Exhibit 10.8
SHORELINE TECHNOLOGY PARK
MOUNTAIN VIEW, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company
("LANDLORD")
AND
MARKETFIRST SOFTWARE, INC., a Delaware corporation
("TENANT")
TABLE OF CONTENTS
I. Basic Lease Information.......................................... 1
II. Lease Grant...................................................... 3
III. Possession....................................................... 3
IV. Rent............................................................. 4
V. Compliance with Laws; Use........................................ 8
VI. Security Deposit................................................. 8
VII. Services......................................................... 8
VIII. Leasehold Improvements........................................... 9
IX. Repairs, Maintenance and Alterations............................. 9
X. Use of Utility Services by Tenant................................ 11
XI. Entry by Landlord................................................ 11
XII. Assignment and Subletting........................................ 12
XIII. Liens............................................................ 13
XIV. Indemnity and Waiver of Claims................................... 13
XV. Insurance........................................................ 14
XVI. Subrogation...................................................... 14
XVII. Casualty Damage.................................................. 15
XVIII. Condemnation..................................................... 15
XIX. Events of Default................................................ 16
XX. Remedies......................................................... 16
XXI. Limitation of Liability.......................................... 18
XXII. No Waiver........................................................ 18
XXIII. Quiet Enjoyment.................................................. 18
XXIV. Relocation....................................................... 18
XXV. Holding Over..................................................... 18
XXVI. Subordination to Mortgages; Estoppel Certificate................. 18
XXVII. Attorneys' Fees.................................................. 19
XXVIII. Notice........................................................... 19
XXIX. Excepted Rights.................................................. 19
XXX. Surrender of Premises............................................ 20
XXXI. Miscellaneous.................................................... 20
XXXII. Entire Agreement................................................. 21
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 24th day of January, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK,
L.L.C., a Delaware limited liability company ("Landlord") and MARKETFIRST
SOFTWARE, INC., a Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx.
B. "Premises" shall mean the area shown on Exhibit A-1 to this Lease.
The "Rentable Square Footage of the Premises" is deemed to be 66,096
square feet.
C. "Rentable Square Footage of the Building" is deemed to be 66,096
square feet. Landlord and Tenant stipulate that the Premises include
all of the floors in their entirety, all corridors and restroom
facilities located in the Building and accordingly, all such full
floors shall be considered part of the Premises. Landlord and Tenant
further stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are correct
and shall not be remeasured.
D. "Base Rent":
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Annual Rate Annual Monthly
Period Per Square Foot Base Rent Base Rent
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4/1/00 - 3/31/01 $37.80 $2,498,428.80 $208,202.4
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4/1/01 - 3/31/02 $39.00 $2,577,744.00 $214,812.00
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4/1/02 - 3/31/03 $40.20 $2,657,059.20 $221,421.60
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4/1/03 - 3/31/04 $41.40 $2,736,374.40 $228,031.20
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4/1/04 - 3/31/05 $42.60 $2,815,689.60 $234,640.80
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4/1/05 - 3/31/06 $43.80 $2,895,004.80 $241,250.40
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4/1/06 - 4/30/07 $45.00 $2,974,320.00 $247,860.00
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Notwithstanding the above schedule of Base Rent to the contrary, as
long as Tenant is not in default, Tenant shall be entitled to (i) an
abatement of 1 full calendar month of Base Rent in the amount of
$208,202.40 (the "Abated Base Rent") for the 1st full calendar month
of the Term (the "Abatement Period") and (ii) an abatement of 1 full
calendar month of Expenses and Taxes (as hereinafter defined) (the
"Abated Expenses and Taxes") for the Abatement Period. In the event
Tenant defaults at any time during the Term, all Abated Base Rent and
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Abated Expenses and Taxes shall immediately become due and payable.
The payment by Tenant of the Abated Base Rent and Abated Expenses and
Taxes in the event of a default shall not limit or affect any of
Landlord's other rights, pursuant to this Lease or at law or in
equity. During the Abatement Period, only Base Rent and Expenses and
Taxes shall be abated, and all other Additional Rent and other costs
and charges specified in this Lease shall remain as due and payable
pursuant to the provisions of this Lease. In the event that Tenant
substantially completes the Initial Alterations (as defined in Exhibit
D of this Lease) prior to the last day of the Abatement Period, Tenant
shall commence paying Base Rent in accordance with the above Base Rent
schedule and Expenses and Taxes in accordance with Article IV of this
Lease commencing with the first day after the expiration of the
Abatement Period.
E. "Tenant's Pro Rata Share": 100%.
F. "Term": A period of 85 months. The Term shall commence on April 1,
2000 (the "Commencement Date") and, unless terminated early in
accordance with this Lease, end on April 30, 2007 (the "Termination
Date"). Landlord and Tenant acknowledge that as of the date of this
Lease, it is currently anticipated that the Commencement Date shall be
April 1, 2000, and Landlord shall use its reasonable efforts to tender
possession of the Premises to Tenant by April 1, 2000. In the event
the Commencement Date is not April 1, 2000, Landlord and Tenant shall
enter into a commencement letter agreement in the form attached as
Exhibit C setting forth the actual Commencement Date.
G. Tenant allowance(s): $5.00 per rentable square foot of the Premises
as more fully described on Exhibit D of this Lease.
H. "Security Deposit": $1,249,214.42. The Security Deposit shall be in
the form of an irrevocable letter of credit (the "Letter of Credit"),
as more fully described in Article VI of this Lease.
I. "Guarantor(s)": As of the date of this Lease, there are no
Guarantors.
J. "Broker(s)": Cornish & Xxxxx Commercial representing Landlord and CPS
representing Tenant.
K. "Permitted Use": Office, research and development, manufacturing,
storage and other legal uses as permitted by local zoning laws
applicable to the Premises and otherwise permitted by the Governing
Documents (as that term is defined in Article XXXI.M. below).
L. "Notice Addresses":
Tenant:
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On and after the Commencement Date, notices shall be sent to Tenant at
the Premises. Prior to the Commencement Date, notices shall be sent
to Tenant at the following address:
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxx - Vice President Finance
Landlord: With a copy to:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C. Equity Office Properties
c/o Equity Office Properties Trust Two North Riverside Plaza
4 Palo Alto Square Suite 2200
0000 Xx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxx, Xxxxxxxxxx 00000-0000 Attention: Regional Counsel -
Attention: Building Manager Pacific Region
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties at the following address: EOP Operating Limited
Partnership, as agent for EOP-Shoreline Technology Park, Dept. #8824,
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000.
M. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
N. "Landlord Work" means the work, if any, that Landlord is obligated to
perform in the Premises pursuant to a separate work letter agreement
(the "Work Letter"), if any, attached as Exhibit D. If a Work Letter
is not attached to this Lease or if an attached Work Letter does not
require Landlord to perform any work, the occurrence of the
Commencement Date shall not be conditioned upon the performance of
work by Landlord and, accordingly, Section III.A. shall not be
applicable to the determination of the Commencement Date.
O. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
P. "Normal Business Hours" for the Building are 8:00 a.m. to 5:30 p.m. on
Business Days.
Q. "Property" means the Building and the parcel(s) of land on which it is
located and the Building's parking area and other improvements serving
the Building, if any, and the parcel(s) of land on which they are
located.
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R. "Project" shall mean the development located on approximately 51.83
acres commonly described as Shoreline Technology Park, which includes
the Building, the Property, as well as other buildings and property as
outlined on Exhibit A-2 attached hereto and incorporated herein.
S. "Rentable Square Footage of the Project" is deemed to be 726,508
square feet.
T. Building allocable share is deemed to be 9.0978%.
II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any other
portions of the Project that are designated by Landlord for the common use of
tenants and others, such as sidewalks, unreserved parking areas, common
corridors, elevator foyers, restrooms, vending areas, lobby areas, artificial
lakes, walkways, water amenities, landscaping, plaza, roads, driveways, and
recreation areas (collectively, the "Common Areas"), including but not limited
to that certain recreation area (the "Recreational Area") which is maintained by
Landlord in the location and configuration shown on Exhibit A-3 attached hereto.
Notwithstanding the foregoing to the contrary, Tenant's right to use the
Recreational Area shall be subject to the right of the City of Mountain View
("City") to require that a portion of the Recreational Area be paved and used
for parking purposes at a time to be determined at the discretion of the City.
The area to be used for parking purposes is indicated as "Potential Parking
Area" on Exhibit A-3. If the City requires the parking, Tenant shall have the
non-exclusive right to use the parking spaces created thereby.
III. Possession.
A. INTENTIONALLY OMITTED.
B. Subject to Landlord's obligations under Section IX.B., 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. Notwithstanding anything to the
contrary contained in this Lease, Landlord shall not be obligated to
tender possession of the Premises or other space leased by Tenant from
time to time hereunder that, on the date possession is delivered, is
occupied by a tenant or other occupant or that is subject to the
rights of any other tenant or occupant, nor shall Landlord have any
other obligations to Tenant under this Lease with respect to such
space until the date Landlord: (i) recaptures such space from such
existing tenant or occupant; and (ii) regains the legal right to
possession thereof. This Lease shall not be affected by any such
failure to deliver possession and Tenant shall have no claim for
damages against Landlord as a result thereof, all of which are hereby
waived and released by Tenant. If Landlord is delayed delivering
possession of the Premises 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. In such event,
the Commencement Date shall be postponed until the date Landlord
delivers possession of the
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Premises to Tenant free from occupancy by any party, and the
Termination Date, at the option of Landlord, may be postponed by an
equal number of days. Notwithstanding the foregoing, if there have
been no delays caused by Tenant and the Commencement Date does not
occur by July 31, 2000 (the "Outside Completion Date"), Tenant, as its
sole remedy, may terminate this Lease by giving Landlord written
notice of termination on or before the earlier to occur of: (i) 5
Business Days after the Outside Completion Date; and (ii) the
Commencement Date. In such event, this Lease shall be deemed null and
void and of no further force and effect and Landlord shall promptly
refund any Prepaid Rental and Security Deposit previously advanced by
Tenant under this Lease and, so long as Tenant has not previously
defaulted under any of its obligations under the Work Letter, the
parties hereto shall have no further responsibilities or obligations
to each other with respect to this Lease. Notwithstanding the
foregoing to the contrary, in the event Tenant terminates this Lease
as provided above, then effective as of the termination of this Lease,
Landlord shall also promptly reimburse Tenant for Tenant's actual,
out-of-pocket cost of initially procuring the Letter of Credit (as
hereinafter defined) in the amount of $__________. Landlord and Tenant
acknowledge and agree that: (i) the determination of the Commencement
Date shall take into consideration the effect of any delays by Tenant;
and (ii) the Outside Completion Date shall be postponed by the number
of days the Commencement Date is delayed due to events of Force
Majeure. Notwithstanding anything herein to the contrary, if Landlord
determines that it will be unable to cause the Commencement Date to
occur by the Outside Completion Date, Landlord shall have the right to
provide Tenant with written notice (the "Outside Extension Notice") of
such inability, which Outside Extension Notice shall set forth the
date on which Landlord reasonably believes that the Commencement Date
will occur. Upon receipt of the Outside Extension Notice, Tenant shall
have the right to terminate this Lease by providing written notice of
termination to Landlord within 5 Business Days after the date of the
Outside Extension Notice. In the event that Tenant does not terminate
this Lease within such 5 Business Day period, the Outside Completion
Date shall automatically be amended to be the date set forth in
Landlord's Outside Extension Notice.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions of
this Lease and Tenant shall pay Rent (defined in Section IV.A.) to
Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
electricity), Tenant shall not be required to pay Rent for any days of
possession before the Commencement Date during which Tenant, with the
approval of Landlord, is in possession of the Premises for the sole
purpose of performing improvements or installing furniture, equipment
or other personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
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without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that
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Tenant is required to pay Landlord. Additional Rent and Base Rent are
sometimes collectively referred to as "Rent". Tenant shall pay and be
liable for all rental, sales and use taxes (but excluding income
taxes), if any, imposed upon or measured by Rent under applicable Law.
Base Rent and recurring monthly charges of Additional Rent shall be
due and payable in advance on the first day of each calendar month
without notice or demand, provided that the installment of Base Rent
for the second full calendar month of the Term shall be payable upon
the execution of this Lease by Tenant. All other items of Rent shall
be due and payable by Tenant on or before 30 days after billing by
Landlord. All payments of Rent shall be by good and sufficient check
or by other means (such as automatic debit or electronic transfer)
acceptable to Landlord. If Tenant fails to pay any item or installment
of Rent when due, Tenant shall pay Landlord an administration fee
equal to 5% of the past due Rent, provided that Tenant shall be
entitled to a grace period of 5 Business Days following notice of
overdue payment for the first 3 late payments of Rent in a given
calendar year. If the Term commences on a day other than the first day
of a calendar month or terminates on a day other than the last day of
a calendar month, the monthly Base Rent and Tenant's Pro Rata Share of
Expenses (defined in Section IV.C.) and Taxes (defined in Section
IV.D.) for the month shall be prorated based on the number of days in
such calendar month. Landlord's acceptance of less than the correct
amount of Rent shall be considered a payment on account of the
earliest Rent due. No endorsement or statement on a check or letter
accompanying a check or payment shall be considered an accord and
satisfaction, and either party may accept the check or payment without
prejudice to that party's right to recover the balance or pursue other
available remedies. Tenant's covenant to pay Rent is independent of
every other covenant in this Lease.
B. Payment of Tenant's Pro Rata Share of Expenses and Taxes. Tenant shall
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pay Tenant's Pro Rata Share of the total amount of Expenses (defined
in Section IV.C.) and Taxes (defined in Section IV.D) for each
calendar year during the Term. Landlord shall provide Tenant with a
good faith estimate of the total amount of Expenses and Taxes for
each calendar year during the Term. On or before the first day of
each month, Tenant shall pay to Landlord a monthly installment equal
to one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the total amount of Expenses and Taxes. If Landlord determines that
its good faith estimate was incorrect by a material amount, Landlord
may, not more than one time during any calendar year, provide Tenant
with a revised estimate. After its receipt of the revised estimate,
Tenant's monthly payments shall be based upon the revised estimate.
If Landlord does not provide Tenant with an estimate of the total
amount of Expenses and Taxes by January 1 of a calendar year, Tenant
shall continue to pay monthly installments based on the previous
year's estimate until Landlord provides Tenant with the new estimate.
Upon delivery of the new estimate, an adjustment shall be made for any
month for which Tenant paid monthly installments based on the previous
year's estimate. Tenant shall pay Landlord the amount of any
underpayment within 30 days after receipt of the new estimate. Any
overpayment shall be refunded to Tenant within 30 days or credited
against the next due future installment(s) of Additional Rent.
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As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual amount of
Expenses and Taxes for the prior calendar year and Tenant's Pro Rata
Share of the actual amount of Expenses and Taxes for the prior
calendar year. If the estimated amount of Expenses and Taxes for the
prior calendar year is more than the actual amount of Expenses and
Taxes for the prior calendar year, Landlord shall apply any
overpayment by Tenant against Additional Rent due or next becoming
due, provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant after
first deducting the amount of Rent due. If the estimated amount of
Expenses and Taxes for the prior calendar year is less than the actual
amount of Expenses and Taxes for such prior year, Tenant shall pay
Landlord, within 30 days after its receipt of the statement of
Expenses and Taxes, any underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means the sum of (y) 100% of all direct
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and indirect costs and expenses incurred in each calendar year in
connection with operating, maintaining, repairing, managing and owning
the Premises, the Building, the Property, and the parking structure(s)
(if any) and parking lot(s) predominantly serving the Building (but
only to the extent the costs and expenses incurred in connection with
such parking structure(s) and parking lot(s) are not included as part
of the costs and expenses identified in subclause (z) immediately
below), and (z) the Building's allocable share of the direct and
indirect costs of operating and maintaining the Common Areas of the
Project, the Building's allocable share of all costs, fees, expenses
or other amounts payable by Landlord to the Association, if any, and
the Building's allocable share of all fees payable to the company or
the Association, if applicable, managing the parking areas within the
Project, including, without limitation, the following:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that would have been incurred had Landlord entered into an
arms-length contract for such services with an unaffiliated
entity of comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Commercially available premiums, and deductibles paid by Landlord
for insurance, including workers compensation, fire and extended
coverage, earthquake, general liability, rental loss, elevator,
boiler and other
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insurance customarily carried from time to time by owners of
comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges applicable to any
non-Common Area building in the Project other than the Building
or any building into which Tenant may subsequently expand.
"Electrical Costs" means: (a) charges paid by Landlord for
electricity; (b) costs incurred in connection with an energy
management program for the Property and/or Project; and (c) if
and to the extent permitted by Law, 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 50% of any
savings obtained by Landlord.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Building and/or the Common Areas which
are: (a) performed primarily to reduce operating expense costs
or otherwise improve the operating efficiency of the Building
and/or the Common Areas; or (b) required to comply with any Laws
that are enacted, or first interpreted to apply to the Building
and/or the Common Areas, after the date of this Lease. The cost
of capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 5 years. The
amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that Landlord
would reasonably be required to pay to finance the cost of the
capital improvement. "Payback Period" means the reasonably
estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of
the capital improvement.
If Landlord incurs Expenses for the Project together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Project and the other buildings or properties. Expenses shall not
include: the cost of capital improvements (except as set forth above);
depreciation; interest (except as provided above for the amortization
of capital improvements); principal payments of mortgage and other
non-operating debts of Landlord; the cost of repairs or other work to
the extent Landlord is reimbursed by insurance or condemnation
proceeds; costs in connection with leasing space in the Building,
including brokerage commissions; lease concessions, including rental
abatements and construction allowances, granted to specific tenants;
costs incurred in connection with the sale, financing or refinancing
of the Building; fines, interest and penalties incurred due to the
late payment of Taxes (defined in Section IV.D) or Expenses;
organizational expenses associated with the creation and operation of
the entity which constitutes Landlord; or any penalties or damages
that Landlord pays to Tenant under this Lease or to other tenants in
the Project under their respective leases.
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D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
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other assessments on the Building, Property and/or Project, including,
but not limited to, assessments for special improvement districts and
building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such taxes
and assessments and the Project's share of any real estate taxes and
assessments under any reciprocal easement agreement, common area
agreement or similar agreement as to the Project; (2) all personal
property taxes for property that is owned by Landlord and used in
connection with the operation, maintenance and repair of the Project;
and (3) all costs and fees incurred in connection with seeking
reductions in any tax liabilities described in (1) and (2), including,
without limitation, any costs incurred by Landlord for compliance,
review and appeal of tax liabilities. Without limitation, Taxes shall
not include any income, capital levy, franchise, capital stock, gift,
estate or inheritance tax. If an assessment is payable in
installments, Taxes for the year shall include the amount of the
installment and any interest due and payable during that year. For
all other real estate taxes, Taxes for that year shall, at Landlord's
election, include either the amount accrued, assessed or otherwise
imposed for the year or the amount due and payable for that year,
provided that Landlord's election shall be applied consistently
throughout the Term. If a change in Taxes is obtained for any year of
the Term, then Taxes for that year will be retroactively adjusted and
Landlord shall provide Tenant with a credit, if any, based on the
adjustment.
Tenant shall be responsible for, and shall pay prior to delinquency,
taxes or governmental service fees, possessory interest taxes, fees or
charges in lieu of any such taxes, capital levies, or other charges
imposed upon, levied with respect to, or assessed against, its
personal property, and its interest pursuant to this Lease. To the
extent that any such taxes are not separately assessed or billed to
Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by
Landlord prior to the delinquency of such taxes. In the event that
the tenant improvements in the Building which correspond to the
Initial Alterations, as defined in this Lease, are assessed and taxed
separately by the applicable taxing authority, then Tenant shall be
liable and shall pay that portion of the Taxes applicable to the value
of the Initial Alterations in the Premises based on the value
attributed thereto by the applicable taxing authority to either (a)
the applicable taxing authority prior to the delinquency of such taxes
in the event Tenant is billed directly by such taxing authority, or
(b) the Landlord within 30 days after written demand, in the event
Landlord is billed directly by the applicable taxing authority.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
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statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Project, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying (not to
exceed $0.15 per copy) and the actual cost of shipping the records.
If Tenant retains an agent to review
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Landlord's records, the agent must be with a licensed CPA firm. Tenant
shall be solely responsible for all costs, expenses and fees incurred
for the audit. Within 60 days after the records are made available to
Tenant, Tenant shall have the right to give Landlord written notice
(an "Objection Notice") stating in reasonable detail any objection to
Landlord's statement of Expenses for that year. If Tenant fails to
give Landlord an Objection Notice within the 60 day period or fails to
provide Landlord with a Review Notice within the 90 day period
described above, Tenant shall be deemed to have approved Landlord's
statement of Expenses and shall be barred from raising any claims
regarding the Expenses for that year. If Tenant provides Landlord with
a timely Objection Notice, Landlord and Tenant shall work together in
good faith to resolve any issues raised in Tenant's Objection Notice.
If Landlord and Tenant determine that Expenses for the calendar year
are less than reported, Landlord shall provide Tenant with a credit
against the next installment of Rent in the amount of the overpayment
by Tenant. Likewise, if Landlord and Tenant determine that Expenses
for the calendar year are greater than reported, Tenant shall pay
Landlord the amount of any underpayment within 30 days. In addition,
if Landlord and Tenant determine that Expenses for the Project for the
year in question were less than stated by more than 5%, Landlord,
within 30 days after its receipt of paid invoices therefor from
Tenant, shall reimburse Tenant for any reasonable amounts paid by
Tenant to third parties in connection with such review by Tenant. The
records obtained by Tenant shall be treated as confidential. In no
event shall Tenant be permitted to examine Landlord's records or to
dispute any statement of Expenses unless Tenant has paid and continues
to pay all Rent when due.
V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or the Project or interferes with the operation of the Building or the
Project. Tenant shall comply with all Laws, including the Americans with
Disabilities Act, regarding the operation of Tenant's business and the use,
condition, configuration and occupancy of the Premises. Tenant, within 10 days
after receipt, shall provide Landlord with copies of any notices it receives
regarding a violation or alleged violation of any Laws. Tenant shall comply
with the rules and regulations of the Project attached as Exhibit B and such
other reasonable rules and regulations adopted by Landlord from time to time.
Tenant shall also cause its agents, contractors, subcontractors, employees,
customers, and subtenants to comply with all rules and regulations. Landlord
shall not knowingly discriminate against Tenant in Landlord's enforcement of the
rules and regulations.
VI. Security Deposit.
The Security Deposit shall be in the form of an irrevocable letter of
credit (the "Letter of Credit") which shall: (a) be in the initial amount of
$1,249,214.42; (b) be issued on the form attached hereto as Exhibit G; (c) name
Landlord as its beneficiary; (d) be drawn on an FDIC insured financial
institution satisfactory to Landlord; and (e) expire no earlier than 90 days
after the Termination Date of this Lease. The Security Deposit shall be
delivered to Landlord upon the execution of this Lease by Tenant and shall be
held by Landlord without liability for interest
10
(unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a measure
of Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall on demand restore the Security Deposit to its
original amount. Landlord shall return any unapplied portion of the Security
Deposit to Tenant within 45 days after the later to occur of: (1) the
determination of Tenant's Pro Rata Share of Expenses and Taxes for the final
year of the Term; (2) the date Tenant surrenders possession of the Premises to
Landlord in accordance with this Lease; or (3) the Termination Date. If Landlord
transfers its interest in the Premises, Landlord may assign the Security Deposit
to the transferee and, following the assignment, Landlord shall have no further
liability for the return of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts. Notwithstanding
anything herein to the contrary, provided Tenant is not in default under this
Lease as of the effective date of any reduction of the Security Deposit, Tenant
shall have the right to reduce the amount of the Security Deposit (i.e., the
Letter of Credit) to be as follows: (i) $832,809.61 effective as of the 4th
anniversary of the Commencement Date; and (ii) $416,404.80 effective as of the
6th anniversary of the Commencement Date. Such reduction shall be accomplished
by having Tenant provide Landlord with a substitute letter of credit in the
reduced amount.
VII. Services.
A. Tenant will be responsible, at its sole cost and expense, for the
furnishing of all services and utilities to the Premises, including,
but not limited to, heating, ventilation and air-conditioning,
electricity, water, light, power, trash pick-up, sewer charges,
telephone, janitorial and interior Building security services and
all other utility services supplied to the Premises, and all taxes
and surcharges thereon. Landlord agrees to maintain and repair the
Property as described in Article IX.B.
B. Any interruption or termination of, services due to the application
of Laws, the failure of any equipment, the performance of repairs,
improvements or alterations, or the occurrence of any other event (a
"Service Failure") shall not render Landlord liable to Tenant,
constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. Furthermore, in no event shall Landlord
be liable to Tenant for any loss or damage, including the theft of
Tenant's Property (defined in Article XV), arising out of or in
connection with the failure of any security services, personnel or
equipment.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense certain improvements made by or for the benefit of Tenant such as: (1)
Cable (defined in Section IX.A) installed by or for the exclusive benefit of
Tenant and located in the Premises or other portions of the Project; and (2) any
Leasehold Improvements that are performed by or for the benefit of Tenant and,
in Landlord's
11
reasonable judgment, are of a nature that would require removal and repair costs
that are materially in excess of the removal and repair costs associated with
standard office improvements (collectively referred to as "Required
Removables"). Without limitation, it is agreed that Required Removables include
internal stairways, raised floors, personal baths and showers, vaults, rolling
file systems and structural alterations and modifications of any type. The
Required Removables designated by Landlord shall be removed by Tenant before the
Termination Date, provided that upon prior written notice to Landlord, Tenant
may remain in the Premises for up to 5 days after the Termination Date for the
sole purpose of removing the Required Removables. Notwithstanding the foregoing
to the contrary, under no circumstances shall Tenant be responsible for removing
previous improvements made to the Building and in place when Tenant took
possession of the Premises. Tenant's possession of the Premises shall be subject
to all of the terms and conditions of this Lease, including the obligation to
pay Rent on a per diem basis at the rate in effect for the last month of the
Term. Tenant shall repair damage caused by the installation or removal of
Required Removables. If Tenant fails to remove any Required Removables or
perform related repairs in a timely manner, Landlord, at Tenant's expense, may
remove and dispose of the Required Removables and perform the required repairs.
Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for
the reasonable costs incurred by Landlord. Notwithstanding the foregoing,
Tenant, at the time it requests approval for a proposed Alteration (defined in
Section IX.C), may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration, if any, will be
considered to be Required Removables.
IX. Repairs, Maintenance and Alterations.
A. Tenant's Repair and Maintenance Obligations. Subject to the
-------------------------------------------
provisions of Articles XVI and XVII below, Tenant shall, at its sole
cost and expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under this
Lease, and shall keep the Premises (interior and exterior) in good
condition and repair (including the replacement of any applicable
improvements and appurtenances when necessary), reasonable wear and
tear excepted. Tenant's repair and replacement obligations include,
without limitation, repairs to and replacements of: (1) floor
covering; (2) interior partitions; (3) doors; (4) walls and wall
coverings; (5) electronic, phone and data cabling and related
equipment (collectively, "Cable") that is installed by or for the
exclusive benefit of Tenant and located in the Premises or other
portions of the Project; (6) private showers and kitchens, including
hot water heaters, and similar facilities; (7) mechanical (including
HVAC), plumbing fixtures, sewer connections (within the Building),
wiring, electrical, lighting, and fire, life safety equipment and
systems serving the Building and the Premises; (8) windows, glass and
plate glass; (9) ceilings; (10) roof membrane(s); (11) skylights; (12)
fixtures and equipment; and (13) Alterations performed by contractors
retained by Tenant, including related HVAC balancing. All work shall
be performed in accordance with the rules and procedures described in
Section IX.C. below. In addition, Tenant shall, at its sole cost and
expense, provide janitorial service to the Premises in a manner
consistent with other similar office projects in the Mountain View,
California area. The janitorial service to be provided by Tenant
shall include, but not be limited to, the obligation to clean the
exterior windows and to keep the
12
interior of the Premises such as the windows, floors, walls, doors,
showcases and fixtures clean and neat in appearance and to remove all
trash and debris which may be found in or around the Premises. Tenant
shall also enter into and keep and maintain in effect, service
contracts reasonably acceptable to Landlord with contractors
reasonably acceptable to Landlord for the maintenance of those systems
servicing the Building as Landlord may reasonably designate,
including, without limitation, the HVAC, electrical and life safety
systems of the Building. Without limiting the foregoing, Tenant shall,
at Tenant's sole cost and expense, (a) immediately replace all broken
glass in the Premises with glass equal to or in excess of the
specification and quality of the original glass; and (b) repair any
damage caused by Tenant, Tenant's agents, employees, invitees,
visitors, subtenants or contractors. If Tenant fails to make any
repairs or replacements to the Premises or fails to perform the
required janitorial work in the Premises at the level required for
more than 15 days after written notice from Landlord (although notice
shall not be required if there is an emergency), Landlord may make the
repairs or replacements or perform the janitorial work, as the case
may be, and Tenant shall pay the reasonable cost of the repairs,
replacements or janitorial work, as the case may be, to Landlord
within 30 days after receipt of an invoice, together with an
administrative charge in an amount equal to 10% of the cost of the
work performed. Tenant shall maintain written records of maintenance
and repairs and shall use certified technicians to perform any such
maintenance and repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
------------------------------
good repair and working order and make repairs to and perform
maintenance upon: (1) the structural elements of the Building,
including, without limitation, the columns, footings, structural
floor, interior load bearing and exterior walls; (2) Common Areas,
except that Tenant shall pay for its share of the maintenance and
repairs to such Common Areas to the extent such costs are properly
included in Expenses; (3) the roof of the Building, including roof
screens and roof screen penetrators, but excluding the roof membrane;
and (4) elevators (if any) serving the Building. Landlord shall
promptly make repairs (considering the nature and urgency of the
repair) for which Landlord is responsible.
C. Alterations. Tenant shall not install any Cable (i) in the Common
------------
Areas of the Building or the Project, or (ii) within the Premises (if
the installation of such Cable will affect the systems or structure of
the Premises or Building or will require work to be performed inside
the walls or above the ceilings of the Premises), nor shall Tenant
make any other alterations, additions or improvements to the Premises
(collectively referred to as "Alterations") without first obtaining
the written consent of Landlord in each instance, which consent shall
not be unreasonably withheld or delayed. However, Landlord's consent
shall not be required for any Alteration that satisfies all of the
following criteria (a "Cosmetic Alteration"): (1) is of a cosmetic
nature such as painting, wallpapering, hanging pictures and installing
carpeting; (2) is not visible from the exterior of the Premises or
Building; (3) will not affect the systems or structure of the
Building; and (4) does not require work to be performed inside the
walls or above the ceiling of the Premises. However, even though
consent is not required, the performance of Cosmetic Alterations shall
be subject to all the other provisions of this Section IX.C. Prior to
starting
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work, Tenant shall furnish Landlord with plans and specifications
reasonably acceptable to Landlord; names of contractors reasonably
acceptable to Landlord (provided that Landlord may designate specific
contractors with respect to Building systems); copies of contracts;
necessary permits and approvals; evidence of contractor's and
subcontractor's insurance in amounts reasonably required by Landlord;
and any security for performance that is reasonably required by
Landlord. Changes to the plans and specifications must also be
submitted to Landlord for its approval. Alterations shall be
constructed in a good and workmanlike manner using materials of a
quality that is at least equal to the quality designated by Landlord
as the minimum standard for the Building and the Project. Landlord may
designate reasonable rules, regulations and procedures for the
performance of work in the Building and the Project and, to the extent
reasonably necessary to avoid disruption to the occupants of the
Building and the Project, shall have the right to designate the time
when Alterations may be performed. Tenant shall reimburse Landlord
within 30 days after receipt of an invoice for sums paid by Landlord
for third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to 5%
of the cost of the non-Cosmetic Alterations. Upon completion, Tenant
shall furnish "as-built" plans (except for Cosmetic Alterations),
completion affidavits, full and final waivers of lien in recordable
form, and receipted bills covering all labor and materials. Tenant
shall assure that the Alterations comply with all insurance
requirements and Laws. Landlord's approval of an Alteration shall not
be a representation by Landlord that the Alteration complies with
applicable Laws or will be adequate for Tenant's use.
X. Use of Utility Services by Tenant.
A. Electricity, gas, water and other utility services used by Tenant in
the Premises shall, at Landlord's option, be paid for by Tenant
either: (1) through inclusion in Expenses (except as provided in
Section X.B. for excess usage); (2) by a separate charge payable by
Tenant to Landlord within 30 days after billing by Landlord; or (3) by
separate charge billed by the applicable utility company and payable
directly by Tenant. Electrical service to the Premises may be
furnished by one or more companies providing electrical generation,
transmission and distribution services, and the cost of electricity
may consist of several different components or separate charges for
such services, such as generation, distribution and stranded cost
charges. Landlord shall have the exclusive right to select any
company providing electrical service to the Premises, to aggregate the
electrical service for the Property and Premises with other buildings,
to purchase electricity through a broker and/or buyers group and to
change the providers and manner of purchasing electricity. Landlord
shall be entitled to receive a fee (if permitted by Law) for the
selection of utility companies and the negotiation and administration
of contracts for electricity, provided that the amount of such fee
shall not exceed 50% of any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, or overall load, that which Landlord deems to
be standard for the
14
Building. If Tenant requests permission to consume excess electrical
service, Landlord may refuse to consent or may condition consent upon
conditions that Landlord reasonably elects (including, without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance costs
shall be paid by Tenant. Landlord shall have the right to separately
meter electrical usage for the Premises and to measure electrical
usage by survey or other commonly accepted methods.
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building or the Project, including other
tenants' premises. Except in emergencies or to provide janitorial service (if
Landlord so elects in accordance with Article IX.A. above) and other regularly
scheduled services after Normal Business Hours, Landlord shall provide Tenant
with reasonable prior notice of entry into the Premises, which may be given
orally. In addition, except in the event of an emergency, any such entry by
Landlord or its agents, contractors and representatives shall comply with
Tenant's reasonable security requirements such as being escorted by a Tenant
representative, signing in and obtaining security badges. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not
constitute constructive eviction or entitle Tenant to an abatement or reduction
of Rent. Notwithstanding the foregoing, except in emergency situations as
determined by Landlord, Landlord shall exercise reasonable efforts to perform
any entry into the Premises in a manner that is reasonably designed to minimize
interference with the operation of Tenant's business in the Premises.
Notwithstanding the foregoing, if Landlord temporarily closes the Premises as
provided above for a period in excess of 3 consecutive Business Days, Tenant, as
its sole remedy, shall be entitled to receive a per diem abatement of Base Rent
during the period beginning on the 4th consecutive Business Days of closure and
ending on the date on which the Premises are returned to Tenant in a tenantable
condition. Tenant, however, shall not be entitled to an abatement if the
repairs, alterations and/or additions to be performed are required as a result
of the acts or omissions of Tenant, its agents, employees or contractors,
including, without limitation, a default by Tenant in its maintenance and repair
obligations under the Lease.
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld if Landlord does not elect to exercise its
termination rights under Section XII.B below. Without limitation, it
is agreed that Landlord's consent shall not be considered unreasonably
withheld if: (1) the proposed transferee's financial condition does
not meet the criteria Landlord uses to select Project tenants having
similar leasehold obligations; (2) the proposed
15
transferee's business is not suitable for the Building or the Project
considering the business of the other tenants and the Project's
prestige, or would result in a violation of another tenant's rights;
(3) the proposed transferee is a governmental agency or occupant of
the Project; (4) Tenant is in default after the expiration of the
notice and cure periods in this Lease; or (5) any portion of the
Building, Project or Premises would likely become subject to
additional or different Laws as a consequence of the proposed
Transfer. Tenant shall not be entitled to receive monetary damages
based upon a claim that Landlord unreasonably withheld its consent to
a proposed Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment. Any attempted Transfer in violation of this Article shall,
at Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation under
this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant
within 30 days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the execution of
a consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing; or (2)
exercise its right to terminate this Lease with respect to the portion
of the Premises that Tenant is proposing to assign or sublet.
Notwithstanding the foregoing, Tenant, within 5 days after receipt of
Landlord's notice of intent to terminate, may withdraw its request for
consent to the Transfer. In such event, Landlord's election to
terminate the Lease shall be null and void and of no force and effect.
Any such termination shall be effective on the proposed effective date
of the Transfer for which Tenant requested consent. Tenant shall pay
Landlord a review fee of $750.00 for Landlord's review of any
Permitted Transfer or requested Transfer, provided if Landlord's
actual reasonable costs and expenses (including reasonable attorney's
fees) exceed $750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other monetary
consideration which Tenant receives as a result of a Transfer that is
in excess of the Rent payable to Landlord for the portion of the
Premises and Term covered by the Transfer. Tenant shall pay Landlord
for Landlord's share of any excess within 30 days after Tenant's
receipt of such excess consideration. Tenant may deduct from the
excess all reasonable and customary expenses directly incurred by
Tenant attributable to the Transfer (other than Landlord's review
fee), including brokerage fees, legal fees and construction costs. If
Tenant is in Monetary Default (defined in Section XIX.A. below),
Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent in
the amount of any payments received (less Landlord's share of any
excess).
16
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization but
specifically excluding an initial or subsequent public offering of
Tenant's stock on a recognized security exchange or subsequent trading
of such stock after a public offering has occurred), such change of
ownership or control shall constitute a Transfer. The foregoing shall
not apply so long as Tenant is an entity whose outstanding stock is
listed on a recognized security exchange, or if at least 80% of its
voting stock is owned by another entity, the voting stock of which is
so listed.
E. Tenant may assign its entire interest under this Lease to a successor
to Tenant by purchase, merger, consolidation or reorganization without
the consent of Landlord, provided that all of the following conditions
are satisfied (a "Permitted Transfer"): (1) Tenant is not in default
under this Lease; (2) Tenant's successor shall own all or
substantially all of the assets of Tenant; (3) Tenant's successor
shall have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net worth as
of the day prior to the proposed purchase, merger, consolidation or
reorganization; (4) the Permitted Use does not allow the Premises to
be used for retail purposes; and (5) Tenant shall give Landlord
written notice at least 30 days prior to the effective date of the
proposed purchase, merger, consolidation or reorganization. Tenant's
notice to Landlord shall include information and documentation showing
that each of the above conditions has been satisfied. If requested by
Landlord, Tenant's successor shall sign a commercially reasonable form
of assumption agreement.
XIII. Liens.
Tenant shall not permit mechanic's or other liens to be placed upon the
Project, Property, Premises or Tenant's leasehold interest in connection with
any work or service done or purportedly done by or for benefit of Tenant. If a
lien is so placed, Tenant shall, within 10 days of notice from Landlord of the
filing of the lien, fully discharge the lien by settling the claim which
resulted in the lien or by bonding or insuring over the lien in the manner
prescribed by the applicable lien Law. If Tenant fails to discharge the lien,
then, in addition to any other right or remedy of Landlord, Landlord may bond or
insure over the lien or otherwise discharge the lien. Tenant shall reimburse
Landlord for any amount paid by Landlord to bond or insure over the lien or
discharge the lien, including, without limitation, reasonable attorneys' fees
(if and to the extent permitted by Law) within 30 days after receipt of an
invoice from Landlord.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and
17
to the extent permitted by Law), which may be imposed upon, incurred
by or asserted against Landlord or any of the Landlord Related Parties
and arising out of or in connection with any damage or injury
occurring in the Premises or any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant or
any of the Tenant Related Parties and arising out of or in connection
with the acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind
or weather; (2) the failure of any sprinkler, heating or air-
conditioning equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout; (4) the
bursting, leaking or running of any tank, water closet, drain or other
pipe; (5) water, snow or ice upon or coming through the roof,
skylight, stairs, doorways, windows, walks or any other place upon or
near the Building or the Project; (6) any act or omission of any party
other than Landlord or Landlord Related Parties; and (7) any causes
not reasonably within the control of Landlord. Tenant shall insure
itself against such losses under Article XV below. Notwithstanding
the foregoing, except as provided in Article XVI to the contrary,
Tenant shall not be required to waive any claims against Landlord
(other than for loss or damage to Tenant's business) where such loss
or damage is due to Landlord's negligence. Nothing herein shall be
construed as to diminish the repair and maintenance obligations of
Landlord contained elsewhere in this Lease.
XV. Insurance.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $3,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood, written at
replacement cost value and with a replacement cost endorsement covering all of
Tenant's trade fixtures, equipment, furniture and other personal property within
the Premises ("Tenant's Property"); (3) Workers' Compensation Insurance as
required by the state in which the Premises is located and in amounts as may be
required by applicable statute; and (4) Employers Liability Coverage of at least
$1,000,000.00 per occurrence. Any company writing any of Tenant's Insurance
shall have an A.M. Best rating of not less than A-VIII. All Commercial General
Liability Insurance policies shall name Tenant as a named insured and Landlord
(or any
18
successor), Equity Office Properties Trust, a Maryland real estate investment
trust, EOP Operating Limited Partnership, a Delaware limited partnership, and
their respective members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and other designees of Landlord as the
interest of such designees shall appear, as additional insureds. All policies of
Tenant's Insurance shall contain endorsements that the insurer(s) shall give
Landlord and its designees at least 30 days' advance written notice of any
change, cancellation, termination or lapse of insurance. Tenant shall provide
Landlord with a certificate of insurance evidencing Tenant's Insurance prior to
the earlier to occur of the Commencement Date or the date Tenant is provided
with possession of the Premises for any reason, and upon renewals at least 15
days prior to the expiration of the insurance coverage. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value, as
reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's' insurance shall not limit such party's
liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim, action or causes of action against the
other and their respective trustees, principals, beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Project,
the Building, the Premises, any additions or improvements to the Project,
Building or Premises, or any contents thereof, including all rights of recovery,
claims, actions or causes of action arising out of the negligence of Landlord or
any Landlord Related Parties or the negligence of Tenant or any Tenant Related
Parties, which loss or damage is (or would have been, had the insurance required
by this Lease been carried) covered by insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the
Rent shall xxxxx for the portion of the Premises that is untenantable
and not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building or the Project shall be damaged so
that, in Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building or the Project, as the case may be,
shall be required (whether or not the Premises has been damaged); (2)
Landlord is not permitted by Law to rebuild the Building or the
Project in substantially the same form as existed before the fire or
casualty; (3) the Premises have been materially damaged and there is
less than 2 years of the Term remaining on the date of the casualty;
(4) any Mortgagee requires that the insurance proceeds be applied to
the payment of the mortgage debt; or (5) a material uninsured loss to
the Building or the Project occurs. Landlord may exercise its right
to terminate this Lease by notifying Tenant in writing within 90 days
after the date of the casualty. If Landlord does not terminate this
Lease, Landlord shall commence and proceed with reasonable diligence
to repair and restore the Building and the Leasehold Improvements
19
(excluding any Alterations that were performed by Tenant in violation
of this Lease). However, in no event shall Landlord be required to
spend more than the insurance proceeds received by Landlord. Landlord
shall not be liable for any loss or damage to Tenant's Property or to
the business of Tenant resulting in any way from the fire or other
casualty or from the repair and restoration of the damage. Landlord
and Tenant hereby waive the provisions of any Law relating to the
matters addressed in this Article, and agree that their respective
rights for damage to or destruction of the Premises shall be those
specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless
of anything in Section XVII.A above to the contrary, either party
shall have the right to terminate this Lease by giving written notice
to the other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the gross
negligence or intentional misconduct of Tenant, Tenant Related Parties
or any of Tenant's transferees, contractors or licensees.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building, Property, or Project which would leave the
remainder of the Building or the Project unsuitable for use as an office
building or an office park, as the case may be, in a manner comparable to the
use of the Building and/or Project prior to the Taking. In order to exercise its
right to terminate the Lease, Landlord or Tenant, as the case may be, must
provide written notice of termination to the other within 45 days after the
terminating party first receives notice of the Taking. Any such termination
shall be effective as of the date the physical taking of the Premises or the
portion of the Project, Building or Property occurs. If this Lease is not
terminated, the Rentable Square Footage of the Building, the Rentable Square
Footage of the Premises, the Rentable Square Footage of the Project and Tenant's
Pro Rata Share shall, if applicable, be appropriately adjusted. In addition,
Rent for any portion of the Premises taken or condemned shall be abated during
the unexpired Term of this Lease effective when the physical taking of the
portion of the Premises occurs. All compensation awarded for a Taking, or sale
proceeds, shall be the property of Landlord, any right to receive compensation
or proceeds being expressly waived by Tenant. However, Tenant may file a
separate claim at its sole cost and expense for Tenant's Property and Tenant's
reasonable relocation expenses, provided the filing of the claim does not
diminish the award which would otherwise be receivable by Landlord.
20
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 5 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 10 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 10 days, Tenant
shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 10 days, and (2) Tenant
diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the failure
must be cured immediately upon notice to Tenant. In addition, if
Landlord provides Tenant with notice of Tenant's failure to comply
with any term, provision or covenant of the Lease on 3 occasions
during any 12 month period, Tenant's subsequent violation of such
term, provision or covenant shall, at Landlord's option, be an
incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud
of creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
E Tenant is in default beyond any notice and cure period under any other
lease or agreement with Landlord at the Project, including, without
limitation, any lease or agreement for parking.
XX. Remedies.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XIX or not, Landlord shall have
the option to pursue any one or more of the following remedies without
any notice (except as expressly prescribed herein) or demand
whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of
Rent or other obligations and waives any and all other notices or
demand requirements imposed by applicable law):
1. Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to the
sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which had
been earned at the time of termination;
21
(b) The Worth at the Time of Award of the amount by which the
unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such Rent loss
that Tenant affirmatively proves could have been reasonably
avoided;
(c) The Worth at the Time of Award of the amount by which the
unpaid Rent for the balance of the Term after the time of
award exceeds the amount of such Rent loss that Tenant
affirmatively proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all
the detriment either proximately caused by Tenant's failure
to perform Tenant's obligations under this Lease or which in
the ordinary course of things would be likely to result
therefrom; and
(e) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to in
parts (a) and (b) above, shall be computed by allowing interest
at the lesser of a per annum rate equal to: (i) the greatest per
annum rate of interest permitted from time to time under
applicable law, or (ii) the Prime Rate plus five percent (5%).
For purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by a
federally insured bank selected by Landlord in the State of
California. The "Worth at the Time of Award" of the amount
referred to in part (c), above, shall be computed by discounting
such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%);
2. Employ the remedy described in California Civil Code (S) 1951.4
(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); or
3. Notwithstanding Landlord's exercise of the remedy described in
California Civil Code (S) 1951.4 in respect of an event or events
of default, at such time thereafter as Landlord may elect in
writing, to terminate this Lease and Tenant's right to possession
of the Premises and recover an award of damages as provided above
in Paragraph XX.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant
to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such
Rent. No waiver by Landlord of any breach hereof shall be effective
unless such waiver is in writing and signed by Landlord.
22
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF
THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174(c) AND 1179 OF THE
CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND
RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM
PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR
RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable Law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default.
E. This Article XX shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable Law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROJECT. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROJECT FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
23
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. Relocation.
INTENTIONALLY OMITTED.
XXV. Holding Over.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease and Tenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 30 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
XXVI. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building, the Property or the Project, and to renewals,
modifications, refinancings and extensions thereof (collectively referred to as
a "Mortgage"). The party having the benefit of a Mortgage shall be referred to
as a "Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a part
of Landlord's interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the other (including
a Mortgagee or prospective purchaser). The estoppel certificate shall include a
statement certifying that this Lease is unmodified (except as identified in the
estoppel certificate) and in full force and effect, describing the dates to
which Rent and other charges have been paid, representing that, to such party's
actual knowledge, there is no default (or stating the nature of the alleged
default) and indicating
24
other matters with respect to the Lease that may reasonably be requested.
Notwithstanding the foregoing, upon written request by Tenant, Landlord will use
reasonable efforts to obtain a non-disturbance, subordination and attornment
agreement from Landlord's then current Mortgagee on such Mortgagee's then
current standard form of agreement. "Reasonable efforts" of Landlord shall not
require Landlord to incur any cost, expense or liability to obtain such
agreement, it being agreed that Tenant shall be responsible for any fee or
review costs charged by the Mortgagee. Upon request of Landlord, Tenant will
execute the Mortgagee's form of non-disturbance, subordination and attornment
agreement and return the same to Landlord for execution by the Mortgagee.
Landlord's failure to obtain a non-disturbance, subordination and attornment
agreement for Tenant shall have no effect on the rights, obligations and
liabilities of Landlord and Tenant or be considered to be a default by Landlord
hereunder.
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. Notice.
If a demand, request, approval, consent or notice (collectively referred
to as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for
Tenant is other than the Premises, and Tenant has vacated such address) without
providing Landlord a new Notice Address, Landlord may serve notice in any manner
described in this Article or in any other manner permitted by Law. Each notice
shall be deemed to have been received or given on the earlier to occur of actual
delivery or the date on which delivery is refused, or, if Tenant has vacated the
Premises or the other Notice Address of Tenant without providing a new Notice
Address, three (3) days after notice is deposited in the U.S. mail or with a
courier service in the manner described above. Either party may, at any time,
change its Notice Address by giving the other party written notice of the new
address in the manner described in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building or the Project. Landlord excepts and reserves exclusively to itself
the use of: (1) roofs, (2) telephone, electrical and janitorial closets, (3)
equipment rooms, Building risers or similar areas that are used by Landlord for
the provision of building services, (4) rights to the land and improvements
below the floor of the Premises and the Project, (5) the improvements and air
rights above the Premises, (6) the improvements and air rights outside the
demising walls of the Premises, and (7) the areas within the Premises used for
the installation of utility lines and other installations serving occupants of
the Building and/or the Project. Notwithstanding the foregoing to the contrary,
subject to the terms of Article IX above and the other provisions of this Lease,
Tenant shall have the right to access the areas specified in subclauses (1),
(2), (3) and (7) above. Landlord has the right to change the name or address of
the Building and/or the Project. Landlord also has the right to make such other
changes to the Project, Property and Building as
25
Landlord deems appropriate, provided the changes do not materially affect
Tenant's ability to use the Premises for the Permitted Use. Landlord shall also
have the right (but not the obligation) to temporarily close the Building and/or
the Project if Landlord reasonably determines that there is an imminent danger
of significant damage to the Building or the Project or of personal injury to
Landlord's employees or the occupants of the Building and/or the Project. The
circumstances under which Landlord may temporarily close the Building and/or the
Project shall include, without limitation, electrical interruptions, hurricanes
and civil disturbances. A closure of the Building and/or the Project under such
circumstances shall not constitute a constructive eviction nor entitle Tenant to
an abatement or reduction of Rent. Notwithstanding the foregoing, if Landlord
temporarily closes the Premises as provided above for a period in excess of 3
consecutive Business Days, Tenant, as its sole remedy, shall be entitled to
receive a per diem abatement of Base Rent during the period beginning on the
4/th/ consecutive Business Day of closure and ending on the date on which the
Premises are returned to Tenant in a tenantable condition. Tenant, however,
shall not be entitled to an abatement if the closure is as a result of the acts
or omissions of Tenant, its agents, employees or contractors.
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall remove Tenant's Property (defined in Article XV)
from the Premises, and quit and surrender the Premises to Landlord, broom clean,
and in good order, condition and repair, ordinary wear and tear excepted. Tenant
shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant's Property within 2 days
after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred for Tenant's Property. In addition, if Tenant fails to remove Tenant's
Property from the Premises or storage, as the case may be, within 30 days after
written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately
vested in Landlord.
XXXI. Miscellaneous.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
State of California and Landlord and Tenant hereby irrevocably consent
to the jurisdiction and proper venue of such state. If any term or
provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected, and
each provision of this Lease shall be valid and enforced to the
fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and shall
have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
26
D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such
action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, civil disturbances and other causes beyond the
reasonable control of the performing party ("Force Majeure").
However, events of Force Majeure shall not extend any period of time
for the payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right by
either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Project, Building and/or Property referred to herein, and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to the successor in
interest of Landlord for the performance of such obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any other brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify
and hold Tenant and the Tenant Related Parties harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Lease.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
State of California. If there is more than one Tenant, or if Tenant
is comprised of more than one party or entity, the obligations imposed
upon Tenant shall be joint and several obligations of all the parties
and entities. Notices, payments and agreements given or made by, with
or to any one person or entity shall be deemed to have been given or
made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior
sentence, it is agreed that Tenant's obligations under Articles IV,
VIII, XIV, XX, XXV and XXX shall survive the expiration or early
termination of this Lease.
27
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
L. This Lease shall be subject to the terms and conditions of (a)
Declaration Of Covenants, Conditions And Restrictions Of Shoreline
Technology Park ("Declaration") imposing certain covenants,
conditions and restrictions on the use and management of Shoreline
Technology Park, (b) the Bylaws ("Bylaws") of Shoreline Park
Association ("Association"), a California nonprofit mutual benefit
corporation charged with the responsibility of managing Shoreline
Technology Park in accordance with the Declaration, Articles Of
Incorporation of the Association ("Articles") and the Bylaws, and (c)
the rules ("Rules") adopted from time to time by the Association in
accordance with the Declaration providing for restrictions on the use
of Shoreline Technology Park. The Declaration, Bylaws, Articles and
Rules are collectively referred to herein as the "Governing
Documents". Any failure to comply with the Governing Documents (after
the expiration of the applicable notice and cure period hereunder)
shall be a default under the terms of this Lease.
XXXII. Entire Agreement.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: Exhibit A-1 (Outline and Location of Premises),
Exhibit A-2 (Outline and Location of Project), Exhibit A-3 (Outline and Location
of Recreational Area), Exhibit B (Rules and Regulations), Exhibit C
(Commencement Letter), Exhibit D (Work Letter Agreement), Exhibit E (Additional
Provisions), Exhibit F (Parking Agreement) and Exhibit G (Form of Letter of
Credit).
28
Landlord and Tenant have executed this Lease as of the day and year first
above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By: _____________________________
Name: ___________________________
Title: __________________________
TENANT:
MARKETFIRST SOFTWARE, INC., a Delaware
corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
29
EXHIBIT A-1
OUTLINE AND LOCATION OF PREMISES
--------------------------------
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company ("Landlord") and MARKETFIRST SOFTWARE, INC.,
a Delaware corporation ("Tenant") for space in the Building located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
EXHIBIT A-2
OUTLINE AND LOCATION OF PROJECT
-------------------------------
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company ("Landlord") and MARKETFIRST SOFTWARE, INC.,
a Delaware corporation ("Tenant") for space in the Building located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
EXHIBIT A-3
OUTLINE AND LOCATION OF RECREATIONAL AREA
-----------------------------------------
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company ("Landlord") and MARKETFIRST SOFTWARE, INC.,
a Delaware corporation ("Tenant") for space in the Building located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property, the Project
and the appurtenances. Capitalized terms have the same meaning as defined in
the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Property or Project.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building or Project, except those of such
color, size, style and in such places as are first approved in writing by
Landlord. All tenant identification and suite numbers at the entrance to
the Premises shall be installed by Landlord, at Tenant's cost and expense,
using the standard graphics for the Building. Except in connection with the
hanging of lightweight pictures and wall decorations, no nails, hooks or
screws shall be inserted into any part of the Premises, Building or Project
except by Landlord's maintenance personnel.
4. No directory listing tenants or employees shall be permitted unless
previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises, Building or
Project without Landlord's prior written consent and Landlord shall have
the right to retain at all times and to use keys to all locks within and
into the Premises. A reasonable number of keys to the locks on the entry
doors in the Premises shall be furnished by Landlord to Tenant at Tenant's
cost, and Tenant shall not make any duplicate keys. All keys shall be
returned to Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building and/or the Project shall be subject to
Landlord's prior approval, which approval shall not be unreasonably
withheld, and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, which may be revised from time to
time.
7. Movement in or out of the Building or the Project of furniture or office
equipment, or dispatch or receipt by Tenant of merchandise or materials
shall be restricted to hours reasonably designated by Landlord. Tenant
shall obtain Landlord's prior approval by providing a detailed listing of
the activity. If approved by Landlord, the activity shall be
under the supervision of Landlord and performed in the manner required by
Landlord. Tenant shall assume all risk for damage to articles moved and
injury to any persons resulting from the activity. If equipment, property,
or personnel of Landlord or of any other party is damaged or injured as a
result of or in connection with the activity, Tenant shall be solely liable
for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building and/or Project by the installation, maintenance, operation,
existence or removal of Tenant's Property shall be repaired at Tenant's
sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Project, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Project, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building or Project that might,
in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, and no aquariums
shall be brought into the Building or the Project or kept in or about the
Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building, Project or about the Property.
Tenant shall not, without Landlord's prior written consent, use, store,
install, spill, remove, release or dispose of, within or about the Premises
or any other portion of the Property or Project, any asbestos-containing
materials or any solid, liquid or gaseous material now or subsequently
considered toxic or hazardous under the provisions of 42 U.S.C. Section
9601 et seq. or any other applicable environmental Law which may now or
later be in effect. Tenant shall comply with all Laws pertaining to and
governing the use of these materials by Tenant, and shall remain solely
liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building or the Project. Tenant shall not
use, or permit any part of the Premises to be used, for lodging, sleeping
or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption
or dispute, or interfere with Landlord's or any other tenant's or
occupant's business or with the rights and privileges of any person
lawfully in the Building and/or the Project ("Labor Disruption"). Tenant
shall take the actions necessary to resolve the Labor Disruption, and shall
have pickets removed and, at the request of Landlord, immediately terminate
any work in the Premises that gave rise to the Labor Disruption, until
Landlord gives its written consent for the work to resume. Tenant shall
have no claim for damages against Landlord or any of the Landlord Related
Parties, nor shall the Commencement Date of the Term be extended as a
result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building or the Project, electrical equipment that would
overload the electrical system beyond its capacity for proper, efficient
and safe operation as determined solely by Landlord. Tenant shall not
furnish cooling or heating to the Premises, including, without limitation,
the use of electronic or gas heating devices, without Landlord's prior
written consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Project.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees.
17. Bicycles and other vehicles are not permitted on the walkways outside the
Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, the Project and their occupants,
entry, use and contents. Tenant, its agents, employees, contractors,
guests and invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building and/or the Project or any other publicity by Tenant that in
Landlord's sole opinion may impair the reputation of the Building and/or
the Project or their desirability. Upon written notice from Landlord,
Tenant shall refrain from and discontinue such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building, the
Property or the Project.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the Premises to emanate into the Common
Areas or any other part of the Building or Project. Landlord shall have
the right to designate the Building (including the Premises) and/or the
Project as a non-smoking building or area.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building and Project present a uniform exterior appearance.
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant
shall not make deliveries to or from the Premises in a manner that might
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
EXHIBIT C
COMMENCEMENT LETTER
-------------------
(EXAMPLE)
Date ______________________
Tenant ______________________
Address ______________________
______________________
______________________
Re: Commencement Letter with respect to that certain Lease dated as of
___________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company, as Landlord, and MARKETFIRST SOFTWARE,
INC., a Delaware corporation, as Tenant, for 66,096 rentable square feet in
the Building located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
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 D
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company ("Landlord") and MARKETFIRST SOFTWARE, INC.,
a Delaware corporation ("Tenant") for space in the Building located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
I. Alterations and Allowance.
-------------------------
A. Tenant, following the delivery of the Premises by Landlord and the
full and final execution and delivery of this Lease and all prepaid
rental and security deposits required hereunder, shall have the right
to perform alterations and improvements in the Premises (the "Initial
Alterations"). Notwithstanding the foregoing, Tenant and its
contractors shall not have the right to perform Initial Alterations in
the Premises unless and until Tenant has complied with all of the
terms and conditions of Article IX.C. of this Lease, including,
without limitation, approval by Landlord of the final plans for the
Initial Alterations and the contractors to be retained by Tenant to
perform such Initial Alterations. 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. Landlord shall review
Tenant's plans within 10 Business Days of receipt from Tenant. If
Landlord does not respond to Tenant with such 10 Business Day period,
then Landlord shall be deemed to have approved the plans. Tenant may
choose the general contractor that shall perform the Initial
Alterations in the Premises, subject to Landlord's approval.
Landlord's approval of the contractors to perform the Initial
Alterations shall not be unreasonably withheld. The parties agree
that Landlord's approval of the general contractor to perform the
Initial Alterations shall not be considered to be unreasonably
withheld if any such general contractor (i) does not have trade
references reasonably acceptable to Landlord, (ii) does not maintain
insurance as required pursuant to the terms of this Lease, (iii) does
not have the ability to be bonded for the work in an amount of no less
than $1,000,000.00, or (iv) is not licensed as a contractor in the
state/municipality in which the Premises is located. Tenant
acknowledges the foregoing is not intended to be an exclusive list of
the reasons why Landlord may reasonably withhold its consent to a
general contractor.
B. Provided Tenant is not in default, Landlord agrees to contribute the
sum of $330,480.00 (i.e., $5.00 per rentable square foot of the
Premises) (the "Allowance") toward the cost of performing the Initial
Alterations in preparation of Tenant's occupancy of the Premises.
Landlord shall be entitled to deduct from the Allowance a construction
management fee for Landlord's oversight of the Initial Alterations in
an amount equal to $33,048.00. The Allowance may only be used
for the cost of preparing design and construction documents and
mechanical and electrical plans for the Initial Alterations and for
hard costs in connection with the Initial Alterations. The Allowance
shall be paid to Tenant or, at Landlord's option, to the order of the
general contractor that performed the Initial Alterations, within 30
days following receipt by Landlord of (1) receipted bills covering all
labor and materials expended and used in the Initial Alterations; (2)
a sworn contractor's affidavit from the general contractor and a
request to disburse from Tenant containing an approval by Tenant of
the work done; (3) full and final waivers of lien; (4) as-built plans
of the Initial Alterations; and (5) the certification of Tenant and
its architect that the Initial Alterations have been installed in a
good and workmanlike manner in accordance with the approved plans, and
in accordance with applicable laws, codes and ordinances. The
Allowance shall be disbursed in the amount reflected on the receipted
bills meeting the requirements above. Notwithstanding anything herein
to the contrary, Landlord shall not be obligated to disburse any
portion of the Allowance during the continuance of an uncured default
under the Lease, and Landlord's obligation to disburse shall only
resume when and if such default is cured.
C. In no event shall the Allowance be used for the purchase of equipment,
furniture or other items of personal property of Tenant. In the event
Tenant does not use the entire Allowance by December 31, 2000, any
unused amount shall accrue to the sole benefit of Landlord, it being
understood that Tenant shall not be entitled to any credit, abatement
or other concession in connection therewith. Tenant shall be
responsible for all applicable state sales or use taxes, if any,
payable in connection with the Initial Alterations and/or Allowance.
D. Tenant agrees to accept the Premises in its "as-is" condition and
configuration, it being agreed that Landlord shall not be required to
perform any work or, except as provided above with respect to the
Allowance, incur any costs in connection with the construction or
demolition of any improvements in the Premises.
E. This Exhibit D 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 the 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 the Lease or otherwise, unless expressly so
provided in the Lease or any amendment or supplement to the Lease.
Landlord and Tenant have executed this Exhibit as of the day and year first
above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: __________________________
Name: __________________________
Title: __________________________
TENANT:
MARKETFIRST SOFTWARE, INC., a Delaware corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
EXHIBIT E
ADDITIONAL PROVISIONS
---------------------
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company ("Landlord") and MARKETFIRST SOFTWARE, INC.,
a Delaware corporation ("Tenant") for space in the Building located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
I. CONTINGENCY. This Lease specifically is contingent upon the modification
of that certain lease, as amended, dated January 28, 1988 (the "Prior
Tenant Lease"), by and between Landlord (as successor in interest to WRC
Properties, Inc.), and Silicon Graphics, Inc., a California corporation
("Prior Tenant") relating to the Premises. Landlord currently is
negotiating the terms of an agreement with Prior Tenant to terminate or
modify the Prior Tenant Lease (the "Prior Tenant Modification Agreement")
with respect to the Premises. If Landlord fails to enter into the Prior
Tenant Modification Agreement with Prior Tenant in form and substance
satisfactory to Landlord on or before the later of (i) __________, 1999, or
(ii) 5 days following the date this Lease, executed by Tenant, together
with all prepaid rental and security deposits required hereunder, is
delivered to Landlord, then Landlord may terminate this Lease by providing
written notice thereof to Tenant.
II. GENERATOR.
A. During the Term, Tenant shall have the right to install a supplemental
generator (the "Generator") to provide emergency additional electrical
capacity to the Premises and an above ground fuel tank (the "Tank") to
provide fuel to such Generator. The Generator and Tank shall be
placed at a location at the Project reasonably designated by Landlord
(the "Generator Location"), provided that Landlord shall use its good
faith efforts to designate a location as close to the Tenant's
Premises as reasonably possible. In the event the Generator and/or
Tank are located such that parking spaces are lost to accommodate the
installation of the Generator and/or the Tank, then the number of
parking spaces allocated to Tenant pursuant to Exhibit F of the Lease
shall be reduced on a one for one basis for each space which is lost
to accommodate the installation of the Generator and/or the Tank.
Tenant's right to install the Generator and the Tank shall be subject
to Landlord's reasonable approval of the manner in which the Generator
and Tank are installed, the manner in which any cables are run to and
from the Generator to the Premises and the measures that will be taken
to eliminate any vibrations or sound disturbances from the operation
of the Generator. Landlord shall have the right to require an
enclosure acceptable to Landlord (e.g. wood fencing, concrete
structure and/or landscaping) to hide or disguise the existence of the
Generator and the Tank and to minimize any adverse effect that the
installation of the Generator and the Tank may have on the appearance
or operation of the Building, Property and Project. Tenant shall be
solely responsible for obtaining all necessary governmental and
regulatory approvals and for the cost of installing, operating,
maintaining and removing the Generator and the Tank. Tenant shall
also be responsible for the cost of all
utilities consumed in the operation of the Generator. Notwithstanding
anything herein to the contrary, if Tenant, after installation,
removes the Generator and/or the Tank from the Generator Location for
reasons other than the repair and replacement of the Generator or the
Tank, Tenant's right to install the Generator and the Tank and to use
the Generator Location shall be null and void.
B. Tenant shall be responsible for assuring that the installation,
maintenance, operation and removal of the Generator and the Tank will
in no way damage the Building, Project or Property. Tenant agrees to
be responsible for any damage caused to the Building, Project or
Property in connection with the installation, maintenance, operation
or removal of the Generator and the Tank and, in accordance with the
terms of Article XIV of the Lease, to indemnify, defend and hold
Landlord, its trustees, members, principals, beneficiaries, partners,
officers, directors, employees, agents and mortgagees (collectively,
the "Landlord Related Parties") harmless from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses,
including, without limitation, reasonable architects' and attorneys'
fees (if and to the extent permitted by law), which may be imposed
upon, incurred by, or asserted against Landlord or any of the Landlord
Related Parties in connection with the installation, maintenance,
operation or removal of the Generator and the Tank, including, without
limitation, any environmental and hazardous materials claims.
C. Tenant shall be responsible for the installation, operation,
cleanliness, maintenance and removal of the Generator, Tank and
appurtenances, all of which shall remain the personal property of
Tenant, and shall be removed by Tenant at its own expense at the
termination of the Lease. Tenant shall repair any damage caused by
such removal, including the patching of any holes to match, as closely
as possible, the color surrounding the area where the Generator, Tank
and appurtenance were attached. Such maintenance and operation shall
be performed in a manner to avoid any unreasonable interference with
any other tenants or Landlord. Tenant agrees to maintain the
Generator and the Tank, including without limitation, any enclosure
installed around the Generator and Tank, in good condition and repair.
Tenant shall enter into and keep and maintain in effect, service
contracts reasonably acceptable to Landlord with contractors
reasonably acceptable to Landlord for the maintenance of the Generator
and the Tank, and Tenant shall submit to Landlord copies of all
service records obtained, kept and/or maintained by Tenant in
connection with the Generator and the Tank. Tenant shall be
responsible for performing any maintenance and improvements to any
enclosure surrounding the Generator and/or the Tank so as to keep such
enclosure in good condition.
D. Tenant, upon prior notice to Landlord and subject to the reasonable
rules and regulations enacted by Landlord, shall have unlimited access
to the Generator and the Tank and its surrounding area for the purpose
of installing, operating, repairing, maintaining and removing the
Generator and the Tank.
E. Tenant shall only test the Generator before or after Normal Business
Hours and upon prior notice to Landlord.
III. HAZARDOUS MATERIALS. Landlord shall indemnify, defend, protect, save, hold
harmless, and reimburse Tenant, its partners, officers, directors and
employees for, from and against any and all costs, losses, liabilities,
damages, assessments, lawsuits, deficiencies, demands, claims and expenses
incurred in connection with, arising out of, resulting from or incident to,
the production, use, generation, storage, treatment, disposal, discharge,
release or other handling or disposition of any Hazardous Materials
(defined below) on or about the Project by Landlord, its officers,
employees, agents (in their capacity as agents) and/or independent
contractors (in their capacity and independent contractors), including,
without limitation, the effects of handling of any Hazardous Materials on
any person or property within or outside the boundaries of the Project; but
excluding from the foregoing indemnity, Tenant's negligence or the handling
by Tenant during Tenant's occupancy of the Premises of any Permitted
Materials (as hereinafter defined) and/or Hazardous Materials on or about
the Project at levels which pose a risk to persons located on or about the
Project, and which prompt the initiation of a removal, response, remedial
or other action by a governmental agency or authority possessing and
exercising jurisdiction over the Project. Tenant shall not use, generate,
manufacture, store or dispose of, on or about the Premises, or transport to
or from the Premises, any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or any related materials or substances,
including, without limitation, any substance defined as or included in the
definition of "hazardous substances" under any applicable federal, state or
local law, regulation or ordinance (collectively, "Hazardous Materials").
Tenant shall indemnify, defend, protect, save, hold harmless, and reimburse
Landlord, its partners, officers, directors and employees for, from and
against any and all costs, losses, liabilities, damages, assessments,
lawsuits, deficiencies, demands, claims and expenses incurred in connection
with, arising out of, resulting from or incident to, the production, use,
generation, storage, treatment, disposal, discharge, release or other
handling or disposition of any Hazardous Materials on or about the Project
by Tenant, its officers, employees, agents and/or independent contractors,
including, without limitation, the effects of such handling of any
Hazardous Materials on any person or property within or outside the
boundaries of the Project; but excluding from the foregoing indemnity,
Landlord's negligence or the handling by Landlord of any Permitted
Materials and/or Hazardous Materials on or about the Project at levels
which pose a risk to persons located on or about the Project, and which
prompt the initiation of a removal, response, remedial or other action by a
governmental agency or authority possessing and exercising jurisdiction
over the Project. In addition, in the event an action, lawsuit or
proceeding is brought against Tenant as a result of the improper use,
generation, manufacturing, storage or disposal of Hazardous Materials
affecting only the Premises (as opposed to the Project as a whole) as a
result of the acts or omissions of a prior Tenant in the Premises (a
"Premises Hazardous Materials Event"), and further provided that Tenant has
in no way caused or contributed to the Premises Hazardous Materials Event,
then Landlord shall, at Landlord's sole cost and expense, retain counsel
chosen by Landlord and defend Tenant in any such lawsuit, action or
proceeding. In such event, Landlord's responsibility to Tenant shall be
limited to the costs of defending Tenant in any such lawsuit, action or
proceeding, and Landlord shall not be responsible for any other costs,
losses, liabilities, damages, assessments, deficiencies, demands, claims
and expenses incurred by or against Tenant or resulting from any such
Premises Hazardous Materials Event (including, but not limited to, any
fines or penalties assessed against Tenant in connection with such Premises
Hazardous Materials Event).
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as of
the day and year first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: __________________________
Name: __________________________
Title: __________________________
TENANT:
MARKETFIRST SOFTWARE, INC., a Delaware corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
EXHIBIT F
PARKING AGREEMENT
-----------------
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company ("Landlord") and MARKETFIRST SOFTWARE, INC.,
a Delaware corporation ("Tenant") for space in the Building located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
1. Landlord hereby grants to Tenant and persons designated by Tenant a license
to use 245 non-priority parking spaces and 5 priority parking spaces in the
parking areas ("Parking Facility") servicing the Building. The term of
such license shall commence on the Commencement Date under the Lease and
shall continue until the earlier to occur of the Termination Date under the
Lease, the sooner termination of the Lease, or Tenant's abandonment of the
Premises thereunder. During the term of this license, Tenant shall pay
$0.00 per parking space, per month. Tenant may, from time to time request
additional parking spaces, and if Landlord shall provide the same, such
parking spaces shall be provided and used on a month-to-month basis, and
otherwise on the foregoing terms and provisions, and at such prevailing
monthly parking charges as shall be established from time to time.
2. Tenant shall at all times comply with all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal, state,
county and municipal governmental bodies or their subdivisions respecting
the use of the Parking Facility. Landlord reserves the right to adopt,
modify and enforce reasonable rules ("Rules") governing the use of the
Parking Facility from time to time including any key-card, sticker or other
identification or entrance system and hours of operation. The rules set
forth herein are currently in effect. Landlord may refuse to permit any
person who violates such rules to park in the Parking Facility, and any
violation of the rules shall subject the car to removal from the Parking
Facility.
3. Unless specified to the contrary above, the parking spaces hereunder shall
be provided on a non-designated "first-come, first-served" basis except for
the 5 priority parking spaces referred to above. Notwithstanding anything
in this Parking Agreement to the contrary, Landlord and Operator (as
hereinafter defined) shall have no obligation to monitor or ensure that the
5 priority parking spaces provided herein shall be exclusively used by
Tenant, and Landlord and Operator shall not be liable for any loss, damage,
claim, liability or expense incurred by Tenant in the event such 5 priority
parking spaces (or any portion thereof) are utilized by other parties.
Tenant acknowledges that Landlord has no liability for claims arising
through acts or omissions of any Operator (as hereinafter defined) of the
Parking Facility, if any. Landlord shall have no liability whatsoever for
any damage to items located in the Parking Facility, nor for any personal
injuries or death arising out of any matter relating to the Parking
Facility, and in all events, Tenant agrees to look first to its insurance
carrier and to require that Tenant's employees look first to their
respective insurance carriers for payment of any losses sustained in
connection with any use of the Parking Facility. Tenant hereby waives on
behalf of its insurance carriers all rights of subrogation against Landlord
or Landlord's agents. Landlord reserves the right to assign specific
parking spaces, and to reserve parking spaces for visitors, small cars,
handicapped persons and for other tenants, guests of tenants or other
parties, which assignment and reservation or spaces may be relocated as
determined by Landlord from time to time, and Tenant and persons designated
by Tenant hereunder shall not park in any location designated for such
assigned or reserved parking spaces. Tenant acknowledges that the Parking
Facility may be closed entirely or in part in order to make repairs or
perform maintenance services, or to alter, modify, re-stripe or renovate
the Parking Facility, or if required by casualty, strike, condemnation, act
of God, governmental law or requirement or other reason beyond the
operator's reasonable control.
4. If Tenant shall default under this Parking Agreement, the Landlord or the
Operator, as the case may be, shall have the right to remove from the
Parking Facility any vehicles hereunder which shall have been involved or
shall have been owned or driven by parties involved in causing such
default, without liability therefor whatsoever. In addition, if Tenant
shall default under this Parking Agreement, Landlord shall have the right
to cancel this Parking Agreement on 10 days' written notice, unless within
such 10 day period, Tenant cures such default. If Tenant defaults with
respect to the same term or condition under this Parking Agreement more
than 3 times during any 12 month period, and Landlord notifies Tenant
thereof promptly after each such default, the next default of such term or
condition during the succeeding 12 month period, shall, at Landlord's
election, constitute an incurable default. Such cancellation right shall
be cumulative and in addition to any other rights or remedies available to
Landlord at law or equity, or provided under the Lease (all of which rights
and remedies under the Lease are hereby incorporated herein, as though
fully set forth). Any default by Tenant under the Lease shall be a default
under this Parking Agreement, and any default under this Parking Agreement
shall be a default under the Lease.
RULES
(i) Tenant shall have access to the Parking Facility on a 24 hour basis,
7 days a week. Tenant shall not store or permit its employees to
store any automobiles in the Parking Facility without the prior
written consent of the Landlord. Except for emergency repairs, Tenant
and its employees shall not perform any work on any automobiles while
located in the Parking Facility, or on the Property. If it is
necessary for Tenant or its employees to leave an automobile in the
Parking Facility overnight, Tenant shall provide the Landlord with
prior notice thereof designating the license plate number and model
of such automobile.
(ii) Cars must be parked entirely within the stall lines painted on the
floor, and only small cars may be parked in areas reserved for small
cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Parking spaces reserved for handicapped persons must be used only by
vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
(a) Areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by the Landlord or the Operator, as
the case may be, shall remain the property of the Landlord or the
Operator. Such device must be displayed as requested and may not be
mutilated in any manner. The serial number of the parking
identification device may not be obliterated. Parking passes and
devices are not transferable and any pass or device in the
possession of an unauthorized holder will be void.
(viii) Parking Facility managers or attendants are not authorized to make
or allow any exceptions to these Rules.
(ix) Every xxxxxx is required to park and lock his/her own car.
(x) Loss or theft of parking pass, identification, key cards or other
such devices must be reported to Landlord and to the Parking
Facility manager immediately. Any parking devices reported lost or
stolen found on any authorized car will be confiscated and the
illegal holder will be subject to prosecution. Lost or stolen passes
and devices found by Tenant or its employees must be reported to the
office of the garage immediately.
(xi) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited. Parking spaces may be used
only for parking automobiles.
(xii) By signing this Parking Agreement, Tenant agrees to acquaint all
persons to whom Tenant assigns a parking pass with these Rules.
5. Landlord may elect to provide parking cards or keys to control access to
the Parking Facility or surface parking areas, if any. In such event,
Landlord shall provide Tenant with one card or key for each parking space
that Tenant is entitled to hereunder, provided that Landlord shall have the
right to require Tenant or its employees to place a deposit on such access
cards or keys and to pay a fee for any lost or damaged cards or keys.
6. Landlord hereby reserves the right to enter into a management agreement or
lease with an entity for the Parking Facility ("Operator"). In such event,
Tenant upon request of Landlord, shall enter into a parking agreement with
the Operator and pay the Operator the monthly charge established hereunder,
and Landlord shall have no liability for claims arising through acts or
omissions of the Operator unless caused by Landlord's negligence or willful
misconduct. It is understood and agreed that the identity of the Operator
may change from time to time during the Term. In connection therewith, any
parking lease or agreement entered into between Tenant and an Operator
shall be freely assignable by such Operator or any successors thereto.
7. NO LIABILITY. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT
PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE
TO TENANT OR TENANT'S PROPERTY (INCLUDING, WITHOUT LIMITATIONS, ANY LOSS OR
DAMAGE TO TENANT'S AUTOMOBILE OR THE CONTENTS THEREOF DUE TO THEFT,
VANDALISM OR ACCIDENT) ARISING FROM OR RELATED TO TENANT'S USE OF THE
PARKING FACILITY OR EXERCISE OF ANY RIGHTS UNDER THIS PARKING AGREEMENT,
WHETHER OR NOT SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD'S ACTIVE
NEGLIGENCE OR NEGLIGENT OMISSION. THE LIMITATION ON LANDLORD'S LIABILITY
UNDER THE PRECEDING SENTENCE SHALL NOT APPLY HOWEVER TO LOSS OR DAMAGE
ARISING DIRECTLY FROM LANDLORD'S WILLFUL MISCONDUCT.
8. Release of Liability. Without limiting the provisions of Paragraph 7
above, Tenant hereby voluntarily releases, discharges, waives and
relinquishes any and all actions or causes of action for personal injury or
property damage occurring to Tenant arising as a result of parking in the
Parking Facility, or any activities incidental thereto, wherever or however
the same may occur, and further agrees that Tenant will not prosecute any
claim for personal injury or property damage against Landlord or any of its
officers, agents, servants or employees for any said causes of action. It
is the intention of Tenant by this instrument, to exempt and relieve
Landlord from liability for personal injury or property damage caused by
negligence.
9. The provisions of Article XXI of the Lease are hereby incorporated by
reference as if fully recited.
Tenant acknowledges that Tenant has read the provisions of this Parking
Agreement, has been fully and completely advised of the potential dangers
incidental to parking in the Parking Facility and is fully aware of the legal
consequences of signing this instrument.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as of
the day and year first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: __________________________
Name: __________________________
Title: __________________________
TENANT:
MARKETFIRST SOFTWARE, INC., a Delaware corporation
By: ______________________________
Name: ______________________________
Title: ______________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
EXHIBIT G
FORM OF LETTER OF CREDIT
------------------------
_______________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ________________________
Issuance Date:______________
Expiration Date:____________
Applicant:__________________
Beneficiary
-----------
EOP-SHORELINE TECHNOLOGY PARK, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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 One Million
Two Hundred Forty Nine Thousand Two Hundred Fourteen and 42/100 U.S. Dollars
($1,249,214.42) available for payment at sight by your draft drawn on us when
accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) 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
4/th/ Anniversary of the Commencement Date $832,809.61
6/th/ Anniversary of the Commencement Date $416,404.80
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 proportedly
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; and (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.
This Irrevocable Standby Letter of Credit may only be transferred in its
entirety by the issuing bank upon our receipt of the attached "Exhibit A" duly
completed and executed by the beneficiary and accompanied by the original letter
of credit and all amendment(s), if any. Transfer of this Irrevocable Standby
Letter of Credit is in no way contingent upon payment of the transfer fee
detailed herein. The transfer fee payable is 1/4% of 1% of the transfer amount
(minimum USD250.00) which is payable by the applicant.
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]
______________________
