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EXHIBIT 10.31
CORPORATE HEADQUARTERS LEASE
SYBASE, INC.
ARTICLE 1
BASIC TERMS
This Article 1 contains the Basic Terms of this Lease between the
Landlord and the Tenant named below. Other Articles and Sections of this Lease,
including without limitation those referred to in this Article 1, explain,
define and amplify the Basic Terms and are to be read in conjunction with the
Basic Terms.
1.1 EFFECTIVE DATE OF LEASE: January 28, 2000
1.2 LANDLORD: WDS-Dublin, LLC
Address of Landlord: 00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Senior Vice President
1.3 TENANT: Sybase, Inc.
Address of Tenant: 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President - Real Estate and Facilities
With copies to:
Sybase, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President and General Counsel
After the Term Commencement Date, Tenant's address shall be the street address
of the Premises.
1.4 PREMISES: The "PREMISES" consist of the Land and the
Improvements. The "LAND" which is located north of the northwest corner of
Interstate 580 and Hacienda Drive in Dublin, California, is described in the
attached Exhibit A, and consists of approximately 14 acres of unimproved land to
be acquired by Landlord from the Surplus Property Authority of Alameda County
pursuant to the Project Development Rider attached as Exhibit B (the "PROJECT
DEVELOPMENT RIDER"). The "IMPROVEMENTS," as more particularly defined in Section
6.3(a) below, at first will be comprised of the Initial Improvements. The
"INITIAL IMPROVEMENTS" are comprised of the Buildings, approximately 1143
surface parking spaces, landscaping and related site improvements, all to be
constructed by Landlord on the Land pursuant to the Project Development Rider.
The "BUILDINGS" are two six-story office buildings, referred to as
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"Building A" and "Building B," containing a total of approximately 400,000
rentable square feet, to be constructed by Landlord pursuant to the Project
Development Rider.
1.5 LEASE TERM: Approximately fifteen years, subject to two
five-year extension options. (See Article 2)
1.6 SCHEDULED TERM COMMENCEMENT DATE: See Section 2.3 of this
Lease, and Section 6.5 of the Project Development Rider.
1.7 INITIAL BASE RENT: $26.00 per rentable square foot per annum,
subject to adjustment. (See Article 3)
1.8 SECURITY DEPOSIT: $867,000. (See Section 3.8)
1.9 PERMITTED USES: General office purposes, including kitchen
and dining facilities; sale, display and incidental use and storage of Tenant's
products and equipment; engineering; and education and training of Tenant's
customers and employees. (See Article 5)
1.10 BROKERS: (See Section 13.16)
Landlord's Broker: None
Tenant's Broker: Xxxxxx International
ARTICLE 2
LEASE TERM
2.1 LEASE OF PREMISES. Landlord hereby leases the Premises to
Tenant and Tenant hereby leases the Premises from Landlord, subject to all the
terms and conditions set forth in this Lease.
2.2 LEASE TERM. Subject to extension as provided in Section 2.6
below, the term of this Lease (the "LEASE TERM") shall be approximately 15
years, commencing on the Term Commencement Date (defined below) and ending at
11:59 p.m. on the Expiration Date (defined below), or such earlier date as this
Lease may be terminated in accordance with its terms.
2.3 TERM COMMENCEMENT DATE.
(a) The Premises will be delivered to Tenant in two increments,
the first of which shall include Building A and the second of which shall
include Building B (as defined more particularly in Section 5.4 of the Project
Development Rider, the "FIRST INCREMENT" and the "SECOND INCREMENT"). The "TERM
COMMENCEMENT DATE" shall be the earlier of: (i) the date that Tenant first
occupies any portion of the Premises for the conduct of its business; or (ii)
the Substantial Completion Date (as defined in, and determined in accordance
with, Section 5.4 of the Project Development Rider) for the First Increment;
provided, however, that in no event shall the Term Commencement Date be prior to
May 1, 2001.
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(b) If the First Increment is not Substantially Complete by the
First Increment Scheduled Completion Date (as defined in, and determined in
accordance with, Section 6.5(a) of the Project Development Rider) for any
reason, or if the Second Increment is not Substantially Complete by the Second
Increment Scheduled Completion Date (as defined in, and determined in accordance
with, Section 6.5(b) of the Project Development Rider) for any reason, Landlord
shall not be liable for any claims, damages or liabilities by reason thereof
except as expressly set forth in this Section 2.3. Tenant's sole remedy against
Landlord for any delay in Substantial Completion shall be to recover from
Landlord the amount of $5,000, as liquidated damages, for each day of the delay
in Substantial Completion of the First Increment beyond the First Increment
Scheduled Completion Date, and/or each day of the delay in Substantial
Completion of the Second Increment beyond the Second Increment Scheduled
Completion Date, that results from a Landlord-Caused Delay (as defined below);
provided, however, that: (i) after the Term Commencement Date, liquidated
damages for delay in Substantial Completion of the Second Increment due to
Landlord Delays of more than 90 days shall be increased to $7,500 per day; and
(ii) notwithstanding anything in this Lease to the contrary, Landlord's total
liability to Tenant for delays in delivering the Premises shall not exceed
$750,000. Landlord and Tenant agree that the liquidated damages amounts set
forth in this Section 2.3(b) represent a reasonable estimate, as of the
Effective Date, of the net cost to Tenant of holding over in its existing
facilities, any necessary temporary relocation to new facilities, and all other
costs or damages Tenant would incur, in excess of the Base Rent and estimated
Operating Expenses that Tenant would expend if it were in occupancy of the
Premises. For purposes of this Lease, "LANDLORD-CAUSED DELAY" shall mean any
delay in Substantial Completion of the Initial Improvements caused by, or due to
circumstances within the reasonable control of, Landlord or Landlord's
employees, agents or contractors, and Landlord-Caused Delay shall not include,
and Landlord shall have absolutely no liability or obligation to Tenant with
respect to, any delays caused by Force Majeure or by Tenant Delays.
(c) Notwithstanding anything herein to the contrary, if the First
Increment is not Substantially Complete by June 1, 2003 (as such date shall be
extended by the number of days of the delay caused by Tenant Delays, if any),
Tenant may elect to terminate this Lease at any time thereafter by giving
written notice to Landlord; provided, however, that such notice shall be
effective only if delivered to Landlord prior to the actual Substantial
Completion Date of the First Increment. In the event Tenant so terminates,
Landlord shall return the Security Deposit and pay to Tenant such amounts as may
be due under Section 2.3(b) above through the date of termination, and the
parties thereafter shall have no further obligations under this Lease.
(d) Within five days after the Substantial Completion Date of the
Second Increment, Landlord and Tenant shall execute a Memorandum Confirming
Term, in the form attached as Exhibit C, memorializing the actual Term
Commencement Date and Expiration Date, and confirming that Tenant has accepted
and approved the Premises, including without limitation the Initial
Improvements, in good condition and state of repair, subject only to the
Punch-List Work (as defined in the Project Development Rider).
2.4 EXPIRATION DATE; TERMINATION DATE; SURRENDER DATE. Subject to
extension as provided in Section 2.5 below, the "EXPIRATION DATE" shall be the
last day of the month in which the 15th anniversary of the Substantial
Completion Date for the Second Increment occurs. The "TERMINATION DATE" shall be
the Expiration Date, or such earlier date as the Lease may be
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terminated in accordance with its terms, and the "SURRENDER DATE" shall be the
Termination Date or, if Tenant holds over, such later date as Tenant fully quits
and surrenders the Premises to Landlord in the condition required by this Lease.
2.5 OPTIONS TO EXTEND LEASE TERM. Tenant shall have the right to
extend the Lease Term for two separate consecutive additional periods of five
years each (each an "EXTENSION OPTION"), subject to the following terms and
conditions:
(a) Tenant shall give Landlord written notice exercising the
Extension Option (an "EXERCISE NOTICE") not less than 12 months before the
then-applicable Expiration Date. Time is absolutely of the essence.
(b) Tenant may not exercise an Extension Option if there is a
then-uncured Event of Default. If there is an uncured Event of Default on the
date that the extended term is scheduled to commence, then Landlord may elect to
terminate this Lease notwithstanding Tenant's Exercise Notice and the parties'
agreement as to Base Rent.
(c) All terms and conditions of this Lease shall apply during the
extended term, except that the Base Rent shall be determined in accordance with
Section 3.4 below.
(d) If Tenant fails to timely exercise the Extension Option to
extend the Lease Term for a first five-year period, the Extension Option to
extend the Lease Term for a second five-year period shall automatically
terminate and be of no further force or effect.
(e) Upon extension of the Lease Term pursuant to this Section,
the Expiration Date thereafter shall be the fifth anniversary of the previous
Expiration Date.
2.6 HOLDING OVER. Tenant shall vacate the Premises on or before
the Termination Date. If Tenant retains possession of all or any part of the
Premises beyond the Termination Date, such possession shall be deemed to be
against Landlord's will unless Landlord consents to such possession in writing.
If Tenant remains in possession of all or any part of the Premises after the
Termination Date without Landlord's written consent: (a) Tenant shall pay
Landlord 1/15th of the Base Rent payable for the last month of the Lease Term
for each day that Tenant holds possession of any part of the Premises after the
Termination Date; (b) Tenant's occupancy of the Premises shall be solely as a
tenant at sufferance and no notice of termination shall be necessary in order to
recover possession; (c) Tenant's use of the Premises otherwise shall be subject
to all applicable terms and conditions of this Lease; and (d) in addition to
such other remedies as may be available to Landlord at law or in equity, Tenant
shall indemnify, defend and hold Landlord harmless from and against any and all
claims, damages, losses, liabilities and costs arising from or related to
Tenant's continued possession, including without limitation reasonable
attorneys', brokers' and consultants' fees, costs and expenses. Notwithstanding
anything set forth in this Article 2 to the contrary, Tenant shall have the
one-time right to extend the Lease Term for a short-term hold-over period (the
"HOLDOVER OPTION") by giving Landlord written notice exercising the Holdover
Option not less than 12 months before the then-applicable Expiration Date, which
notice shall specify the duration of the hold-over period (the "HOLDOVER TERM")
that Tenant elects (which Holdover Term shall be not less than one month or more
than six months). Tenant may not exercise the Holdover Option if there is a
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then-uncured Event of Default. If there is an uncured Event of Default on the
date the Holdover Term is scheduled to commence, Landlord may elect to rescind
the Holdover Option, in which event there shall be no Holdover Term. If Tenant
timely exercises the Holdover Option, all of the terms and conditions of this
Lease shall apply during the Holdover Term, except that the monthly Base Rent
payable by Tenant during the Holdover Term shall be equal to the greater of (x)
the Fair Market Rental Value (as defined in Section 3.4) for the Premises as of
the commencement of the Holdover Term; or (y) 135% of the monthly Base Rent that
was payable immediately prior to the beginning of the Holdover Term.
ARTICLE 3
RENT AND SECURITY DEPOSIT
3.1 PAYMENT OF BASE RENT.
(a) During the period commencing on the Term Commencement Date
and continuing thereafter until the Expiration Date, Tenant shall pay Landlord
annual base rent ("Base Rent") in an amount equal to $26.00 per rentable square
foot, adjusted annually as follows: Base Rent shall be increased by four percent
(4%) each year, commencing on the first day of the month in which the first
anniversary of the Premises Completion Midpoint Date (as defined below) occurs
and thereafter on each anniversary of such adjustment date. For example, if the
Premises Completion Midpoint Date were September 12, 2001, Base Rent would be
$26.00 per rentable square foot through August 31, 2002. Effective September 1,
2002, Base Rent would be increased to $27.04 per rentable square foot and
effective September 1, 2003, Base Rent would be increased to $28.12 per rentable
square foot. For purposes of this Lease, the "Premises Completion Midpoint Date"
shall be the date that is half way between the Substantial Completion Date for
the First Increment and the Substantial Completion Date for the Second
Increment. For example, if the Substantial Completion Date for the First
Increment were August 3, 2001, and the Substantial Completion Date for the
Second Increment were October 23, 2001, the Premises Completion Midpoint Date
would be September 12, 2001.
(b) Tenant shall pay Base Rent in advance in equal monthly
installments, without offset, deduction or prior demand, commencing on the Term
Commencement Date; provided, however, that: (i) Base Rent for any partial month
during the period between the Term Commencement Date and the Expiration Date
shall be prorated on the basis of a 30-day month; and (ii) Base Rent shall be
payable on the Term Commencement Date only for the First Increment, and Base
Rent for the entire Premises shall be payable commencing on the Substantial
Completion Date for the Second Increment.
(c) The rentable square footage of the Buildings shall be
calculated by the Architect (as defined in the Project Development Rider) in
accordance with the Standard Method for Measuring Floor Area in Office
Buildings, American National Standard ANSI Z65.1-1996 (as published by the
Building Owners and Managers Association International). On or before the
delivery date of each Increment, the Architect shall certify to both parties:
(i) the rentable square footage within such Increment; and (ii) that such
rentable square footage was calculated in accordance with the prescribed
standard. Such determination shall be conclusive and binding
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on both parties unless challenged by Tenant within 30 days after receipt of the
Architect's certificate.
3.2 MANNER OF PAYMENT. Tenant shall pay Rent to Landlord at the
prescribed times by electronic or other comparable transfer of immediately
available and lawful funds of the United States to such account or accounts
located in the United States of America as Landlord may designate in writing
from time to time. If Landlord fails to so designate an account for receipt of
such transfers of funds, Tenant shall pay Rent to Landlord at the address
provided in Section 1.2, or to such other person and/or at such other address as
Landlord may designate in writing from time to time.
3.3 ADDITIONAL RENT AND RENT DEFINED. For purposes of this Lease:
(A) "ADDITIONAL RENT" shall mean and include all other amounts and charges,
except Base Rent, which are payable by Tenant to Landlord under this Lease; and
(b) "RENT" shall mean and include Base Rent and Additional Rent. Tenant shall
pay Landlord any Additional Rent within 30 days after receipt of Landlord's
invoice therefor.
3.4 BASE RENT FOR EXTENDED TERM(S).
(a) If Tenant elects to extend the Lease Term pursuant to Section
2.6 above, the Base Rent for the first year of the extended term shall be 95% of
the Fair Market Rental Value of the Premises (defined below) at the time of the
extension; provided, however, that regardless of Fair Market Rental Value, Base
Rent for the first year of the extended term shall not be less than 104% of the
Base Rent in effect for the year immediately preceding the first year of the
extended term. The Fair Market Rental Value for an extended term shall include
such escalations to Base Rent as are consistent with other lease transactions
from which Fair Market Value is determined.
(b) For purposes of this Lease, "FAIR MARKET RENTAL VALUE" shall
mean the annual base rent at which comparable office space is then being offered
in similar projects: (i) taking into consideration the length of the proposed
term, the age, quality of improvements, services, amenities and location of the
Premises; (ii) disregarding any premiums that a tenant might otherwise pay in
order to renew an existing tenancy in the absence of a renewal option; (iii)
assuming that the landlord has had a reasonable time to locate a tenant and
neither the landlord nor the tenant is under any compulsion to rent; and (iv)
considering such other factors as necessarily influence market rental rates for
comparable office space.
(c) Fair Market Rental Value shall be determined as follows: The
parties first shall endeavor to agree upon the Fair Market Rental Value. If the
parties are unable to agree on the Fair Market Rental Value by that date which
is 120 days before the beginning of an extended term (the "APPRAISAL DATE"),
each party shall select an appraiser (each, an "APPRAISER") within 30 days after
the Appraisal Date and the two Appraisers shall meet promptly to select a
neutral third Appraiser (the "REFEREE"). Each of the initial two Appraisers then
shall furnish the parties with a written determination (each, an "APPRAISAL") of
the Fair Market Rental Value within 90 days after the Appraisal Date. If only
one Appraisal is submitted within the requisite time period, the Fair Market
Rental Value contained in the Appraisal shall be final and binding on the
parties. If both Appraisals are timely submitted and they differ by less than
five percent of the lower of the two, the average of the two Appraisals shall be
the Fair Market Rental Value and
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shall be final and binding on the parties. If the two Appraisals differ by more
than five percent of the lower of the two, the parties shall deliver copies of
both Appraisals to the Referee, and the Referee shall select, within ten days
after receipt, the Appraisal which it believes most accurately represents the
Fair Market Rental Value and the Appraisal so selected shall be final and
binding on the parties. The Appraisers and the Referee appointed pursuant to
this Section 3.4 shall have at least ten years of full-time experience
appraising office building projects in the Tri-Valley Area, and the Referee
shall not have advised or otherwise been involved in any transactions involving
either party during the ten-year period immediately preceding its selection. The
Appraisers shall be directed not to disclose the names of Landlord or Tenant to
the Referee, or to provide the Referee at any time before resolution of the
matter in dispute with any other information from which the identities of the
Landlord and Tenant may be inferred.
3.5 LATE CHARGES. Tenant's failure to pay Rent promptly may cause
Landlord to incur unanticipated costs. The exact amount of such costs are
impracticable or extremely difficult to ascertain. Such costs may include, but
are not limited to, processing and accounting charges and late charges which may
be imposed on Landlord by any ground lease, mortgage or trust deed encumbering
the Premises. Therefore, if Landlord does not receive any Rent payment within
five days after it becomes due, Tenant shall pay Landlord a late charge equal to
five percent of the overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of such late payment. Notwithstanding the foregoing, if Tenant fails to
make a Rent payment on time, but Tenant has timely paid all Rent during the
12-month period immediately preceding the date the delinquent Rent payment was
due, Landlord shall give Tenant a written notice of delinquency and five-day
grace period following such notice in which to pay the delinquent Rent, and if
Tenant pays the entire delinquent Rent within the grace period, no late charge
shall be imposed thereon pursuant to this Section 3.5 and no interest shall
accrue thereon under Section 3.6.
3.6 INTEREST ON PAST DUE RENT. Rent payments that are not made
within five days after the due date shall be deemed involuntary extensions of
credit by Landlord and Tenant shall pay interest on all such late Rent payments
from the date due until the date paid in full at an annual rate equal to the
lesser of: (a) the prime rate as reported from time to time in The Wall Street
Journal plus four percent; or (b) the highest rate allowed by Applicable Laws
(the "INTEREST RATE"). Interest shall not be payable on any late charges that
Tenant may be obligated to pay pursuant to this Lease, or, notwithstanding
anything herein to the contrary, on any late Rent payment during the month in
which a late charge is imposed thereon pursuant to Section 3.5 above.
3.7 RENT ABSOLUTE. To the maximum extent permissible under
Applicable Laws, this Lease shall continue in full force and effect, and
Tenant's obligations (including without limitation Tenant's obligation to pay
Rent) shall not be released, discharged or otherwise affected, by reason of: (a)
any damage, destruction or condemnation affecting all or any portion of the
Premises, except and solely to the extent expressly provided in Article 8 below;
(b) any restriction on, prevention of or interference with any use of all or any
portion of the Premises; (c) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other proceeding relating
to Landlord or Tenant, or any action taken with respect to this Lease by a
court, trustee or receiver in any proceeding; (d) any claim which Tenant or any
other person or entity has or might have against Landlord; or (e) any failure by
Landlord to comply with any
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of its obligations under this Lease (except for a breach of the covenant of
quiet enjoyment) or any other agreement. The obligations of Tenant under this
Lease shall be separate and independent covenants; provided, however, that
nothing in this Section 3.7 shall be construed to release Landlord from any
liability or obligation that Landlord has to Tenant under this Lease or at law.
Except to the extent expressly provided elsewhere in this Lease, Tenant hereby
waives, to the maximum extent permitted by Applicable Laws, any rights that it
may now or in the future have to quit or surrender the Premises, to terminate
this Lease, or to any abatement, diminution, offset, reduction or suspension of
Rent on account of any event or circumstance, including without limitation any
rights it might otherwise have under the provisions of California Civil Code
sections 1932 and 1933, or any amended, similar or successor laws. Without
limiting the foregoing, nothing in this Section 3.7 shall be deemed to preclude,
impair or otherwise affect Tenant's right to terminate this Lease prior to the
Term Commencement Date pursuant to the Project Development Rider, Tenant's right
to enforce any indemnification rights provided to Tenant by this Lease, or any
remedy (including termination of this Lease) that Tenant might have for
constructive eviction or breach of the covenant of quiet enjoyment.
3.8 SECURITY DEPOSIT. Concurrently with the execution of this
Lease, Tenant shall deliver to Landlord a security deposit in the amount set
forth in Section 1.8 above (the "SECURITY DEPOSIT") for the full and faithful
performance of Tenant's obligations under this Lease. If there is an Event of
Default at any time during the Term or any holdover period, Landlord shall have
the right, but not the obligation, to use all or any part of the Security
Deposit in order to cure or partially cure the Event of Default, or to pay
itself any Rents, damages or other amounts that Landlord would be entitled to
recover from Tenant on account of the Event of Default. In such event, Tenant
shall upon demand restore the Security Deposit to its previous amount and any
failure to do so shall be an Event of Default without further notice. Tenant may
not use the Security Deposit to pay Rent or otherwise cause Landlord to offset
any amounts payable by Tenant against the Security Deposit. The Security Deposit
shall be returned to Tenant promptly following the Surrender Date, less such
amounts as may have been used to cure or partially cure any Event of Default by
Tenant. No interest shall be paid on the Security Deposit, Landlord shall not be
required to keep the Security Deposit separate from its other accounts and no
trust relationship is created with respect to the Security Deposit.
ARTICLE 4
NET LEASE; TAXES, UTILITIES AND INSURANCE
4.1 NET LEASE. The Base Rent and any Additional Rent payable to
Landlord hereunder shall be absolutely net to Landlord and shall be paid without
assertion of any counterclaim, setoff, deduction or defense and without any
abatement, suspension, deferment or reduction, except if and solely to the
extent expressly so provided elsewhere in this Lease. Under no circumstances or
conditions, whether now existing or hereafter arising, and whether within or
beyond the present contemplation of the parties, shall Landlord be expected or
required to make any payment of any kind whatsoever with respect to the
Premises, or have any obligation or liability with respect to the Premises,
except if and solely to the extent expressly so provided elsewhere in this Lease
(including the Project Development Rider).
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4.2 PREMISES COSTS. In addition to Base Rent, Tenant shall pay or
fund when due all Impositions (but subject to Tenant's right to contest pursuant
to Section 4.3(c) below), insurance premiums and deductibles, permit and license
fees, costs of utilities, maintenance, repair, replacement, management,
services, operations and other costs of any type whatsoever accruing at any time
during the Lease Term or any holdover period in connection with the ownership,
operation, management, maintenance, repair, use, occupancy or enjoyment of the
Premises (collectively, "PREMISES COSTS"); provided, however, that Premises
Costs shall not include, and Tenant shall have no obligation with respect to,
those costs that are expressly made the responsibility of Landlord pursuant to
other provisions of this Lease. Tenant shall pay all Premises Costs directly,
and shall contract directly for all required services, utilities and other items
described herein; provided, however, that Landlord shall have the right to
contract for any such services, utilities or other items if Tenant has failed to
do so, or has failed to make any payment of Premises Costs which is due and
owing, and: (a) such failure constitutes an uncured Event of Default; or (b)
there is an imminent threat to the health or safety of persons or property on or
about the Premises.
4.3 PAYMENT OF TAXES AND ASSESSMENTS.
(a) Without limiting the generality of Sections 4.1 and 4.2, but
subject to Section 4.3(c) below, Tenant shall pay all Impositions (defined
below) allocable to the Premises during the Lease Term on or before the date
due, and in any event before delinquency and before any fine, interest or
penalty may become due or be imposed by operation of law for nonpayment;
provided, however, that: (i) any Impositions that are allocable to periods
before or after the Term shall be paid by Landlord; and (ii) if any assessment
is permitted by law to be paid in installments, Tenant may pay such assessments
in installments (and any assessment installments allocable to periods before or
after the Lease Term shall be paid by Landlord in accordance with the preceding
clause (i)).
(b) Tenant shall pay all Impositions directly to the applicable
taxing authority, and shall deliver to Landlord, within thirty days after
payment, true and correct copies of the receipted bills or other reasonable
evidence showing such payment. Landlord shall cooperate with Tenant to cause all
bills for Impositions to be sent directly to Tenant, but if the tax collection
agency will not so agree, then Landlord shall tender all bills to Tenant
promptly upon Landlord's receipt.
(c) Tenant shall have the right, at its sole cost, to contest the
full or partial amount or validity of any Imposition by appropriate
administrative and legal proceedings, either in its own name, in Landlord's
name, or jointly with Landlord if Landlord so elects. Tenant may postpone
payment of any contested Imposition pending prompt and diligent prosecution of
any such proceedings and appeals, but only if Tenant takes such action as may be
required pending a final determination in Tenant's contest, including without
limitation the posting of a bond or other assurance of payment or performance
with the court or administrative agency or other legal authority having
jurisdiction over the contest, to suspend the collection of the contested
Imposition and the sale of the Premises to satisfy any lien(s) arising out of
the nonpayment of such Imposition. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all claims, damages, liabilities and
costs, including without limitation penalties, interest
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and reasonable attorneys' fees, costs and disbursements, arising from or related
to any such contest, noncompliance or postponed compliance.
(d) For purposes of this Lease, "IMPOSITIONS" means and includes
all impositions and assessments; personal property taxes; use and occupancy
taxes; privilege taxes; business and occupation taxes; gross sales taxes;
occupational license taxes; water and sewer charges; charges for public
utilities; excises; levies; license and permit fees; transit taxes; and all
other governmental impositions and charges of every name, kind and nature
whatsoever, whether or not now customary or within the contemplation of Landlord
and Tenant, and regardless of whether the same shall be extraordinary or
ordinary, general or special, unforeseen or foreseen, or similar or dissimilar
to any of the foregoing, which, at any time during the Lease Term may be levied,
assessed, charged or imposed or become due and payable upon or in connection
with the ownership, use, operation or occupancy of the Premises; or upon the
rent or income of Tenant; or upon the Rent received by Landlord under this Lease
(subject to the last sentence of this paragraph); or upon this transaction, this
Lease or any document creating or transferring an estate or interest of Tenant
in the Premises (including without limitation any documentary transfer taxes);
or upon any Improvements or personal property of Tenant; or upon the leasehold
of Tenant or upon the estate hereby created; or upon Landlord by reason of its
ownership of the fee underlying this Lease. If at any time during the Lease
Term, the present method of taxation or assessment shall be changed such that
there shall be substituted for the whole or any part of the Impositions now or
hereafter levied, assessed and/or imposed any capital levy or other tax or
assessment, then the term "Impositions" also shall mean and include such capital
levy or other tax or assessment. The term "Impositions" shall not include: (i)
any municipal, state or federal income taxes levied against Landlord; (ii) any
estate, gift, succession, inheritance or transfer taxes of Landlord; or (iii)
any business and occupational tax attributed and imposed upon Landlord for work,
business or income not in any way associated with the Premises.
4.4 UTILITIES AND SERVICES. At all times during the Term and any
holdover period, Tenant shall procure at its sole cost all utilities and other
services which may be necessary or desirable in connection with Tenant's use,
occupancy and enjoyment of the Premises and performance of its obligations under
this Lease (including without limitation water, gas, electricity, telephone,
communications, cable, janitorial, trash removal, security and landscaping);
provided, however, that Landlord shall have the right, but not the obligation,
to contract for any such utilities, services or other items if Tenant has failed
to do so, or has failed to make any payment therefor which is due and owing,
and: (a) such failure constitutes an uncured Event of Default; or (b) there is
an imminent threat to the health or safety of persons or property on or about
the Premises. Tenant shall use utilities only within the rated capacity of the
Premises. Landlord shall not be liable for damages resulting from utility
interruptions caused by casualty, accident, labor dispute or any other cause
except (and then only to the extent principally caused by) Landlord's active
negligence or willful misconduct committed after the Substantial Completion Date
for the Second Increment in connection with the performance of its obligations
under Section 6.2(b) of this Lease, nor shall any interruptions be deemed an
actual or constructive or partial eviction or result in any abatement of Rent
unless caused solely by Landlord's gross negligence or willful misconduct.
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4.5 INSURANCE TO BE PROCURED BY TENANT.
(a) Liability Insurance. At all times during the Lease Term and
any holdover period, Tenant shall maintain a policy of commercial general
liability insurance (sometimes known as broad form comprehensive general
liability insurance) insuring Tenant against liability for bodily injury,
property damage (including loss of use of property) and personal injury arising
out of the operation, use or occupancy of the Premises. Tenant shall name
Landlord as an additional insured under such policy. The initial amount of such
insurance shall be Five Million Dollars ($5,000,000) per occurrence (combined
single limit) and shall be subject to periodic increase (but not more frequently
than once every three years) based upon inflation, increased liability awards,
the recommendations of professional insurance advisers and other relevant
factors. The liability insurance obtained by Tenant under this Section 4.5(a)
shall: (i) be primary and non-contributing; (ii) contain cross-liability
endorsements; and (iii) insure Tenant's indemnity obligations under this Lease
to the extent arising from the negligence of Tenant. Landlord, at Landlord's
sole expense, may also obtain comprehensive public liability insurance in an
amount and with coverage determined by Landlord insuring Landlord against
liability arising out of ownership, operation, use or occupancy of the Premises,
but any such insurance shall be excess and non-contributory with Tenant's
insurance.
(b) Worker's Compensation and Employer's Liability. Tenant shall
maintain worker's compensation insurance in the amounts and coverages required
under worker's compensation, disability and similar employee benefit laws
applicable to Tenant or the Premises, and employer's liability insurance, with
limits of not less than $1,000,000 for bodily injury by accident and $1,000,000
for bodily injury by disease, or such higher amounts as may be required by law.
(c) Business Interruption Insurance. During the Lease Term,
Tenant shall maintain a business interruption insurance policy in an amount
equal to at least 18 months of Base Rent, estimated Impositions and insurance
premiums.
(d) Builder's Risk Insurance. During the course of construction
of any Alterations, Tenant shall maintain comprehensive "all risk" builder's
risk insurance, including vandalism and malicious mischief, covering all
Improvements in place on the Premises, all materials and equipment stored at the
Premises or an off-site storage facility and furnished under contract, and all
materials and equipment that are in the process of fabrication at the premises
of any third party or that have been placed in due course of transit to the
Premises or an off-site storage facility when such fabrication or transit is at
the risk of, or when title to or an insurable interest in such materials or
equipment has passed to, Tenant or its contractors or subcontractors (excluding
any contractors' and subcontractors' tools and equipment, and property owned by
the employees of any contractor or subcontractor), such insurance to be written
on a completed value basis in an amount not less than the full estimated
replacement value of the Alterations.
(e) Payment of Premiums. Tenant shall pay on or before the date
due all premiums for the insurance policies described in this Section 4.5. If
Tenant fails to deliver any policy, certificate or renewal to Landlord within
the prescribed time period as required under this Lease, or if any such policy
is canceled or materially modified during the Lease Term without Landlord's
prior written consent, Landlord shall have the right, but not the obligation, to
obtain
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any or all of such insurance at Tenant's sole cost and expense, in which event
Tenant shall reimburse Landlord for the cost of such insurance as Additional
Rent.
(f) General Requirements.
(i) All of the insurance required to be procured and
maintained by Tenant pursuant to this Section 4.5, and all renewals
thereof, shall be issued by one or more companies of recognized
responsibility admitted to sell insurance in California with a financial
rating of at least Class A:X (or its equivalent successor) status in the
most recent edition of Best's Insurance Reports (or its equivalent
successor, or, if there is no equivalent successor rating, otherwise
reasonably acceptable to Landlord). All liability insurance policies
shall name all Landlord Indemnitees, and such other parties as Landlord
may reasonably request, as additional insureds with respect to any
liability arising out of or relating to the ownership, maintenance,
operation, occupancy or use of the Premises. Any deductibles or
self-insurance retentions for any of the foregoing insurance shall be
subject to Landlord's prior written approval, which approval shall not
be unreasonably withheld. All deductibles and self-insurance retentions
shall be paid by Tenant. All insurance of Tenant shall be primary
coverage, and any insurance carried by Landlord shall be excess and
non-contributory with Tenant's insurance. Tenant may procure and
maintain any required insurance under "blanket" policies.
(ii) All policies provided for herein shall provide
expressly that such policies shall not be canceled, terminated or
altered without 30 days' prior written notice to Landlord. Each policy,
or a certificate of the policy executed by a properly qualified and
authorized representative of the insurance company evidencing that the
required insurance coverage is in full force and effect, shall be
deposited with Landlord on or before the Term Commencement Date, shall
be maintained throughout the Term, and shall be renewed at least 30 days
before the expiration of the term of the policy. No exclusion shall be
permitted in any policy if it conflicts with any coverage required
hereby, and, in addition, no policy shall contain any exclusion from
liability for personal injury or sickness, disease or death or which in
any way impairs coverage under the contractual liability coverage
described above.
(iii) Tenant waives all rights of subrogation and recovery
against all Landlord Indemnitees on account of any loss or damage
arising from any cause, but only to the extent covered by any insurance
(or self-insurance) required to be carried by Tenant pursuant to this
Section 4.5. Tenant shall give notice to its insurance carrier or
carriers that the foregoing waiver is contained in this Lease, and shall
procure waiver of subrogation endorsements to all policies described in
Section 4.5.
4.6 INSURANCE TO BE PROCURED BY LANDLORD. Landlord shall procure
and maintain, at all times during the Term, property insurance covering the
Improvements for the perils covered by a standard "all risk" extended coverage
fire insurance policy, including vandalism, malicious mischief, sprinkler
leakage (including fire and sprinkler damage caused by earthquake), boiler,
machinery and pressure vessel, lightning, windstorm, hail and other typical and
commercially available coverages (the "PROPERTY INSURANCE POLICY"), in an amount
equal to the full replacement cost of the Improvements. If Landlord elects in
its sole discretion to procure
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a Property Insurance Policy with a deductible, Tenant shall have the right to
approve the amount of the deductible and shall pay the entire amount of the
deductible in the event of a casualty; provided, however, that the deductible
shall not exceed two percent of the policy coverage amount unless approved by
Landlord in its sole discretion. Tenant shall pay all premiums for the Property
Insurance Policy upon invoice as Additional Rent. In addition, Landlord may
elect at any time and from time to time, in its sole discretion, to procure,
maintain or discontinue earthquake insurance covering the Improvements, whether
as part of the Property Insurance Policy or separately (though references in
Article 8 of this Lease to the "Property Insurance Policy" shall mean and
include all included or separate earthquake insurance coverage as well), and in
such event, Tenant shall pay as Additional Rent an amount equal to the lesser
of: (a) one-half of the premium allocable to the earthquake coverage; or (b) the
Maximum Earthquake Premium Contribution. For purposes of this Lease, the
"MAXIMUM EARTHQUAKE PREMIUM CONTRIBUTION" shall be $75,000 for the first year of
the Term, and thereafter shall be increased each year by four percent (4%) over
the previous year, commencing on the first day of the month following the month
in which the first anniversary of the Term Commencement Date occurs and
thereafter on each anniversary of such adjustment date. Tenant shall pay the
entire amount of the deductible in the event of an earthquake, but only if up to
a maximum amount equal to the deductible for which Tenant is responsible under
the Property Insurance Policy, and then only if Landlord is obligated to (and
actually does) restore the Premises pursuant to Article 8. Landlord shall pay
the balance of the deductible, if any, if Landlord is obligated pursuant to
Article 8 to restore the Premises in the event of an earthquake. Landlord, for
itself and on behalf of all others who may now or hereafter hold an interest in
the Premises (including without limitation any present or future Lender), waives
all rights of subrogation and recovery against Tenant, and Tenant's agents,
employees, contractors, subtenants and assignees, on account of any loss or
damage arising from any cause, but only to the extent covered by the proceeds of
the insurance that Landlord is expressly required to carry by this Section 4.6.
Landlord shall give notice to its insurance carrier or carriers that the
foregoing waiver is contained in this Lease, and shall procure a waiver of
subrogation endorsement to the Property Insurance Policy.
4.7 IMPOUNDS FOR INSURANCE PREMIUMS AND IMPOSITIONS. If Tenant is
more than ten days late in the payment of Rent more than once in any consecutive
12 month period, Tenant shall at Landlord's election pay directly into a neutral
third-party escrow depository (the "ESCROW") each month, a sum equal to
one-twelfth (1/12) of the annual Impositions and insurance premiums payable by
Tenant under this Lease. The Escrow shall be instructed to hold such payments in
an interest bearing impound account, with interest accruing to Tenant's benefit.
Tenant shall pay all fees and charges of the Escrow. If unknown, Landlord shall
reasonably estimate the amount of Impositions and insurance premiums payable by
Tenant. Tenant shall pay any deficiency of funds in the impound account to
Landlord upon written request. If there is an uncured Event of Default by Tenant
under this Lease, Landlord may apply any funds in the impound account to any
obligation then due under this Lease. However, any impound required under this
Section 4.7 shall continue only until such time as Tenant has made all Rent
payments on a timely basis for a period of 12 consecutive months.
4.8 PARTIAL OCCUPANCY PERIOD. Notwithstanding anything in this
Lease to the contrary, during the period between the Term Commencement Date and
the Substantial Completion Date for the Second Increment (the "PARTIAL OCCUPANCY
PERIOD"): (a) Landlord shall maintain all portions of the Premises except for
the interior portions of Building A; and
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(b) Landlord and Tenant shall share equally in all such maintenance costs, and
in all other Premises Costs that are allocable to those portions of the Premises
other than Building A, for the Partial Occupancy Period. Each party shall
reimburse the other, within 30 days after receipt of invoice with reasonable
substantiation, for 50% of all costs incurred as described in the preceding
sentence.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USES. Tenant may use the Premises only for the
Permitted Uses set forth in Section 1.9 above. Tenant also may use the Premises
for other purposes ancillary to the operation of a high technology corporate
headquarters, subject to Landlord's prior written consent (which Landlord shall
not unreasonably withhold, condition or delay).
5.2 MANNER OF USE. Without limiting the applicability of Section
5.1 or any other provision of this Lease, Tenant shall not use or allow the
Premises to be used for any unlawful purpose, nor shall Tenant cause, maintain
or permit any nuisance, waste or dangerous condition in, on or about the
Premises. Tenant shall obtain and pay for all permits, except for the
Certificate of Occupancy for the Initial Improvements, that are required for
Tenant's occupancy of the Premises. Tenant shall not keep or permit to be kept
any property on or about the Premises, or conduct any activity on or at the
Premises, which exceeds the rated capacities of the Premises, as established in
accordance with the Project Development Rider.
5.3 COMPLIANCE WITH APPLICABLE LAWS. Tenant shall comply with,
and the use, occupancy, operation, maintenance and repair, of the Premises shall
comply with: (a) all present and future laws, statutes, ordinances, resolutions,
entitlements, codes, orders, rules, regulations and requirements of all federal,
state, and municipal governments, and the departments, commissions, boards and
offices thereof, that are applicable at any time during the Term to Tenant or
the Premises, as the context may require, including without limitation all
Environmental Laws, the Americans With Disabilities Act and Title 22 of the
California Code of Regulations (collectively, "APPLICABLE LAWS"); (b) the
requirements of the Pacific Fire Rating Bureau, the American Insurance
Association and any other insurer or insurance authority now or hereafter
constituted to the extent required to obtain the insurance coverage required
pursuant to the terms of this Lease; and (c) the requirements of any liens,
easements, encumbrances, restrictions, rights and conditions to which this Lease
is subject as of the Effective Date, or which are created after the Effective
Date with Tenant's written consent (which consent may be granted or withheld in
Tenant's sole and absolute discretion if the proposed lien, easement,
encumbrance, restriction, right or condition would have a material and adverse
effect on Tenant); provided, however, that Tenant shall have no right to approve
any Mortgages (as defined in Section 11.1). Tenant shall provide Landlord
promptly with copies of any notices of violation or deficiency Tenant may
receive respecting the Premises from any public agency with jurisdiction or
insurance authority, and Tenant shall promptly and fully cure and correct at its
sole cost any such violation or deficiency.
5.4 SIGNS. Tenant may place signs on the Premises, both interior
and exterior, subject to compliance with all Applicable Laws and Landlord's
prior written consent (which
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Landlord shall not unreasonably withhold, condition or delay). Tenant shall pay
for the installation and maintenance of any such signs, except to the extent
provided by Landlord as part of the Initial Improvements pursuant to the Project
Development Rider. At Tenant's request, Landlord shall provide reasonable
cooperation to Tenant in securing any necessary governmental approvals for
Tenant's signage, but Landlord shall not be required to incur any out-of-pocket
costs in connection with such cooperation unless Tenant makes satisfactory
arrangements to pay or reimburse Landlord for such out-of-pocket costs. Tenant
shall remove all signs and graphics identifying Tenant (as distinguished from
the addresses of the Buildings) prior to the Surrender Date. Such installations
and removals shall be made in a manner as to avoid or minimize damage or
defacement, including without limitation any discoloration caused by such
installation or removal. Landlord shall have the right, at its option, to deduct
from the Security Deposit such sums as are reasonably necessary to remove such
signs and/or repair any damage or defacement associated with the signs and/or
their removal.
5.5 LANDLORD'S ACCESS. Landlord shall have the right upon not
less than two business days' prior written notice (except that no such notice
shall be required in the event of imminent threat or danger to persons or
property on or near the Premises), to enter upon any part of the Premises during
normal business hours for the purpose of ascertaining the condition of the
Premises, performing its obligations or exercising its rights under this Lease,
posting notices of non-responsibility, ascertaining whether Tenant is complying
with its obligations under this Lease or showing the Premises to prospective
successors or Lenders, or during the last 24 months of the Lease Term, to
prospective tenants. Landlord shall use all reasonable efforts in exercising its
entry rights to avoid or minimize interference with Tenant's use of the
Premises. Tenant may cause an employee or agent of Tenant to accompany
Landlord's representatives during their entry onto the Premises. Landlord shall
have the right to use any and all means it deems reasonably necessary or
appropriate under the circumstances in order to obtain entry to the Premises in
case of an imminent threat or danger to persons or property, and such entry
shall not be construed or deemed to be a forcible or unlawful entry into the
Premises, or an actual or constructive eviction of Tenant from the Premises or
any portion thereof.
5.6 QUIET ENJOYMENT. Subject to there being no uncured Event of
Default by Tenant under this Lease, Tenant shall lawfully and quietly hold,
occupy and enjoy the Premises during the Term, subject to the terms, conditions
and reservations contained in this Lease, without hindrance or molestation by
anyone claiming by, through or under Landlord.
ARTICLE 6
CONDITION OF PREMISES; MAINTENANCE, REPAIRS AND ALTERATIONS
6.1 EXISTING CONDITIONS. Subject to Landlord's acquisition of the
Land and construction of the Initial Improvements in accordance with the
requirements of the Project Development Rider, Tenant shall accept the Premises
subject to all recorded matters, laws, ordinances and governmental regulations
and orders in effect on the Effective Date. Except as provided herein, Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation as to the condition of the Premises or suitability of the
Premises for Tenant's intended use. Tenant represents and warrants that Tenant
has made its own inspection of and
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inquiry regarding the condition of the Land and the suitability thereof for
construction of the Initial Improvements, and is not relying on any
representations of Landlord or any Broker with respect thereto.
6.2 MAINTENANCE AND REPAIRS.
(a) Tenant's Obligations. At all times during the Term and any
holdover period, Tenant shall keep, maintain and preserve the Premises in good,
safe condition and repair consistent with that of other first class corporate
headquarters projects in the Tri-Valley area of the same or comparable vintage,
and shall make all necessary repairs, replacements and Alterations (whether
foreseen or unforeseen, ordinary or extraordinary) in order to maintain the
Project in accordance with this standard and comply with all Applicable Laws,
except for those matters that are expressly made the obligation of Landlord
pursuant to Section 6.2(b) below. Except as expressly set forth in Section
6.2(b) below, Landlord shall not be obligated to make any repairs, replacements
or Alterations of any kind, nature or description whatsoever, and Tenant hereby
expressly waives any right to terminate this Lease (except as otherwise provided
in Article 17 below) or, except as provided in Section 6.2(b) below, to make
repairs at Landlord's expense pursuant to California Civil Code sections
1932(l), 1941, 1942, or any amended, similar or successor laws. If Tenant fails
to maintain or repair the Premises as required by this Lease and such failure
constitutes an Event of Default, Landlord shall have the right, but not the
obligation, to enter onto the Premises and perform such maintenance or repair
for the account of Tenant, and in such event Landlord shall have no liability to
Tenant for any loss or damage to Tenant's personal property, or interference
with Tenant's use, enjoyment or operation of the Premises, except to the extent
caused by Landlord's gross negligence or willful misconduct. If Landlord
performs any such repairs or maintenance, Tenant shall pay all reasonable costs
thereof to Landlord as Additional Rent.
(b) Landlord's Obligation. Landlord's sole obligation with
respect to the maintenance and repair of the Premises shall be to perform all
maintenance and repairs that may become necessary at any time during the Lease
Term to the structural elements of the Buildings, which shall be limited to the
foundations, footings, structural elements of load-bearing walls only (but not
the interior or exterior surfaces) and roof structure (but not the surface).
Tenant shall give Landlord prompt written notice if Tenant believes that there
is a condition that requires maintenance or repair by Landlord. Notwithstanding
any contrary provision of this Lease, if Tenant provides written notice to
Landlord of the need for maintenance and/or repairs which are Landlord's
obligation to perform under this Section 6.2(b), and Landlord fails to commence
such maintenance and/or repairs within a commercially reasonable period of time,
given the circumstances, after receipt of such notice, then Tenant may proceed
to undertake such repairs and/or maintenance upon delivery of an additional
three business day notice to Landlord that Tenant is taking such action. If such
maintenance and/or repairs were required by this Section 6.2(b) to be performed
by Landlord, then Tenant shall be entitled to reimbursement by Landlord of
Tenant's reasonable costs and expenses in performing such maintenance and/or
repairs. Reimbursement shall be made within 30 days after Landlord's receipt of
invoice of such costs and expenses, together with reasonable documentation
substantiating such costs and expenses, and if Landlord fails to so reimburse
Tenant within such 30-day period, then Tenant shall be entitled to deduct from
Rent payable by Tenant under this Lease the amount of such invoice together with
interest which shall have accrued on the amount of such invoice during the
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period from and after Tenant's delivery of such invoice to Landlord through and
including the date Landlord delivers to the payment to Tenant, at the Interest
Rate; provided, however, that notwithstanding the foregoing to the contrary, if:
(i) Landlord delivers to Tenant within such three-business day period described
above, a written objection to Tenant's right to receive any such reimbursement
based upon Landlord's claim that such action did not have to be taken by
Landlord pursuant to the terms of this Lease; or (ii) Landlord delivers to
Tenant, within 30 days after receipt of Tenant's invoice, a written objection to
the payment of such invoice based upon Landlord's claim that such charges are
excessive (in which case Landlord shall reimburse Tenant, within such 30-day
period, the amount Landlord contends would not be excessive), then Tenant shall
not be entitled to such reimbursement or deduction from Rent, but Tenant may
proceed to institute legal proceedings to determine and collect the amount, if
any, of such reimbursement. In the event Tenant prevails in such legal
proceedings and receives a monetary judgment against Landlord, then Landlord
shall pay such judgment to Tenant within 30 days of the date such monetary
judgment is entered. If such monetary judgment is not so paid, then,
notwithstanding any contrary provision of this Lease, Tenant shall be entitled
to deduct from Rent payable under this Lease the amount of such monetary
judgment, together with interest which shall have accrued on such monetary
judgment during the period from and after the day after the date such monetary
judgment was received through and including the date that Tenant deducts from
Rent the amount of such monetary judgment, at the Interest Rate.
6.3 ALTERATIONS.
(a) Improvements and Alterations Defined. For purposes of this
Lease:
(i) the term "IMPROVEMENTS" shall mean all buildings,
utilities, monuments, fences, walls, driveways, landscaping and other
structures and facilities that are constructed, planted or installed on,
under or within the Premises, including without limitation the Initial
Improvements and any Alterations; and
(ii) the term "ALTERATIONS" shall mean any alterations,
renovations, reconstructions, replacements or modifications of any
Initial Improvements, any Improvements that are constructed after the
Initial Improvements, and any alterations, renovations, reconstructions,
replacements or modifications of any such subsequently constructed
Improvements.
(b) Permitted Alterations. Tenant may make, at its sole cost and
expense, Alterations that are: (i) non-structural in nature; (ii) do not
materially affect the roofing, mechanical, electrical, vertical transport or
other systems of the Buildings; and (iii) are not visible from the exterior of
the Premises. Any other Alterations may be undertaken only with Landlord's prior
written consent, which shall not be unreasonably withheld, conditioned or
delayed; provided, however, that Landlord's consent in all cases may be
conditioned upon Tenant's agreement to remove the Alterations and restore the
Premises to its condition prior to installation of the Alterations, on or before
the Surrender Date, unless the Alterations are of a design, quality, quantity
and character that are typical of first class corporate headquarters projects of
new or recent vintage so that there will be no material adverse effect on
Landlord's ability to relet the Premises. If Landlord's consent to any proposed
Alterations is required, Tenant shall submit a written request therefor to
Landlord in the form attached as Exhibit D. If
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Tenant submits such request and Landlord does not indicate in its consent to the
Alterations that removal and restoration at the end of the Term will be
required, Landlord shall be deemed to have waived its right to require removal
and restoration with respect to such Alterations. Landlord shall not, however,
be deemed under any circumstances to have waived its right to require removal
and restoration with respect to any Alterations for which its consent is not
requested.
(c) Pre-Conditions to Construction. Before commencing
construction of any Alterations, Tenant shall (regardless of whether Landlord's
consent to the Alterations is required): (i) procure all entitlements that may
be required by Applicable Laws as a condition to the start of construction; (ii)
provide Landlord with copies of the approved plans and building permit (if such
a permit is required); and (iii) provide Landlord with certified copies or
certificates of the builder's risk insurance policy required by Section 4.5(d)
above. Tenant shall give Landlord at least 15 days' written notice before
commencing construction of any Alterations so that Landlord may post and record
one or more notices of non-responsibility, and Tenant shall maintain the
notice(s) in the location(s) reasonably designated by Landlord.
(d) Construction Standards. All Alterations shall be constructed
in a good and workmanlike manner by a qualified and reputable contractor
reasonably approved by Landlord, substantially in accordance with the approved
plans, and subject to the requirements of all entitlements applicable to the
Premises and all other requirements of Applicable Laws and this Lease, using
workmanship and materials of a quality consistent with the first class nature of
the Premises, all at no cost or liability to Landlord. Tenant's notice under
Section 6.3(c) shall identify the contractor(s) Tenant intends to use, and
Landlord shall notify Tenant promptly after receipt of such notice if Landlord
reasonably objects to the use of such contractor(s). Once construction is
commenced, Tenant shall prosecute the work diligently and continuously to
completion, subject to Force Majeure. Tenant shall at no cost to Landlord
correct, or cause its contractor to correct, any material defects in any
construction work performed in connection with the Alterations.
(e) Completion. Upon completion of any Alterations, Tenant shall:
(i) record a notice of completion in the Official Records of Alameda County;
(ii) provide Landlord with reasonable evidence (e.g., a title policy
endorsement) that no Liens (as defined below) have resulted from the
construction work; and (iii) provide Landlord with a complete set of as-built
drawings for the Alterations showing all field changes, substitutions and other
deviations from the approved plans, on a CAD electronic file and on mylar or
another high quality reproducible medium.
(f) Alterations Required by Law. The parties intend that Tenant's
obligations under Section 5.3 to comply with all existing and future Applicable
Laws affecting the Premises shall include (but not be limited to) any
Alterations to the Premises necessary to comply with any Applicable Laws,
regardless of whether any such Alterations are structural or non-structural in
nature, except solely for those Applicable Laws that relate to the design and
construction of the Base Building Work (as defined in Section 2.1 of the Project
Development Rider) and were in effect on the Term Commencement Date. Without
limiting the generality of the foregoing, Tenant shall be responsible for all
future compliance, whether or not presently foreseeable, with the Americans With
Disabilities Act, Environmental Laws, earthquake retrofitting, fire safety
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and similar laws arising after the Term Commencement Date. In the event any
Alteration is required under this Section 6.3(f), Tenant shall give Landlord at
least 30 days prior written notice thereof so that Landlord may elect, in its
sole discretion, to perform the Alteration. Any such Alterations made necessary
by changes in Applicable Laws that become effective during the first ten years
of the Term shall be at Tenant's sole cost and expense. The cost of any
Alterations made necessary by changes in Applicable Laws that became effective
after the tenth anniversary of the Term Commencement Date shall be shared
equally by Landlord and Tenant, and Tenant's share of such costs shall be
amortized over the remainder of the Term (but not any extensions) on a straight
line basis, using a then current market interest rate, and shall be payable in
equal monthly installments as Additional Rent.
(g) No Liens. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to Tenant, and
that no mechanic's, materialmen's or other liens, stop notices or encumbrances
(collectively, "LIENS") for any such labor or materials shall attach to or
affect the estate or interest of Landlord in and to the Premises. Nothing in
this Lease shall be deemed or construed in any way as constituting the consent
or request of Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or furnishing of any materials in connection with the construction, repair
or replacement of any Alterations, or as giving Tenant any right, power or
authority to contract for or to permit, on Landlord's behalf or as to Landlord's
interest, the rendering of any services or the furnishing of any materials.
Landlord shall have no obligation to Tenant or to any contractor, subcontractor,
supplier, materialman, worker or other person, firm or corporation who engages
in or participates in any construction of any Alterations unless Landlord
expressly undertakes such obligation in writing. Tenant shall not permit or
suffer any Lien against all or any part of the Premises. If any claim or notice
of Lien is filed, Tenant shall promptly cause the Lien to be bonded over, at no
cost to Landlord, so that the Lien shall have no further effect on the Premises.
If Tenant fails to so remove the effect of the claim or notice of Lien within 20
days after receiving Landlord's written request, Landlord shall have the right,
but not the obligation, without waiving any other rights and remedies it may
have against Tenant and without further notice to Tenant, to cause the Lien to
be removed from record by any means Landlord deems proper in its sole
discretion, including without limitation making full payment to the Lien
claimant without regard to the validity of its claim. In the event Landlord
causes a Lien to be removed from record, Tenant shall pay Landlord, as
Additional Rent, all costs and expenses reasonably incurred in connection
therewith, including without limitation reasonable attorneys' fees, costs and
disbursements. The provisions of this Section shall survive the expiration or
earlier termination of this Lease.
(h) Landlord's Costs. Tenant shall pay, as Additional Rent,
Landlord's reasonable out-of-pocket consultants', attorneys' and other fees and
costs incurred in connection with any proposed Alteration that requires
Landlord's consent. Landlord shall provide Tenant with reasonable supporting
documentation of all such fees and costs.
6.4 SURRENDER. On the Termination Date, Tenant shall vacate and
surrender actual and exclusive possession of the Premises to Landlord, broom
clean and in the same condition as on the Term Commencement Date, reasonable and
ordinary wear and tear and damage due to casualty or condemnation excepted.
Without limiting the generality of the foregoing, the roofing, mechanical,
electrical, vertical transport or other systems of the Xxxxxxxxx
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xxxxx xx in good operating order and condition of repair that reflects
continuous maintenance and repair consistent with the requirements of this
Lease. Tenant shall remove any Alterations (whether or not made with Landlord's
consent) prior to the expiration of the Lease, and restore the Premises to its
prior condition, all at Tenant's sole cost and expense, unless Landlord
previously has waived in writing, or is deemed pursuant to Section 6.3(b) to
have waived, its right to require removal of the Alterations. Tenant also shall
deliver to Landlord on the Termination Date all entitlements, plans, surveys and
other documents, keys, operations manuals and other items of personal property
in Tenant's possession or control that directly relate to or are necessary for
the operation of the Premises, copies of any service contracts (which Landlord
shall have no obligation to assume), and an amount equal to all accrued but
unpaid Impositions and other Project Costs with respect to the Premises,
prorated to the Termination Date.
6.5 TITLE TO IMPROVEMENTS. Title to the Improvements shall be and
remain in Landlord at all times. During the Lease Term, Landlord shall have the
sole right to claim any available depreciation and other tax benefits with
regard to the Improvements, except that Tenant shall have the right to claim any
available depreciation and other tax benefits with regard to any Alterations for
which it pays.
ARTICLE 7
HAZARDOUS MATERIALS
7.1 DEFINED TERMS.
(a) Hazardous Materials. For purposes of this Lease, "HAZARDOUS
MATERIALS" shall mean and include any substance which is or at any time prior to
the Surrender Date becomes: (i) defined under any Environmental Law (defined
below) as a hazardous substance, hazardous waste, hazardous material, pollutant
or contaminant; (ii) a petroleum hydrocarbon, including crude oil or any
fraction thereof; (iii) a hazardous, toxic, corrosive, flammable, explosive,
infectious, radioactive, carcinogenic or a reproductive toxicant; or (iv)
otherwise regulated pursuant to any Environmental Law.
(b) Environmental Laws. For purposes of this Lease,
"ENVIRONMENTAL LAWS" shall mean and include all present and future federal,
state and local laws, statutes, ordinances, regulations, rules, judicial and
administrative orders and decrees, permits, licenses, approvals, authorizations
and similar requirements of all federal, state and local governmental agencies
or other governmental entities with legal authority pertaining to the protection
of human health and safety or the environment.
(c) Release. For purposes of this Lease, "RELEASE" shall mean and
include any accidental or intentional spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injection, escaping, leaching, migrating,
dumping or disposing into the air, land, surface water, ground water or the
environment (including without limitation the abandonment or discarding of
receptacles containing any Hazardous Materials).
7.2 COMPLIANCE WITH ENVIRONMENTAL LAWS.
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(a) Tenant shall at all times during the Lease Term comply with
all Environmental Laws applicable to Tenant and/or the Premises. Without
limiting the generality of the foregoing, Tenant shall procure and maintain in
effect at all times during the Term and any holdover period any permits and
licenses required by any Environmental Law for Tenant's operations on or about
the Premises. Notwithstanding anything to the contrary in the foregoing, with
respect to any Hazardous Materials in, on, under or about the Land: (i) that
predate the Term Commencement Date; and (ii) of which neither Landlord nor
Tenant had constructive or actual knowledge prior to the Term Commencement Date
(singly or collectively, "UNKNOWN PRE-EXISTING CONDITIONS"), the following shall
apply:
(1) Subject to the limitations set forth in Section 7.2(b)
below, all remedial and other actions required to comply with
Environmental Laws in connection with Unknown Pre-Existing Conditions
during the first ten years of the Term shall be at Tenant's sole cost
and expense.
(2) Subject to the limitations set forth in Section 7.2(b)
below, the reasonable costs of all remedial and other actions required
to comply with Environmental Laws in connection with Unknown
Pre-Existing Conditions after the tenth anniversary of the Term
Commencement Date shall be shared equally by Landlord and Tenant.
Landlord shall reimburse Tenant, within 30 days after receipt of invoice
and reasonable substantiation, for one-half of all costs reasonably
incurred by Tenant after the tenth anniversary of the Term Commencement
Date in connection with such compliance.
(b) Landlord shall, at its sole cost and expense, comply with all
Environmental Laws in connection with any Unknown Pre-Existing Conditions as to
which Landlord's indemnity obligations under Section 7.5(b) are applicable.
(c) Nothing in this Section 7.2 shall be construed as obligating
Tenant to comply with Environmental Laws in connection with Hazardous Materials
conditions which are known to Landlord and Tenant prior to the Term Commencement
Date unless Tenant has approved such Hazardous Materials conditions pursuant to
Section 1.2 of the Project Development Rider.
7.3 RELEASES. Tenant shall not cause or permit to occur during
the Lease Term or any holdover period any Release of a Hazardous Material or any
condition of pollution or nuisance on or about the Premises, whether affecting
surface water or ground water, air, the surface of the Land or the subsurface
environment. Prior to the Surrender Date, Tenant shall have removed from the
Premises all Hazardous Materials introduced onto or permitted on the Premises by
Tenant. In the event any Release of a Hazardous Material to the environment, or
any condition of pollution or nuisance, occurs on or about or beneath the
Premises after the Effective Date that is not the result of any act or omission
of a Landlord Indemnitee (as defined below) or of any contractor(s) retained by
any Landlord Indemnitee, Tenant shall promptly undertake all remedial measures
required to clean up, xxxxx or otherwise respond to the Release, pollution or
nuisance, in accordance with applicable Environmental Laws, at Tenant's sole
cost and expense (but subject to Tenant's right to recover from responsible
third parties), such that the affected portions of the Premises and any adjacent
property are returned to the condition existing prior to the appearance of such
Hazardous Materials and Landlord can make full economic use
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of the Land, the Buildings and all other Improvements. The environmental
consultant, response/closure plan and remediation contractor all shall be
subject to Landlord's prior written approval (which approval shall not be
unreasonably withheld, conditioned or delayed) and shall include suitable
protections for the benefit of Landlord and any Lender. If Tenant fails to
timely comply with its obligations under this Section 7.3, Landlord shall have
the right, but not the obligation, to perform any or all of such obligations and
recover all costs and expenses reasonably incurred in connection therewith as
Additional Rent. Where Tenant undertakes remedial measures to clean-up, xxxxx or
otherwise respond to a Release, pollution or nuisance which is caused by the
acts or omissions of third parties, Tenant may seek to recover from such third
parties all expenses and losses incurred or sustained by Tenant in connection
with such Release, pollution or nuisance, and Tenant shall be subrogated to all
rights of recovery Landlord may have against such third parties.
7.4 HAZARDOUS MATERIALS LIST. Within 30 days before the Term
Commencement Date, Tenant shall provide Landlord with a full and complete list
of all Hazardous Materials (the "HAZARDOUS MATERIALS LIST") which Tenant will
use, store or generate, or which may be contained in any products or materials
which Tenant will use, store or generate, on or about the Premises. The
Hazardous Materials List shall contain the common name of each product or
material, and both the scientific name and the CAS number of all chemical
substances contained in such product or material. Tenant shall notify Landlord,
by providing an updated Hazardous Materials List, if: (a) Tenant intends to
begin using, storing or generating any new Hazardous Material; or (b) Tenant
determines that a product or material it is using, storing or generating
contains a Hazardous Material which was not previously described in the
Hazardous Materials List. The Hazardous Materials List, and any updated
Hazardous Materials List, shall be subject to Landlord's prior written approval,
which shall not be unreasonably withheld, conditioned or delayed so long as the
Hazardous Materials are those commonly used, stored and generated in connection
with the Permitted Uses.
7.5 ENVIRONMENTAL INDEMNITY.
(a) Tenant shall indemnify, defend, and hold all Landlord
Indemnitees harmless from and against any and all claims, suits, causes of
action, demands, losses, damages, diminution of property value, liabilities,
fines, penalties, costs, taxes, charges, administrative and judicial
proceedings, orders, judgments, remedial actions and compliance requirements,
including without limitation enforcement and clean-up actions, third-party tort
and property claims, natural resource damages, additional costs of ownership,
maintenance and development of the Premises (over and above those incurred for
the ownership, maintenance and development of the Premises as tendered to
Tenant), expenses (including without limitation reasonable attorneys' fees and
expenses, costs of defense and costs and expenses of all experts and
consultants) arising, directly or indirectly, in whole or in part, out of: (i)
any non-compliance by Tenant, or any of Tenant's employees, agents, contractors,
invitees or guests, with any Environmental Laws; (ii) any use, storage,
generation, production, Release, disposal or transportation of any Hazardous
Materials at, on, in, about or under the Premises at any time during Tenant's
occupancy and/or possession of the Premises; or (iii) the migration from the
Premises, at any time, of any Hazardous Materials Released at, on, in, about, or
under the Premises at any time during Tenant's occupancy and/or possession of
the Premises. Tenant shall promptly assume its defense and indemnification
obligations upon written notice from any
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Landlord Indemnitee. Landlord Indemnitees may participate in, but not control,
the defense of the claim at their own expense. Tenant shall not settle any claim
without Landlord Indemnitees' agreement, which agreement shall not be
unreasonably withheld, conditioned or delayed. The indemnification set forth in
this Section 7.5 is in addition to, and shall not enlarge, diminish, modify, or
substitute for, any common law, statutory or other rights that Landlord
Indemnitees may have against Tenant regarding environmental issues. For purposes
of this Section 7.5, "LANDLORD INDEMNITEES" shall mean and include each and all
of the following: (w) Landlord; (x) Xxxxxx Development Services, Inc. and its
affiliates and related entities (collectively, "XXXXXX"); (y) Landlord's
successor owners during the Lease Term (collectively, "SUCCESSOR OWNERS"); and
(z) the respective officers, directors, trustees, members, partners,
shareholders, employees, agents, successors and assigns of Landlord, Xxxxxx and
the Successor Owners.
(b) Landlord shall indemnify, defend and hold harmless Tenant,
and Tenant's officers, directors, trustees, members, partners, shareholders,
employees, agents, successors and assigns, from and against any and all claims,
suits, causes of action, demands, losses, damages, diminution of value,
liabilities, fines, penalties, costs, taxes, charges, administrative and
judicial proceedings, orders, judgments, remedial actions and compliance
requirements, including without limitation enforcement and clean-up actions,
third-party tort and property claims, natural resource damages, and additional
costs of maintaining and repairing the Premises, arising directly or indirectly,
in whole or in part, out of any Release of a Hazardous Material to the
environment, or any condition of pollution or nuisance, occurring on or about or
beneath the Premises after the Effective Date due to an act or omission of any
Landlord Indemnitee or of any contractor(s) retained by any Landlord Indemnitee.
7.6 SURVIVAL; HOLDOVER UNTIL REMEDIATION COMPLETED. The parties'
obligations and liabilities under this Article 7 shall survive the expiration or
earlier termination of this Lease. If Landlord determines at the expiration or
earlier termination of this Lease that the environmental condition of the
Premises is not in compliance with the requirements of this Lease, Landlord
shall have the right, but not the obligation, to require Tenant to hold over in
possession of the Premises until Tenant can surrender the Premises to Landlord
in the condition required by this Lease.
ARTICLE 8
DAMAGE AND DESTRUCTION; CONDEMNATION
8.1 DAMAGE OR DESTRUCTION. If, during the Term, the Premises are
partially or totally damaged or destroyed by fire or other casualty, Landlord
shall repair and restore the Premises with reasonable diligence to the condition
existing prior to such damage or destruction and Tenant shall continue to pay
Base Rent in full, without abatement or reduction; provided, however, that:
(a) If it is reasonably projected that Substantial Completion of
the restoration work will take longer than 18 months from the date of the
casualty, Tenant shall have the right to terminate this Lease upon written
notice to Landlord so long as such notice is given within 30 days after the date
the estimate of the time for restoration is provided to Tenant. If Tenant does
not exercise its right to terminate within such 30-day period, it shall be
deemed to have
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waived such termination right and elected to continue the Lease in full force
and effect. If Tenant does exercise its right to terminate within the 30-day
period, the Lease shall be deemed terminated as of the date of the casualty,
Landlord shall be entitled to retain all proceeds of the Property Insurance
Policy and Landlord shall refund any Rent paid, to the extent allocable to the
period after the casualty, as well as the Security Deposit, and neither party
shall have any further rights or obligations under this Lease, except for those
obligations that are expressly provided to survive the termination of this
Lease.
(b) If it is reasonably projected that Substantial Completion of
the restoration work will take longer than 18 months from the date of the
casualty, or if despite Landlord's maintenance of the Property Insurance Policy
required under Section 4.6, the amount of insurance proceeds reasonably
projected to be available will not be sufficient to cover at least 95% of the
reasonably estimated total cost of the restoration work (including without
limitation all hard and soft costs and reasonable contingencies), Landlord shall
have the right to terminate this Lease upon written notice to Tenant so long as
such notice is given within 30 days after the date the estimate of the time for
restoration or estimates of the amount of available insurance proceeds and total
restoration costs, as the case may be, are provided to Landlord. If Landlord
does not exercise its right to terminate within such 30-day period, it shall be
deemed to have waived such termination right and elected to restore the Premises
and continue the Lease in full force and effect. If Landlord does exercise its
right to terminate within the 30-day period, the Lease shall be deemed
terminated as of the date of the casualty, Landlord shall be entitled to retain
all proceeds of the Property Insurance Policy, Landlord shall refund any Rent
paid for the period after the casualty as well as the Security Deposit, and
neither party shall have any further rights or obligations under this Lease,
except for those obligations that are expressly provided to survive the
termination of this Lease. Notwithstanding the foregoing, if Landlord exercises
its termination right under this Section 8.1(b) because the proceeds of the
Property Insurance Policy reasonably projected to be available will be less than
95% of the reasonably estimated total cost of the restoration work, Tenant may
avoid termination of this Lease by delivering to a neutral escrow depository,
within 30 days after receipt of Landlord's termination notice (which notice
shall specify the shortfall in the insurance proceeds): (i) the entire amount of
the shortfall between the insurance proceeds and 95% of the total cost of the
restoration work; and (ii) irrevocable instructions, in form reasonably
acceptable to Landlord, to disburse such amount to Landlord ratably, on a
monthly basis, over the course of the restoration work. In such case, this Lease
shall continue in effect and Landlord shall restore the Premises in accordance
with this Article 8. In the event the actual total cost of the restoration work
is less than the amount estimated, Tenant shall be entitled to a rebate of the
amount it overpaid, and in the event the actual total cost of the restoration
work exceeds the amount estimated, Tenant shall pay such shortfall to Landlord
as Additional Rent.
(c) If the proceeds of the Property Insurance Policy are payable
to a Lender, then Landlord's obligation to restore the Premises shall be subject
to the availability to Landlord of such insurance proceeds to the extent needed
to pay for the restoration. Landlord shall use its best efforts in good faith to
cause such insurance proceeds to be made available to Landlord for such purpose
but shall have no obligation to initiate or prosecute any legal proceeding
against the Lender. If the Lender does not make such insurance proceeds
available to Landlord, the Lease shall be deemed terminated as of the date of
the casualty, Landlord and/or the Lender shall be entitled to retain all
proceeds of the Property Insurance Policy, and neither party shall have any
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further rights or obligations under this Lease, except for those obligations
that are expressly provided to survive the termination of this Lease.
(d) If Landlord does not achieve Substantial Completion of the
restoration work required under this Article 8 within 60 days after the
reasonably projected date for such Substantial Completion (the "RESTORATION
DELAY DATE"), Tenant again shall have the right to terminate this Lease upon
written notice to Landlord so long as such notice is given within 30 days after
the Restoration Delay Date. If Tenant exercises this termination right, the
Lease shall be deemed terminated as of the date of the casualty, Landlord shall
be entitled to retain all proceeds from the Property Insurance Policy, Landlord
shall refund any Rent paid for the period after the casualty as well as the
Security Deposit, and neither party shall have any further rights or obligations
under this Lease, except: (i) for those obligations that are expressly provided
to survive the termination of this Lease; and (ii) where Landlord's failure to
achieve Substantial Completion of the restoration work by the Restoration Delay
Date is attributable primarily to Landlord-Caused Delays, Tenant may recover all
damages sustained as a consequence of Landlord's default in its obligation to
restore the Premises. The Restoration Delay Date established above shall be
extended by one day for each day of delay in Substantial Completion of the
restoration work caused by Force Majeure or by Tenant Delays.
(e) If a casualty occurs during the last 36 months of the Term
that renders 50% or more of the Premises unusable for its permitted uses, either
party shall have the right to terminate this Lease upon written notice to the
other so long as such notice is given within 30 days after the date of the
casualty. If the neither of the parties exercises its right to terminate within
such 30-day period, they shall be deemed to have waived such termination right
and elected to continue the Lease in full force and effect. If either party does
exercise its right to terminate within the 30-day period, the Lease shall be
deemed terminated as of the date of the casualty, Landlord shall be entitled to
retain all proceeds of the Property Insurance Policy, and Landlord shall refund
any Rent paid for the period after the casualty as well as the Security Deposit,
and neither party shall have any further rights or obligations under this Lease,
except for those obligations that are expressly provided to survive the
termination of this Lease. Notwithstanding the foregoing, if: (i) Landlord is
not entitled to terminate this Lease pursuant to Section 8.1(b); and (ii)
Landlord exercises the termination right under this Section 8.1(e); and (iii)
Tenant then holds an unexpired option to extend the term, then Tenant may avoid
termination of this Lease by exercising the extension option within 30 days
after receipt of Landlord's termination notice. In such case, this Lease shall
continue in effect and Landlord shall restore the Premises as and to the extent
provided in this Article 8.
8.2 CONDEMNATION.
(a) If the entire Premises is Taken as a result of the exercise
of the right of eminent domain, or if less than the entire Premises is Taken,
but the Premises cannot be restored to a condition suitable for Tenant's use as
a corporate headquarters, the Lease shall be deemed terminated as of the Date of
Taking and neither party thereafter shall have any further rights or obligations
under this Lease, except for those obligations that are expressly provided to
survive the termination of this Lease. For purposes of this Section 8.2, the
terms "TAKEN" or "TAKING" shall mean an acquisition and/or damaging, including
severance damage, by eminent domain, inverse condemnation, or deed or transfer
in contemplation of a Taking, for any public or quasi-
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public use under any statute or law. The "DATE OF TAKING" shall be the earlier
of: (i) the date actual physical possession is Taken by the condemnor; (ii) the
date on which the right to compensation and damages accrues; or (iii) the date
on which title vests in the condemnor.
(b) If less than the entire Premises is Taken and the remaining
portion of the Premises can be restored to a condition suitable for Tenant's use
as a corporate headquarters, Landlord shall promptly and diligently proceed with
such restoration and this Lease shall continue in full force and effect. During
the period from the Date of Taking to the date restoration of the Premises is
completed, Rent shall be equitably abated in accordance with any diminution in
use. Upon completion of the restoration, Rent shall be equitably reduced for the
remainder of the Term as appropriate to account for the reduced utility to
Tenant, if any, that occurs by reason of the Taking.
(c) All compensation and awards for any Taking of all or any part
of the Premises shall belong to Landlord, except that Tenant shall have the
right to recover from the Taking authority (but not from Landlord) any
compensation which may be awarded to or recoverable by Tenant for: (i) the
Taking of Tenant's furnishings, fixtures, equipment and other personal property
within the Premises; (ii) Tenant's relocation expenses; (iii) any bonus or
excess value of this Lease; (iv) the unamortized value of any Alterations that
are Taken (without taking into account any unexercised extension options); and
(v) any loss of goodwill or other damage to Tenant's business resulting from
such Taking.
8.3 DISPUTE RESOLUTION. In the event the parties are unable to
agree upon: (a) whether the conditions provided in this Article 8 for the
termination of this Lease by either party have been satisfied; (b) the
allocation of responsibility for delays in the restoration of the Premises; or
(c) any other matter of contention arising under this Article 8, the matter(s)
shall be decided through a binding arbitration to be conducted under the
auspices of the American Arbitration Association by an arbitrator having at
least ten years of experience in commercial lease transactions.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
9.1 LANDLORD'S CONSENT. Except as otherwise provided in Sections
9.4 and 9.5 below, Tenant shall have the right to assign this Lease or sublease
all or part of the Premises only with Landlord's prior written consent. Such
consent shall not be unreasonably withheld, conditioned or delayed by Landlord,
subject to all of the following terms and conditions:
(a) Tenant shall provide Landlord with: (i) written notice of any
proposed assignment or sublease; (ii) documentation regarding the proposed
assignee's or subtenant's financial condition and capability, nature of business
and past tenancy references; (iii) the economic and other material terms of the
proposed assignment or sublease; (iv) Tenant's current financial condition and
capability; and (v) such other information as Landlord may reasonably request.
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(b) In determining whether to approve a proposed assignment or
sublease, Landlord shall have the right to consider the following factors: (i)
the financial condition and capability of Tenant and the proposed assignee or
sublessee; (ii) the similarity of the proposed assignee's or sublessee's
business to Tenant's current business; (iii) the nature, quality and character
of the proposed assignee or sublessee; and (iv) such other factors as are
recognized as being commercially reasonable.
(c) Within ten business days after receipt of Tenant's complete
submission under Section 9.1(a), Landlord shall notify Tenant whether or not it
consents to the proposed assignment or sublease. If Landlord notifies Tenant
that it withholds consent, such notice shall describe with reasonable
specificity the grounds for withholding such consent. If Landlord fails to
notify Tenant within the ten-business day period whether or not it consents to
the proposed assignment or sublease, Tenant shall give Landlord written notice
that it has not received a response, and if Landlord fails to notify Tenant
within five business days thereafter whether or not it consents to the proposed
assignment or sublease, it shall be deemed to have withheld its consent.
9.2 APPROVAL OF TRANSFER DOCUMENTATION. Landlord's consent to any
proposed assignment or sublease shall be conditioned upon Landlord's review and
approval of the assignment or sublease documentation, and subsequent receipt of
a fully executed copy thereof. Landlord's approval of such documentation shall
not be unreasonably withheld, conditioned or delayed. Landlord's consent to one
assignment or sublease shall not waive the requirement of its consent to any
subsequent assignment or sublease. If Tenant assigns this Lease as permitted
herein, the assignee shall expressly assume all of the obligations of Tenant in
a written instrument satisfactory to Landlord and furnished to Landlord not
later than 15 days before the effective date of such assignment. If Tenant
subleases the Premises as permitted herein, Tenant shall obtain and furnish to
Landlord in form satisfactory to Landlord, not later than 15 days before the
effective date of such sublease, the written agreement of the subtenant to
attorn to Landlord, at Landlord's option and written request, in the event this
Lease terminates before the expiration of the sublease.
9.3 CONTINUING RESPONSIBILITY. Landlord's consent to an
assignment or sublease shall not release Tenant from the performance of any of
its obligations under the Lease. In the case of any assignment or sublease,
Tenant and its assignee or sublessee shall be jointly and severally primarily
liable for such performance. If the assignee or sublessee defaults under this
Lease, Landlord may proceed directly against Tenant without pursuing remedies
against the assignee or sublessee. Landlord may consent to subsequent
assignments or modifications of this Lease by the assignee or assignments of a
sublease or further subletting by a sublessee without notifying Tenant or
obtaining its consent, and any such action shall not relieve Tenant from any
liability under this Lease; provided, however, that any modification of this
Lease (after a permitted assignment) that materially enlarges Tenant's
obligations shall not be binding on Tenant unless Tenant has approved the
modification in writing. Any assignment or sublease without Landlord's prior
written consent that is not expressly permitted by Section 9.4 or 9.5, or which
purports to or in any way has the effect of changing a permitted use under this
Lease, shall be void at Landlord's option.
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9.4 AFFILIATE TRANSACTIONS. Tenant may assign this Lease, or
sublet all or any portion of the Premises, to any Tenant Affiliate (as defined
below) without Landlord's consent so long as: (a) there is no uncured Event of
Default under this Lease; and (b) in the case of an assignment or a sublease of
more than 50% of the Premises, the aggregate net worth of Tenant and the Tenant
Affiliate at the time of the proposed assignment or sublease is no less than
Tenant's net worth was on the Effective Date. For purposes of this Lease,
"TENANT AFFILIATE" means and includes any affiliate, parent or subsidiary of
Tenant, or any entity that results from a reorganization, merger, sale of
assets, sale or redemption of stock, or assignment, transfer or hypothecation of
any ownership interest in Tenant. Tenant shall provide Landlord with all
documentation, including without limitation financial statements and the
proposed assignment or sublease documentation, that may be reasonably necessary
to confirm that the assignment or sublease satisfies the requirements of this
Section 9.4. Tenant shall provide Landlord with a fully-executed copy of any
such assignment or sublease.
9.5 MINOR SUBLEASE. Tenant may sublease up to an aggregate of ten
percent of the rentable area of the Premises to customers or joint venturers
without Landlord's consent so long as: (a) there is no uncured Event of Default
under this Lease at the time of the proposed sublease; and (b) the space so
subleased is not separately demised. Tenant shall provide Landlord with all
documentation, including without limitation the proposed sublease documentation,
that may be reasonably necessary to confirm that the sublease satisfies the
requirements of this Section 9.5. Tenant shall provide Landlord with a
fully-executed copy of any such sublease.
9.6 ADMINISTRATIVE COSTS; PROFIT. If Tenant requests Landlord's
consent to an assignment or sublease, Tenant shall pay to Landlord, as
Additional Rent, all attorneys' fees and other out-of-pocket costs reasonably
incurred by Landlord in connection with its review of, and response to, Tenant's
proposed assignment or sublease. In addition, Tenant shall pay to Landlord, as
Additional Rent, one-half of all Profit (defined below) realized by Tenant from
the assignment or sublease ("LANDLORD'S SHARE") as and when received by Tenant,
unless Landlord gives written notice to Tenant and the assignee or sublessee
that Landlord's Share shall be paid to Landlord directly by the assignee or
sublessee. For purposes of this Lease, "PROFIT" shall mean: (a) all amounts paid
to Tenant in connection with the assignment or sublease, including without
limitation "key" money, commissions and finder's fees, monthly rent in excess of
the Base Rent payable under this Lease, and all fees and other consideration
paid in connection with the assignment or sublease, including without limitation
consideration for trade fixtures and other personal property, and compensation
under any collateral agreements; after deducting therefrom (b) all out of pocket
costs and expenses actually and reasonably incurred by Tenant in connection with
the assignment or sublease, including without limitation real estate broker's
commissions or consulting fees, legal expenses and costs of improving or
renovating the Premises in order to effectuate the assignment or sublease.
Tenant shall be entitled to recover the costs and expenses described in clause
(b) before paying the Landlord's Share to Landlord. In the case of a sublease of
less than all the Premises, the Profit shall be calculated by comparing the
subrent for the subleased space against that portion of the Base Rent that is
allocable, on a pro rata basis, to the subleased square footage. Tenant shall
provide Landlord a written statement certifying all amounts to be paid from any
assignment or sublease of the Premises within 30 days after the assignment or
sublease is signed, and Landlord may inspect Tenant's
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books and records to verify the accuracy of such statement. Landlord's receipt
of Landlord's Share shall not be deemed a consent to any further assignment or
sublease.
9.7 ASSIGNMENT OF SUBLEASE RENTS. Tenant hereby assigns to
Landlord all of its rights to receive rent and other consideration from any
sublease, and agrees that Landlord, as assignee or as attorney-in-fact for
Tenant for purposes hereof, or a receiver for Tenant appointed on Landlord's
application, may (but shall not be obligated to) collect such rents and other
consideration and apply the same toward Tenant's obligations to Landlord under
this Lease; provided, however, that Landlord grants to Tenant at all times prior
to occurrence of any Event of Default by Tenant a revocable license to collect
such rents (which license shall automatically and without notice be deemed to
have been revoked and terminated immediately upon the occurrence of an Event of
Default by Tenant).
ARTICLE 10
DEFAULTS; REMEDIES
10.1 COVENANTS AND CONDITIONS. Tenant's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Premises is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
10.2 DEFAULTS. The occurrence of any one or more of the following
shall constitute an event of default ("EVENT OF DEFAULT") and breach of this
Lease by Tenant:
(a) If Tenant abandons the Premises.
(b) If Tenant fails to make any payment of Rent when due, and
such failure continues for three business days after receipt of Landlord's
notice of such non-payment.
(c) If Tenant fails to perform any of Tenant's non-monetary
obligations under this Lease for a period of 30 days after written notice from
Landlord (a "NON-PERFORMANCE NOTICE"), which Non-Performance Notice shall state
with reasonable particularity the nature of Tenant's non-performance and the
acts needed to cure the same; provided, however, that: (i) if more than 30 days
are required to complete such performance, Tenant shall not be in default if
Tenant commences such performance within the 30 day period and thereafter
diligently pursues it to completion; and (ii) this Section 10.2(c) shall be
subject to the provisions of Section 10.4 below.
(d) If Tenant violates the restrictions on Transfer set forth in
Article 9.
(e) (i) If Tenant makes a general assignment or general
arrangement for the benefit of creditors; (ii) if a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against Tenant
and is not dismissed within 30 days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease and possession is not restored to
Tenant within 30 days; or (iv) if substantially all of Tenant's assets located
at the Premises or of Tenant's interest in this Lease is subjected to the
attachment, execution or other judicial seizure which is not discharged within
30 days. If a court of competent jurisdiction determines that any of the
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acts described in this subparagraph (e) is not a default under this Lease, and a
trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
the Landlord shall receive, as Additional Rent, the excess, if any, of the Rent
(or any other consideration) paid in connection with such assignment or sublease
over the Rent payable by Tenant under this Lease.
10.3 REMEDIES. In addition to such other remedies as may be
available to Landlord at law or in equity, including without limitation the
remedies set forth in California Civil Code section 1951.4 and any similar or
successor statute, Landlord shall have right, upon the occurrence of an Event of
Default, to exercise any or all of the following remedies:
(a) Termination. Terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. In
such event, Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default, including: (i) the worth at
the time of the award of the unpaid Base Rent, Additional Rent and other charges
which Landlord had earned at the time of the termination; (ii) the worth at the
time of the award of the amount by which the unpaid Base Rent, Additional Rent
and other charges which Landlord would have earned after termination until the
time of the award exceeds the amount of such rental loss that Tenant proves
Landlord could have reasonably avoided; (iii) the worth at the time of the award
of the amount by which the unpaid Base Rent, Additional Rent and other charges
which Tenant would have paid for the balance of the Lease Term after the time of
award exceeds the amount of such rental loss that Tenant proves Landlord could
have reasonably avoided; and (iv) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under the Lease or which in the ordinary course of things would
be likely to result therefrom, including, but not limited to, any costs or
expenses Landlord incurs in maintaining or preserving the Premises after such
default, the cost of recovering possession of the Premises, expenses of
reletting, including necessary renovation or alteration of the Premises,
Landlord's reasonable attorneys' fees incurred in connection therewith, and any
real estate commission paid or payable. As used in subparts (i) and (ii) above,
the "worth at the time of the award" is computed by allowing interest on unpaid
amounts at the Interest Rate. As used in subpart (iii) above, the "worth at the
time of award" is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award, plus one
percent.
(b) Re-Entry. Landlord may re-enter the Premises, with or without
terminating this Lease, and remove all persons and property from the Premises.
Tenant's personal property may be removed and stored in a public warehouse or
elsewhere, and may be disposed of at Tenant's cost in accordance with any
procedures permitted by law. No re-entry or taking possession of the Premises by
Landlord pursuant to this Section 10.3(b) shall be construed as an election to
terminate this Lease unless Landlord delivers a written notice of such intention
to Tenant. Landlord shall have the remedy described in California Civil Code
section 1951.4 ("lessor may continue lease in effect after Tenant's breach and
abandonment and recover rent as it becomes due, if lessee has right to sublet or
assign, subject only to reasonable limitations").
(c) Re-Letting. Landlord shall have the right, with or without
terminating this Lease, to either (i) recover all Rent from Tenant as it becomes
due or (ii) relet the Premises or
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any part thereof to third parties for the account and at the expense of Tenant
for all or any part of the Term. Landlord may re-let on such terms and
conditions as Landlord in its sole discretion may deem advisable, and Landlord
shall have the right, but not the obligation, to make Alterations and repairs to
the Premises. If Landlord elects to so relet, rents received by Landlord from
such reletting shall be applied as follows: (i) first, to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; (ii) second,
to the payment of any cost of such reletting; (iii) third, to the payment of the
cost of any Alterations and repairs to the Premises; (iv) fourth, to the payment
of Rent due and unpaid hereunder; and (v) the residue, if any, shall be held by
Landlord and applied to payment of future Rent as the same may become due and
payable. Should that portion of the rents received from any reletting and
applied to the payment of Rent be less than the Rent then due and payable by
Tenant, Tenant shall pay the deficiency to Landlord within ten days after
receipt of Landlord's invoice therefor. Tenant shall also pay to Landlord, as
soon as ascertained, any costs and expenses incurred by Landlord in such
reletting or in making such Alterations and repairs not covered by the rents
received from such reletting.
(d) Performance for Tenant. After the occurrence of an Event of
Default, Landlord shall have the right, without waiving or releasing Tenant from
any of its obligations, to make any payment or perform any other obligation on
Tenant's behalf and at Tenant's expense. If Landlord cures an Event of Default
on behalf of Tenant, Tenant shall reimburse Landlord for all costs incurred in
connection with such cure, including without limitation reasonable attorneys'
fees and costs, within ten days after receipt of Landlord's invoice.
(e) Security Deposit. Landlord shall have the right, but not the
obligation, to draw on and apply the proceeds of the Security Deposit against
any Rents, damages or other amounts that Landlord would be entitled to recover
pursuant to this Lease.
(f) Receiver. Landlord may have a receiver appointed, upon
application, to take possession of the Premises and to collect the rents or
profits therefrom and to exercise all other rights and remedies available to
Landlord pursuant to this Article 10.
(g) Injunctive Relief. Landlord may seek to enjoin any breach of
this Lease, or pursue any other remedy or right now or hereafter available to a
lessor against a defaulting lessee under the laws of the State of California or
the equitable powers of its courts, and not otherwise specifically reserved
herein.
10.4 TENANT'S RIGHT TO CONTEST NON-MONETARY DEFAULT; LANDLORD'S
RIGHT TO CONVERT NON-MONETARY DEFAULT INTO MONETARY DEFAULT. Notwithstanding
anything in Section 10.2(c) to the contrary, if (and only if) Tenant files and
diligently attempts to serve upon Landlord within 30 days after receipt of the
Non-Performance Notice a summons and complaint for declaratory relief (and such
other relief as Tenant may choose to seek) contesting Landlord's Non-Performance
Notice (the "CONTEST"), Landlord shall not exercise its remedies under Sections
10.3(a), 10.3(b), 10.3(c) or 10.3(f) with respect to the subject matter of the
Non-Performance Notice, and it shall not be an Event of Default for purposes of
Section 2.5(b), unless and until there is a final judgment in the Contest to the
effect that Tenant has failed to perform a non-monetary obligation under this
Lease, and Tenant fails within 30 days after the date the judgment becomes final
to cure the failure of performance; provided, however, that
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notwithstanding anything to the contrary in the immediately preceding sentence
(or elsewhere in this Lease), and regardless of the existence of a Contest:
(a) Nothing in this Section 10.4 shall be deemed to limit
Landlord's right to exercise the remedies set forth in Sections 10.3(d), 10.3(e)
and 10.3(g) in connection with the subject matter of the Non-Performance Notice.
(b) If Landlord makes any payment or performs any other
obligation on Tenant's behalf pursuant to Section 10.3(d) in connection with the
subject matter of the Non-Performance Notice and Tenant fails to reimburse
Landlord for all costs incurred in connection with such cure as required
thereby, it shall be an Event of Default pursuant to Section 10.2(b) (and for
purposes of Section 2.5(b)), and Landlord shall have the right to exercise any
or all of the rights and remedies available to it at law or in equity, including
without limitation the rights and remedies set forth in Sections 10.3(a),
10.3(b), 10.3(c) and 10.3(f) and elsewhere in this Lease, in connection with
such Event of Default. Tenant expressly agrees that if Landlord elects to
initiate an unlawful detainer or other action (a "LANDLORD ACTION") in
connection with an Event of Default pursuant to this Section 10.4(b), the
Landlord Action shall take precedence over the Contest, Tenant shall not take
any action that would cause the Landlord Action to be consolidated into the
Contest, and Tenant shall either dismiss the Contest or cause the Contest to be
stayed pending resolution of the Landlord Action.
(c) If Landlord draws on and applies the proceeds of the Security
Deposit pursuant to Section 10.3(e) in connection with the subject matter of the
Non-Performance Notice and Tenant thereafter fails to restore the Security
Deposit as required by Section 3.8, it shall be an Event of Default pursuant to
Section 10.2(b) (and for purposes of Section 2.5(b)), and Landlord shall have
the right to exercise any or all of the rights and remedies available to it at
law or in equity, including without limitation the rights and remedies set forth
in Sections 10.3(a), 10.3(b), 10.3(c) and 10.3(f) and elsewhere in this Lease,
in connection with such Event of Default. Tenant expressly agrees that if
Landlord elects to initiate a Landlord Action in connection with an Event of
Default pursuant to this Section 10.4(c), the Landlord Action shall take
precedence over the Contest, Tenant shall not take any action that would cause
the Landlord Action to be consolidated into the Contest, and Tenant shall either
dismiss the Contest or cause the Contest to be stayed pending resolution of the
Landlord Action.
(d) Nothing in this Section 10.4 shall be deemed to limit
Landlord's right to exercise the rights and remedies set forth in Sections
10.3(a), 10.3(b), 10.3(c) and 10.3(f), or elsewhere in this Lease, in connection
with any Event of Default that is not the subject matter of a Non-Performance
Notice or Contest. Tenant expressly agrees that if Landlord elects to initiate a
Landlord Action in connection with an Event of Default that is not the subject
matter of a Non-Performance Notice or Contest, the Landlord Action shall take
precedence over the Contest, Tenant shall not take any action that would cause
the Landlord Action to be consolidated into the Contest, and Tenant shall either
dismiss the Contest or cause the Contest to be stayed pending resolution of the
Landlord Action.
10.5 WAIVER OF REDEMPTION. Tenant, for and on behalf of itself
and all persons claiming through or under Tenant, hereby waives any right of
redemption if Tenant is evicted by reason of any Event of Default.
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10.6 AUTOMATIC TERMINATION. Notwithstanding any other provision
of this Lease to the contrary, this Lease shall terminate automatically on the
occurrence, after an Event of Default by Tenant, of the filing of an unlawful
detainer action against Tenant. On such termination, Landlord's damages for
default shall include all costs and fees, including reasonable attorneys' fees
that Landlord incurs in connection with the filing, commencement, pursuing
and/or defending of any action in any bankruptcy court or other court with
respect to the Lease; the obtaining of relief from stay in bankruptcy
restraining any action to evict Tenant; or the pursuing of any action with
respect to Landlord's right to possession of the Premises. All such damages
suffered (apart from Base Rent and other Rent payable hereunder) shall
constitute pecuniary damages which must be reimbursed to Landlord prior to
assumption of the Lease by Tenant or any successor to Tenant in any bankruptcy
or other proceeding.
10.7 LANDLORD'S DEFAULT. If Landlord fails to timely and properly
perform any of its obligations under this Lease, and such failure continues for
30 days after Tenant gives written notice to Landlord of non-performance (which
notice shall state in reasonable detail the nature of the non-performance and
the steps required to cure the non-performance), Landlord shall be in default
under this Lease (a "LANDLORD DEFAULT"); provided, however, that if the
obligation is such that more than 30 days is reasonably required for its proper
performance, it shall not be a Landlord Default if Landlord commences
performance or cure within the 30-day period and thereafter diligently
prosecutes the performance or cure to completion. In the event of a Landlord
Default, Tenant's sole remedies shall be as follows: Tenant shall have the right
to perform on Landlord's behalf under Section 6.2(b), to seek equitable relief
(e.g., an injunction), and to recover its actual damages, but Tenant shall not
be entitled to terminate this Lease; provided, however, that the foregoing shall
not be deemed to preclude, impair or otherwise affect Tenant's right to enforce
any indemnification rights provided to Tenant by this Lease, or any remedy
(including termination of this Lease) that Tenant might have in the event of a
constructive eviction or breach of the covenant of quiet enjoyment.
Notwithstanding anything to the contrary in this Section 10.7 or elsewhere in
this Lease, in no event shall Tenant be entitled to recover punitive or
speculative damages from Landlord.
10.8 CUMULATIVE REMEDIES. All rights, remedies, options and
elections of any party contained in this Lease shall be cumulative. No single
right, remedy, option or election shall be exclusive of any other, and any party
shall have the right to pursue any one or all of such other rights or remedies
as may be available at law or in equity.
ARTICLE 11
LENDER PROTECTIONS
11.1 SUBORDINATION. Landlord shall have the right to subordinate
this Lease to any ground lease, deed of trust or mortgage encumbering the
Premises, any advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever made
or recorded (collectively, "MORTGAGES"). Tenant shall cooperate with Landlord
and any ground lessor, beneficiary or mortgagee (collectively, "LENDERS") who is
acquiring any interest in a Mortgage. Tenant shall execute such further
documents and assurances as any such Lender may require, provided that Tenant's
obligations under this Lease shall not be increased in any material way (the
performance of ministerial acts shall not be
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deemed material), and Tenant shall not be deprived of its rights under this
Lease. Tenant's right to quiet possession of the Premises during the Lease Term
shall not be disturbed so long as there is no Event of Default. If any Lender
elects to have this Lease be senior and prior to the lien of its Mortgage and
gives written notice thereof to Tenant, this Lease shall be deemed senior and
prior to such Mortgage regardless of whether this Lease is dated prior or
subsequent to the date of said Mortgage or the date of recording thereof.
11.2 ATTORNMENT. If Landlord's interest in the Premises is
acquired by any Lender or purchaser at a foreclosure sale, Tenant shall attorn
to the transferee of or successor to Landlord's interest in the Premises and
recognize such transferee or successor as Landlord under this Lease, subject to
Section 11.3.
11.3 NONDISTURBANCE. If any Mortgage to which this Lease is
subordinate is foreclosed or a deed in lieu of foreclosure is given to the
Lender, or if any ground lease to which this Lease is subordinate is terminated,
this Lease shall not be barred, terminated, cut off or foreclosed, and the
rights and possession of Tenant under this Lease shall be recognized and shall
not be disturbed, so long as there is no Event of Default and Tenant attorns to
the purchaser, grantee or ground lessor as provided in Section 11.2 or, if
requested, enters into a new lease for the balance of the term of this Lease on
the same terms and provisions as are set forth in this Lease. Tenant's covenant
under Section 11.1 to subordinate this Lease to any Mortgage later executed is
conditioned on such Mortgage containing the commitments specified in this
Section 11.3, and making Tenant an express third party beneficiary of such
commitments.
11.4 SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so (which instruments or documents shall, if
desired by Tenant, confirm Tenant's rights under Section 11.3 above). If Tenant
fails to do so within ten days after written request, Tenant hereby makes,
constitutes and irrevocably appoints Landlord, or any transferee or successor of
Landlord, the attorney-in-fact of Tenant to execute and deliver any such
instrument or document.
11.5 NO PERSONAL LIABILITY. In no event shall any Lender, nominee
of any Lender, or purchaser at a foreclosure sale have any personal liability
whatsoever for any representations, warranties, covenants or agreements of
Landlord hereunder or in connection herewith, or any liability for any security
deposit or other sums deposited with Landlord, or for any previous prepayment of
Rent to Landlord.
11.6 NOTICES TO LENDER. Provided Tenant receives written notice
of the name and address of any Lender, Tenant agrees that in the event of any
act or omission by Landlord or other event or circumstance which could give
Tenant the right to terminate this Lease or to claim a partial or a total
eviction, Tenant shall not exercise any such right until: (a) it has notified
the Lender in writing; and (b) the Lender has failed to commence the curing of
such act or omission within 30 days of such notice and to thereafter diligently
pursue the cure thereof until completed.
11.7 FORECLOSURE; DEED IN LIEU OF FORECLOSURE. The provisions of
this Article 11 shall apply in the event of a foreclosure of any Mortgage,
conveyance in lieu of foreclosure or termination of any ground lease of the
Premises, notwithstanding the fact that the
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Lender thereunder may, directly or indirectly, own or have an interest in
Landlord or the Premises in addition to its interest under the applicable
Mortgage.
11.8 ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Tenant shall execute,
acknowledge and deliver to Landlord a written statement certifying: (i) that
none of the terms or provisions of this Lease have been changed (or if they have
been changed, stating how they have been changed); (ii) that this Lease has not
been canceled or terminated; (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; (iv) that, to
Tenant's knowledge (after due inquiry), Landlord is not in default under this
Lease (or if Landlord is claimed to be in default, stating why); and (v) such
other factual matters with respect to Tenant or the Lease as Landlord may
reasonably request or which any prospective purchaser or encumbrancer of the
Premises may require. Tenant shall deliver such statement to Landlord within 15
days after Landlord's request. Landlord may give any such statement by Tenant to
any prospective Lender or purchaser of the Premises. Such Lender or purchaser
may rely conclusively upon such statement as true and correct. If Tenant does
not deliver such statement to Landlord within such 15-day period, Landlord shall
deliver to Tenant a second request for delivery of such statement and Tenant
thereafter shall have an additional three business days to respond to such
second request. If Tenant fails to respond to the second request, Landlord, and
any Lender or prospective purchaser or Lender, may conclusively presume and rely
upon the following facts: (i) that the terms and provisions of this Lease have
not been changed except as otherwise represented by Landlord; (ii) that this
Lease has not been canceled or terminated except as otherwise represented by
Landlord; (iii) that no more than one month's Base Rent or other charges have
been paid in advance; and (iv) that Landlord is not in default under the Lease.
In such event, Tenant shall be estopped from denying the truth of such facts.
(b) Upon Tenant's written request, Landlord shall execute,
acknowledge and deliver to Tenant a written statement certifying as to the
matters described in clauses (i) through (iii) above and also that, to
Landlord's knowledge (after due inquiry), there exists no Event of Default, and
no event or condition which, with the giving of notice or passage of time (or
both) would constitute an Event of Default (or if any such Event of Default,
event or condition is claimed, stating the particulars thereof). Such statement,
which Landlord shall deliver within 15 days following Tenant's request, may be
relied upon by any third party acquiring an interest in Tenant or this Lease or
any prospective lender to Tenant.
11.9 TENANT'S FINANCIAL CONDITION. Within ten days after written
request from Landlord, Tenant shall deliver to Landlord such financial
statements as Landlord reasonably requires to verify the net worth of Tenant
and/or any assignee or subtenant of Tenant. In addition, Tenant shall deliver to
any Lender designated by Landlord any financial statements required by such
Lender to facilitate the financing or refinancing of the Premises. Tenant
represents and warrants to Landlord that each such financial statement shall be
a true and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposes set
forth in this Lease. Notwithstanding anything in this Section 11.9 to the
contrary, so long as Tenant remains a publicly owned and traded company, Tenant
shall be obligated to deliver to Landlord only such financial statements
relating to Tenant as are then publicly available.
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ARTICLE 12
INDEMNIFICATION AND EXCULPATION
12.1 EXCULPATION OF LANDLORD FROM LIABILITY. As a material part
of the consideration to Landlord for entering into this Lease, Tenant agrees
that except as expressly provided otherwise in this Section 12.1, no Landlord
Indemnitee shall be liable to Tenant for, and Tenant expressly assumes the risk
of and waives, releases and discharges all Landlord Indemnitees from, any and
all claims, damages, losses, liabilities, costs and expenses of any kind or
nature relating in any manner, directly or indirectly, in whole or in part, to
the Premises or this Lease, whether resulting from any act or omission of
Landlord or from any other cause, including without limitation: (a) any loss,
damage or injury of any kind or character to any person or property, arising
from any use of the Premises or any adjoining public sidewalks, streets or ways,
or any part thereof, or caused by or arising from any defect in the Buildings or
any other improvements located on the Land, or in any equipment or other
facility located therein; (b) the presence of any Hazardous Materials on or
about the Premises; (c) any act of omission of Tenant or of any subtenants,
employees, agents, licensees or invitees of Tenant; (d) any accident, fire or
other casualty on the Premises or any adjoining public sidewalks, streets or
ways; (e) any failure of Tenant to maintain the Premises in safe condition; or
(f) any other cause whatsoever, except that the foregoing assumption of risk,
waiver, release and discharge shall not apply in case of Landlord's gross
negligence or willful misconduct, or in the case of a Landlord Default. Without
limiting the generality of the foregoing provisions of this Section 12.1, and
notwithstanding anything to the contrary elsewhere in this Lease, Landlord shall
not under any circumstances whatsoever be liable to Tenant for punitive or
speculative damages.
12.2 TENANT'S INDEMNITY. Tenant shall indemnify, defend and hold
Landlord and all other Landlord Indemnitees harmless from and against any and
all claims, damages, losses, liabilities and costs (including without limitation
reasonable attorneys' fees, costs and disbursements) relating in any manner,
directly or indirectly, in whole or in part, to the following (collectively,
"CLAIMS"): (a) any failure by Tenant to timely and properly perform each of its
obligations under this Lease; (b) the operation, management, use, occupancy,
maintenance, repair and improvement of the Premises at any time during the Term
or any holdover period; (c) any accident occurring or other circumstance
existing on or about the Premises at any time during the Term or any holdover
period due to any cause whatsoever; and (d) any negligence or willful misconduct
on the part of Tenant, any affiliates of Tenant, or any officers, directors,
employees, guests, invitees, agents or contractors of any of them.
Notwithstanding the foregoing, or any contrary provision elsewhere in this
Lease, Tenant shall have no duty to indemnify, defend and hold Landlord and all
other Landlord Indemnitees harmless from and against Claims to the extent the
same arise out of or result from: (x) any failure of Landlord to timely and
properly perform each of its obligations under this Lease; or (y) the active
negligence or willful misconduct on the part of Landlord or any Landlord
Indemnitee.
12.3 TENANT'S DUTY TO DEFEND. Tenant's duty to defend Landlord
Indemnitees is separate and independent of Tenant's duty to indemnify Landlord
Indemnitees, and Tenant shall promptly assume its defense and indemnification
obligations upon written notice from any Landlord Indemnitee. The duty to
defend: (a) applies to claims for which Landlord Indemnitees
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may be liable without fault or strictly liable; (b) applies regardless of
whether the issues of negligence, liability, fault, default or other obligation
on the part of Tenant have been determined; and (c) applies immediately,
regardless of whether Landlord Indemnitees have paid any sums or incurred any
detriment arising out of or relating (directly or indirectly) to any Claims. It
is the express intention of the parties that the Landlord Indemnitees shall be
entitled to obtain summary adjudication or summary judgment regarding Tenant's
duty to defend Landlord Indemnitees at any stage of any claim or suit with the
scope of this Article 12. Landlord Indemnitees may participate in, but not
control, the defense of any such claim at their own expense. Tenant shall not
settle any claim without the consent of all Landlord Indemnitees who would incur
any liability for such claim under or following such a settlement, which consent
shall not be unreasonably withheld, conditioned or delayed. If Tenant expends
sums to provide a defense under this Section 12.3 and it is subsequently
established that Tenant was not required to defend Landlord or any Landlord
Indemnitee, Landlord shall promptly reimburse Tenant all sums reasonably
expended by Tenant in providing such defense, together with interest thereon
from the date of expenditure until the date of reimbursement at the Interest
Rate.
12.4 LANDLORD'S INDEMNITY. Landlord shall indemnify, defend and
hold Tenant harmless from and against any and all claims, damages, losses,
liabilities and costs (including without limitation reasonable attorneys' fees,
costs and disbursements) relating in any manner, directly or indirectly, in
whole or in part, to: (a) any failure by Landlord to timely and properly perform
each of its obligations under this Lease; and (b) any gross negligence or
willful misconduct on the part of Landlord or any Landlord Indemnitee.
Notwithstanding the foregoing, in no event shall Landlord be liable for any
punitive or speculative damages.
12.5 LEGAL PROCEEDINGS. In the event of any legal or equitable
proceeding in connection with this Lease, the prevailing party in such
proceeding, or the nondismissing party where the dismissal occurs other than by
reason of a settlement, shall be entitled to recover its reasonable costs and
expenses, including without limitation reasonable attorneys' fees, costs and
disbursements paid or incurred in good faith at the arbitration, pre-trial,
trial and appellate levels, and in enforcing any award or judgment granted
pursuant thereto. Any award, judgment or order entered in any such proceeding
shall contain a specific provision providing for the recovery of attorneys' fees
and costs incurred in enforcing such award or judgment, including without
limitation: (a) post-award or post-judgment motions; (b) contempt proceedings;
(c) garnishment, levy, and debtor and third party examinations; (d) discovery;
and (e) bankruptcy litigation. The "prevailing party," for purposes of this
Agreement, shall be deemed to be that party which obtains substantially the
result sought, whether by dismissal, award or judgment.
12.6 SURVIVAL. The provisions of this Article 12 shall survive
the expiration or earlier termination of this Lease until all Claims are fully,
finally and absolutely barred by the applicable statute of limitations.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 RIGHT OF FIRST OFFER. If Landlord desires to sell the
Premises at any time between the first anniversary of the Term Commencement Date
and the Termination Date, it
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shall first deliver to Tenant a written offer (the "Offer") setting forth the
terms and conditions upon which Landlord would be willing to sell the Premises
to Tenant. Tenant shall have 30 days within which to exclusively negotiate with
Landlord for the purchase and sale of the Premises on mutually acceptable terms,
which terms shall include an all cash transaction and a closing date within 30
days from the date of a definitive agreement. If Tenant and Landlord do not
enter into a definitive agreement for the purchase and sale of the Premises
within the 30-day period, Landlord thereafter shall be free to market the
Premises to third parties and to sell the Premises to whomsoever Landlord may
elect in its sole discretion on such terms as Landlord may elect in its sole
discretion.
13.2 NON-DISCRIMINATION. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person or group of persons on the basis of race, color,
sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Premises or any portion thereof.
13.3 LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "LANDLORD" means only the
current owner or owners of the fee title to the Premises or Project or the
leasehold estate under a ground lease of the Premises or Project at the time in
question. Each Landlord is obligated to perform the obligations of Landlord
under this Lease only during the time such Landlord owns such interest or title.
Any Landlord who transfers its title or interest shall, upon written assumption
of this Lease by the transferee, be relieved of all liability with respect to
the obligations of Landlord under this Lease to be performed on or after the
date of transfer. However, each Landlord shall deliver to its transferee all
funds that Tenant previously paid if such funds have not yet been applied under
the terms of this Lease. Landlord shall give Tenant notice of the transfer, of
any claims made against the Security Deposit, and of the transferee's name and
address. Tenant shall acknowledge receipt of the notice.
(b) Notwithstanding any term or provision herein to the contrary,
the liability of Landlord for the performance of its duties and obligations
under this Lease shall be limited to Landlord's interest in the Premises and the
Project, and neither the Landlord nor its members, partners, shareholders,
officers or other principals or any successors in interest of Landlord shall
have any personal liability under this Lease.
13.4 SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
13.5 INTERPRETATION. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term
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"TENANT" shall include Tenant's employees, agents, contractors, licensees,
guests and invitees, Tenant's successors or others using the Premises with
Tenant's expressed or implied permission.
13.6 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease
(including the Project Development Rider and other Exhibits hereto) sets forth
all of the covenants, promises, agreements, conditions and understandings of the
parties relating to the subject matter of this Lease, and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them other than as are herein set forth. This Lease supersedes
all prior written and oral communications relating to the subject matter of this
Lease. This Lease and each provision hereof may be modified, amended, changed,
altered, waived, terminated or discharged only by a written instrument signed by
the party sought to be bound by such modification, amendment, change,
alteration, waiver, termination or discharge.
13.7 NOTICES. All notices, requests, approvals and invoices
required or permitted under this Lease shall be in writing, and shall be deemed
to have been duly delivered, given or made: (a) upon delivery, if transmitted by
personal delivery, overnight courier or telecopier (with hard copy subsequently
transmitted by first class mail or other means provided herein); or (b) two days
after deposit in the United States Mail, if transmitted by registered or
certified mail, postage prepaid, to the respective addresses set forth in
Sections 1.2 and 1.3 above, or to such other addresses as the parties may
designate in writing from time to time.
13.8 WAIVERS. The rights and remedies of the parties to this
Lease are cumulative and not alternative. Neither the failure nor any delay by
any party in exercising any right, power or privilege under this Lease shall
operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege shall preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. To the maximum extent permitted by Applicable Law:
(a) no claim or right arising out of this Lease shall be deemed to be waived or
renounced, in whole or in part, except by a waiver or renunciation of the claim
or right set forth in a writing signed by the party sought to be bound by such
waiver or renunciation; (b) no waiver that may be given by a party shall be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party shall be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Lease. No payment by Tenant or receipt by Landlord of a lesser amount than the
total amount then due and payable shall be deemed to be other than on account,
nor shall any such payment be deemed an accord and satisfaction. Landlord may
accept any payment without prejudice to any outstanding demand or action for
possession, notice of default or notice of termination. No payment by Tenant
after termination of this Lease shall reinstate this Lease or extend the Lease
Term or waive or affect any notice given or proceedings commenced. Tenant agrees
that the foregoing sentence satisfies any "actual notice" requirement of Code of
Civil Procedure section 1161.1(c).
13.9 WAIVER OF JURY TRIAL. LANDLORD AND TENANT WAIVE TRIAL BY
JURY IN CONNECTION WITH ANY PROCEEDINGS ARISING IN CONNECTION WITH THIS LEASE,
INCLUDING WITHOUT LIMITATION THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY, LOSS OR DAMAGE.
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13.10 GUARANTY BY XXXXXX DEVELOPMENT SERVICES. The performance of
all obligations of Landlord under the Project Development Rider shall be
guaranteed by Xxxxxx Development Services, Inc. pursuant to a Completion
Guaranty, in customary form reasonably acceptably to both parties, which Xxxxxx
Development Services, Inc. shall deliver to Tenant within five business days
after the Effective Date.
13.11 NO RECORDATION. Tenant shall not record this Lease without
prior written consent from Landlord. However, either Landlord or Tenant may
require that a "Short Form" memorandum of this Lease executed and acknowledged
by both parties be recorded. The party requiring such recording shall pay all
transfer taxes and recording fees.
13.12 BINDING EFFECT; CHOICE OF LAW. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the State of California shall govern this
Lease.
13.13 CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he or she has full authority to do so and that this Lease binds
the corporation. Within five business days after this Lease is signed, Tenant
shall deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he,
she or it is a general partner of the partnership, that he, she or it has full
authority to sign for the partnership and that this Lease binds the partnership
and all general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. If Tenant is a
partnership, then within five business days after this Lease is signed, Tenant
shall deliver to Landlord a copy of Tenant's recorded statement of partnership
or certificate of limited partnership.
13.14 JOINT AND SEVERAL LIABILITY. If more than one entity signs
this Lease as Tenant, each such entity shall be jointly and severally liable for
all obligations of Tenant.
13.15 EXECUTION OF LEASE. This Lease may be executed in one or
more counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same instrument.
13.16 SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
13.17 AGENCY DISCLOSURE; BROKERS. Each party represents and
warrants for the benefit of the other that it has not engaged the services of
any broker, finder or other person who may claim any commission, fee or other
compensation in connection with this Lease, except Tenant's Broker as identified
in Section 1.10 above. Landlord shall pay a commission to Tenant's Broker
pursuant to a separate agreement. Each party shall indemnify, defend and hold
the other harmless from and against any claims, damages, losses, liabilities or
costs (including without limitation reasonable attorneys' fees, costs and
disbursements) arising out of any
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agreement or action (other than the agreement between Landlord and Tenant's
Broker) alleged on the part of such first-mentioned party to entitle any broker,
finder or other person to a commission, fee or other compensation in connection
with this Lease.
13.18 NO THIRD PARTY BENEFICIARY. Except for the rights of the
lender provided in Article 11 above, this Lease shall not be deemed or construed
to confer any rights, title or interest upon any person or entity other than the
parties hereto, including without limitation any third party beneficiary status
or right to enforce any provision of this Lease.
13.19 CONSENTS AND APPROVALS. Except as may be expressly set
forth in this Lease to the contrary: (a) whenever consent or approval of either
party is required, such party shall not unreasonably withhold, condition or
delay such consent or approval; (b) whenever a party is permitted to make a
judgment, form an opinion or exercise discretion in taking any
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action or making any determination, the party shall employ commercially
reasonable standards in so doing; and (c) where performance is to be made to a
party's satisfaction, an objective and reasonable standard shall be employed in
regard to such performance.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this
Lease as of the Effective Date set forth in Section 1.1 above.
LANDLORD
WDS-DUBLIN LLC,
a California limited liability company
By: Xxxxxx Interests, Inc., a Texas
corporation, its Managing Member
By: /S/ XXXXXXX X. PLATT_________ [Name]
Xxxxxxx X. Xxxxx, Executive Vice
President
TENANT
SYBASE, INC., a Delaware corporation
By: /S/ XXXX CHEN________________ [Name]
Its Chairman, CEO &
President____________ [Title]
EXHIBITS:
Exhibit A: Description of the Land
Exhibit B: Project Development Rider
Exhibit C: Memorandum Confirming Term
Exhibit D: Form of Request for Consent to Alterations
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EXHIBIT A
THE LAND
[Legal description to be provided by Xxxxxx.]
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EXHIBIT B
PROJECT DEVELOPMENT RIDER
THIS PROJECT DEVELOPMENT RIDER ("Rider") is attached to and made
a part of that certain Office Building Lease dated January 28, 2000 by and
between WDS-DUBLIN LLC, a California limited liability company ("Landlord"), and
SYBASE, INC., a Delaware corporation ("Tenant").
This Rider sets forth the obligations of Landlord and Tenant with
respect to the acquisition of the Land and the design and construction of the
Initial Improvements (sometimes referred to herein as the "Project"). The Land
shall be comprised of approximately 14 acres as more particularly described in
Section 1.4 and Exhibit A of the Lease, and the Initial Improvements shall be
comprised of two six-story office buildings containing a total of approximately
400,000 rentable square feet, improved for Tenant's use, approximately 1143
surface parking spaces, landscaping and related site improvements.
The terms and conditions set forth in this Rider are terms and
conditions of the Lease -- they have been set forth in a separate Rider for ease
of reference, and the texts of the Lease and this Rider shall be read and
construed together, insofar as possible, as one and the same agreement. However,
in case of irreconcilable conflict, the provisions of this Rider shall control
over inconsistent provisions of the Lease. All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them elsewhere in the Lease.
ARTICLE 1
LAND ACQUISITION
1.1 LAND ACQUISITION. Landlord shall be solely responsible for
acquiring the Land, and shall use commercially reasonable and diligent efforts
to enter into an agreement providing Landlord with the right to acquire the Land
(the "Land Acquisition Agreement"), and to close on the acquisition of the Land,
by the applicable dates set forth in the Project Development Schedule (as
defined in Section 6.1 below). Without limiting the generality of the foregoing,
Landlord shall comply with its obligations as buyer under the Land Acquisition
Agreement, and shall bear all costs and expenses associated with the acquisition
of the Land, including without limitation the purchase price and all due
diligence, prorations, escrow and closing costs.
1.2 TENANT'S APPROVALS. Tenant shall have the right to approve
each of the following: (a) the terms and conditions of the Land Acquisition
Agreement, and any material modifications thereto, that would materially and
adversely affect Tenant's use and occupancy of the Premises during the Lease
Term; (b) any consultants employed by Landlord (collectively, "LANDLORD'S DUE
DILIGENCE CONSULTANTS") to perform due diligence investigations or evaluations
of the Land (including without limitation any analyses of the feasibility of
developing the Initial Improvements on the Land); and (c) all written
recommendations, reports and other results or data generated by Landlord's Due
Diligence Consultants in connection with Landlord's due diligence investigations
and evaluations of the Land (collectively, "LANDLORD'S
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DUE DILIGENCE REPORTS"). Tenant's approval of any of the above shall not be
unreasonably withheld, delayed or conditioned, and shall be deemed given if
Tenant does not give Landlord written notice of its disapproval, together with a
reasonably detailed explanation of the reasons therefor and if feasible, the
steps necessary to gain Tenant's approval, within seven days after receipt of
the Land Acquisition Agreement or modification, names of the Landlord's Due
Diligence Consultants or copy of the Landlord's Due Diligence Reports, as the
case may be; provided, however, that: (x) Tenant shall not be deemed to have
approved any Hazardous Materials conditions upon or affecting the Land; and (y)
Tenant may grant or withhold its approval in its sole discretion as and to the
extent that the approval pertains to any Hazardous Materials conditions upon or
affecting the Land that would, after taking into account any remediation,
indemnification and/or other mitigation proposed by Landlord or the seller of
the Land, materially and adversely affect Tenant's use and occupancy of the
Premises (including without limitation the cost of operating the Premises)
during the Lease Term. Any disputes between the parties concerning Tenant's
disapproval of a due diligence matter that cannot be resolved through reasonable
business-like negotiations shall be resolved through the dispute resolution
procedure set forth in Article 7 below. If Tenant disapproves a due diligence
matter and the parties cannot reach a mutually acceptable resolution, either
party shall have the right, as its sole remedy, to terminate this Lease. In such
event, the terms of Section 6.4(d) shall apply.
ARTICLE 2
PROJECT DESIGN AND BUDGET
2.1 BASE BUILDING WORK.
(a) Landlord shall design the Initial Improvements, except for
the Tenant Improvements (as defined in Section 2.2 below) which shall be
designed by Tenant. All of the Initial Improvements except for the Tenant
Improvements are referred to collectively as the "Base Building Work." The Base
Building Work shall: (i) be designed at Landlord's sole cost and expense; (ii)
subject to Sections 2.1(b) and 2.1(c) below and any other applicable provisions
of this Rider, be consistent with the preliminary site plan, building
elevations, typical floor core plans and base building profile attached to this
Rider as Attachment A (collectively, the "Conceptual Plans"); and (iii) satisfy
all design-related Applicable Laws then in effect.
(b) The total cost of the design and construction of all of the
Base Building Work shall not exceed the Base Building Construction Budget. The
"Base Building Construction Budget" shall be the product of the number of
rentable square feet in the Buildings (approximately 400,000) times the sum of
$75 plus the Land Savings. The "Land Savings" shall be the positive difference
between: (i) the sum of (A) the actual final cost of the Land plus (B) any
private road or driveway that Landlord may be required to construct or fund
pursuant to the Land Acquisition Agreement plus (C) the actual final cost of all
off-site improvements required to be constructed by Landlord, and all impact
fees required to be paid by Landlord and other exactions imposed against
Landlord in connection with the Project; and (ii) $24,285,750 (the amount
originally budgeted by Landlord to fund all such costs).
(c) The parties acknowledge that the Conceptual Plans are
intended to provide limits upon, as well as definition as to, the scope and
quality of the Initial Improvements. If the
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Base Building Work cannot be constructed for an amount that does not exceed the
Base Building Construction Budget, the parties shall jointly value engineer the
scope and/or quality of the Base Building Work so that it can be constructed for
an amount that does not exceed the Base Building Construction Budget in
accordance with the following parameters and constraints: (i) modifications to
the Building height, rentable area, number of parking spaces and other aspects
of the Base Building Work shall be commercially reasonable and shall not
materially and adversely affect the functionality (including without limitation
headcount) or cost of operation during the Lease Term without Tenant's consent
(which may be granted or withheld in Tenant's sole discretion); (ii) the quality
of the Base Building Work shall be such that at the end of the Lease Term
(including any extensions), the Base Building Work is reasonably anticipated to
be suitable for immediate re-use by a new tenant without any significant
replacements, upgrades or restorations (other than as may be unavoidable due to
ordinary wear and tear, changes in Applicable Laws, unforeseeable design
obsolescence and the like); and (iii) neither party shall be obligated to agree
to any value engineering changes that would cause the Base Building Work to be
constructed for an amount that either exceeds, or is less than, the Base
Building Construction Budget.
(d) If the Base Building Work is designed and constructed for an
aggregate amount (including without limitation all usual and customary "hard"
and "soft" costs) that is less than the Base Building Construction Budget, fifty
percent of the "savings" shall be added to the Tenant Allowance (as defined in
Section 2.4).
(e) The Base Building Work includes site landscaping to City
requirements. Landlord and Tenant have agreed upon an allowance of $300,000 for
site landscaping (the "Landscaping Allowance"), which allowance is included
within the Base Building Construction Budget. Landlord shall not be required to
expend any amount in excess of the Landscaping Allowance on site landscaping
unless the expenditure of such greater amount is necessary to procure City
approval of the site landscaping plan; provided, however, that if Tenant desires
site landscaping that exceeds minimum City requirements and the total cost
thereof would exceed the Landscaping Allowance, Tenant may elect to cause
Landlord to install such upgraded or additional landscaping and Tenant shall
either pay all costs in excess of the Landscaping Allowance to Landlord in
advance or shall allocate a portion of the Tenant Allowance (or any other
allowance available to Tenant, as shown in Attachment B) to fund such excess
costs.
(f) The Base Building Construction Budget includes allowances for
security ($75,000) and elevator cab finishes ($150,000). (Landlord and Tenant
acknowledge that these items actually are components of the Tenant Improvements,
but shall be funded, to the extent of the allowances set forth above, through
the Base Building Construction Budget.) If Tenant desires a security system
and/or elevator cab finishes the cost of which would exceed the allocable
allowance, Tenant may elect to cause the Architect to design and Landlord to
construct such security system and/or elevator cab finishes but Tenant shall
either pay all costs in excess of the applicable allowance(s) to Landlord in
advance, or shall allocate a portion of the Tenant Allowance (or any other
allowance available to Tenant, as shown in Attachment B) to fund such excess
costs.
2.2 TENANT'S DESIGN WORK. Tenant shall cause the Tenant
Improvements to be designed by the Architect (as defined below). "Tenant
Improvements" shall mean and
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include all elements of the interior spaces of the Buildings that are not
expressly included and described in the Conceptual Plans attached to this Rider
as Attachment A. The design of the Tenant Improvements is referred to as
"Tenant's Design Work." Landlord shall pay all fees and costs of the Architect
and any other design professionals engaged by Architect or Tenant in connection
with the Tenant Improvements, but all such fees and costs shall be charged
against the Tenant Allowance. The Tenant Improvements shall be consistent with
the Base Building Work (e.g., as to design concept and quality) and shall
satisfy all design-related Applicable Laws then in effect. The drawings and
specifications comprising Tenant's Design Work shall be coordinated with those
of the Base Building Work so that Tenant's Design Work and the Base Building
Work can be presented to the City for approval in a single integrated package.
The Tenant Improvements must be reasonably constructable concurrently with
construction of the Base Building Work, with materials and by labor that are
readily available in the local marketplace, and otherwise without materially and
adversely affecting the design and cost of constructing the Initial
Improvements.
2.3 APPROVAL OF DESIGN DOCUMENTS.
(a) The plans and specifications for the Initial Improvements
(collectively, "Design Documents") shall be subject to the parties' reasonable
approval as follows: the parties shall meet regularly during the design phase
("Design Meetings"), at times convenient to all parties, to review the Schematic
Design Studies, Design Development Documents and Construction Documents, discuss
approaches, alternatives and constraints, and reach design solutions. Tenant
shall have a full voice in the decision-making process during the Design
Meetings, and its views and requirements shall be taken into account, so that
the Design Documents for the Base Building Work will be acceptable to Tenant,
subject to the requirements of Sections 2.1(b) and 2.1(c) of this Rider and the
understanding that any Tenant requirements that exceed the Base Building
Construction Budget or Tenant Allowance shall be at Tenant's sole cost, and any
schedule impacts resulting therefrom shall be borne by Tenant. If Tenant elects
not to participate in the Design Meetings, it shall be copied on minutes and
deliverables and shall be deemed to have waived its approval right with respect
thereto, and shall be deemed to have approved all designs, alternatives and
decisions made or approved at any such Design Meeting, or in any such
deliverables, except if and to the extent that Tenant gives Landlord written
notice of its disapproval, together with a reasonably detailed explanation of
the reasons therefor and, if feasible, the steps necessary to gain Tenant's
approval, within two business days after receipt of such minutes or
deliverables. Landlord's views and requirements shall be taken into account by
Tenant so that the Design Documents for the Tenant Improvements will be
reasonably acceptable to Landlord, subject to the requirements of Section 2.2 of
this Rider and the understanding that prior to final approval by Landlord and
the City of the Construction Documents for the Tenant Improvements, any Tenant
requirements that impact the Base Building Work or exceed the Tenant Allowance
shall be at Tenant's sole cost and any schedule impacts resulting from the
Tenant Improvements shall be borne by Tenant.
(b) Each party shall submit to the other sets of Schematic Design
Studies, Design Development Documents and Construction Documents for the Base
Building Work or the Tenant Improvements, as the case may be, on or before the
applicable dates therefor set forth in the Project Development Schedule. These
in-progress Design Documents shall be subject to the reviewing party's
reasonable approval, which: (i) shall not be unreasonably withheld,
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delayed (turnaround shall be as fast as practicable under the circumstances, and
shall not in any event exceed seven days) or conditioned; (ii) shall be deemed
given if the reviewing party does not give the other party written notice of its
disapproval, together with a reasonably detailed explanation of the reasons
therefor and, if feasible, the steps necessary to gain the party's approval,
within seven days after receipt of the applicable in-progress Design Documents;
and (iii) shall not be withheld, delayed or conditioned, to the extent
consistent with design concepts that have been approved (or deemed approved) in
previous Design Meetings or Design Document submittals, unless the disapproving
party agrees in writing to bear all economic and other impacts (including
without limitation any impacts on the Project Development Schedule and Term
Commencement Date, redesign costs and increased construction costs) resulting
from the disapproval.
(c) Tenant may require modifications in the Design Documents for
the Tenant Improvements after final approval by Landlord and the City of the
Construction Documents for the Tenant Improvements so long as Tenant agrees in
writing to bear all economic and other impacts (including without limitation any
impacts on the Project Development Schedule and Term Commencement Date, redesign
costs and increased construction costs) resulting from the modification. Tenant
may use for such purposes all otherwise unexpended allowances available to
Tenant (to the extent not required for the purpose originally allocated), as
shown in Attachment B.
2.4 TENANT ALLOWANCE. Subject to increase pursuant to Section
2.1(d) above, Landlord shall provide a total allowance of $17,950,000, a
breakdown of which is set forth in Attachment B to this Rider (the "Tenant
Allowance") to fund all "hard" and "soft" costs (including without limitation
the cost of preparing the Design Documents for the Tenant Improvements) of
designing and constructing the Tenant Improvements. Landlord and Tenant
expressly agree that if the cost of constructing the Tenant Improvements exceeds
the Tenant Allowance for any reason, Tenant shall either pay the excess costs to
Landlord in advance, or participate in a redesign that reduces the cost of
constructing the Tenant Improvements to an amount that does not exceed the
Tenant Allowance. If the entire amount of the Tenant Allowance is not expended
by Landlord for the Tenant Improvements (including without limitation payment
for Tenant's Design Work), any construction monitor retained by Tenant, site
landscaping or any other purpose expressly authorized by this Rider: (a) the
unexpended amount, up to a maximum of $5.00 per rentable square foot, shall be
used to reimburse Tenant, within 30 days after final payment is made to the
Contractor, for reasonably documented costs incurred by Tenant in relocating to
or furnishing the Premises; and (b) any amount remaining after making the
reimbursement described in clause (a) above shall be deposited into an
interest-bearing escrow account and made available to Tenant to fund the costs
of repainting, recarpeting and otherwise renewing the Premises. Any escrowed
funds not so expended shall be released to Landlord on the earlier of the first
anniversary of the Termination Date or the first anniversary of the Expiration
Date set forth in the Memorandum Confirming Term.
2.5 DESIGN PROFESSIONALS. In connection with the design of the
Base Building Work, Landlord shall engage architects, civil engineers, landscape
architects and other design professionals who are licensed, reputable,
financially capable and professionally qualified. Landlord shall notify Tenant
in writing of the identity and qualifications of each of its design consultants,
if any, and Tenant shall have the right to approve them. This approval shall not
be
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unreasonably withheld or delayed. Tenant hereby approves the selection of
Xxxxxxxx, Xxxxx & Xxxxxxxx as architect of record (the "Architect"). Landlord
may cause the Architect to engage the civil engineer, landscape architect and
other design professionals referred to above. Tenant shall engage the Architect
to design the Tenant Improvements, and such other licensed, reputable,
financially capable and professionally qualified design professionals as may be
reasonably necessary.
2.6 PARTIES' REPRESENTATIVES. Xxxx Xxxxxxx shall be Tenant's
representative and Xxxxx Xxxxxx shall be Landlord's representative. Notices to
the parties shall be deemed given upon delivery to the designated
representatives, and each party shall be entitled to rely on the apparent
authority of the other party's designated representative.
2.7 DISPUTES. Any disputes between the parties concerning
design-related matters that cannot be resolved through reasonable business-like
negotiations shall be resolved through the dispute resolution procedure set
forth in Article 7 below.
ARTICLE 3
DEVELOPMENT APPROVALS
Landlord shall be solely responsible for procuring all permits,
certificates, approvals and other entitlements from any State, County, City or
other public agencies with jurisdiction that may be necessary to develop,
construct and occupy the Project in the manner prescribed in the Lease
(collectively, the "Development Approvals"), including without limitation any
design review approvals, grading permits, building permits and certificates of
occupancy. Landlord shall use commercially reasonable and diligent efforts in
seeking to procure all necessary Development Approvals by the applicable dates
set forth in the Project Development Schedule, and shall bear all costs and
expenses associated with the procurement of the Development Approvals, including
without limitation all application fees, engineering, architectural and other
consulting costs, impact fees and mitigation costs. Landlord and Tenant each
shall consult, cooperate and coordinate with the other in connection with the
Development Approval procurement process, including without limitation reviewing
applications for Development Approvals during the Design Meetings, and Tenant's
input to Landlord shall be considered in good faith. Landlord shall make
available to Tenant upon request copies of all applications that are submitted
to a public agency with jurisdiction in connection with the procurement of any
Development Approvals. Notwithstanding any contrary provision of this Rider,
Tenant shall have the right to approve the provisions of any Development
Approvals that would materially and adversely affect Tenant's use and occupancy
of the Premises (including without limitation the cost of operating the
Premises) during the Lease Term. Tenant's approval shall not be unreasonably
withheld, delayed or conditioned, and shall be deemed given if Tenant does not
give Landlord written notice of its disapproval, together with a reasonably
detailed explanation of the reasons therefor and if feasible, the steps
necessary to gain Tenant's approval, within seven days after receipt of the
proposed provisions of the Development Approvals. By way of illustration and not
in limitation of the foregoing, the parties acknowledge that it would be
reasonable for Tenant to disapprove a provision of a Development Approval that
would require Tenant to fund the development of a fire station, but it would not
be reasonable for
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Tenant to disapprove a provision of a Development Approval that would require
Tenant to pay an assessment that is levied against nearby properties as well.
ARTICLE 4
FINANCING
Except to the extent expressly provided otherwise elsewhere in
this Rider, Landlord shall bear all costs relating to the development and
construction of the Premises. Landlord shall be solely responsible for procuring
all financing necessary for Landlord's development and construction of the
Project (the "Initial Financing"). Landlord shall use diligent commercially
reasonable efforts to procure evidence that the Initial Financing is feasible,
and then to complete and close on such Initial Financing, by the applicable
dates set forth therefor in the Project Development Schedule. The Initial
Financing shall be obtained from an institutional lender or investor (the
"Lender") on terms and conditions acceptable to Landlord in its sole discretion.
ARTICLE 5
CONSTRUCTION
5.1 STANDARD OF PERFORMANCE. Landlord shall construct the Initial
Improvements (referred to hereafter as the "Work") in a good and workmanlike
manner, free of defects in materials or workmanship, in accordance with the
approved Design Documents, the requirements of the Development Approvals and all
Applicable Laws, at no cost to Tenant except as otherwise expressly provided in
Article 2 above. Landlord shall diligently prosecute all Work to completion in
accordance with the Project Development Schedule, subject to Force Majeure and
Tenant Delays (as those terms are defined in Section 6.3 below).
5.2 CONTRACTOR AND CONTRACT REQUIREMENTS; WARRANTIES, INSURANCE
AND BONDS.
(a) Landlord shall engage a general contractor and/or
construction manager to perform the Base Building Work that is licensed,
reputable, has adequate financial capability and is experienced in the
construction of first-class office projects (collectively, the "Contractor").
Landlord shall notify Tenant in writing of the identity and qualifications of
the Contractor, and Tenant shall have the right (which shall not be unreasonably
withheld or delayed) to approve the Contractor. The Contractor shall be
expressly required to: (i) carry appropriate levels of worker's compensation,
general liability, builder's risk, automobile and employer's liability
insurance; (ii) provide performance and payment bonds if Landlord so elects;
(iii) perform the Work in accordance with the approved Design Documents,
Development Approvals and other Applicable Laws; (iv) provide a warranty to
Tenant that each Increment of the Initial Improvements will be free of
construction defects for a period of one year from the Substantial Completion
Date thereof; and (v) provide a 15-year warranty from the roofing contractor,
that shall be directly enforceable by Tenant, covering the roof membrane.
Landlord shall provide Tenant with copies of the contract between Landlord and
the Contractor upon execution.
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(b) Landlord shall enter into a separate contract with the
Contractor or another general contractor and/or construction manager (the "TI
Contractor") to construct the Tenant Improvements. Prior to entering into a
contract for construction of the Tenant Improvements, Landlord shall solicit
separate bids for construction of the Tenant Improvements from at least three
general contractors (including without limitation the Contractor) that are
previously approved by Tenant, and the TI Contractor, if it is not the
Contractor, shall be acceptable to Tenant in its reasonable discretion.
(c) The TI Contractor shall be licensed, reputable, have adequate
financial capability, be experienced in the construction of similar tenant
improvement projects, and shall be expressly required by contract to: (i) carry
appropriate levels of worker's compensation, general liability, builder's risk,
automobile and employer's liability insurance; (ii) provide performance and
payment bonds if Landlord so elects; (iii) perform its portion of the Work in
accordance with the approved Design Documents, Development Approvals and other
Applicable Laws; (iv) solicit at least three bids for each major trade from a
list of subcontractors previously approved by Landlord and Tenant; and (v)
provide a warranty to Tenant that the Tenant Improvements within each Increment
will be free of construction defects for a period of one year from the
Substantial Completion Date of such Increment. Landlord shall provide Tenant
with a copy of the contract between Landlord and the TI Contractor upon
execution.
5.3 OBSERVATION; REGULAR PROGRESS MEETINGS. If the Lender
requires independent third party construction oversight, Landlord shall ask the
Lender to cause the construction monitor to provide Tenant with copies of all
reports and other materials he or she generates. If no such independent
oversight is implemented by the Lender, or if the Lender or construction monitor
refuses to provide copies of the oversight reports, Tenant shall have the right
(but not the obligation) to engage an independent third party construction
monitor to observe the Work, at Tenant's sole cost (but subject to reimbursement
from the Tenant Allowance if there are sufficient funds therefor), but such
observation shall not interfere with or impede the Work. In addition, Tenant
shall have the right to observe the Work, upon reasonable advance notice to
Landlord and subject to all reasonable rules pertaining to visitor and job site
safety, so long as such observation does not interfere with or impede the Work.
Tenant shall have the right, but not the obligation, to attend regularly
scheduled on-site construction progress meetings. The cost of any construction
monitor required by the Lender shall be borne by Landlord at its sole cost and
expense.
5.4 COMPLETION; PUNCH-LISTS. The Initial Improvements shall be
constructed and completed in two increments, the first of which shall include
Building A and such site improvements (e.g., parking, landscaping and lighting)
as are reasonably necessary for the occupancy and use of Building A
(collectively, the "FIRST INCREMENT"), and the second of which shall include
Building B and the remainder of the Initial Improvements (collectively, the
"SECOND INCREMENT"). For purposes of this Lease, "Substantial Completion" (or
"Substantially Complete") shall mean, with respect to each Increment, that the
Work has been substantially completed in accordance with the Design Documents
(as evidenced by a Certificate of Substantial Completion signed by the
Architect, in customary AIA form) and the City has issued a certificate of
occupancy therefor (which certificate of occupancy may be temporary or
conditional so long as Tenant may make beneficial use of the entire Increment),
and the "Substantial Completion Date" of an Increment shall be the date the City
issues the certificate of
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occupancy for such Increment. Tenant shall have the right, but not the
obligation, to participate with Landlord and the Architect in their inspections
of the Work for purposes of determining Substantial Completion, and in the
preparation of the punch-list of items that need to be completed before the
applicable Increment is finally complete (the "Punch-List Work"). The Contractor
shall be expressly required by contract to complete the Punch-List Work for an
Increment within 30-45 days after Substantial Completion to the maximum extent
feasible. Tenant may provide Landlord, within 30 days after the Substantial
Completion Date for an Increment, with additional Punch-List Work for such
Increment that Tenant identifies during the 30-day period and Landlord shall act
diligently to cause the Contractor and/or TI Contractor to correct or complete
all such additional Punch-List Work. Upon completion of all the Punch List Work
for the Initial Improvements, and subject to Tenant's receipt of reasonable
assurances from Landlord that all mechanic's and other lien claims arising out
of the Work have been released, settled, discharged or insured or bonded over,
Tenant shall sign a letter to Landlord confirming the Punch-List Work has been
completed, and Landlord shall have no liability or obligation thereafter to
Tenant with respect to the Work, including without limitation defects in
construction of the Initial Improvements, except to the extent expressly
provided in Section 6.2(b) of the Lease. Within 90 days after the Substantial
Completion Date for the Second Increment, Landlord shall provide to Tenant,
without warranty, a set of the as-built drawings for the Initial Improvements
that Landlord receives from the Architect or Contractor and TI Contractor.
5.5 PRE-COMPLETION ACCESS. Tenant shall have the right to enter
the Premises at an appropriate time during the course of the Work for the
purpose of installing telecommunications and computer cabling and like purposes,
subject to all applicable terms and conditions of this Lease (except that Tenant
shall have no obligation to pay Rent in connection with such entry) and
Landlord's and the Contractor's and TI Contractor's requirements concerning
safety, non-interference with the Work and other relevant matters. Tenant also
shall have the right to enter an Increment of the Premises during the 60-day
period prior to Substantial Completion of such Increment for the purposes of
furnishing, equipping, decorating and other activities reasonably related to
Tenant's occupancy and use of such Increment, subject to all applicable terms
and conditions of this Lease (except that Tenant shall have no obligation to pay
Rent in connection with such entry) and Landlord's and the Contractor's
requirements concerning safety, non-interference with the Work and other
relevant matters. The contracts between Landlord and the Contractor and TI
Contractor shall contain provisions obligating the Contractor and TI Contractor
to reasonably accommodate Tenant in its exercise of the access rights provided
by this Section 5.5. Tenant shall provide Landlord and the Contractor and TI
Contractor with reasonable advance notice of any proposed entry, specifying the
specific activities Tenant proposes to undertake and the proposed schedule
therefor, and shall coordinate its activities at the Premises with Landlord and
the Contractor and TI Contractor. Tenant and Tenant's agents, employees and
contractors shall ensure that the progress of the Work will not be interrupted
or delayed by their activities, or by strike, work stoppage or other disputes
arising out of their safety or labor practices. Tenant shall be responsible for
any damage or delay to the Work caused by Tenant or any of its agents, employees
or contractors.
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ARTICLE 6
PROJECT DEVELOPMENT SCHEDULE
6.1 PROJECT DEVELOPMENT SCHEDULE. A Project Development Schedule
containing a detailed list of development-related milestones ("Project
Milestones"), and dates for the achievement of such milestones ("Project
Milestone Dates"), is attached to this Rider as Attachment C (the "Project
Development Schedule"). Landlord shall use commercially reasonable and diligent
efforts to cause the Project Milestones to be achieved by the respective Project
Milestone Dates, subject to Force Majeure and Tenant Delays.
6.2 REPORTING; UPDATING PROJECT DEVELOPMENT SCHEDULE.
(a) Landlord shall provide to Tenant each month a report and
update (the "Status Report"), in both narrative and diagrammatic form consistent
with Landlord's customary reporting methodology for the Project: (i) describing
in reasonable detail the progress of all material pre-construction and
construction activities; (ii) summarizing Landlord's progress toward each
Project Milestone; and (iii) identifying any reasonably foreseeable and probable
events or circumstances that might cause development of the Project to fall
behind schedule. Landlord also shall provide Tenant with minutes from all
pre-construction and construction-phase meetings with the Contractor and TI
Contractor. Appropriate representatives of Landlord and Tenant shall meet
monthly to review the Status Report, coordinate their respective roles and
performance, and consider steps that might advance their mutual interests.
(b) Landlord may modify the Project Development Schedule from
time to time if necessary or appropriate as the Project progresses, subject to
Tenant's approval which shall not be unreasonably withheld or delayed so long as
no Outside Termination Date (as set forth in Section 6.4 of this Rider) would be
extended. If an Outside Termination Date would be extended by a proposed
modification to the Project Development Schedule, Tenant may grant or withhold
its approval as it may elect in its sole discretion.
6.3 FORCE MAJEURE AND TENANT DELAYS.
(a) The obligation of either party to take any action required by
this Rider shall be suspended for so long as such party is prevented from doing
so by an event of Force Majeure (as defined below), and all Project Milestone
Dates and Outside Termination Dates set forth in the Project Development
Schedule for Project Milestones that are directly affected by the event of Force
Majeure shall be extended by the period of time that Force Majeure delays such
performance or completion; provided, however, that notwithstanding anything to
the contrary elsewhere in this Rider, no Project Milestone Date or Outside
Termination Date shall be extended by more than 180 days without Tenant's
written consent, which may be granted, withheld or conditioned in Tenant's sole
and absolute discretion. Any party whose performance is delayed by an event of
Force Majeure shall give prompt written notice to the other containing: (i) a
reasonably detailed description of the event of Force Majeure; (ii) a list of
the Project Milestones affected by the event of Force Majeure; and (iii) an
estimate of the anticipated duration of the delay. When the event of Force
Majeure has concluded, the party whose performance was delayed shall give prompt
written notice to the other stating the total number of
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days of the delay and identifying the Project Milestone Dates and Outside
Termination Dates to be extended.
(b) For purposes of this Lease, "Force Majeure" shall mean the
following events or conditions, to the extent they individually or collectively
actually affect the ability of a party to perform hereunder on a timely basis:
fire, earthquake, flooding, acts of God, wars, riots, legal challenges, delays
caused by the City or any other public agency with jurisdiction, delays caused
by consultants, delays caused by the necessity to respond to the presence at the
Premises of Hazardous Materials, and other unforeseen events or circumstances
outside the reasonable control of the party affected thereby. In no event shall
Force Majeure include Landlord-Caused Delays, Tenant Delays or a party's lack of
financial capability, regardless of cause.
(c) For purposes of this Lease, "Tenant Delays" shall mean any
delay caused by, or due to circumstances within the reasonable control of,
Tenant or Tenant's employees, agents or contractors, including without
limitation any delays in completion of design, procurement of permits or
completion of construction due to changes in the Design Documents requested by
Tenant, interference with the progress of construction due to Tenant's
activities on or about the Premises or Tenant's failure to timely comply with
any of its obligations under this Lease.
6.4 TERMINATION.
(a) In the event that any of the following Project Milestones is
not achieved on or before the respective Outside Termination Date, either party
shall have the right to terminate this Lease; (provided, however, that Tenant
may not terminate the Lease if the failure to achieve the Project Milestone is
due to Tenant Delays and Landlord may not terminate the Lease if the failure to
achieve the Project Milestone is due to a Landlord-Caused Delay).
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PROJECT MILESTONE PROJECT MILESTONE DATE OUTSIDE TERMINATION DATE
----------------- ---------------------- ------------------------
Execution of Land Acquisition February 23, 2000 April 24, 2000
Agreement
Financing Terms Acceptance May 14, 2000 July 13, 2000
Initial Financing Commitment July 13, 2000 September 12, 2000
Issuance of Building Permit and December 1, 2000 March 1, 2001
all other Development Approvals (as may be extended pursuant to
Necessary to Commence Sections 6.4(b) and 6.4(c)
Construction below)
Closing of Initial Financing and December 1, 2000 March 1, 2001
Land Acquisition (as may be extended pursuant to
Sections 6.4(b) and 6.4(c)
below)
(b) Tenant shall use good faith efforts to procure an extension
of the lease term for its current space in the Atrium project in Emeryville,
California (the "ATRIUM"), on commercially reasonable terms, to a date that is
later than March 31, 2002. If Tenant is able to procure such an extension, the
Outside Termination Dates for both: (i) issuance of the building permit and all
other Development Approvals necessary to commence construction; and (ii) the
closing of the initial financing and Land acquisition shall be extended to June
1, 2001. Wherever in this Rider there is a reference to "issuance of the
building permit and all other Development Approvals necessary to commence
construction," it shall be understood to mean both the issuance of the building
permit and all other Development Approvals necessary to commence construction,
and the passage of all applicable challenge or appeal periods relating thereto
without a challenge, referendum or appeal having been brought.
(c) In the event that either: (i) issuance of the building permit
and all other Development Approvals necessary to commence construction have not
occurred by March 1, 2001 (or, if extended pursuant to Section 6.4(b) above,
June 1, 2001); or (ii) the closing of the initial financing and Land acquisition
have not occurred by March 1, 2001 (or, if extended pursuant to Section 6.4(b)
above, June 1, 2001), Landlord and Tenant shall negotiate in good faith for a
period of 30 days. During such period, Tenant shall seek a further extension of
the lease term for its current space in the Atrium, and Landlord shall have the
right, but not the obligation, to participate in such efforts. If Tenant is able
to procure such an extension, and Landlord and Tenant agree on an allocation of
the costs of the holdover at the Atrium (or either party in its sole discretion
agrees to absorb all of the costs of the holdover at the Atrium that the other
party is unwilling to absorb), the Outside Termination Date shall be extended by
a period of time equal to the length of the extension. In such event,
notwithstanding anything to the contrary in Section 6.4(a) or 6.4(b) above, the
Outside Termination Dates for both: (x) issuance of the building permit and all
other Development Approvals necessary to commence construction; and (y) the
closing of the initial financing and Land acquisition shall be extended to that
date which is ten months before the extended termination date of the lease for
the Atrium. If
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Tenant is unable to procure such an extension by March 31, 2001, either party
may terminate this Lease at any time thereafter. Nothing in this Section 6.4(c)
shall be construed as requiring Tenant to agree to pay rent for the Atrium space
at a rate in excess of what Tenant would pay under this Lease for a comparable
amount of rentable area.
(d) If a Project Milestone is not achieved by the applicable
Project Milestone Date, any party that contemplates terminating the Lease shall
give written notice to the other so that it shall have a reasonable opportunity
to cause the Project Milestone to be achieved during the period between the
Project Milestone Date and the Outside Termination Date. In the event the Lease
is terminated by either party pursuant to Section 1.2 or this Section 6.4,
Tenant shall reimburse Landlord for: (i) sixty-five percent (65%) of all
Project-related out-of-pocket costs actually and reasonably incurred by
Landlord, including without limitation payments made towards the purchase price
of the Land; plus (ii) if the Lease is terminated due to a default by the seller
under the Land Acquisition Agreement, one hundred percent (100%) of the
shortfall in the recovery by Landlord of any payments made towards the purchase
price of the Land (in which event Tenant shall be subrogated to Landlord's right
of recovery against the seller of the Land); provided, however, that: (x) the
total amount which Tenant shall be obligated to reimburse Landlord pursuant to
this Section 6.4 shall not exceed the amount of the Security Deposit set forth
in the Lease; and (y) Tenant shall have no obligation to reimburse Landlord if
Landlord has failed to use commercially reasonable and diligent efforts to cause
the applicable Project Milestone to be achieved. Tenant shall make payment
within 30 days after receipt of an itemization of the Project-related
out-of-pocket costs actually and reasonably incurred by Landlord, together with
reasonable supporting documentation thereof.
(e) Tenant may not terminate this Lease once the closing of the
Initial Financing has occurred, except as expressly provided in Section 2.3(c)
of the Lease.
6.5 SCHEDULED COMPLETION DATES.
(a) First Increment. If the building permit for the First
Increment is issued at any time prior to January 1, 2001, the First Increment
shall be Substantially Complete no later than the first anniversary of the date
the building permit is issued. If the building permit for the First Increment is
issued at any time on or after January 1, 2001 but before March 1, 2001, the
First Increment shall be Substantially Complete no later than December 31, 2001.
If the building permit for the First Increment is issued at any time on or after
March 1, 2001, the First Increment shall be Substantially Complete no later than
ten full months after the date the building permit was issued. The applicable
date by which the First Increment shall be Substantially Complete, as set forth
in this Section 6.5(a), is referred to in this Lease as the "FIRST INCREMENT
SCHEDULED COMPLETION DATE."
(b) Second Increment. The Second Increment shall be Substantially
Complete no later than 90 days after the First Increment Scheduled Completion
Date (the "SECOND INCREMENT SCHEDULED COMPLETION DATE").
(c) Earlier Completion. Nothing herein shall be construed to
preclude Landlord from delivering any Increment to Tenant before the applicable
Scheduled Completion Date so long as it is Substantially Complete (subject to
the limitation set forth in Section 2.3(a)
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of the Lease), and Rent for each Increment shall commence on the Substantial
Completion Date of such Increment as provided in Section 3.1 of the Lease, even
if such Increment is Substantially Completed before the applicable Scheduled
Completion Date.
6.6 TENANT'S CONSENT. Tenant shall not unreasonably withhold its
consent or approval, except to the extent that this Rider expressly provides
that Tenant's consent or approval may be withheld in Tenant's sole discretion.
Any notice of disapproval given by Tenant shall contain a reasonably detailed
explanation of the reason(s) for disapproval and, if feasible, a statement of
what changes or refinements in Landlord's submission could be made in order to
obtain Tenant's consent or approval.
ARTICLE 7
RESOLUTION OF SPECIFIED DISPUTES
Any disputes between the parties concerning due diligence or
design-related matters that cannot be resolved through reasonable business-like
negotiations shall be resolved through the following procedure: Either party may
initiate this dispute resolution procedure by written notice to the other at any
time after it has endeavored without success to resolve the matter through
reasonable business-like negotiations (the "NOTICE"). Each party shall select an
Expert (each, an "EXPERT") within ten business days after the date the Notice
was given (the "NOTICE DATE"), and the two Experts shall meet promptly to select
a neutral third Expert (the "REFEREE"). Each of the initial two Experts then
shall propose a resolution, and the Experts shall endeavor to reach agreement on
a resolution that both view as fair and reasonable under the circumstances. If
the initial two Experts agree on a resolution, the resolution so selected (or
fashioned) by the Experts shall be reduced to a written instrument that is
signed by the two Experts, and such resolution shall be final and binding on the
parties. If the two Experts are unable to agree on a resolution within 45 days
after the Notice Date, the parties shall deliver copies of both proposed
resolutions to the Referee, and the Referee shall select, within ten days after
receipt, the proposed resolution which it believes is the most fair and
reasonable under the circumstances, and the resolution so selected shall be
final and binding on the parties.
If the matter in dispute involves a due diligence matter, the
Experts and the Referee appointed pursuant to this Article 7 shall have at least
ten years of full-time experience in the development of commercial real estate
projects in the San Francisco Bay Area. If the matter in dispute involves a
design-related matter, the Experts and the Referee appointed pursuant to this
Article 7 shall have at least 15 years of experience in the design of office and
corporate campus projects. The Experts shall be directed not to disclose the
names of Landlord
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or Tenant to the Referee, or to provide the Referee at any time before
resolution of the matter in dispute with any other information from which the
identities of the Landlord and Tenant may be inferred.
LANDLORD
WDS-DUBLIN LLC,
a California limited liability company
By: Xxxxxx Interests, Inc., a Texas
corporation, its Managing Member
By: /S/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx, Executive Vice
President
TENANT
SYBASE, INC., a Delaware corporation
By: /S/ XXXX CHEN________________ [Name]
Its Chairman, CEO &
President_____________ [Title]
ATTACHMENTS:
Attachment A: Conceptual Plans
Attachment B: Allowances Breakdown
Attachment C: Project Development Schedule
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EXHIBIT C
MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM CONFIRMING TERM is entered into as of ________,
20__, pursuant to Section 2.3(d) of that certain Office Building Lease dated
January 28, 2000 (the "LEASE") by and between WDS-DUBLIN LLC, a California
limited liability company ("LANDLORD"), and SYBASE, INC., a Delaware corporation
("TENANT"). All initial-capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
Landlord and Tenant hereby confirm that:
1. The Term Commencement Date is _______________, 20__. [See
Section 2.3(a)]
2. Subject to extension as provided in Section 2.5 of the Lease,
the Expiration Date is _______________, 201_. [See Section 2.4]
3. The adjustment date for Base Rent shall be _______________ of
each year during the Term, commencing _______________, 20__. [See Section
3.1(a)]
4. Tenant has accepted and approved the Premises, including
without limitation the Initial Improvements, in good condition and state of
repair, subject only to the Punch-List Work. [See Section 2.3(d)]
5. Xxxxxx Development Services, Inc. has no further obligations
under the Continuing Guaranty of Lease it provided to Tenant pursuant to Section
13.10 of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this
Memorandum as of the date first set forth above.
LANDLORD
WDS-DUBLIN LLC,
a California limited liability company
By: Xxxxxx Interests, Inc., a Texas
corporation, its Managing Member
By: _______________________________
Xxxxxxx X. Xxxxx, Executive Vice
President
TENANT
SYBASE, INC., a Delaware corporation
By: _____________________________ [Name]
Its______________________________ [Title]
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EXHIBIT D
FORM OF REQUEST FOR CONSENT TO ALTERATIONS
THIS REQUEST FOR LANDLORD'S CONSENT TO ALTERATIONS is submitted
to Landlord pursuant to Section 6.3(b) of that certain Office Building Lease
dated January 28, 2000 (the "LEASE") by and between WDS-DUBLIN LLC, a California
limited liability company ("LANDLORD"), and SYBASE, INC., a Delaware corporation
("TENANT"). All initial-capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
Tenant hereby requests Landlord's consent to the proposed
Alterations described generally as follows and shown more particularly on the
enclosed plans:
[Describe proposed Alterations and identify any drawings,
specifications and other materials enclosed with Request. If Tenant believes
that Landlord may not condition its consent on Tenant's agreement to remove the
Alterations and restore the Premises to its condition prior to installation of
the Alterations because the Alterations are of a design, quality, quantity and
character that are typical of first class corporate headquarters projects of new
or recent vintage so that there will be no material adverse effect on Landlord's
ability to relet the Premises, Tenant should include documentation to that
effect.]
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Section 6.3(b) of the Lease provides, in part, that :
"Landlord's consent in all cases may be conditioned upon Tenant's
agreement to remove the Alterations and restore the Premises to
its condition prior to installation of the Alterations, on or
before the Surrender Date, unless the Alterations are of a
design, quality, quantity and character that are typical of first
class corporate headquarters projects of new or recent vintage so
that there will be no material adverse effect on Landlord's
ability to relet the Premises."
IF LANDLORD DOES NOT INDICATE IN ITS CONSENT TO THE ALTERATIONS
THAT REMOVAL AND RESTORATION AT THE END OF THE TERM WILL BE REQUIRED, LANDLORD
SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO REQUIRE REMOVAL AND RESTORATION WITH
RESPECT TO SUCH ALTERATIONS.
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FIRST AMENDMENT TO CORPORATE HEADQUARTERS LEASE
THIS FIRST AMENDMENT TO CORPORATE HEADQUARTERS LEASE (this "AMENDMENT")
is made and entered into effective as of the 29th day of November, 2000, by and
between WDS - DUBLIN, LLC, a California limited liability company ("LANDLORD"),
and SYBASE, INC., a Delaware corporation ("TENANT").
R E C I T A L S:
A. Effective January 28, 2000, Landlord and Tenant entered into that
certain Corporate Headquarters Lease (the "EXISTING LEASE") pursuant to the
terms and conditions of which Landlord agreed to lease to Tenant the premises
located north of the northwest corner of Interstate 580 and Hacienda Drive in
Dublin, California, as more particularly described therein.
B. Landlord and Tenant have agreed to make certain amendments and
modifications to the Existing Lease, all pursuant to and subject to the terms
and conditions more fully set forth herein.
NOW, THEREFORE, in consideration of the recitals set forth above, the
covenants and agreements contained herein, and other good and valuable
consideration, the receipt, adequacy and total sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
3. Incorporation of Recitals/Terms. The recitals to this Amendment set
forth above are hereby incorporated herein. All terms not otherwise defined
herein shall have the meaning ascribed to them in the Existing Lease.
4. Amendments to Existing Lease. The Existing Lease is hereby modified
and amended as follows:
(a) The last sentence of Section 1.4 of the Existing Lease
is hereby amended by deleting the number "400,000" and
replacing it with the number "406,000".
(b) Section 1.7 of the Existing Lease is hereby amended in
its entirety to read as follows:
"1.7 INITIAL BASE RENT: $23.54 per rentable
square foot per annum, subject to adjustment. (See
Article 3)."
(c) Section 1.8 of the Existing Lease is hereby amended in
its entirety to read as follow:
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"1.8 SECURITY DEPOSIT: Eighteen Million and
No/100 Dollars ($18,000,000.00) (Subject to adjustment
as set forth in Section 3.8)."
(d) The only sentence of Section 2.2 of the Existing Lease
is hereby amended by replacing the phrase "Term
Commencement Date" with the phrase "Rent Commencement
Date".
(e) The second sentence of Subsection 2.3(a) of the Existing
Lease is hereby amended in its entirety to read as
follows:
"The "TERM COMMENCEMENT DATE" shall be the date
Landlord acquires title to the Land, currently
anticipated to be on or around December 1, 2000."
(f) The second sentence of Subsection 2.3(b) of the Existing
Lease is hereby amended in its entirety to read as
follows:
"Tenant's sole remedy against Landlord for any
delay in Substantial Completion shall be to recover from
Landlord the amount of $5,000, as liquidated damages,
for each day of the delay in Substantial Completion of
the First Increment beyond the First Increment Scheduled
Completion Date, and/or each day of the delay in
Substantial Completion of the Second Increment beyond
the Second Increment Scheduled Completion Date, in each
case that results from a Landlord-Caused Delay (as
defined below); provided, however, that: (i) after the
earlier of (1) the date that Tenant first occupies any
portion of the Premises for the conduct of Tenant's
business, or (2) the Substantial Completion Date (as
defined in, and determined in accordance with Section
5.4 of the Project Development Rider) for the First
Increment (such earlier date is herein called the
"OCCUPANCY DATE"), liquidated damages for delay in
Substantial Completion of the Second Increment due to
Landlord Delays of more than 90 days shall be increased
to $7,500 per day; and (ii) notwithstanding anything in
this Lease to the contrary, Landlord's total liability
to Tenant for delays in delivering the Premises shall
not exceed $750,000."
(g) Subsection 2.3(c) of the Existing Lease is hereby
amended in its entirety to delete the text in such
Subsection 2.3(c) of the Existing Lease and replace such
text with the following:
"(c) Intentionally Deleted."
(h) The first sentence of Section 2.4 of the Existing Lease
is hereby amended in its entirety to read as follows:
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"Subject to the extension as provided in Section 2.5
below the "EXPIRATION DATE" shall be the day immediately
preceding the fifteenth anniversary of the Rent
Commencement Date (as defined in Section 3.1(a) below)."
(i) Section 2.3(d) of the Existing Lease is hereby amended
in its entirety to read as follows:
"(d) Within five days after the Substantial
Completion Date of the Second Increment, Landlord and
Tenant shall execute a Memorandum Confirming Term, in
the form attached as Exhibit C, memorializing the actual
Term Commencement Date, Rent Commencement Date, and
Expiration Date, and confirming that Tenant has accepted
and approved the Premises, including without limitation
the Initial Improvements, in good condition and state of
repair, subject only to the Punch-List Work (as defined
in the Project Development Rider).
(j) Section 2.3 of the Existing Lease is hereby amended by
adding a new Subsection 2.3(e) immediately after Section
2.3(d) and immediately before Section 2.4, which new
Section 2.3(e) reads as follows:
"(e) Except to the extent expressly provided
elsewhere in this Lease, Tenant hereby waives, to the
maximum extent permitted by Applicable Laws, any rights
that it may now or in the future have to quit or
surrender or vacate the Premises, to terminate this
Lease, or to any abatement, diminution, offset,
reduction or suspension of Rent on account of Landlord's
failure to timely or in a satisfactory manner deliver
possession of the Premises to Tenant or on account of
any other event or circumstance, including, without
limitation, any rights Tenant might otherwise have under
the provisions of sections 1932, 1933, 1941 and/or 1942
of the California Civil Code, it being the express
intention of the parties, and therefore it being agreed
to by the parties, that the terms of this Section 2.3
shall control under any circumstance in which said
statutes might otherwise apply, and govern and replace
any rights covered by said statutes."
(k) Section 3.1 of the Existing Lease is hereby amended in
its entirety to read as follows:
"3.1 Payment of Base Rent.
(a) The terms defined below shall have the
meaning ascribed thereto when used in this Section 3.1
and elsewhere in this Lease:
"RENT COMMENCEMENT DATE" means the first to
occur of (i) Xxxxx 0, 0000, (xx) the date Tenant first
occupies for use any portion of the Second Increment,
and (iii) the Substantial Completion Date for the Second
Increment.
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"RENT YEAR" means, for the first Rent Year, the
one year period commencing on the Rent Commencement Date
and ending at the end of the day immediately proceeding
the first anniversary of the Rent Commencement Date, and
for each Rent Year thereafter, each successive year
(commencing on the anniversary of the Rent Commencement
Date and ending at the end of the day immediately
proceeding the first anniversary of the commencement
date of such year).
During the period commencing on the Rent Commencement Date and
continuing thereafter until the Expiration Date, Tenant shall pay
Landlord annual base rent ("BASE RENT") in an amount equal to the
product of (i) the rentable square footage of the Premises
determined in accordance with Section 3.1(c) below, multiplied by
(ii) the Base Rent per rentable square foot amount set forth
below for the Rent Year applicable thereto below:
BASE RENT
PER RENTABLE
RENT YEAR SQUARE FOOT.
--------- ------------
First $23.54
Second $24.52
Third $25.48
Fourth $26.48
Fifth $28.29
Sixth $30.99
Seventh $32.25
Eighth $33.55
Ninth $34.91
Tenth $36.32
Eleventh $38.27
Twelfth $41.03
Thirteenth $42.67
Fourteenth $44.37
Fifteenth $46.15
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(b) Tenant shall pay Base Rent in advance on the
Rent Commencement Date and the first day of each month
thereafter, in equal monthly installments, without
offset, deduction or prior demand; provided, however,
that Base Rent for (i) any partial month during the
period between the Rent Commencement Date and Expiration
Date shall be prorated on the basis of a 30-day month,
and (ii) any month containing more than one Rent Year,
shall be prorated for each Rent Year based upon the
number of days in each such Rent Year.
(c) To the extent applicable if at all, prior to
the Substantial Completion of the First Increment and
Second Increment, Base Rent shall be payable based upon
and assuming the rentable square feet of the Premises
are 406,000 rentable square feet (without any adjustment
for or based upon the final determination of the actual
rentable square feet of the Premises). Upon the
Substantial Completion of the First Increment and Second
Increment (and prior thereto to the extent possible),
the rentable square footage of the Project, including
both Buildings, shall be calculated by the Architect (as
defined in the Project Development Rider) in accordance
with the Standard Method for Measuring Floor Area in
Office Buildings, American National Standard ANSI
Z65.1-1996 (as published by the Building Owners and
Managers Association International). On or before the
Substantial Completion of the First Increment and Second
Increment, the Architect shall certify to both parties:
(i) the rentable square footage within the Premises; and
(ii) that such rentable square footage was calculated in
accordance with the prescribed standard. Such
determination shall be conclusive and binding on both
parties. From and after the Substantial Completion Date
of the Second Increment, Base Rent shall be payable
based upon and assuming the rentable square feet of the
Premises as certified by the Architect as provided
above; provided, however, that if the rentable square
feet of the Premises as so certified by the Architect
(i) is less than 397,880 rentable square feet, then the
rentable square feet of the Premises for purposes of
calculating Base Rent shall be deemed to be 397,880
rentable square feet, and (ii) is greater than 414,120
rentable square feet, the rentable square feet of the
Premises for purposes of calculating Base Rent shall be
deemed to be 414,120 rentable square feet."
(l) The last two sentences of Section 3.7 of the Existing
Lease are hereby amended in their entity to read as
follows:
"Except to the extent expressly provided elsewhere in
this Lease, Tenant hereby waives, to the maximum extent
permitted by Applicable Laws, any rights that it may now
or in the future have to quit or surrender the Premises,
to terminate this Lease, or to any abatement,
diminution, offset, reduction or suspension of Rent on
account of any event or circumstance, including without
limitation any rights it might otherwise have under the
provision of California Civil Code sections 1932, 1933,
1941 and/or 1942, or any amended, similar or successor
laws. Without limiting the foregoing, nothing in this
Section 3.7 shall be deemed to
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preclude, impair or otherwise affect Tenant's right to
enforce any indemnification rights provided to Tenant by
this Lease."
(m) The last sentence of Section 3.8 of the Existing Lease
is hereby deleted and amended by substituting and adding
the following provisions to the end of such Section 3.8:
"The Security Deposit shall be held from time to
time in an account in Landlord's or Lender's name, as
determined by Landlord (and initially in Lender's name)
in an escrow pursuant to an escrow agreement in the form
of Schedule 1 hereto (with such changes thereto as any
subsequent Lender may reasonably request), at such
depository and in such state as the holder thereof shall
determine. Tenant shall execute such documents,
instruments, financing statements, and acknowledgments
as Landlord may reasonably request from time to time to
grant and thereafter maintain a first-priority perfected
security interest in the Security Deposit. Tenant hereby
grants Landlord a security interest in the Security
Deposit as it exists from time to time, and all proceeds
and products thereof subject, however, that such
interest shall in no event apply to funds in excess of
those required to be maintained hereunder from time to
time. Tenant acknowledges and agrees that the Security
Deposit may also be pledged as security to the Lender
and Tenant shall cooperate with, permit, and execute
such documents and instruments as may be required to
provide Lender with such security. Interest earned on
the Security Deposit shall be distributed to Tenant.
Initially Tenant shall deposit cash as the Security
Deposit. Landlord acknowledges and agrees that Tenant
may at any time replace the cash Security Deposit with
an irrevocable standby letter of credit (the
"REPLACEMENT LETTER OF CREDIT"), provided such
Replacement Letter of Credit: (a) is a sight draft
letter of credit from a financial institution acceptable
to Lender in Lender's sole and absolute discretion, (b)
has a face amount of not less than the amount of the
Security Deposit then required under the Lease, (c) has
an expiration date of not less than one (1) year from
the date such Replacement Letter of Credit is delivered
to Lender, and thereafter renewed annually throughout
the Term of the Lease at least 30 days prior to the
expiration date (and drawn on by the holder thereof if
not so renewed with such funds then being placed in an
escrow as required above), (d) is freely assignable by
Lender, (e) may be drawn upon by Landlord or Lender to
cure Tenant defaults under this Lease, as permitted by
the Lease, and otherwise satisfies all requirements and
provisions of the Lease governing the Security Deposit
required to be delivered and maintained by Tenant under
the Lease, (f) shall provide Landlord and Lender,
respectively, the rights that each would have hereunder
and as set forth in the escrow agreement, and (g) is
otherwise reasonably satisfactory to Landlord.
The amount of the Security Deposit (as set forth in
Section 1.8 above) required to be maintained by Tenant
shall change only in accordance with the following, such
changes to be effective so long as no Event of Default
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then exists (it being agreed that it is a condition
precedent to any waiver or reduction in the amount of
such required Security Deposit that no Event of Default
exist):
(i) At any time following the fifth
anniversary of the Occupancy Date, Landlord
shall consent to a reduction in the amount of
the Security Deposit to $13,860,000 upon
Tenant's written request accompanied by evidence
satisfactory to Landlord and Tenant's
certification that (a) Tenant has a market
capitalization for its publicly traded common
stock of at least $2,000,000,000, (b) Tenant has
a cash balance of at least $200,000,000 free and
clear of all liens and security interests, and
(c) Tenant has had positive net income (on a
proforma basis in accordance with generally
accepted accounting principles, but without
reference to purchase accounting such that,
without limitation, Tenant's net income is
calculated without reference to the amortization
of purchased goodwill and/or the write-off of
in-process research and development costs
associated with the acquisition by Tenant of one
or more other companies as publicly announced
on a quarterly basis by Tenant) for each of the
prior five calendar years (such events as
specified in (a), (b), and (c) are herein
collectively called the "PARTIAL REDUCTION
EVENTS").
(ii) From time to time and so long as
Tenant has an investment grade rating for
Tenant's senior unsecured indebtedness, of at
least BBB from Standard & Poor's and Baa3 from
Xxxxx'x Investors Service or if such rating
agencies no longer exist, such other credit
rating from any other credit rating agency
approved by Landlord acting in its sole
discretion, the requirements of maintaining the
Security Deposit shall be waived by Landlord
upon Tenant's written request accompanied by
evidence satisfactory to Landlord of such
investment grade rating. Such Landlord's waiver
shall cease without further action if Tenant's
credit rating thereafter is not such investment
grade, in which event the Security Deposit
amount shall immediately increase to the
original amount set forth in Section 1.8 above,
subject to reduction, to the extent applicable,
as set forth in subsection (i) above or (iii)
below.
(iii) The then existing amount of the
Security Deposit shall be reduced by 20% on the
first day of each of the last four years of the
initial Lease Term (the four year immediately
preceding the initial Expiration Date).
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Following the initial Lease Term and, if
applicable, during any extended term pursuant to
the exercise of any Extension Option, the
Security Deposit amount shall be reduced to zero
with no Security Deposit being required
thereafter.
(n) The end of the first sentence of Section 4.2 of the
Existing Lease is hereby amended by deleting the phrase
"pursuant to other provisions of this Lease." and
replacing such phrase with the following: "pursuant to
the other provisions of this Lease, including, without
limitation, any Premises Costs attributable to the
period between the Term Commencement Date and the date
immediately preceding the Occupancy Date."
(o) Section 4.3(a) of the Existing Lease is hereby amended
in its entirety to read as follows:
"(a) Without limiting the generality of Sections
4.1 and 4.2, but subject to Section 4.3(c) below, Tenant
shall pay all Impositions (defined below) allocable to
the Premises after the Occupancy Date and for the
remainder of the Lease Term on or before the date due,
and in any event before delinquency and before any fine,
interest or penalty may become due or be imposed by
operation of law for nonpayment; provided, however,
that: (i) any Impositions that are allocable to periods
before the Occupancy Date or after the Term shall be
paid by Landlord; and (ii) if any assessment is
permitted by law to be paid in installments, Tenant may
pay such assessments in installments (and any assessment
installments allocable to periods before the Occupancy
Date or after the Lease Term shall be paid by Landlord
in accordance with the preceding clause (i))"
(p) Subsection 4.5(a) of the Existing Lease is hereby
amended by substituting the figure Ten Million and
No/100 Dollars ($10,000.000.00) for the figure Five
Million and No/100 Dollars ($5,000,000.00) appearing in
the third sentence of such Subsection.
(q) The first sentence in subsection 4.5(b) of the Existing
Lease is hereby amended by including immediately before
the beginning of such first sentence the following
phrase: "After the Occupancy Date and for the remainder
of the Lease Term,"
(r) Subsection 4.5(c) of the Existing Lease is hereby
amended in its entirety to delete the title and text in
such Subsection 4.5(c) of the Existing Lease and replace
such title and text with the following:
"(c) Intentionally Deleted."
(s) The second sentence of subsection 4.5(f)(ii) is hereby
amended in its entirety to read as follows:
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"Each policy, or a certificate of the policy executed by
a properly qualified and authorized representative of
the insurance company evidencing that the required
insurance coverage is in full force and effect, shall be
deposited with Landlord on or before the Occupancy Date,
shall be maintained commencing on the Occupancy Date and
continuing throughout the Term, and shall be renewed at
least 30 days before the expiration of the term of the
policy."
(t) Section 4.6 of the Existing Lease is hereby amended in
its entirety to read as follows:
"4.6 INSURANCE TO BE PROCURED BY LANDLORD.
Landlord shall procure and maintain, at all times during
the Term, property insurance covering the Improvements
for the perils covered by a standard "all risk" extended
coverage fire insurance policy, including vandalism,
malicious, mischief, sprinkler leakage (including fire
and sprinkler damage caused by earthquake), boiler,
machinery and pressure vessel, lightning, windstorm,
hail and other typical and commercially available
coverages, in an amount equal to the full replacement
cost of the Improvements (such policy, together with the
rent loss insurance policy and earthquake insurance
coverage as set forth below in this Section 4.6, are
collectively herein called, the "PROPERTY INSURANCE
POLICY"). Landlord shall also procure and maintain, at
all times during the Term, a rent loss insurance policy
in an amount equal to at least 18 months of Base Rent,
estimated Impositions and insurance premiums. In
addition, Landlord may elect at any time and from time
to time, in its sole discretion, to procure, maintain or
discontinue earthquake insurance covering the
Improvements, whether as part of the Property Insurance
Policy or separately. If Landlord elects in its sole
discretion to procure a Property Insurance Policy, other
than and specifically excluding that portion applicable
to earthquake insurance coverage, with a deductible,
Tenant and Landlord shall have the right to approve the
amount of the deductible of over two percent of the
policy coverage amount. Any earthquake insurance policy
shall contain a deductible which is (1) acceptable to
all Lenders and (2) generally applicable to similar
improvements in similar risk areas with similar leases,
all as determined by Lender. All Property Insurance
Policies shall be placed with insurers with a rating
reasonably acceptable to Lender. Tenant shall be
provided the opportunity to suggest alternative
similarly rated insurers with similar coverages for
Landlord's consideration, which Landlord agrees to
consider in making Landlord's selections applicable to
the Property Insurance Policy. If Tenant provides
Landlord with a written suggestion of an insurer having
a Best insurance rating at least equal to or higher than
the rating of the insurer otherwise selected by Landlord
with coverages and deductibles equivalent to those
required to be maintained hereunder (such insurer and
coverages so suggested by Tenant are herein called
"TENANT SELECTED INSURANCE") at a total annual premium
less than that provided by the insurer otherwise
selected by Landlord, then Landlord shall purchase the
Tenant Selected Insurance. Tenant shall pay the entire
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amount of all deductible amounts in the event of a
casualty or other claim on any such Property Insurance
Policy, including any applicable to earthquake insurance
coverage. Tenant shall pay all premiums for the Property
Insurance Policy upon invoice as Additional Rent.
Landlord, for itself and on behalf of all others who may
now or hereafter hold an interest in the Premises
(including without limitation any present or future
Lender), waives all rights of subrogation and recovery
against Tenant, and Tenant's agents, employees,
contractors, subtenants and assignees, on account of any
loss or damage arising from any cause, but only to the
extent covered by the proceeds of the insurance that
Landlord is expressly required to carry this Section
4.6. Landlord shall give notice to its insurance carrier
or carriers that the foregoing waiver is contained in
this Lease, and shall procure a waiver of subrogation
endorsement to the Property Insurance Policy.
(u) Section 4.8 of the Existing Lease is hereby amended by
substituting the phrase "Occupancy Date" for the phrase
"Term Commencement Date" appearing in the first sentence
of such Section.
(v) The first sentence of Section 6.1 of the Existing Lease
is hereby amended in its entirety to read as follows:
"Subject only to Landlord's acquisition of the
Land, Tenant accepts the Land (it being understood that
the Improvements are intended to be built after the Term
Commencement Date), IN ITS "AS IS" CONDITION, SUBJECT TO
THE EXISTING STATE OF TITLE (WITHOUT EXPRESS OR IMPLIED
WARRANTY OF LANDLORD WITH RESPECT TO THE CONDITION,
QUALITY, REPAIR OR FITNESS OF THE LAND FOR A PARTICULAR
USE OR TITLE THERETO, ALL SUCH WARRANTIES BEING HEREBY
DISCLAIMED BY LANDLORD AND WAIVED AND RENOUNCED BY
TENANT). The foregoing disclaimer has been negotiated by
Landlord and Tenant, each being represented by
independent counsel, and is intended as a complete
negation of any representation or warranty by Landlord,
express or implied. The parties agree that the foregoing
is not intended to and shall not be interpreted to
restrict Tenant's rights as set forth in the Project
Development Rider attached to this Lease as Exhibit B."
(w) The last two sentences of Section 6.3(f) of the Existing
Lease are hereby amended in their entirety to read as
follows:
"As used herein "Required Alterations" means
Alterations which are (i) required to be made by changes
in Applicable Laws that become effective during the
three Rent Years immediately preceding the Expiration
Date, (ii) required to be constructed during the three
Rent Years immediately preceding the Expiration Date,
and (iii) not required to be made based upon any act by
or on behalf of Tenant, including but not
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limited to, any Alterations elected to be made by
Tenant. If at the time Required Alterations are to be
made Tenant does not have a remaining unexercised
Extension Option, then the cost of the Required
Alteration shall be shared equally between Landlord and
Tenant with Tenant paying for Tenant's share as
Additional Rent upon Landlord's demand. If at the time
Required Alterations are to be made Tenant then has at
least one unexercised and still available Extension
Option, then Tenant shall have 30 days following
Landlord's written notice of such events to exercise an
Extension Option by providing Landlord the Exercise
Notice as provided in Section 2.5. If Tenant does not
provide Landlord with the Exercise Notice within such 30
day period and notwithstanding anything set forth in
Section 2.5, then (1) Tenant shall have no further right
to any Extension Option, all such rights thereby
immediately terminating, and (2) the cost of the
Required Alterations shall be shared equally between
Landlord and Tenant with Tenant paying for Tenant's
share in payments amortized over the remainder of the
Term (but not any extensions) on a straight line basis,
using a then current market interest rate, and shall be
payable in equal monthly installments as Additional
Rent. Except to the extent provided in the two
proceeding sentences, any Alterations made necessary by
changes in Applicable Laws, including Required
Alterations, shall be at Tenant's sole cost and expense,
payable upon Landlord's demand."
(x) The first two sentences of Section 6.4 of the Existing
Lease are hereby amended in their entirety and replaced
with the following:
"On the Termination Date, Tenant shall surrender
the Premises to Landlord in good condition and repair,
ordinary wear and tear and damage due to casualty and
condemnation excepted, suitable for the same use in
which the Premises was originally intended as of the
date of Substantial Completion under this Lease except
as repaired, rebuilt or altered as required or permitted
by this Lease, with all systems and components of the
Buildings, having a useful life of at least 3 years, and
shall surrender all keys to the Premises to Landlord at
the place then fixed for notices to Landlord and shall
inform Landlord of all combinations on locks, safes and
vaults, if any."
(y) Subsection 7.1(b) of the Existing Lease is hereby
amended in its entirety to read as follows:
"(b) Environmental Laws. For purposes of this
Lease, "ENVIRONMENT Laws" shall mean and include all
present and future federal, state and local laws,
statutes, ordinances, regulations, rules, judicial and
administrative orders and decrees, permits, licenses,
approvals, authorizations and similar requirements of
all federal, state and local governmental agencies or
other governmental entities with legal authority
pertaining to the protection of human health and safety
or the environment, including but not limited to (i) the
Xxxxxx-Cologne Water Quality Control Act (California
Water Code Section 13000 et seq.), (ii)
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the California Hazardous Waste Control Law (Division 20,
Chapter 6.5 of the California Health and Safety Code),
(iii) the Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance
Account Act (California Health and Safety Code Section
25300 et seq.), (iv) Division 20, Chapter 6.95
(Hazardous Materials Release Response Plans and
Inventory) of the California Health and Safety Code, (v)
the Safe Drinking Water and Toxic Enforcement Act of
1986 (California Health and Safety Code Section 25249.5
et seq.), (vi) the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.), (vii) the
Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et seq.), and
(viii) the Hazardous Materials Transportation Act (49
U.S.C. Section 1801 et seq.)."
(z) Subsection 7.5(a) of the Existing Lease is hereby
amended, in the last sentence thereof, to include all
Lenders (as defined in Section 11.1 of the Existing
Lease) in the definition of "LANDLORD INDEMNITEES."
(aa) Subsection 8.1(d) of the Existing Lease is hereby
amended in its entirety to read as follows:
"(d) If Substantial Completion of the
restoration work required under this Article 8 is
delayed by any act or omission by or on behalf of
Tenant, then such delay is herein called a "Tenant
Restoration Delay" and Landlord's reasonably projected
date for such Substantial Completion shall, without
further act or notice be deemed extended by one day for
each day of Tenant Delay. If Landlord does not achieve
Substantial Completion of the restoration work required
under this Article 8 within 60 days (plus an allowance
for the period of actual delay caused by Force Majeure
not to exceed an additional 120 days; provided that
Landlord shall provide Tenant with prompt written notice
following the commencement of such Force Majeure [one
such notice being all that is required for a continuing
delay]) after the reasonably projected date for such
Substantial Completion (the "RESTORATION DELAY DATE"),
Tenant again shall have the right, as its sole remedy
for such delay, to terminate this Lease upon written
notice to Landlord so long as such notice is given
within 30 days after the Restoration Delay Date. If
Tenant exercises this termination right, the Lease shall
be deemed terminated as of the date of the casualty,
Landlord shall be entitled to retain all proceeds from
the Property Insurance Policy, Landlord shall refund any
Rent paid for the period after the casualty as well as
the Security Deposit, and neither party shall have any
further rights or obligations under this Lease, except
for those obligations that are expressly provided to
survive the termination of this Lease. The Restoration
Delay Date established above shall be extended by one
day for each day of delay in Substantial Completion of
the restoration work caused by Force Majeure or by
Tenant Delays."
(bb) Subsection 8.1(e) of the Existing Lease is hereby
amended by substituting the number "24" for and in place
of the number "36" appearing in the first sentence of
such subsection.
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(cc) Section 8.1 of the Existing Lease is hereby amended by
adding a new Subsection 8.1(f) immediately after
Subsection 8.1(e) and immediately before Section 8.2,
which new Subsection 8.1(f) reads as follows:
"(f) The provisions of Section 1932(2) of the
California Civil Code are hereby waived by Tenant, it
being the intention of the parties that the express
terms of this Lease shall control under any
circumstances in which those provisions might otherwise
be applicable. The provisions of Section 1933(4) of the
California Civil Code are hereby waived by Tenant and
Landlord, it being the intention of the parties that the
express terms of this Lease shall control under any
circumstances in which those provisions might otherwise
be applicable."
(dd) Subsection 8.2(c) of the Lease Agreement is hereby
amended as follows:
(1) by deleting the phrase "(iii) any
bonus or excess value of this Lease;" and then
renumbering clauses "(iv)" and "(v)" to be
"(iii)" and "(iv)", respectively.
(2) by adding the following sentence to
the end of such Subsection 8.2(c):
"Notwithstanding the foregoing, Tenant
shall only have the right to recover from the
Taking authority compensation for the
aforementioned items by seeking a separate award
from the Taking authority in an independent
proceeding and provided further that such award
does not diminish or reduce the amount of the
award recoverable by Landlord from the Taking
authority."
(ee) Section 8.2 of the Existing Lease is hereby amended by
adding a new Subsection 8.2(d) immediately after
Subsection 8.2(c) and immediately before Section 8.3,
which new Subsection 8.2(d) reads as follows:
"(d) The provisions of Section 1265.110,
1265.120, 1265.130 and 1265.140 of the California Code
of Civil Procedure are hereby waived by Tenant, it being
the intention of the parties that the express terms of
this Lease shall control under any circumstances in
which those provisions might otherwise be applicable."
(ff) Section 9.1 of the Existing Lease is hereby amended by
adding a new Subsection 9.1(d) immediately after
Subsection 9.1(c) and immediately before Section 9.2,
which new Subsection 9.1(d) reads as follows:
"(d) Notwithstanding anything contained in this
Article IX to the contrary, a sale by Tenant of all or
substantially all of the assets of Tenant to any entity
or person shall be deemed to be an assignment of this
Lease. If the requirements of Section 9.4 have been
satisfied (assuming an
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assignment of more than 50% of the Premises) such that
Landlord's consent is not required, such assignment of
Lease shall not be effective unless and until such third
party transferee expressly assumes in writing all of the
obligations of Tenant under this Lease pursuant to
documentation reasonably satisfactory to Landlord.
Further, if such assignment of Lease requires Landlord's
consent because the requirements of Section 9.4 are not
satisfied, Landlord may reasonably condition the
granting of such consent, if any is given by Landlord,
on (among other grounds and not in limitation of
Landlord's other rights set forth in Section 9.4) the
transferee's execution of a written assumption agreement
in form reasonably satisfactory to Landlord."
(gg) Section 11.9 of the Existing Lease is hereby amended by
adding the following sentence to the end of such Section
11.9:
"Tenant shall permit Landlord and Landlord's
lender by their respective agents, accountants and
attorneys, upon reasonable notice to Tenant, to visit
and inspect the Premises and to discuss the finances and
business with the officers of Tenant, at such reasonable
times as may be requested by Landlord. So long as
Tenant's securities are publicly traded, Tenant shall
not be required to disclose any non-public information
during such visits"
(hh) Section 13.1 of the Existing Lease is hereby amended by
adding the following sentence to the end of such
Section:
"Notwithstanding the foregoing, this Section
shall not be applicable to and Landlord shall not be
obligated to deliver to Tenant an Offer in connection
with (i) any sale or transfer of the Premises to (a)
iStar Financial Inc., or (b) any corporation,
partnership, trust, limited liability company or other
entity in which iStar Financial Inc. either has voting
control (whether by contract or through ownership) over
or owns, directly or indirectly, at least twenty-five
percent of any class of stock, partnership interests,
membership interests, or other equity in such entity;
(ii) any sale of all or substantially all of iStar
Financial Inc.'s assets (directly or indirectly held by
iStar Financial Inc.), any bulk sale of any of iStar
Financial Inc's assets (directly or indirectly held by
iStar Financial Inc.), or any merger, consolidation,
conversion, reorganization, or any other combination or
affiliation to which one or more of iStar Financial Inc.
or any corporation, partnership, trust, limited
liability company, or other entity in which iStar
Financial Inc. has a direct or indirect interest
ownership interest in, is a party to; (iii) any
transfers in connection with a condemnation proceeding;
and (iv) any transfers in connection with a foreclosure
or a deed in lieu of foreclosure to Landlord's Lender or
an affiliate of such Lender. Notwithstanding the
foregoing, the exception to Landlord's obligation to
deliver to Tenant an Offer set forth in clause (ii) of
the preceding sentence shall not apply to any merger,
consolidation, conversion, reorganization, or any other
combination or affiliation
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involving only the Landlord (if and so long as the
Landlord is a single purpose entity owning only the
Property and landlord's interest under this Lease) and
any other entity in which iStar Financial Inc. does not
own, directly or indirectly, at least twenty-five
percent of any class of stock, partnership, interests,
membership interests or other equity in such entity. For
purposes of the foregoing, all references to iStar
Financial Inc. shall be deemed to include its successor
and the surviving entity from any merger, consolidation,
sale of all or substantially all of the assets,
conversion, reorganization, or any other combination or
affiliation to which it is a party."
(ii) Section 10.3 of the Existing Lease is hereby amended by
adding a new Subsection 10.3 (h) immediately after
Subsection 10.3(g) and immediately before Section 10.4,
which new Section 10.3 (h) reads as follows:
"(h) The provisions of Section 1954 of the
California Civil Code are hereby waived by Landlord and
Tenant, it being the intention of the parties that the
express terms of this Lease shall control under any
circumstances in which those provisions might otherwise
be applicable."
(jj) The second sentence to Subsection 2.1(b) to Exhibit B,
Project Development Rider, to the Existing Lease is
hereby amended in its entirety to read as follows:
"The "Base Building Construction Budget" shall be
$34,841,810.00."
(kk) Article 4 of Exhibit B, Project Development Rider, to
the Existing Lease is hereby amended to add the
following new paragraph immediately after the existing
paragraph and immediately before Article 5:
"Tenant shall cooperate with all deliveries
required to be made by Landlord to Lender. Such
cooperation shall include, but not be limited to, Tenant
providing prompt written approval (and in any event
within 5 business days of request therefor) of all
services of Architect and others performing design
services and all Work, in each case performed to the
date of any request for payment by (i) any applicable
contractor, Architect, or other party performing
construction or design services, with respect to the
Improvements, and (ii) any request for an advance of any
financing provided by Lender; provided, however, that to
the extent Tenant does not approve such services or
Work, Tenant shall provide prompt written notice (and in
any event within 5 business days of the request
therefor) with a reasonably detailed explanation of the
reasons therefor. All such approval of such services and
Work may be relied upon by Lender and Landlord."
(ll) Exhibit C to the Existing Lease is hereby amended and
restated in its entirety to read as set forth on
Schedule 2 attached hereto.
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(mm) The Existing Lease is hereby amended by replacing the
word "during" (which precedes the words "the Term" or
"the Lease Term") with the phrase "from and after the
Occupancy Date and for the remainder of" in each of the
following locations in the Existing Lease:
(i) In the first sentence of Section 4.2;
(ii) In both the first and second sentences of
Subsection 4.3(d);
(iii) In the first sentence of Section 4.4;
(iv) In the first sentence of Subsection 4.5(a);
(v) In the first sentence of Subsection 4.5(e);
(vi) In the first sentence, clause (a), of Section
5.3;
(vii) In the first sentence of Subsection 6.2(a);
(viii) In both the first and second sentences of
Subsection 7.2(a);
(ix) In the first sentence of Section 7.3; and
(x) In both clause (b) and (c) of the first sentence
of Section 12.2.
(nn) The Existing Lease is hereby amended by replacing the
phrase "Term Commencement Date" with the phrase
"Occupancy Date" in each of the following locations in
the Existing Lease:
(i) In the last sentence of Section 1.3;
(ii) In both of the first two sentences of Subsection
6.3(f);
(iii) In the first sentence of Section 6.4;
(iv) In both clause (i) and (ii) in Subsection
7.2(a);
(v) In the only sentence of Subsection 7.2(c);
(vi) In the first sentence of Section 7.4;
(vii) In the last sentence of Subsection 2.3(b) of the
Project Development Rider attached as Exhibit B
to the Existing Lease; and
(viii) In Subsection 2.3(c) of the Project Development
Rider attached as Exhibit B to the Existing
Lease.
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5 Confirmation. Except as expressly modified by the terms and provisions
of this Amendment, each and every of the terms and provisions of the Existing
Lease are unchanged and continued in full force and effect and all rights,
remedies, liabilities and obligations evidenced by the Existing Lease are hereby
acknowledged by Tenant and Landlord to be valid and subsisting and to be
continued in full force and effect. The Existing Lease, as modified and amended
hereby, is hereby ratified and confirmed by Landlord and Tenant, and every
provision, covenant, condition, obligation, right, term and power contained in
and under the Existing Lease, as modified and amended hereby, shall continue in
full force and effect. All references to the Lease in the Existing Lease shall
mean the Existing Lease as modified and amended by this Amendment. Tenant has no
claim of offset against, or default by, Landlord as of the date of this
Amendment. Landlord has no claim of default by Tenant as of the date of this
Amendment. Tenant hereby confirms that there is no default by Landlord under the
Existing Lease through the date of this Amendment. Landlord hereby confirms that
there is no default by Tenant under the Existing Lease through the date of this
Amendment.
6 No Other Modifications. Landlord and Tenant hereby acknowledge and
agree that the Existing Lease has not been modified, amended, canceled,
terminated, released, superseded or otherwise rendered of no force or effect
except as described herein.
7 Parties Bound. This Amendment shall be binding upon the parties hereto
and their respective permitted successors and assigns.
8 Counterparts. This Amendment may be executed in counterparts, each of
which shall be an original but all of which together shall constitute one
agreement, binding on all of the parties hereto notwithstanding that all of the
parties hereto are not signatories to the same counterpart. For purposes of this
Amendment, each of the parties hereto agree that a facsimile copy of the
signature of the person executing this Amendment on either party's behalf shall
be effective as an original signature and legally binding and effective as an
execution counterpart hereof. Each of the undersigned parties authorizes the
assembly of one or more original copies of this Amendment through the
combination of the several executed counterpart signature pages with one or more
bodies of this Amendment including the Schedules, to this Amendment, such that
this Amendment shall consist of the body of this Amendment, counterpart
signature pages which collectively will contain the signatures of the
undersigned parties hereto, and the Schedules, to this Amendment. Each such
compilation of this Amendment shall constitute one original of this Amendment.
9 Xxxxxx'x Warranty. Each individual executing and delivering this
Amendment on behalf of the party hereby warrants and represents to the other
party that he or she has been duly authorized and has the power to make such
execution and delivery.
10 Captions. Article and Section headings used herein are for
convenience of reference only and should not affect the construction of any
provision of the Existing Lease, as amended and modified hereby. The schedules
hereto are hereby incorporated herein.
11 Governing Law. This Amendment shall be governed by the laws of the
State of California, without regard to its conflict of law or principles.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be
executed and delivered, each by its duly authorized representative, effective as
of the day and year set forth above.
LANDLORD:
WDS - DUBLIN, LLC,
a California limited liability company
By: Xxxxxx Interests, Inc.,
a Texas corporation, its Managing Member
By: /S/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President
TENANT:
SYBASE, INC.,
a Delaware corporation
By: /S/ XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: Vice President, RE
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SCHEDULE 1 TO AMENDMENT
SECURITY DEPOSIT ESCROW
80
SCHEDULE 2 TO AMENDMENT
EXHIBIT C
MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM CONFIRMING TERM is entered into as of ________, 20__,
pursuant to Section 2.3(d) of that certain Corporate Headquarters Lease dated
January 28, 2000, as amended by that certain First Amendment to Corporate
Headquarters Lease (together, the "LEASE") by and between WDS-DUBLIN LLC, a
California limited liability company ("LANDLORD"), and SYBASE, INC., a Delaware
corporation ("TENANT). all initial-capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
Landlord and Tenant hereby confirm that:
1. The Term Commencement Date is ___________________________________,
20__. [See Section 2.3(a)]
2. The Rent Commencement date is _________________________________,
200_.
3. Subject to extension as provided in Section 2.5 of the Lease, the
Expiration Date is __________________________, 201_. [See Section 2.4]
4. Tenant has accepted and approved the Premises, including without
limitation the Initial Improvements, in good condition and state of repair,
subject only to the Punch-List Work. [See Section 2.3(d)]
IN WITNESS WHEREOF, Landlord and Tenant have entered into this
Memorandum as of the date first set forth above.
LANDLORD:
WDS - DUBLIN, LLC,
a California limited liability company
By: Xxxxxx Interests, Inc., a Texas
corporation, its Managing Member
By:
Xxxxxxx X. Xxxxx, Executive Vice
President
TENANT:
SYBASE, INC., a Delaware corporation
By:_________________________________[Name]
Its:______________________________[Title]
