises).
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(ii) If, on or before November 30, 1997, the Prior Tenant fails to
remove the Prior Tenant Fixtures from the Additional Premises and to repair
any damage to the concrete slab floor, the exterior doors (including, without
limitation, any roll-up doors), and/or exterior door frames caused by the
removal of the Prior Tenant Fixtures from the Additional Premises (such
removal and repair obligations being collectively referred to herein as the
"Removal Obligations"), then: (x) Landlord shall, at no cost to Tenant,
perform the Removal Obligations, and (y) if the Removal Obligations are not
completed on or before December 7, 1997, such failure shall, without the
requirement of any notice from Tenant, be considered to be a Landlord Delay
(provided however, that no period of time prior to December 7, 1997 when the
Removal Obligations are not completed shall be considered to be a Landlord
Delay).
C. Landlord and Tenant shall work together to determine a mutually
agreeable solution as to where to place or retain the existing trash
enclosures located between the Additional Premises and the Existing Premises.
If requested by Tenant, Landlord will remove, at its sole cost and expense,
the existing auxiliary structure which currently houses the back-up generator
and replace it with landscaping to match the balance of the Project.
6. TENANT IMPROVEMENT ALLOWANCE
A. Landlord shall provide the following allowances to Tenant (referred
to collectively herein as the "Tenant Improvement Allowance with respect to
the Additional Premises"):
(i) An allowance ("Initial Allowance") for the planning and
construction of the Additional Premises of up to One Million Two Hundred
Forty-One Thousand Eight Hundred Fifty-Six ($1,241,856.00) Dollars (the
"Maximum Initial Allowance"); and
(ii) If Tenant uses all of the Initial Additional Premises
Allowance, Landlord shall, at Tenant's election, provide an additional
allowance ("Additional Allowance") for the planning and construction of the
Additional Premises of up to Five Hundred Sixty-Four Thousand Four Hundred
Eighty ($564,480.00) Dollars ("Maximum Additional Allowance").
B. The provisions of Paragraph 4 of Exhibit D shall apply to the Tenant
Improvement Allowance with respect to the Additional Premises. Without
limiting the foregoing, a construction management fee in the amount of one
(1%) percent of the amount of the Tenant Improvement Allowance with the
respect to the Additional Premises actually disbursed by Landlord shall be
payable to Landlord's managing agent and may be deducted by Landlord from the
Tenant Improvement Allowance with respect to the Additional Premises to
permit Landlord to make direct payment of such fee to Landlord's managing
agent. For example, if Tenant uses all of the Initial Allowance, but
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no portion of the Additional Allowance, then the construction management fee
shall be $12,418.56.
C. Tenant shall have no right to use any unused portion of the Tenant
Improvement Allowance with respect to the Additional Premises.
D. Provided that and so long as the Lease is in full force and effect
at the time that Tenant submits any requisition on account of Tenant
Improvement Allowance with respect to the Additional Premises, Landlord shall
pay the cost of the work shown on each requisition (as hereinafter defined)
submitted by Tenant to Landlord within thirty (30) days of submission thereof
by Tenant to Landlord.
E. For the purposes hereof, a "requisition" shall mean written
documentation (including, without limitation, invoices from Tenant's
contractor, written conditional lien waivers [provided however, that
Tenant shall not be required to provide lien waivers from any subcontractor
who is being paid less than $25,000 on account of the work which is being
requisitioned] and such other documentation as Landlord's mortgagee may
reasonably request) showing in reasonable detail the costs of the
improvements installed to date in the Additional Premises, accompanied by
certifications from Tenant, Tenant's architect, or Tenant's contractor that
the work performed to date has been performed, in all material respects, in
accordance with applicable laws and in accordance with Tenant's approved
plans, and that the amount of the requisition in question does not exceed the
amount of the work covered by such requisition. Each requisition shall be
accompanied by evidence reasonably satisfactory to Landlord that all work
covered by previous requisitions has been fully paid by Tenant. Landlord
shall have the right, upon reasonable advance notice to Tenant, to inspect
Tenant's books and records relating to each requisition in order to verify
the amount thereof. Tenant shall submit requisition(s) no more often than
monthly.
F. Notwithstanding anything to the contrary herein contained:
(i) Landlord shall have no obligation to advance funds on account
of Tenant Improvement Allowance with respect to the Additional Premises
unless and until Landlord has received the requisition in question, together
with the certifications required by Subparagraph E hereof, certifying that
the work shown on the requisition has been performed, in all material
respects, in accordance with applicable law and in accordance with Tenant's
plans.
(ii) Except with respect to work and/or materials previously paid
for by Tenant, as evidenced by paid invoices and written lien waivers
provided to Landlord, Landlord shall have the right to have Tenant
Improvement Allowance with respect to the Additional Premises paid to both
Tenant and Tenant's contractor(s) and vendor(s) jointly.
(iii) Tenant shall not be entitled to any portion of the Tenant
Improvement Allowance with respect to the Additional Premises, and Landlord
shall
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have no obligation to pay Tenant Improvement Allowance with respect to the
Additional Premises in respect of any requisition submitted after December
31, 1999, provided however, that said December 31, 1999 date shall be
extended by the number of days, if any, that the Outside Date, as defined in
Paragraph 3.B of this First Amendment, is extended as the result of Landlord
Delays.
7. CONSTRUCTION RENT
A. Commencing as of the Rent Commencement Date (if the Rent
Commencement Date is the first day of a calendar month, or otherwise on the
first day of the calendar month next following the Rent Commencement Date),
and continuing on the first day of each month thereafter throughout the term
of the Lease, Tenant shall pay to Landlord, as additional rent, Construction
Rent, as hereinafter defined, based upon the amount of the Additional
Allowance, as defined in Paragraph 6.A of this First Amendment, actually
disbursed by Landlord. Tenant's monthly payments of Construction Rent shall
be equal to the amount of equal monthly payments of principal and interest
which would be necessary to repay a loan in the amount of the Additional
Allowance, together with interest at the rate of eleven (11%) percent per
annum, on a level direct reduction basis over a term equal to the term of the
Lease in respect of the Additional Premises. Monthly payments of Construction
Rent shall be payable at the same time and in the same manner as net Monthly
Rent is payable under the Lease.
B. Construction Rent shall not be abated or reduced for any reason
whatsoever (including, without limitation, untenantability of the premises or
termination of the Lease). Without limiting the foregoing, the rent
abatement provisions of Paragraphs 16, 17.A, and 23.F of the Lease shall not
apply to Construction Rent (provided that the provisions of this Subparagraph
B shall not affect the operation of said Paragraphs 16, 17.A and 23.F of the
Lease in any context other than the payment of Construction Rent).
C. Since the payment of Construction Rent represents a reimbursement to
Landlord of the Additional Allowance, Tenant, if there is any default (beyond
the expiration of any applicable grace periods) of any of Tenant's
obligations under the Lease (including, without limitation, its obligation to
pay Construction Rent), or if the term of this Lease is terminated for any
reason whatsoever prior to the termination of the term of the Lease, Tenant
shall pay to Landlord, immediately upon demand, the unamortized balance of
the Additional Allowance, and Tenant shall have no obligation to pay
Construction Rent which would have been payable after such demand. Tenant's
obligation to pay the unamortized balance of the Additional Allowance shall
be in addition to all other rights and remedies which Landlord has based upon
any default of Tenant under the Lease.
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8. TENANT'S ADDITIONAL PREMISES WORK
All of Alterations, as defined in Paragraph 3.A of the Lease, affecting
the Additional Premises and all improvements to be made by Tenant to the
Additional Premises (collectively referred to herein as "Tenant's Additional
Premises Work") shall be performed in accordance with and subject to the
provisions of the Lease, including, without limitation, Paragraph 13 and
Exhibit D, except:
A. The fourth sentence of Paragraph 1 of Exhibit D shall have no
applicability to the Additional Premises. Landlord hereby approves Xxxxxxxx,
Xxxxx & Xxxxxxxx to act as Tenant's architect in connection with Tenant's
Additional Premises Work.
B. Any contractor engaged by Tenant to perform Tenant's Additional
Premises Work shall be subject to Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. Landlord hereby
approves Toensikoetter & Breeding, Inc. to perform the Additional Premises
Work.
C. Paragraphs 5, 6 and 7 of Exhibit D of the Lease shall have no
applicability to the Additional Premises.
D. For the purposes Paragraph 9 of Exhibit D of the Lease, Tenant's
Additional Premises Work shall be substituted in place of Tenant Improvements
and the Exterior Improvements.
E. Tenant shall have the right, to install a bridge or covered walkway
("Bridge Work") between the Existing Premises and the Additional Premises,
subject to the following conditions:
(i) Tenant obtains Landlord's prior written approval of Tenant's
plans and specifications with respect to the Bridge Work. Landlord agrees
that it will not unreasonably withhold its approval to the Bridge Work, so
long as the Bridge Work is, in Landlord's sole, but bona fide business
judgment, aesthetically compatible with Landlord's master plan for the
Project;
(ii) Tenant obtains all necessary governmental permits and
approvals in connection with the Bridge Work;
(iii) Tenant pays for one hundred (100%) percent of any increase
in real estate or other taxes imposed on the Project arising from the
Bridge Work;
(iv) The Bridge Work is performed at the sole cost and expense of
Tenant, except that Tenant shall have the right to use the Additional
Allowance
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(but not the Initial Allowance) for costs incurred by Tenant in
connection with the Bridge Work.
(v) At Landlord's election, Landlord shall, at the termination of the
term of the Lease, remove the Bridge Work and restore both the Existing
Premises and the Additional Premises to the condition in which they were in
immediately preceding the performance of the Bridge Work. The cost of such
removal and restoration work shall be shared equally between Landlord and
Tenant. Tenant shall, within thirty (30) days of billing therefor,
reimburse Landlord for one-half of the cost of such removal and restoration
work.
(vi) Tenant complies with all other provisions of the Lease
relating to the performance of alterations and improvements to the premises
in performing such work.
(vii) Tenant shall not be required to pay Net Monthly Rent in
respect of the Bridge Work.
(viii) Tenant's Percentage shall not be adjusted by reason of the
Bridge Work.
(ix) Tenant shall be responsible for maintaining the Bridge Work in
good condition throughout the term of the Lease, reasonable wear and tear,
fire and other casualty excepted.
9. DEFINITION OF BUILDING
Wherever the term "Building" is used in the Lease, such term shall, with
respect to the Additional Premises, be deemed to refer to 0000 Xxxxxx Xxxxx.
10. TENANT'S PERCENTAGE
Tenant's Percentage, as defined in Paragraph 3.S of the Lease, with
respect to the Additional Premises, shall be 14.01% (i.e. 56,448 rentable
square feet divided by 402,867 rentable square feet).
11. WARRANTY COMPONENTS OF THE ADDITIONAL PREMISES
A. Notwithstanding anything to the contrary herein or in the Lease
contained, Landlord hereby agrees that if, with respect to any of the Warranty
Components of the Additional Premises, Landlord shall receives written notice
from Tenant of the need for repair or replacement of such Warranty Component
within the applicable Warranty Period, Landlord shall, at no cost to Tenant,
make such repair or replacement as is necessary to maintain such Component in
good operating condition, unless the need for
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such repair or replacement arises from the fault, abuse, negligence, or
misconduct of Tenant, or Tenant's agents, employees, contractors, or invitees.
B. For the purposes of this Paragraph 11, the following portions of the
Building shall be considered the respective "Warranty Components" and
"Warranty Periods":
WARRANTY COMPONENT LAST DAY OF WARRANTY PERIOD
Base Building electrical system First anniversary of Rent Commencement Date
Base Building plumbing system First anniversary of Rent Commencement Date
Roof system First anniversary of Rent Commencement Date
Base Building HVAC system Six months after Rent Commencement Date
C. Landlord further agrees that for the period between the date six
months after the Rent Commencement Date and the third anniversary of the Rent
Commencement Date, if the compressors serving the base Building HVAC fail,
and if Landlord receives written notice from Tenant of such failure within
such period, Landlord shall, at no cost to Tenant, replace such compressors,
unless the need for such repair or replacement arises from the fault, abuse,
negligence, or misconduct of Tenant, or Tenant's agents, employees,
contractors, or invitees.
D. Except as set forth in this Paragraph 11, Tenant shall continue to
be obligated to pay for all Building Maintenance Expenses and Tenant's
Percentage of all Common Area Expenses, each as defined in Paragraph 17 of
the Lease.
12. ADA COMPLIANCE
Tenant, at its sole cost and expense (except to the extent that Tenant
uses the Tenant Improvement Allowance in respect of the Additional Premises
for such purposes pursuant to Paragraph 6 of this First Amendment) shall
comply with the ADA (including, the obligation to make any alterations or
improvements) so far it affects the Building in which the Additional Premises
are located in any way, or Tenant's use of said Building. Landlord, at no
cost to Tenant, shall comply with the ADA (including, the obligation to make
alterations or improvements), to the extent that: (i) the ADA is in force and
effect as of the Execution Date of this First Amendment, and (ii) the ADA
requires alterations or improvements to the exterior of the Additional
Premises; provided however, that any alterations or improvements required to
be made to the doors (including any roll-up doors) to the Additional Premises
shall be Tenant's responsibility rather than Landlord's responsibility.
13. SIGNAGE
The first three sentences of Paragraph 20 of the Lease shall have no
applicability to the Additional Premises and the following shall be
substituted in their place:
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"Subject to Tenant's receipt of all necessary governmental approvals, and
provided that such signage conforms to Landlord's master plan for the Project
and the provisions of Paragraph 20 of the Lease, Tenant may, at is sole cost
and expense, install Tenant identification signage on: (i) the Tasman Drive
exterior of the Building, (ii) the Old Ironsides Drive exterior of the
Building, and (iii) the monument in front of the Building."
14. CASUALTY AND TAKING
A. For the purposes of determining whether either party may exercise
its termination rights pursuant to Paragraph 23 of the Lease in the event of
a casualty, the Existing Premises and the Additional Premises shall be
considered to be separate premises, and, subject to the provisions of
Subparagraph C of this Paragraph 14, the termination rights in respect of
each portion of the Premises shall be exercised independently and separately
from the termination rights with respect to the other portion of the
Premises. For example, if there is a casualty which affects the Existing
Premises which would give the Landlord the right to terminate the Lease in
respect of the Existing Premises but that casualty does not affect the
Additional Premises, then, based upon such casualty, Landlord shall have the
right to terminate the Lease with respect to the Existing Premises, but
Landlord shall not have the right to terminate the Lease with respect the
Additional Premises.
B. For the purposes of determining whether the Lease shall terminate
pursuant to Paragraph 24 of the Lease in the event of a taking, the Existing
Premises and the Additional Premises shall be considered to be separate
premises, and, subject to the provisions of Subparagraph C of this Paragraph
14, a taking affecting only one of the portion of the Premises shall not
cause the termination of the Lease with respect to the other portion of the
Premises.
C. Notwithstanding the provisions of Subparagraphs A and B of this
Paragraph 14, in the event of a casualty or taking which affects the Existing
Premises which would give Tenant the right to terminate the Lease in respect
of the Existing Premises, but that casualty does not affect the Additional
Premises, Tenant shall nevertheless have the right to terminate the Lease in
respect of the Additional Premises, at the same time that Tenant exercises
its right to terminate the Lease in respect of the Existing Premises. Such
termination of the term of the Lease of the Additional Premises shall be
effective as of the same date that the term of the Lease of the Existing
Premises terminates.
15. SUBLETTING
A. It is the intention of the parties that, subject to obtaining
Landlord's prior written consent in accordance with Paragraph 25 of the Lease
and the other provisions of Paragraph 25 of the Lease, Tenant may, not later
than the third anniversary of the Rent
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Commencement Date, enter into a sublease or subleases aggregating up of to
28,224 rentable square feet of the Additional Premises without Landlord
having the right to recapture the premises proposed to be so subleased.
Therefore, in addition to Tenant's rights under Paragraph 25, Tenant shall
have the following supplemental rights with respect to the Additional
Premises:
(i) For the purposes of this Paragraph 15, "Non-Recapture
Subleases" shall be defined as a sublease or subleases subleasing portions of
the Additional Premises which contain, in the aggregate, no more than 28,224
rentable square feet, and which is entered into by Tenant and approved by
Landlord on or before the third anniversary of the Rent Commencement Date.
(ii) Landlord shall not have the right to elect the options set
forth in clauses (i) and (ii) of Paragraph 25.D of the Lease with respect to
Non-Recapture Subleases; and the last sentence of Paragraph 25.D of the Lease
shall not apply to Non-Recapture Subleases.
B. In lieu of the third and fourth sentences of Paragraph 25.D of the
Lease, the following shall apply to the Additional Premises:
"If Landlord consents to the Sublet with respect to the Additional
Premises, Tenant may thereafter enter into a valid Sublet of the Premises or
portion thereof, upon substantially the same terms and conditions and with
the proposed Subtenant set forth in the information furnished by Tenant to
Landlord pursuant to Paragraph 25.C, subject, however, at Landlord's
election, to the condition, that forty (40%) percent of any excess of the
Subrent over the Rent required to be paid by Tenant under this Lease ("Excess
Rental") shall be paid to Landlord. In determining the Excess Rental Tenant
shall first be allowed to recover, out of any such Excess, the following
costs in connection with any such Sublet before any Excess Rental is paid to
Landlord: cost of leasehold improvements made for the benefit of the proposed
Subtenant, architectural and engineering fees in connection with any such
Sublet, and brokerage commissions and legal fees in connection with such
Sublet. In addition, to the extent that the portion of the Additional
Premises is improved by leasehold improvements funded by Tenant prior to such
Sublet, and such leasehold improvements are used by the Subtenant, the
unamortized (i.e. on a straight-line basis over the initial term of this
Lease) cost of such leasehold improvements may also be deducted out of any
Excess before any Excess Rental is paid to Landlord (i.e. this sentence shall
have no effect if leasehold improvements paid for by Tenant in the portion of
the Additional Premises to be subleased are demolished so that new leasehold
improvements can be made).
16. ADDITIONAL LETTER OF CREDIT
Whereas Landlord is unwilling to lease the Additional Premises to Tenant
unless Tenant provides additional security for Tenant's obligations under the
Lease, Tenant shall, on or before the Rent Commencement Date, deposit with
Landlord an irrevocable
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letter of credit ("Additional Letter of Credit") in the amount of Fifty
Thousand ($50,000.00) Dollars issued by a bank (other than Silicon Valley
Bank) acceptable to Landlord in Landlord's sole discretion as security for
the full and faithful performance of Tenant's obligations under the Lease.
Landlord hereby approves both Xxxxx Fargo and Bank of America as issuing
banks for such Additional Letter of Credit. The provisions of Paragraph 7.B
shall apply to the Additional Letter of Credit. Landlord shall have no
obligation to proceed against any security which it holds for Tenant's
obligations under the Lease in any particular order.
17. BROKERAGE
The first sentence of Paragraph 35 of the Lease shall have no
applicability to this First Amendment, and in lieu thereof, the following
shall apply:
"Tenant warrants and represents that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this First
Amendment, except for Investment Development Services, Inc. and Ernst & Young
LLP, and that it knows of no other real estate broker or agent who is or
might be entitled to a commission in connection with this Lease."
18. PARKING
The second and third sentences of Paragraph 38 of the Lease shall have no
applicability to the Additional Premises, and in lieu thereof, the following
shall apply:
"Tenant shall have the right, as appurtenant to its demise of the
Additional Premises, to use up to two hundred twenty-eight (228) parking
spaces within the Project, twenty-five (25) of which shall be reserved spaces
and the remaining two hundred three (203) spaces shall be non-exclusive,
unreserved spaces. Tenant shall be permitted to locate such unreserved
parking spaces anywhere within the area shown on Exhibit G, First Amendment."
19. TENANT'S RIGHT OF FIRST OFFER
Since the Additional Premises constitute the Additional Space, as defined
in Paragraph 39, Tenant desires to be provided with further expansion rights.
Therefore, the first sentence of Paragraph 39 of the Lease is hereby deleted
in its entirety and the following is substituted in its place:
"Provided that Tenant is not in default hereunder at the time of
exercise, during the initial Term of the Lease, and so long as, at the time
of exercise, Silicon Valley Bank itself occupies the entirety of the premises
then demised to Tenant, Tenant shall have the right of first offer to lease
Building 1 and/or Building 5, as shown on Exhibit G attached hereto on the
following terms and conditions. Each Building contains approximately
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56,400 square feet of rentable area and shall, for the purposes of Paragraph
39 of the Lease, be considered to be an Additional Space."
20. As hereby amended, the Lease is ratified, confirmed, and approved in
all respects.
EXECUTED as of the date first above written.
LANDLORD:
BEACON PROPERTIES, L.P.
By BEACON PROPERTIES CORPORATION,
General Partner
By /s/ Xxxxxxx X. Xxxxxxxx Date Signed: 7/22/97
----------------------------- ------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
TENANT:
SILICON VALLEY BANK
By /s/ Xxxx X. Xxxx Date Signed: 7/16/97
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Xxxx X. Xxxx
Chief Executive Officer
By /s/ Adele G. Francisco Date Signed: 7/16/97
----------------------------- ------------
Adele G. Francisco
Executive Vice President
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