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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED FEBRUARY 29, 2000
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________________ to ___________________
Commission File Number: 000-26579
_________________________
TIBCO SOFTWARE INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0449727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3165 Porter Drive, Palo Alto, CA 94304
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (650) 846-1000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [_]
The number of shares outstanding of the registrant's Common Stock, $0.001 par
value, as of April 4, 2000 was 188,762,642.
1
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TIBCO SOFTWARE INC
INDEX
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION
Item Page No.
---- --------
<S> <C>
Item 1 Financial Statements:
Condensed Consolidated Balance Sheets as of February 29, 2000 and November 30,
1999 - (Unaudited).................................................................. 3
Condensed Consolidated Statements of Operations for the three-months
ended February 29, 2000 and February 28, 1999 (Unaudited)........................... 4
Condensed Consolidated Statements of Cash Flows for the three-months
ended February 29, 2000 and February 28, 1999 (Unaudited)............................ 5
Notes to Condensed Consolidated Financial Statements (Unaudited)..................... 6
Item 2 Management's Discussion and Analysis of Financial Condition and Results of
Operations........................................................................... 10
Item 3 Quantitative and Qualitative Disclosures about Market Risk........................... 16
PART II - OTHER INFORMATION
Item 1 Legal Proceedings.................................................................... 17
Item 2 Changes in Securities and Use of Proceeds............................................ 17
Item 3 Defaults Upon Senior Securities...................................................... 17
Item 4 Submission of Matters to a Vote of Security Holders.................................. 17
Item 5 Other Information.................................................................... 17
Item 6 Exhibits and Reports on Form 8-K..................................................... 17
Signatures........................................................................... 18
</TABLE>
2
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PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TIBCO SOFTWARE INC.
Condensed Consolidated Balance Sheets
(in thousands)
<TABLE>
<CAPTION>
February 29, November 30,
2000 1999
------------ ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents........................................ $ 22,295 $ 13,681
Short-term investments........................................... 71,278 76,126
Accounts receivable, net......................................... 33,830 42,199
Due from related parties......................................... -- 286
Other current assets............................................. 5,483 5,031
------------ ------------
Total current assets........................................... 132,886 137,323
Property and equipment, net........................................... 11,327 10,423
Other assets.......................................................... 7,075 1,171
Goodwill and acquired intangibles, net................................ 29,117 30,721
------------ ------------
$ 180,405 $ 179,638
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable................................................. $ 8,195 $ 7,501
Due to related parties........................................... 228 --
Accrued liabilities.............................................. 17,227 21,128
Deferred revenue................................................. 15,350 13,091
------------ ------------
Total current liabilities...................................... 41,000 41,720
------------ ------------
Stockholders' equity:
Common stock..................................................... 183 181
Additional paid-in capital....................................... 196,831 182,939
Unearned stock-based compensation............................... (10,276) (8,083)
Accumulated other comprehensive loss............................. (727) (24)
Accumulated deficit.............................................. (46,606) (37,095)
------------ ------------
Total stockholders' equity..................................... 139,405 137,918
------------ ------------
$ 180,405 $ 179,638
============ ============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
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TIBCO SOFTWARE INC.
Condensed Consolidated Statements of Operations
(in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended
----------------------------------------
February 29, February 28,
2000 1999
---------------- -----------------
(Unaudited)
<S> <C> <C>
License revenue:
Non-related parties....................... $ 23,147 $ 7,415
Related parties........................... 5,218 2,304
--------------- -------------
Total license revenue.................... 28,365 9,719
--------------- -------------
Service and maintenance revenue:
Non-related parties....................... 12,777 6,859
Related parties........................... 814 1,444
--------------- -------------
Total service and maintenance revenue.... 13,591 8,303
--------------- -------------
Total revenue........................ 41,956 18,022
Cost of revenue................................. 12,459 7,512
--------------- -------------
Gross profit.................................... 29,497 10,510
--------------- -------------
Operating expenses:
Research and development.................. 10,774 5,646
Sales and marketing....................... 15,527 5,416
General and administrative................ 3,043 1,532
Amortization of stock-based compensation.. 9,159 1,587
Amortization of goodwill and acquired
intangibles.......................... 1,604 --
--------------- -------------
Total operating expenses................. 40,107 14,181
--------------- -------------
Loss from operations............................ (10,610) (3,671)
Interest and other income (expense), net........ 1,099 (274)
--------------- -------------
Net loss........................................ $ (9,511) $ (3,945)
=============== =============
Net loss per share:
Basic and diluted......................... $ (0.05) $ (0.06)
--------------- -------------
Weighted average common shares outstanding.... 176,461 61,951
=============== =============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
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TIBCO SOFTWARE INC.
Condensed Consolidated Statements of Cash Flows
(in thousands)
<TABLE>
<CAPTION>
Three Months Ended
-----------------------------------------
February 29, February 28,
2000 1999
---------------- ----------------
(Unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net loss......................................................... $(9,511) $(3,945)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation and amortization................................... 761 519
Amortization of goodwill and other intangibles.................. 1,604 --
Amortization of unearned compensation........................... 9,159 1,587
Changes in assets and liabilities:
Accounts receivable........................................... 8,369 135
Due from related parties...................................... 514 498
Other assets.................................................. (6,356) 494
Accounts payable.............................................. 694 (547)
Accrued liabilities........................................... (3,901) 1,753
Deferred revenue.............................................. 2,259 430
----------- -----------
Net cash provided by operating activities.................. 3,592 924
----------- -----------
Cash flows from investing activities:
Deposits held by Reuters......................................... -- 1,286
Sales and maturities of investments, net......................... 4,593 --
Purchases of property and equipment.............................. (1,665) (477)
----------- -----------
Net cash provided by investing activities.................. 2,928 809
----------- -----------
Cash flows from financing activities:
Proceeds from issuance of common stock........................ 2,542 590
----------- -----------
Net cash provided by financing activities.................. 2,542 590
----------- -----------
Effect of exchange rate changes on cash........................... (448) --
----------- -----------
Net change in cash and cash equivalents........................... 8,614 2,323
Cash and cash equivalents at beginning of period.................. 13,681 547
----------- -----------
Cash and cash equivalents at end of period........................ $22,295 $ 2,870
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
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TIBCO SOFTWARE INC.
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have
been prepared by TIBCO Software Inc. (the "Company" or "TIBCO") in accordance
with the rules and regulations of the Securities and Exchange Commission.
Certain information and footnote disclosures normally included in consolidated
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted in accordance with such rules and
regulations. In the opinion of management, the accompanying unaudited financial
statements reflect all adjustments, consisting only of normal recurring
adjustments, necessary to present fairly the financial position of the Company,
and its results of operations and cash flows. These financial statements should
be read in conjunction with the annual audited consolidated financial statements
and notes as of and for the year ended November 30, 1999 included in the
Company's Form 10-K filed with the Securities and Exchange Commission on
February 25, 2000.
For purposes of presentation, the Company has indicated the first quarter
of fiscal 2000 and 1999 as ending on February 29, 2000 and February 28, 1999,
respectively; whereas, in fact the Company's first fiscal quarters end on the
Friday nearest the end of February.
The results of operations for the three ended February 29, 2000 are not
necessarily indicative of the results that may be expected for the year ending
November 30, 2000 or any other future interim period, and the Company makes no
representations related thereto.
In June 1999, the Company's Board of Directors approved a one-for-two
reverse stock split of Company's outstanding shares which became effective on
July 13, 1999 and in January 2000, the Company's Board of Directors effected a
three-for-one stock split payable in the form of a dividend of two additional
shares of the Company's common stock for every share owned by shareholders which
became effective on February 18, 2000. All share and per share data have been
adjusted to retroactively reflect these splits.
The consolidated financial statements include the accounts of the Company
and its subsidiaries. All intercompany accounts and transactions have been
eliminated in consolidation.
2. BALANCE SHEET COMPONENTS
<TABLE>
<CAPTION>
February 29, November 30,
2000 1999
------------------ ------------------
<S> <C> <C>
Accounts receivable, net:
Accounts receivable................................. $28,014 $39,119
Unbilled fees and services.......................... 8,791 5,313
---------------- ----------------
36,805 44,432
Less: Allowances for doubtful accounts,
returns and discounts......................... (2,975) (2,233)
---------------- ----------------
$33,830 $42,199
================ ================
</TABLE>
6
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<TABLE>
<S> <C> <C>
Property and equipment, net:
Equipment........................................... $ 9,241 $ 8,141
Furniture and fixtures.............................. 670 515
Leasehold improvements.............................. 4,830 4,420
---------------- ----------------
14,741 13,076
Less: Accumulated depreciation and amortization..... (3,414) (2,653)
---------------- ----------------
$11,327 $10,423
================ ================
Accrued liabilities:
Compensation and employee related................... $11,478 $13,201
Expenses............................................ 5,749 7,927
---------------- ----------------
$17,227 $21,128
================ ================
</TABLE>
3. CASH, CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS
The Company considers all highly liquid investment securities with original
maturities of three months or less to be cash equivalents. Management determines
the appropriate classification of marketable securities at the time of purchase
and evaluates such designation as of each balance sheet date. To date, all
marketable securities have been classified as available-for-sale and are carried
at fair value with unrealized gains and losses, if any included as a component
of accumulated other comprehensive loss in stockholders' equity. Interest,
dividends and realized gains and losses are included in interest income.
Realized gains and losses are recognized based on the specific identification
method.
4. REVENUE RECOGNITION
License revenue consists principally of revenue earned under software
license agreements. License revenue is generally recognized when a signed
contract or other persuasive evidence of an arrangement exists, the software has
been shipped or electronically delivered, the license fee is fixed or
determinable, and collection of the resulting receivable is probable. When
contracts contain multiple elements wherein vendor specific objective evidence
exists for all undelivered elements, the Company accounts for the delivered
elements in accordance with the "Residual Method" prescribed by SOP 98-9. Any
maintenance revenue included in these arrangements is recognized ratably over
the term of the arrangement. Revenue from subscription license agreements, which
include software, rights to future products and maintenance, is recognized
ratably over the term of the subscription period. Revenue on shipments to
resellers, which is generally subject to certain rights of return and price
protection, is recognized when the products are sold by the resellers to the
end-user customer.
Service revenue consists primarily of revenue received for performing
product development, implementation of system solutions, on-site support,
consulting and training. Service revenue is generally recognized as the services
are performed or on the percentage-of-completion method of accounting, depending
on the nature of the project. Under the percentage-of-completion method, revenue
recognized is that portion of the total contract price equal to the ratio of
costs expended to date to the anticipated final total costs, based on current
estimates of the costs to complete the project. To the extent that these
arrangements include license fees, such fees are recorded as license revenue
based on the percentage-of-completion ratio. If the total estimated costs to
complete a project exceed the total contract amount, indicating a loss, the
entire anticipated loss would be recognized currently.
Maintenance revenue consists of fees for providing software updates and
technical support for software products (post-contract support or "PCS").
Maintenance revenue is recognized ratably over the term of the agreement.
Payments received in advance of services performed are recorded as deferred
revenue. Allowances for estimated future returns and discounts are provided for
upon recognition of revenue.
7
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5. COMPREHENSIVE INCOME (LOSS)
Comprehensive loss includes foreign currency translation gains and losses and
other unrealized investment gains and losses that have been previously excluded
from net loss and reflected instead in equity. A summary of comprehensive loss
is a s follows:
<TABLE>
<CAPTION>
Three Months Ended
--------------------------------------
February 29, February 28,
2000 1999
-------------- --------------
<S> <C> <C>
Net loss.............................. $ (9,511) $ (3,945)
Translation loss...................... (448) --
Unrealized loss on investments........ (255) --
-------------- --------------
Comprehensive loss.......... $(10,214) $ (3,945)
============== ==============
</TABLE>
6. NET LOSS PER SHARE
Net loss per share is calculated in accordance with SFAS No. 128, "Earnings
per Share" and SEC Staff Accounting Bulletin No. 98 ("SAB 98"). Under the
provisions of SFAS No. 128 and SAB 98, basic net loss per share is computed by
dividing the net loss available to common stockholders for the period by the
weighted average number of common shares outstanding during the period. Diluted
net loss per share is computed by dividing the net loss for the period by the
weighted average number of common and potential common shares outstanding during
the period if their effect is dilutive. Potential common shares are comprised of
common stock subject to repurchase and incremental shares of common stock
issuable upon the exercise of stock options and upon the conversion of
convertible preferred stock.
The following table sets forth the computation of basic and diluted net
loss per share for the periods indicated (in thousands, except per share
amounts):
<TABLE>
<CAPTION>
Three Months Ended,
-------------------------------------------------
February 29, February 28,
2000 1999
------------------ ------------------
<S> <C> <C>
Net loss........................................................... $ (9,511) $(3,945)
------------------ ------------------
Basic and diluted:
Weighted average common shares outstanding.................... 182,046 67,847
Weighted average common shares subject to repurchase.......... (5,585) (5,896)
------------------ ------------------
Weighted average common shares used to
Compute basic and diluted net loss per share.................. 176,461 61,951
------------------ ------------------
Net loss per share - basic and diluted............................ $ (0.05) $ (0.06)
================== ==================
</TABLE>
The following table sets forth potential common shares that are not included in
the diluted net loss per share calculation above because to do so would be anti-
dilutive as of the periods indicated (in thousands):
<TABLE>
<CAPTION>
February 29, February 28,
2000 1999
-------------------- ------------------
<S> <C> <C>
Preferred stock.................................................... -- 81,678
Common stock subject to repurchase................................. 5,029 6,318
Stock options...................................................... 38,435 31,614
------------------- -------------------
43,464 119,610
=================== ===================
</TABLE>
8
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7. RELATED PARTY TRANSACTIONS
The Company has entered into transactions with Cisco Systems, Inc., a
principal stockholder of the Company, and with Reuters Group PLC, including its
wholly owned subsidiaries (collectively, "Reuters"), a majority stockholder of
the Company in fiscal 2000 and 1999.
The Company recognized $5.0 million and $3.7 million in revenue from
Reuters for the first fiscal quarter in 2000 and 1999, respectively. In
addition, the Company paid Reuters $912,000 in royalties and commissions in the
first quarter of fiscal 2000.
The Company recorded $1.0 million in revenue from Cisco in the first
quarter of 2000.
8. SUBSEQUENT EVENTS
In March 2000, the Company sold approximately 4,775,750 shares of common
stock (including 750,000 shares sold pursuant to the underwriters' over-
allotment option) at $106.00 per share. Net proceeds aggregated approximately
$481.0 million.
The Company has made approximately $12.0 million in investments in
privately held companies subsequent to February 29, 2000 and intends to carry
these investments at cost.
9
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The following Management's Discussion and Analysis of Financial Condition
and Results of Operations contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Words such as "anticipates,"
"expects," "intends," "plans," "believes," "seeks," "estimates" and similar
expressions identify such forward-looking statements. These forward-looking
statements are subject to risks and uncertainties that could cause actual
results to differ materially from those indicated in the forward-looking
statements. Factors which could cause actual results to differ materially
include those set forth in the following discussion, and, in particular, the
risks discussed below under the subheading "Factors that May Affect Operating
Results." Unless required by law, the Company undertakes no obligation to update
publicly any forward-looking statements.
OVERVIEW
We develop and market a suite of eBusiness infrastructure software products
that enables businesses to link internal operations, business partners and
customer channels in real time. We are the successor to a portion of the
business of Teknekron Software Systems, Inc. Teknekron developed software, known
as the TIB technology, for the integration and delivery of market data, such as
stock quotes, news and other financial information, in trading rooms of large
banks and financial services institutions. In 1992, Teknekron expanded its
development efforts to include solutions designed to enable complex and
disparate manufacturing equipment and software applications--primarily in the
semiconductor fabrication market--to communicate within the factory environment.
Teknekron was acquired by Reuters in 1994. Following the acquisition, continued
development of the TIB technology was undertaken to expand its use in the
financial services markets. In January 1997, our company, TIBCO Software Inc.,
was established as an entity separate from Teknekron.
We were formed to create and market software solutions for use in the
integration of business information, processes and applications in diverse
markets and industries outside the financial services sector. In connection with
our establishment as a separate entity, Reuters transferred to us certain assets
and liabilities related to our business and granted to us a royalty-free license
to the intellectual property incorporated into some of our current software
products. Reuters also assigned to us license and service contracts primarily
within the manufacturing and energy markets.
We recognize license revenue when a signed contract or other persuasive
evidence of an arrangement exists, the software has been shipped or
electronically delivered, the license fee is fixed or determinable, and
collection of the resulting receivable is probable. When contracts contain
multiple elements wherein vendor specific objective evidence exists for all
undelivered elements, we account for the delivered elements in accordance with
the "Residual Method" prescribed by SOP 98-9. Any maintenance revenue included
in these arrangements is recognized ratably over the term of the arrangement.
Revenue from subscription license agreements, which include software, rights to
future products and maintenance, is recognized ratably over the term of the
subscription period. Revenue on shipments to resellers, which is generally
subject to certain rights of return and price protection, is recognized when the
products are sold by the resellers to the end-user.
We recognize service revenue as the services are performed or on the
percentage-of-completion method of accounting, depending on the nature of the
project. Under the percentage-of-completion method, revenue recognized is that
portion of the total contract price equal to the ratio of costs expended to date
to the anticipated final total cost, based on current estimates of the cost to
complete the project. To the extent that these arrangements include license
fees, such fees are recorded as license revenue based on the percentage-of-
completion ratio. If the total estimated cost to complete a project exceeds the
total contract amount, indicating a loss, the entire anticipated loss would be
recognized currently.
Our distributors generally pay us negotiated royalties on their sales of
our products. Reuters distributes our products to customers in the financial
services market segment. Through December 2001, Reuters must pay us product fees
based on a percentage of the revenue it derives from the sale of licenses and
maintenance for our products. Under our license agreement with Reuters, minimum
guaranteed product fees will be $18.0 million in calendar 2000 and $20.0 million
in
10
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calendar 2001. We will recognize revenue in the amount of these guaranteed
product fees ratably over the contractual period. In any period where actual
product fees exceed the minimum guaranteed product fees for the year, the actual
product fees and cumulative minimum guaranteed product fees will be recognized
as revenue.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain
financial data as a percent of revenue:
<TABLE>
<CAPTION>
Three Months Ended
---------------------------------
February 29, February 28,
2000 1999
---- ----
<S> <C> <C>
Revenue:
License.......................................... 67.6% 53.9%
Service and maintenance.......................... 32.4 46.1
--------------------------------
Total revenue................................. 100.0 100.0
Cost of revenue....................................... 29.7 41.7
--------------------------------
Gross profit.......................................... 70.3 58.3
--------------------------------
Operating expenses:
Research and development........................ 25.7 31.3
Sales and marketing............................. 37.0 30.1
General and administrative...................... 7.4 8.5
Amortization of stock-based compensation........ 21.8 8.8
Amortization of goodwill and acquired
intangibles.................................... 3.7 --
--------------------------------
Total operating expenses....................... 95.6 78.7
--------------------------------
Loss from operations.................................. (25.3) (20.4)
Interest and other income (expense), net.............. 2.6 (1.5)
--------------------------------
Net loss.............................................. (22.7) (21.9)
================================
</TABLE>
REVENUE
Total Revenue. Total revenue increased 132.8% to $42.0 million for the
three-months ended February 29, 2000 from $18.0 million for the same period of
the prior year. Total revenue increased primarily due to the increase in license
revenue. Reuters accounted for 11.3% and 20.5% of total revenue for the first
fiscal quarter in 2000 and 1999, respectively. Cedel Global Services accounted
for 10.2% of the Company's first quarter 1999 revenue.
License Revenue. License revenue increased 191.9% to $28.4 million for the
three-months ended February 29, 2000 from $9.7 million for the same period of
the prior year. These increases were due primarily to the increased volume and
average size of sales of our TIB products. License revenue was 67.6% and 53.9%
of total revenue for the first fiscal quarter of 2000 and 1999, respectively.
The growth in license revenue as a percentage of total revenue reflects our
strategy of pursuing a license-driven business model and the increasing
acceptance of our products in key vertical markets such as telecommunications,
energy and manufacturing. We believe that license revenue will continue to grow
as a percentage of total revenue in fiscal 2000.
Service and Maintenance Revenue. Service and maintenance revenue increased
63.7% to $13.6 million for the three-months ended February 29, 2000 from $8.3
million for the same period of the prior year. Service and maintenance revenue
was 46.1% and 32.4% of total revenue in the first quarter of fiscal 2000 and
1999, respectively. The increase in service and maintenance revenue was
primarily due to the additional maintenance revenue related to the growth in
license revenue. We believe service and maintenance revenue will continue to
decline modestly in fiscal 2000 as a percentage of total revenue as license
revenue continues to increase as a percentage of total revenue.
11
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COST OF REVENUE
Cost of revenue consists primarily of salaries and third-party contractor
and associated expenses primarily related to providing project implementation
services and, to a lesser extent, the cost of providing maintenance and customer
support services. The majority of our cost of revenue is directly related to our
service revenue. Cost of revenue increased 65.9% to $12.5 million for the three-
months ended February 29, 2000 from $7.5 million for the same period of the
prior year. Cost of revenue was 29.7% and 41.7% of total revenue in the first
quarter of fiscal 2000 and 1999, respectively. The increase in cost of revenue
in absolute dollars, was primarily due to the cost of the additional technical
staff to support our growing installed base of customers. The decrease in cost
of revenue as a percentage of total revenue was due primarily to the increase in
license revenue as a percentage of total revenue.
OPERATING EXPENSES
Research and Development Expenses. Research and development expenses
consist primarily of personnel and related costs associated with the development
of our TIB products. Research and development expenses increased 90.8% to $10.8
million from $5.6 million for the same period of the prior year. These increases
were due primarily to increases in our development staff as we continued to
expand the TIB product offerings and upgrade the performance of existing
products. Research and development expenses were 25.7% and 31.3% of total
revenue in the first quarter of fiscal 2000 and 1999, respectively. The decrease
in research and development expenses, as a percent of revenue, in the first
fiscal quarter of 2000 is due to the rapid increase in revenue. We believe that
continued investment in research and development is critical to attaining our
strategic objectives and, as a result, we expect that spending on research and
development will continue to increase in absolute dollars for the foreseeable
future.
Sales and Marketing Expenses. Sales and marketing expenses consist
primarily of personnel and related costs of our direct sales force and marketing
staff and the cost of marketing programs, including advertising, trade shows,
promotional materials and customer conferences. Sales and marketing expenses
increased 186.7% to $15.5 million for the three-months ended February 29, 2000
from $5.4 million for the same period of the prior year. Sales and marketing
expenses were 37.0% and 30.1% of total revenue in the first quarter of fiscal
2000 and 1999, respectively. These increases resulted primarily from the
expansion of our domestic and international direct sales force dedicated to
selling our expanding family of TIB products. We intend to continue to increase
staff in our direct sales organization and to develop product marketing and
branding campaigns and, accordingly, expect that sales and marketing
expenditures will continue to increase substantially in absolute dollars and
increase moderately as a percentage of total revenue for fiscal 2000.
General and Administrative Expenses. General and administrative expenses
consist primarily of personnel and related costs for general corporate
functions, including executive, legal, finance, accounting, human resources and
information systems. General and administrative expenses increased 101.4% to
$3.1 million for the first quarter of fiscal 2000 from $1.5 million for the same
period of the prior year. General and administrative expenses were 8.5% and 7.4%
of total revenue for the first quarters of fiscal 2000 and 1999, respectively.
These increases were primarily a result of increased staffing and associated
operational costs related to building our general and administrative
infrastructure. We believe that general and administrative expenses will
increase moderately in absolute dollars but remain relatively stable as a
percentage of total revenue for fiscal 2000 as we develop our infrastructure to
support a larger, more global organization.
Amortization of Stock-based Compensation. Amortization of stock-based
compensation expense was $9.2 million and $1.6 million in the first quarter of
fiscal 2000 and 1999, respectively. The increase was due primarily to charges
associated with the stock options granted to consultants.
In connection with the grant of stock options to employees and non-employee
directors, we recorded aggregate unearned compensation of $27.2 million,
representing the difference between the deemed fair value of our common stock at
the date of grant and the exercise price of such options. Such amount is
presented as a reduction of stockholders' equity and amortized over the vesting
period of the applicable option. We expect to amortize $3.9 million, $3.5
million, $2.0 million, $0.9 million and $0.1 million of unearned stock-based
compensation for the remainder of fiscal 2000 and in fiscal 2001, 2002, 2003 and
2004, respectively.
12
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Stock-based compensation expense related to stock options granted to
consultants is recognized as earned, using the multiple option method as
prescribed by FASB Interpretation No. 28. At each reporting date, we re-value
the stock-based compensation using the Black-Scholes option pricing model. As a
result, the stock-based compensation expense will fluctuate as the fair market
value of our common stock fluctuates. As of February 29, 2000, we expect to
amortize stock-based compensation expense of $22.3 million, $14 million, $7.5
million and $3.5 million for the remainder of fiscal 2000 and in fiscal 2001,
2002 and 2003, respectively assuming no change in the underlying value of our
common stock.
Interest and other Income (Expense), Net. Interest and other income
(expense), net, includes interest and other miscellaneous income and expense
items. Other income, net, was $1.1 million for the quarter ended February 29,
2000 compared to other expense, net, of $274,000 for the quarter ended February
28, 1999. The increase in fiscal 2000 was due primarily to interest income
earned from our investments which increased significantly as a result of the
investment of the proceeds from our initial public offering in July 1999.
LIQUIDITY AND CAPITAL RESOURCES
At February 29, 2000, the Company had cash, cash equivalents and
investments of $93.6 million which represents an increase of $3.8 million from
November 30, 1999.
Net cash provided by operations for the three months ended February 29,
2000 was $3.6 million compared to net cash provided by operations of $924,000
for the comparable period of the prior year. Cash provided by operating
activities for the three months ended February 29, 2000 resulted primarily from
decreases in accounts receivable and increases in deferred revenue offset by an
increase in other assets and a decrease in accrued liabilities. Capital
expenditures were $1.7 million during the three months ended February 29, 2000
compared to $477,000 for the comparable period of the prior year. Capital
expenditures were primarily related to the installation of computer hardware and
software as well as capital expenditures related to office facilities. Cash flow
from financing activities of $2.5 million resulted primarily from the proceeds
from issuance of common stock related to the exercise of stock options and
employee stock purchases under the Company's Employee Stock Purchase Plan. The
Company currently believes that for the remainder of fiscal 2000, capital
expenditures for computer and communication equipment, furniture and leasehold
improvements will be less than $10 million.
The Company believes that its current cash, investment balances and
proceeds from its common stock offering subsequent to the end of its first
fiscal quarter and cash flow from operations will be sufficient to meet its
working capital and capital expenditure requirements for at least the next
twelve months. The Company may also utilize cash to acquire or invest in
complementary businesses or to obtain the right to use complementary
technologies.
FACTORS THAT MAY AFFECT OPERATING RESULTS
We have a history of losses and we expect future losses, and if we do not
achieve and sustain profitability our business will suffer and our stock price
may decline
Although our revenue has increased in recent quarters, we may not be able
to sustain our growth or obtain sufficient revenue to achieve and sustain
profitability. We incurred net losses of approximately $13.0 million and $19.5
million in fiscal 1998 and 1999, respectively. In addition, we incurred a net
loss of $9.5 million in the first quarter of fiscal 2000. As of February 29,
2000, we had an accumulated deficit of approximately $46.6 million.
We have invested significantly in building our sales and marketing
organization and in our technology research and development. We expect to
continue to spend substantial financial and other resources on expanding our
direct sales and marketing activities and developing and introducing
enhancements to our existing products and new software products. As a result, we
need to generate significant revenue to achieve and maintain profitability. We
expect that our sales and marketing expenses and our research and development
expenses will continue to increase in absolute dollars and may increase as
percentages of revenue for the foreseeable future.
13
<PAGE>
Our future revenue is unpredictable, and we expect our quarterly operating
results to fluctuate, which may cause our stock price to decline
Period-to-period comparisons of our operating results may not be a good
indication of our future performance. Moreover, our operating results in some
quarters may not meet the expectations of stock market analysts and investors.
In that event, our stock price would likely decline. As a result of our limited
operating history, our new business strategy and the evolving nature of the
markets in which we compete, we may have difficulty accurately forecasting our
revenue in any given period. In addition to the factors discussed elsewhere in
this section, a number of factors may cause our revenue to fall short of our
expectations or cause fluctuations in our operating results, including:
. the announcement or introduction of new or enhanced products or services
by our competitors;
. the amount and timing of operating costs and capital expenditures
relating to the expansion of our operations; and
. the capital and expense budgeting decisions of our customers.
In addition, our quarterly operating results have historically been subject
to variations throughout the year due to a general slow-down in our sales in the
summer months, particularly in Europe. Specifically, we generally experience
relatively lower revenue in our third fiscal quarter. These seasonal variations
in our operating results may lead to fluctuations in our results of operations
from quarter to quarter throughout the year.
Our dependence on a limited number of customers for a significant amount of our
sales could lead to fluctuations in our operating results
Our business depends on sales of our products to a limited number of
customers, which may cause fluctuations in our operating results. We do not have
long-term contracts with any of our customers. There can be no assurance that
any of our customers will continue to purchase our products in the future. As a
result, a customer that generates substantial revenue for us in one period may
not be a source of revenue in subsequent periods.
Our licensing and distribution relationship with Reuters places limitations on
our ability to conduct our business
We have a significant relationship with Reuters for licensing and
distribution. Our relationship with Reuters involves limitations and
restrictions on our business, as well as other risks, described below.
Reuters has access to the intellectual property used in our products, and
could use the intellectual property to compete with us. We license the
underlying TIB messaging technology incorporated into some of our important TIB
products from Reuters. We do not own this technology. Reuters is not restricted
from using the TIB technology to produce products that compete with our
products, and it can grant limited licenses to the TIB technology to others who
may compete with us. In addition, we must license all the intellectual property
and products we create through December 2011 to Reuters. This will place Reuters
in a position to more easily develop products that compete with our product
offerings.
We must rely on Reuters and other distributors to sell our products in the
financial services market, and they may not be successful in doing so. Under our
agreements with Reuters, we are restricted from selling our products and
providing consulting services directly to companies in the financial services
market and major competitors of Reuters, and from using the TIB technology we
license from Reuters to develop products specifically for use by these
companies. Accordingly, we must rely on Reuters and other third-party resellers
and distributors to sell our products to these companies.
Substantially all of our revenue from sales in the financial services
market, excluding sales to Cedel Global Services, consisted of product fees paid
to us by Reuters. Although Reuters is the preferred distributor of our products
in the financial services market and is required to pay us guaranteed minimum
product fee payments until the end of 2001, Reuters has no contractual
obligation to distribute our products to financial services customers. Reuters
and other
14
<PAGE>
distributors may not be successful in selling our products into the financial
services market, or they may elect to sell competitive third-party products into
that market, either of which may adversely affect our revenue in that market.
Our relationship with Reuters restricts our ability to earn revenue from
sales in the financial services market. Under the license agreement, Reuters is
required to pay us product fees based on a percentage of its revenue from sales
of our products in the financial services market, excluding products that are
embedded in any Reuters' products. These product fees may be materially less
than the product fees we could obtain from other distributors or resellers in
the financial services market. In addition, when we sell our products into the
financial services market through third-party distributors other than Reuters,
Reuters receives a share of our license revenue.
Our license agreement with Reuters imposes practical restrictions on our
ability to acquire other companies. The license agreement places no specific
restrictions on our ability to acquire companies with all or part of their
business in the financial services market. However, under the terms of the
license agreement, we are prohibited from bundling or combining our products
that are based on licensed technology with an acquired company's products and
services and then selling the bundled or combined products directly to financial
services companies. This prohibition could prevent us from realizing potential
synergies with companies we acquire.
The market for enterprise infrastructure software may not grow as quickly as we
anticipate, which would cause our revenues to fall below expectations
The market for enterprise infrastructure software is relatively new and
evolving. We earn a substantial portion of our revenue from sales of our
enterprise infrastructure software, including application integration software,
and related services. We expect to earn substantially all of our revenue in the
foreseeable future from sales of these products and services. Our future
financial performance will depend on continued growth in the number of
organizations demanding software and services for application integration, e-
business and information delivery, and seeking outside vendors to develop,
manage and maintain this software for their critical applications. Many of our
potential customers have made significant investments in internally developed
systems and would incur significant costs in switching to third-party products,
which may substantially inhibit the growth of the market for enterprise
infrastructure software. If this market fails to grow, or grows more slowly than
we expect, our sales will be adversely affected.
Our acquisition strategy could cause financial or operational problems
Our success depends on our ability to continually enhance and broaden our
product offerings in response to changing technologies, customer demands, and
competitive pressures. To this end, we may acquire new and complementary
businesses, products or technologies, and we may use some of the proceeds of
this offering to do so. We do not know if we will be able to complete any
acquisitions or that we will be able to successfully integrate any acquired
business, operate them profitably, or retain their key employees. For example,
we completed the acquisitions of substantially all of the assets of InConcert,
Inc. in November 1999. Integrating InConcert or any other newly acquired
business, product or technology could be expensive and time-consuming, could
disrupt our ongoing business, and could distract our management. We may face
competition for acquisition targets from larger and more established companies
with greater financial resources. In addition, in order to finance any
acquisitions, we might need to raise additional funds through public or private
financings. In that event, we could be forced to obtain equity or debt financing
on terms that are not favorable to us and, in the case of equity financing, that
results in dilution to our stockholders. If we are unable to integrate InConcert
or any other newly acquired entity, product or technology effectively, our
business, financial condition and operating results would suffer. In addition,
any amortization of goodwill or other assets or other charges resulting from the
costs of acquisitions could harm our operating results.
Our stock price may be volatile, which could cause investors to lose all or part
of their investments in our stock
The stock market in general, and the stock prices of technology companies
in particular, have recently experienced volatility which has often been
unrelated to the operating performance of any particular company or companies.
If market or industry-based fluctuations continue, our stock price could decline
regardless of our actual operating performance and investors could lose all or
part of their investments.
15
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Quantitative and qualitative information about market risk was addressed in
Item 7 of the Company's Form 10-K for the fiscal year ended November 30, 1999.
There has been no material change to that information required to be disclosed
in this Quarterly Report on Form 10-Q.
16
<PAGE>
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGE IN SECURITIES AND USE OF PROCEEDS
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. SUBMISSION OF MATTER TO A VOTE OF SECURITY HOLDERS
On January 24, 2000, at a Special Meeting of Stockholders the following
amendments to the Company's 1996 Stock Option Plan were approved:
(a) an increase in the number of shares reserved for issuance thereunder
by 3,822,514 shares for an aggregate of 21,162,505 shares; and
(b) the modification of the provisions relating to the annual increase in
the number of shares reserved for issuance thereunder such that the
annual increase will be equal to the lesser of (i) 20,000,000 shares
or (ii) 5% of the outstanding shares on such date.
The total number of shares entitled to vote at this meeting was 60,409,342
shares and the tabulation of proxies is as follows:
<TABLE>
<CAPTION>
For Against Abstain Broker Non-Votes
--- ------- ------- ----------------
<S> <C> <C> <C>
40,031,555 2,144,975 5,200 N/A
</TABLE>
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
Exhibit
-------
Number Description
------ -----------
10.5 1998 Director Stock Option Plan, as amended.
10.13 Lease Agreement dated September 24, 1999 between The Board
of Trustees of the Leland Stanford Junior University and
TIBCO Software Inc.
10.14 Lease Agreement dated January 21, 2000 between Spieker
Properties, L.P. and TIBCO Software Inc.
27.1 Financial Data Schedule.
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the quarter ended
February 29, 2000.
17
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED.
TIBCO SOFTWARE INC.
By: /s/ Paul G. Hansen
-------------------------------------
Paul G. Hansen
Executive Vice President,
Finance and Chief Financial Officer
By: /s/ Ginger M. Kelly
-------------------------------------
Ginger M. Kelly
Corporate Controller
and Chief Accounting Officer
Dated April 17, 2000
<PAGE>
EXHIBIT 10.5
TIBCO SOFTWARE INC.
1998 DIRECTOR OPTION PLAN
(as amended and restated effective as of the date
of obtaining stockholder approval in May 1999, adjusted to account for the 1:2
reverse split on July 13, 1999 and the 3:1 split on February 7, 2000)
1. Purposes of the Plan. The purposes of this 1998 Director Option Plan
--------------------
are to attract and retain the best available personnel for service as Directors
(as defined herein) of the Company, to provide additional incentive to Directors
of the Company to serve as Directors, and to encourage their continued service
on the Board.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Compensation Committee that shall be
-------------
administering the Plan in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements relating to the
---------------
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options are granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
-----
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Common Stock" means the common stock of the Company.
------------
(f) "Company" means TIBCO Software Inc., a Delaware corporation.
-------
(g) "Compensation Committee" means a compensation committee appointed
----------------------
by the Board.
(h) "Director" means (1) a member of the Board or (2) Reuters Group
--------
PLC or any of its designated wholly-owned subsidiaries.
(i) "Disability" means total and permanent disability as defined in
----------
Section 22(e)(3) of the Code.
(j) "Employee" means any person, including Directors, employed by the
--------
Company or Subsidiary of the Company. Neither service as a Director nor payment
of a director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
<PAGE>
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
(l) "Fair Market Value" means, as of any date, the value of Common
-----------------
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the Common Stock
on the last market trading day prior to the day of determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(m) "FASB Rule Change Effective Date" means the date of issuance of
-------------------------------
the Financial Accounting Standards Board's interpretation of APB Opinion No. 25,
based on the proposed interpretation issued on March 31, 1999.
(n) "Inside Director" means a Director who is an Employee.
---------------
(o) "Option" means a stock option granted pursuant to the Plan.
------
(p) "Option Agreement" means a written or electronic agreement
----------------
between the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
(q) "Optioned Stock" means the Common Stock subject to an Option.
--------------
(r) "Optionee" means a Director who holds an Option granted under the
--------
Plan.
(s) "Outside Director" means a Director who is not an Employee;
----------------
provided, however, that with respect to representatives of Reuters Group PLC,
Reuters Group PLC or any of its designated wholly-owned subsidiaries or
designated representatives thereof shall be deemed Outside Directors.
(t) "Parent" means a "parent corporation," whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
(u) "Plan" means this 1998 Director Option Plan.
----
<PAGE>
(v) "Share" means a share of the Common Stock, as adjusted in
-----
accordance with Section 11 below.
(w) "Subsidiary" means a "subsidiary corporation," whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
-------------------------
the Plan, the maximum aggregate number of Shares which may be subject to option
and sold under the Plan is 2,475,000 Shares (the "Pool"). The Shares may be
authorized but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated). However, Shares that have actually been issued under the Plan,
shall not be returned to the Plan and shall not become available for future
distribution under the Plan.
4. Administration of the Plan.
--------------------------
(a) The Plan shall be administered by the Compensation Committee,
which shall be constituted to comply with Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the
---------------------------
Plan and subject to the approval of any relevant authorities, the Administrator
shall have the authority in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Directors to whom Options may from time to
time be granted hereunder;
(iii) to determine the number of Shares to be covered by an
Option granted to a Director;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, of any Option
granted to a Director. Such terms and conditions include, but are not limited
to, the exercise price, the time or times when Options may be exercised (which
may be based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any Option
or the Common Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
-3-
<PAGE>
(vi) to determine whether and under what circumstances an Option may
be settled in cash under subsection 9(e) instead of Common Stock;
(vii) to prescribe, amend and rescind rules and regulations relating
to the Plan, including rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax treatment under foreign tax
laws;
(viii) to allow Optionees to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued upon exercise
of an Option that number of Shares having a Fair Market Value equal to the
amount required to be withheld. The Fair Market Value of the Shares to be
withheld shall be determined on the date that the amount of tax to be withheld
is to be determined. All elections by Optionees to have Shares withheld for
this purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable; and
(ix) to construe and interpret the terms of the Plan and Options.
(c) Effect of Administrator's Decision. All decisions, determinations
----------------------------------
and interpretations of the Administrator shall be final and binding on all
Optionees.
(d) Procedure for Grants to Outside Directors. Except as otherwise
-----------------------------------------
provided in Section 4, all grants of Options to Outside Directors under this
Plan shall be automatic and nondiscretionary and shall be made strictly in
accordance with the following provisions:
(i) No person shall have any discretion to select which Outside
Directors shall be granted Options or to determine the number of Shares to be
covered by Options granted to Outside Directors; provided, however that any
Outside Director may decline to receive an automatic Option grant hereunder by
providing written notice to the Administrator prior to such automatic Option
grant.
(ii) Each Outside Director shall be automatically granted an Option
to purchase 150,000 Shares (the "First Option") on the date on which such person
first becomes an Outside Director, whether through election by the stockholders
of the Company or appointment by the Board to fill a vacancy; provided, however,
that an Inside Director who ceases to be an Inside Director but who remains a
Director shall not receive a First Option.
(iii) Each Outside Director shall be automatically granted an Option
to purchase 60,000 Shares (a "Subsequent Option") on the date of the annual
meeting of the shareholders of each year provided he or she is then an Outside
Director and if as of such date, he or she shall have served on the Board for at
least the preceding six (6) months.
-4-
<PAGE>
(iv) Reuters Group PLC or, at the direction of Reuters Group PLC,
any of its wholly owned subsidiaries shall be automatically granted an Option to
purchase 150,000 Shares upon the date of obtaining stockholder approval of the
Plan in May, 1999 (the "Reuters Initial Grants"), or a greater number of Shares
as determined by the Administrator.
(v) Reuters Group PLC or any of its wholly owned subsidiaries
receiving Options hereunder may assign or transfer their Options to
representatives of Reuters Group PLC or any of its wholly owned subsidiaries who
are also Outside Directors or to a Reuters employee shareholder trust.
(vi) The terms of a First Option granted hereunder shall be as
follows:
(A) the term of the First Option shall be ten (10) years.
(B) the First Option shall be exercisable only while the
Outside Director remains a Director of the Company, except as set forth in
Sections 9 and 11 hereof.
(C) unless otherwise determined by the Administrator, the
exercise price per Share shall be 100% of the Fair Market Value per Share on the
date of grant of the First Option.
(D) subject to Section 11 hereof, the First Option shall
become exercisable as to one-third of the Shares subject to the First Option on
each anniversary of its date of grant, so that 100% of the First Option is
exercisable after three years, provided that the Optionee continues to serve as
a Director on such dates.
(vii) The terms of a Subsequent Option granted hereunder shall be as
follows:
(A) the term of the Subsequent Option shall be ten (10)
years.
(B) the Subsequent Option shall be exercisable only while
the Outside Director remains a Director of the Company, except as set forth in
Sections 9 and 11 hereof.
(C) unless otherwise determined by the Administrator, the
exercise price per Share shall be 100% of the Fair Market Value per Share on the
date of grant of the Subsequent Option.
(D) subject to Section 11 hereof, the Subsequent Option
shall become exercisable as to one-third of the Shares subject to the Subsequent
Option on each anniversary of its date of grant, so that 100% of the Subsequent
Option is exercisable after three years, provided that the Optionee continues to
serve as a Director on such dates.
-5-
<PAGE>
(viii) In the event that any Option granted under the Plan
would cause the number of Shares subject to outstanding Options plus the number
of Shares previously purchased under Options to exceed the Pool, then the
remaining Shares available for Option grant shall be granted under Options to
the Outside Directors on a pro rata basis. No further grants shall be made until
such time, if any, as additional Shares become available for grant under the
Plan through action of the Compensation Committee or the stockholders to
increase the number of Shares which may be issued under the Plan or through
cancellation or expiration of Options previously granted hereunder.
5. Eligibility.
-----------
(a) Options may be granted only to Directors.
(b) Neither the Plan nor any Option shall confer upon any Optionee
any right with respect to continuation of service as a Director or nomination to
serve as a Director, nor shall it interfere in any way with any rights which the
Director or the Company may have to terminate the Director's relationship with
the Company at any time.
6. Term of Plan. The amendment and restatement of the Plan shall become
------------
effective upon the date of stockholder approval of the Plan in May 1999;
provided, however, that amendments that would cause the Plan or Options granted
hereunder to fail to comply with applicable California "blue sky" securities
laws shall not be effective until the IPO Effective Date. It shall continue in
effect for a term of ten (10) years from the date of obtaining stockholder
approval of the Plan in May, 1999, unless terminated earlier under Section 13 of
the Plan.
7. Term of Option. The term of each Option granted to an Inside Director
--------------
shall be stated in the Option Agreement; provided, however, that the term shall
be no more than ten (10) years from the date of grant thereof.
8. Consideration. The consideration to be paid for the Shares to be
-------------
issued upon exercise of an Option, including the method of payment, shall be
determined by the Administrator. Such consideration may consist of (1) cash, (2)
check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option, have been owned by the Optionee for more
than six months on the date of surrender, and (y) have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised, (5) consideration received by the Company
under a cashless exercise program implemented by the Company in connection with
the Plan, or (6) any combination of the foregoing methods of payment. In making
its determination as to the type of consideration to accept, the Administrator
shall consider if acceptance of such consideration may be reasonably expected to
benefit the Company.
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Stockholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable according to the terms hereof at such
times and under such conditions
-6-
<PAGE>
as determined by the Administrator and set forth in the Option Agreement. Unless
the Administrator provides otherwise, vesting of Options granted hereunder shall
be tolled during any unpaid leave of absence. An Option may not be exercised for
a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Shares, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except as
provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares thereafter available, both for purposes of the Plan and for
sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Continuous Status as a Director. Subject to
----------------------------------------------
Section 11 hereof, in the event an Optionee's status as a Director terminates
(other than upon the Optionee's death or Disability, the Optionee may exercise
his or her Option, but only within three (3) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of such termination, and to the extent that the
Optionee does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. In the event Optionee's status as a
----------------------
Director terminates as a result of Disability, the Optionee may exercise his or
her Option, but only within twelve (12) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of termination, or if he or she does not exercise
such Option (to the extent otherwise so entitled) within the time specified
herein, the Option shall terminate.
(d) Death of Optionee. In the event of an Optionee's death, the
-----------------
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration
-7-
<PAGE>
of its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of death, and to the extent that the Optionee's
estate or a person who acquired the right to exercise such Option does not
exercise such Option (to the extent otherwise so entitled) within the time
specified herein, the Option shall terminate.
(e) Reuters Representatives. Notwithstanding the foregoing, options
-----------------------
granted to Reuters Group PLC or any of its wholly-owned subsidiaries are not
affected by the termination, death or disability of any of its representative
directors so long as Reuters Group PLC or any of its affiliates, but excluding
the Company, shall have the ability to nominate a Director.
(f) Buyout Provisions. The Administrator may at any time offer to buy
-----------------
out for a payment in cash or Shares, an Option previously granted, based on such
terms and conditions as the Administrator shall establish and communicate to the
Optionee at the time that such offer is made.
10. Non-Transferability of Options. Unless determined otherwise by the
------------------------------
Administrator, and except for Reuters Group PLC and its wholly-owned
subsidiaries, Options may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee. If the Administrator makes an Option
transferable, such Option shall contain such additional terms and conditions as
the Administrator deems appropriate.
11. Adjustments Upon Changes in Capitalization, Merger or Asset Sale.
----------------------------------------------------------------
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company. The conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Compensation Committee,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may
-8-
<PAGE>
provide for an Optionee to have the right to exercise his or her Option until
fifteen (15) days prior to such transaction as to all of the Optioned Stock
covered thereby, including Shares as to which the Option would not otherwise be
exercisable. To the extent it has not been previously exercised, an Option will
terminate immediately prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company
--------------------
with or into another corporation or the sale of substantially all of the assets
of the Company, outstanding Options may be assumed or equivalent options may be
substituted by the successor corporation or a Parent or Subsidiary thereof (the
"Successor Corporation"). If an Option is assumed or substituted for, the Option
or equivalent option shall continue to be exercisable as provided in Section 4
hereof for so long as the Optionee serves as a Director or a director of the
Successor Corporation. Following such assumption or substitution, if the
Optionee's status as a Director or director of the Successor Corporation, as
applicable, is terminated other than upon a voluntary resignation by the
Optionee, the Option or option shall become fully exercisable, including as to
Shares for which it would not otherwise be exercisable. Thereafter, the Option
or option shall remain exercisable in accordance with Sections 9(b) through (d)
above.
If the Successor Corporation does not assume an outstanding Option or
substitute for it an equivalent option, the Option shall become fully vested and
exercisable, including as to Shares for which it would not otherwise be
exercisable. In such event the Compensation Committee shall notify the Optionee
that the Option shall be fully exercisable for a period of thirty (30) days from
the date of such notice, and upon the expiration of such period the Option shall
terminate.
For the purposes of this Section 11(c), an Option shall be considered
assumed if, following the merger or sale of assets, the Option confers the right
to purchase or receive, for each Share of Optioned Stock subject to the Option
immediately prior to the merger or sale of assets, the consideration (whether
stock, cash, or other securities or property) received in the merger or sale of
assets by holders of Common Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice of consideration, the type
of consideration chosen by the holders of a majority of the outstanding Shares).
If such consideration received in the merger or sale of assets is not solely
common stock of the successor corporation or its Parent, the Administrator may,
with the consent of the successor corporation, provide for the consideration to
be received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation or
its Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
12. Time of Granting Options. The date of grant of an Option shall, for
------------------------
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Director to whom an Option is
so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
-------------------------------------
-9-
<PAGE>
(a) Amendment and Termination. The Compensation Committee may at any
-------------------------
time amend, alter, suspend or terminate the Plan.
(b) Stockholder Approval. The Compensation Committee shall obtain
--------------------
stockholder approval of any Plan amendment to the extent necessary and desirable
to comply with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
----------------------------------
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Options granted under the
Plan prior to the date of such termination.
14. Conditions Upon Issuance of Shares.
----------------------------------
(a) Legal Compliance. Shares shall not be issued pursuant to the
----------------
exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply with Applicable Laws and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
(b) Investment Representations. As a condition to the exercise of an
--------------------------
Option, the Administrator may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.
15. Inability to Obtain Authority. The inability of the Company to obtain
-----------------------------
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
16. Reservation of Shares. The Company, during the term of this Plan,
---------------------
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
-10-
<PAGE>
EXHIBIT 10.13
Lease Agreement
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. BASIC LEASE INFORMATION............................................... 1
2. DEFINITIONS........................................................... 2
3. PREMISES.............................................................. 5
4. TERM.................................................................. 5
5. BASE RENT; ADDITIONAL RENT............................................ 6
6. EXPENSES AND REAL ESTATE TAXES........................................ 7
7. USE OF PREMISES AND CONDUCT OF BUSINESS............................... 10
8. BASE BUILDING WORK; ACCEPTANCE; BUILDING CHANGES...................... 10
9. ALTERATIONS BY TENANT................................................. 13
10. REPAIRS AND MAINTENANCE............................................... 16
11. LIENS................................................................. 17
12. UTILITIES............................................................. 17
13. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS....................... 17
14. SUBORDINATION......................................................... 18
15. LANDLORD'S INABILITY TO PERFORM....................................... 19
16. DESTRUCTION........................................................... 19
17. EMINENT DOMAIN........................................................ 21
18. ASSIGNMENT AND SUBLETTING............................................. 22
19. DEFAULT............................................................... 24
20. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS............................ 26
21. INDEMNITY; INSURANCE.................................................. 27
22. LIMITATION OF LANDLORD'S LIABILITY.................................... 30
23. ACCESS TO PREMISES.................................................... 30
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
(Continued)
<TABLE>
<CAPTION>
PAGE
<S> <C>
24. HAZARDOUS MATERIALS................................................... 30
25. NOTICES............................................................... 33
26. NO WAIVER; NO MODIFICATION............................................ 33
27. TENANT'S CERTIFICATES................................................. 33
28. RULES AND REGULATIONS................................................. 34
29. TAX ON TENANT'S PERSONAL PROPERTY..................................... 34
30. SECURITY DEPOSIT...................................................... 34
31. PUBLIC TRANSIT INFORMATION............................................ 34
32. DEFAULT BY LANDLORD................................................... 34
33. BROKERS............................................................... 35
34. SIGNS................................................................. 35
35. FINANCIAL STATEMENTS.................................................. 35
36. QUIET ENJOYMENT....................................................... 35
37. SALE OR ASSIGNMENT BY LANDLORD........................................ 36
38. LEASE MODIFICATIONS................................................... 36
39. AUTHORITY............................................................. 36
40. SURRENDER............................................................. 37
41. CONFIDENTIALITY....................................................... 37
42. USE OF NAME........................................................... 37
43. GUARANTY.............................................................. 37
44. MISCELLANEOUS......................................................... 37
</TABLE>
<PAGE>
TABLE OF CONTENTS
(Continued)
PAGE
EXHIBITS
Exhibit A Location of Premises and Parking
Exhibit B Construction of Base Building and Tenant Improvement Work
Exhibit C-1 Notice of Commencement Date
Exhibit C-2 Notice of Rent Commencement Date and Expiration Date
Exhibit D Determination of Prevailing Market Rental Rate
Exhibit E Notice of Base Rent and Rentable Area
Schedule 3.1 EasementsSchedule 8.4 Environmental Reports
iii
<PAGE>
LEASE
THIS LEASE is entered into as of September 24, 1999 (the "Effective Date"),
by and between THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, a
body having corporate powers under the laws of the State of California
("Landlord"), and TIBCO SOFTWARE INC., a Delaware corporation ("Tenant").
1. BASIC LEASE INFORMATION
The following is a summary of basic lease information. Each term or matter
in this Article 1 shall be deemed to incorporate all of the terms set forth
herein below pertaining to such term or matter and to the extent there is any
conflict between the provisions of this Article 1 and any more specific
provision of this Lease, the more specific provision shall control.
Premises Address: 3373 Hillview Avenue
Palo Alto, California 94304
Address of Landlord: Stanford Management Company
2770 Sand Hill Road
Menlo Park, CA 94025-3065
Address of Tenant
Prior to Lease Commencement: 3165 Porter Drive
Palo Alto, CA 94304
Key Contact for Tenant: Bob Stefanski Telephone: (650) 846-5000
Premises (Article 3): (See Exhibit A)
Rentable Area of Premises (Article 3): Approximately 282,000 sq. ft. (to be
determined as provided in Section 5.1)
Term (Article 4):
Commencement Date: The earlier of (a) Tenant's occupancy of the
Premises for the purpose of conducting Tenant's
business therein, or (b) six (6) months from the
date Landlord allows Tenant access to the
Premises for the commencement of the Tenant
Improvement Work in accordance with Section 8.1
Target Commencement Date: On or before December 31, 2001
Rent Commencement Date: (See Article 2)
Expiration Date: The date twelve (12) years and 0 months after
the Rent Commencement Date
Initial Base Rent (Article 5): Annual: $47.40 per sq. ft. Rentable Area
(determined as provided in Sec. 5.1)
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Monthly $3.95 per sq. ft. Rentable Area
Base Rent Adjustment Dates (Article 5): Each 12-month anniversary of the Rent
Commencement Date (determined as
provided in Sec. 5.2)
Use (Article 7): Research and development and related uses
(subject to the limitations in Article 7)
Parking (Article 7): 3.3 spaces per thousand square feet of Rentable
Area
Security Deposit (Article 30): one month's rent Type of Deposit: Cash
Brokers (Article 33): CB Richard Ellis
2. DEFINITIONS
As used in this Lease, the following terms shall have the following
meanings, applicable, as appropriate, to both the singular and plural form of
the terms defined herein:
"Additional Rent" is defined in Section 5.3.
"Adjustment Date" is defined in Section 5.2.
"Agents" means with respect to either Landlord or Tenant, its respective
agents, employees, officers, directors, trustees, contractors (and their
subcontractors), and, in the case of Tenant, its subtenants, assignees,
licensees and invitees, and any other person or entity claiming under Tenant.
"Alterations" are as defined in Section 9.1.
"Applicable Laws" means all applicable laws, statutes, codes, ordinances,
orders, rules, regulations, conditions of approval, and requirements, of all
federal, state, county, municipal and other governmental authorities and the
departments, commissions, boards, bureaus, instrumentalities, and officers
thereof, and all administrative or judicial orders or decrees and all permits,
licenses, approvals and other entitlements issued by governmental entities, and
rules of common law, relating to or affecting the Premises or the use, operation
or occupancy of the Premises, whether now existing or hereafter enacted,
including, without limitation, all Environmental Laws.
"Assignment" is defined in Section 18.1
"Base Building Architect" is defined in Exhibit B.
---------
"Base Building Contractor" is defined in Exhibit B.
---------
"Base Building Plans" are defined in Exhibit B.
---------
"Base Building Work" is defined in Exhibit B.
---------
"Base Rent" means the amount stated in Article 1, to be adjusted and
payable in accordance with Article 5.
2
<PAGE>
"Building" is defined in Article 3.
"Building Systems" is defined in Section 8.6.
"Commencement Date" means the date Landlord delivers possession of the
Premises to Tenant in accordance with Section 8.1.
"Construction Schedule" is defined in Exhibit B.
---------
"Design Problem" is defined in Exhibit B.
---------
"Delivery of the Premises" is defined in Section 8.1.
"Effective Date" is the date of this Lease.
"Environmental Laws" means all Applicable Laws pertaining to the protection
of the environment or human or animal health or safety.
"Environmental Activity" is defined in Section 24.1.
"Event of Default" is defined in Section 19.1.
"Excess Rent" is defined in Section 18.3.
"Expense Year" is defined in Section 6.1(c).
"Expenses" are defined in Section 6.1(d).
"Expiration Date" means the date specified in Article 1.
"Exterior Areas" are defined in Article 3.
"Final Completion of the Base Building" is defined in Exhibit B.
"Final Permit Approval" is defined in Exhibit B.
---------
"Final Plans" are defined in Exhibit B.
---------
"Hazardous Material" is defined in Section 24.1.
"Interest Rate" means the lesser of one and one-half percent per month or
the highest lawful rate.
"Landlord's Tax Statement" is defined in Section 6.2.
"Landlord's Unavoidable Delay" is defined in Exhibit B.
---------
"Lease Year" means each period of twelve (12) consecutive calendar months
during the Term ending on December 31, provided that, if the Commencement Date
is other than January 1, the first lease year shall commence upon the
Commencement Date and shall end on the following
3
<PAGE>
December 31, and, if the Termination Date is other than December 31, the last
lease year shall commence on the January 1 prior to the Termination Date and
shall end on the Termination Date.
"Notice of Proposed Transfer" is defined in Section 18.2.
"Premises" are defined in Section 3.1.
"Prevailing Market Rental Rate" is defined in Exhibit D.
---------
"Projected Delivery Date" is defined in Exhibit B.
---------
"Punch List Items" are defined in Exhibit B.
---------
"Real Estate Taxes" are defined in Section 6.1(c).
"Renewal Options" are defined in Section 4.3.
"Renewal Term" is defined in Section 4.3.
"Rent" is defined in Section 5.3.
"Rent Commencement Date" means the earlier to occur of (i) the Scheduled
Date for Completion of the Tenant Improvement Work, as defined in Exhibit B, as
---------
such date may be extended in accordance with the provisions of Exhibit B; or
---------
(ii) the date Tenant commences business operations in the Premises.
"Rules and Regulations" are defined in Article 28.
"Rentable Area" means the enclosed areas of the Building measured to the
outside face of the exterior wall or glass line, whichever is greater, and
including all second floor vertical shafts and penetrations, but excluding
outside balconies, arcades or covered entrances. The Rentable Area shall be
determined by the Base Building Architect and confirmed by Tenant's Architect.
"Scheduled Date for Completion of the Tenant Improvement Work" is defined
in Exhibit B.
---------
"Space Plan Delivery Date" is defined in Exhibit B.
---------
"Substantial Completion" is defined in Exhibit B.
---------
"Substantial Completion Inspection" is defined in Exhibit B.
---------
"Sublease" is defined in Section 18.1.
"Tax Year" is defined in Section 6.1(b).
"Tenant Improvement Allowance" is defined in Exhibit B.
---------
"Tenant Improvement Contract" is defined in Exhibit B.
---------
"Tenant Improvement Contractor" is defined in Exhibit B.
---------
4
<PAGE>
"Tenant Improvement Costs" are defined in Exhibit B.
---------
"Tenant Improvement Permits" are defined in Exhibit B.
---------
"Tenant Improvement Plans" are defined in Exhibit B.
---------
"Tenant Improvement Work" is defined in Exhibit B.
---------
"Tenant's Architect" is defined in Exhibit B.
---------
"Tenant's Architect Agreement" is defined in Exhibit B.
------- -
"Tenant's Excusable Delay" is defined in Exhibit B.
---------
"Tenant's Hazardous Materials" are defined in Section 24.1
"Tenant's Property" is defined in Section 9.5.
"Tenant's Unavoidable Delay" is defined in Exhibit B.
---------
"Term" is defined in Section 4.1.
"Termination Date" means the earlier of the Expiration Date or the date
this Lease is terminated pursuant to any provision hereof.
"Transferee" is defined in Section 18.2.
3. PREMISES
3.1 Subject to the terms, covenants and conditions set forth in this
Lease, to all easements, access agreements and other rights granted to or
reserved by third parties as described in Schedule 3.1, and to Landlord's
acquisition within sixty (60) days after the Effective Date of the pre-existing
leasehold rights to the Premises which Landlord intends to acquire, Landlord
hereby leases to Tenant and Tenant hereby hires from Landlord those premises
(the "Premises") to be shown on the site plan attached hereto as Exhibit A,
----------
consisting of two or more buildings (the "Building"), all exterior landscaping
and parking areas for the exclusive use of the Building (the "Exterior Areas"),
and certain easements as described on Schedule 3.1. The approximate total
Rentable Area of the Building is specified in Article 1. The exact Rentable
Area shall be certified by Landlord's architect upon completion of the Building.
In the event that Landlord is unable to acquire the existing leasehold rights
within sixty (60) days after the Effective Date, Tenant shall have the right to
terminate this Lease by delivery of written notice no later than seventy (70)
days after the Effective Date, whereupon neither party shall have any liability
or obligations to the other arising out of this Lease.
3.2 Tenant shall have the right to the exclusive use of the number of
parking spaces specified in Article 1, subject to the restrictions set forth in
Section 7.2.
4. TERM
4.1 The Premises are leased for a term (the "Term") commencing on the
Rent Commencement Date and expiring on the Expiration Date specified in Article
1. As of the date
5
<PAGE>
hereof the parties anticipate that the Premises will be delivered on or before
the Projected Delivery Date specified in Exhibit B. Landlord will give Tenant
---------
not less than ten (10) business days prior notice of the actual Commencement
Date. If, for any reason whatsoever, Landlord cannot deliver possession of the
Premises to Tenant on or prior to the Projected Delivery Date set forth in
Article 1, then the validity of this Lease and the obligations of Tenant under
this Lease shall not be affected and Tenant shall have no claim against Landlord
arising out of Landlord's failure to deliver possession of the Premises on the
date originally fixed therefor. The Term of this Lease shall end on the
Expiration Date specified in Article 1, or such earlier date on which this Lease
terminates pursuant to the terms hereof.
4.2 Promptly following the Commencement Date, Landlord will deliver to
Tenant a notice in substantially the form attached hereto as Exhibit C-1
-----------
identifying the Commencement Date, a copy of which notice shall be executed by
Tenant and promptly returned to Landlord. Promptly following the Rent
Commencement Date, Landlord will deliver to Tenant a notice in substantially the
form attached hereto as Exhibit C-2 identifying the Rent Commencement Date and
-----------
the Expiration Date, a copy of which notice shall be executed by Tenant and
promptly returned to Landlord. A copy of each such notice shall be attached
hereto and be incorporated herein by this reference.
4.3 Tenant shall have three (3) options (the "Renewal Options") to
extend the term of this Lease for a period of five (5) years each (the "Renewal
Terms"). The Renewal Options shall not be effective if there exists a default
by Tenant under any of the terms or conditions of this Lease, either at the time
of exercise of any Renewal Option or at the time of commencement of the
applicable Renewal Term, unless such default is cured prior to the expiration of
any applicable cure period. Each Renewal Option must be exercised, if at all,
by written notice from Tenant to Landlord given not less than ten (10) months
prior to the expiration of the initial Term of this Lease or any subsequent
Renewal Term, as applicable. The Renewal Terms shall be upon the same terms and
conditions as the original Term, except that the annual Base Rent applicable
beginning upon the commencement of each Renewal Term shall be equal to the
greater of (a) ninety-five percent (95%) of the then-current Prevailing Market
Rental Rate (determined as provided in attached Exhibit D), or (b) the Base Rent
---------
applicable to the Lease Year immediately preceding the commencement of the
applicable Renewal Term.
5. BASE RENT; ADDITIONAL RENT
5.1 Commencing upon the Rent Commencement Date, and thereafter during the Term,
Tenant shall pay to Landlord the monthly Base Rent specified in Article 1 on or
before the first day of each month, in advance, at the address specified in
Article 1, or at such other place as Landlord shall designate, without any prior
demand therefor and without any deductions or setoff whatsoever. If the Rent
Commencement Date occurs on a day other than the first day of a calendar month,
or the Termination Date occurs on a day other than the last day of a calendar
month, then the Base Rent for such fractional month will be prorated on the
basis of a thirty-day month. The Rentable Area of the Premises shall be
certified by the Base Building Architect upon Substantial Completion of the Base
Building Work. Upon such determination, Landlord will deliver to Tenant a notice
substantially in the form of attached Exhibit E stating the Base Rent, based
---------
upon the Rentable Area and attaching the certificate executed by the Base
Building Architect stating the Rentable Area.
5.2 On each twelve-month anniversary of the Rent Commencement Date,
including during any Renewal Term, (each, an "Adjustment Date"), the Base Rent
shall be increased to an
6
<PAGE>
amount equal to one hundred three percent (103%) of the Base Rent applicable
immediately prior to such Adjustment Date.
5.3 Tenant shall pay to Landlord all charges and other amounts required
under this Lease as additional rent ("Additional Rent") including without
limitation the charges for Real Estate Taxes and Expenses provided for in
Article 6. All such Additional Rent shall be payable to Landlord at the place
where the Base Rent is payable. Landlord will have the same remedies for a
default in the payment of any Additional Rent as for a default in the payment of
Base Rent. Base Rent and Additional Rent are sometimes described herein as
"Rent".
5.4 Any unpaid Base Rent or Additional Rent hereunder shall bear
interest from the date due until paid at the Interest Rate. In addition, Tenant
recognizes that late payment of any Base Rent or Additional Rent due hereunder
will result in administrative expense to Landlord, the extent of which expense
is difficult and economically impracticable to determine. Therefore, Tenant
agrees that if Tenant fails to pay any Base Rent or Additional Rent within five
(5) days after receipt of written notice of non-payment from Landlord, an
additional late charge of five percent (5%) of the sums so overdue shall become
immediately due and payable. Tenant agrees that the late payment charge is a
reasonable estimate of the additional administrative costs and detriment that
will be incurred by Landlord as a result of such failure by Tenant. In the
event of nonpayment of interest or late charges on overdue Base Rent or
Additional Rent, Landlord shall have, in addition to all other rights and
remedies, the rights and remedies provided herein and by law for nonpayment of
rent.
6. EXPENSES AND REAL ESTATE TAXES
6.1 This Lease is intended to be a net lease, and the Base Rent and
Additional Rent owing hereunder are to be paid by Tenant absolutely net of all
costs and expenses relating to Landlord's ownership and operation of the
Building and the Exterior Areas. The provisions of this Article 6 for the
payment of Real Estate Taxes and Expenses are intended to pass on to Tenant all
such costs and expenses. For purposes of this Article 6, the following terms
shall have the meanings hereinafter set forth:
(a) "Tax Year" means each twelve (12) consecutive month period
commencing July 1 of each calendar year during the Term, including any partial
year during which the Lease Term may commence.
(b) "Real Estate Taxes" means all taxes, assessments and charges
levied upon or with respect to the Building, the Exterior Areas, any personal
property of Landlord used in the operation thereof, and Landlord's interest in
the Building, the Exterior Areas and such personal property. For purposes of
this definition of Real Estate Taxes only, references to the "Building" shall
mean the Building and land thereunder. Real Estate Taxes shall include, without
limitation, all general real property taxes and general and special assessments,
charges, fees, or assessments for transit, housing, police, fire, or other
governmental services or purported benefits to the Building or the occupants
thereof, service payments in lieu of taxes, and any tax, fee, or excise on the
act of entering into this Lease or any other lease of space in the Building, or
on the use or occupancy of the Building or any part thereof, or on the rent
payable under any lease or in connection with the business of renting space in
the Building, that are now or hereafter levied or assessed against Landlord by
the United States of America, the State of California or any political
subdivision thereof, public corporation, district, or any other political or
public entity, and shall also include any other tax, fee or other excise,
however described, that may be levied or assessed as a substitute for,
7
<PAGE>
or as an addition to, in whole or in part, any other Real Estate Taxes, whether
or not now customary or in the contemplation of the parties on the date of this
Lease. Real Estate Taxes shall not include franchise, transfer, inheritance, or
capital stock taxes or income taxes measured by the net income of Landlord from
all sources unless, due to a change in the method of taxation, any of such taxes
is levied or assessed against Landlord as a substitute for, or as an addition
to, in whole or in part, any other tax that would otherwise constitute a Real
Estate Tax. Real Estate Taxes shall also include reasonable legal fees, costs,
and disbursements incurred in connection with proceedings to contest, determine,
or reduce Real Estate Taxes.
(c) "Expense Year" means each twelve (12) consecutive month period
commencing January 1 of each year during the Term, including any partial year
during which the Lease may commence; provided that Landlord, upon notice to
Tenant, may change the Expense Year from time to time to any other twelve (12)
consecutive month period and, in the event of any such change, Expenses shall be
equitably adjusted for the Expense Years involved in any such change.
(d) "Expenses" means the total costs and expenses paid or incurred by
Landlord and/or Tenant in connection with the management, operation, maintenance
and repair of the Premises, the Building and the Exterior Areas, including,
without limitation, all costs of: (i) air conditioning, electricity, steam,
water, heating, ventilating, mechanical, telephone and telecommunications
systems, escalator and elevator systems and all other utilities and systems,
(ii) landscaping and gardening, (iii) repaving and restriping of parking areas,
(iv) repairs, and all labor and material costs related thereto, (v) security and
fire protection, (vi) general maintenance, trash removal, cleaning and service
contracts and the cost of all supplies, tools and equipment required in
connection therewith, (vii) all insurance carried by Landlord on the Building
and the Exterior Areas or in connection with the use or occupancy thereof as
described in Section 21.7 below or otherwise acquired by Landlord as reasonably
required for prudent property management, or, if Landlord elects not to maintain
third party insurance, the costs of maintaining a self-insurance reserve program
and all insurance deductibles, (viii) wages, salaries, payroll taxes and other
labor costs and employee benefits, (ix) management fees at commercially
reasonable rates, apportioned as appropriate to reflect the particular
management functions which have been assumed by Landlord, (x) fees, charges and
other costs of all independent contractors engaged by Landlord, (xi) license,
permit and inspection fees, (xii) charges on or surcharges imposed by any
governmental agencies on or with respect to transit or automobile usage or
parking facilities, (xiii) the cost of any capital improvements (other than to
the foundation, structural walls and structural elements of the roof, which
shall not be included in Expenses) such cost (if incurred by Landlord) to be
amortized over the useful life of the improvement in question, together with
interest on the unamortized balance at the rate of ten percent (10%) per annum
or such higher rate as may have been paid by Landlord on funds borrowed for the
purpose of constructing such capital improvements, (xiv) the cost of contesting
the validity or applicability of any governmental enactments which may affect
operating expenses, and (xv) any other expenses of any kind whatsoever
reasonably incurred in connection with the management, operation, maintenance
and repair of the Premises, the Building and the Exterior Areas (other than Real
Estate Taxes). Notwithstanding the fact that Tenant is responsible for all
Expenses, Landlord shall have the right to engage a property manager to perform
all or some of the maintenance and repair obligations of Tenant hereunder, as
provided in Section 10.3 below, whereupon the cost of such services shall be
subject to payment by Tenant pursuant to Section 6.3. "Expenses" shall not
include: (A) "costs" of self-insurance in excess of an amount which would be
charged by a third party carrier for coverage of the type required to be
maintained by Landlord pursuant to Section 21.7 below or otherwise acquired by
Landlord as reasonably required for prudent
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property management and, in the case of any self-insurance program maintained
with respect to earthquake losses, expenses shall not include any "costs" in
excess of any premium amount which would be considered commercially reasonable;
(B) costs resulting from the active negligence or willful misconduct of Landlord
or Landlords' Agents; (C) expense reserves; (D) costs for which Landlord is
reimbursed by insurance, warranties or guarantees; (E) leasing commissions,
advertising or promotion costs; (F) costs related to Hazardous Materials covered
by Landlord's indemnity as set forth in Section 8.5 or any costs which pertain
to Hazardous Materials which are not Tenant's Hazardous Materials; (G) any
ground rent, payments with respect to any financing secured by the Building or
Premises, or any interest, late charges, penalties or fees; or (H) any insurance
deductible amount, whether existing under a third party policy or a deemed
deductible under Landlord's self-insurance program which exceeds a level
comparable to deductibles being applied to other first-class properties in the
Palo Alto area.
6.2 Commencing on the Rent Commencement Date, Tenant shall pay to
Landlord as Additional Rent one twelfth (1/12) of the installments of Real
Estate Taxes for each Tax Year or portion thereof during the Term, in advance,
on or before the first day of each month during such Tax Year, in an amount
reasonably estimated by Landlord in a writing delivered to Tenant. In any Tax
Year, Tenant shall not be required to pay more than the amount of Real Estate
Taxes payable in installments for such Tax Year, whether or not Landlord elects
to pay such Real Estate Taxes in full. Landlord may revise such estimates from
time to time and Tenant shall thereafter make payments on the basis of such
revised estimates. With reasonable promptness after Landlord has received the
tax bills for any Tax Year, Landlord will furnish Tenant with a statement
("Landlord's Tax Statement") setting forth the actual amount of Real Estate
Taxes for such Tax Year. If the actual Real Estate Taxes for such Tax Year
exceeds the estimated Real Estate Taxes paid by Tenant for such Tax Year, Tenant
shall pay to Landlord (whether or not this Lease has terminated) the difference
between the amount paid by Tenant and the actual Real Estate Taxes within twenty
(20) days after the receipt of Landlord's Tax Statement; and if the total amount
of estimated Real Estate Taxes paid by Tenant for such Tax Year exceeds the
actual Real Estate Taxes for such Tax Year, such excess shall be credited
against the next installments of Real Estate Taxes due from Tenant hereunder,
or, if after the Termination Date, such excess shall be refunded to Tenant
concurrently with the furnishing of Landlord's Tax Statement. Tenant shall have
the right to arrange directly with the taxing authority for the payment of all
Real Estate Taxes.
6.3 Commencing on the Rent Commencement Date Tenant shall pay to
Landlord as Additional Rent one twelfth (1/12) of the Expenses which Landlord
estimates it will incur for each Expense Year or portion thereof during the
Term, in advance, on or before the first day of each month during such Expense
Year in an amount estimated by Landlord as stated in a written notice to Tenant.
Landlord may by written notice to Tenant revise such estimates from time to time
and Tenant shall thereafter make payments on the basis of such revised
estimates. With reasonable promptness after the expiration of each Expense
Year, Landlord will furnish Tenant with a statement ("Landlord's Expense
Statement") setting forth in reasonable detail the Expenses for such Expense
Year incurred by Landlord. If the actual Expenses incurred by Landlord for such
Expense Year exceeds the estimated Expenses paid by Tenant for such Expense
Year, Tenant shall pay to Landlord (whether or not this Lease has terminated)
the difference between the amount of estimated Expenses paid by Tenant and the
actual Expenses within twenty (20) days after the receipt of Landlord's Expense
Statement; and if the total amount paid by Tenant for any such Expense Year
shall exceed the actual Expenses for such Expense Year, such excess shall be
credited against the next installments of Expenses due from Tenant to Landlord
hereunder, or, if after the Termination Date, such excess shall be credited
against any unpaid Base Rent or Additional Rent due hereunder and
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any excess shall be refunded to Tenant concurrently with the furnishing of
Landlord's Expense Statement.
6.4 If the Rent Commencement Date or Termination Date shall occur on a
date other than the first or last day, respectively, of a Tax Year and/or
Expense Year, Tenant's obligation to pay Real Estate Taxes and/or Expenses for
the Tax Year and/or Expense Year in which the Rent Commencement Date or
Termination Date occurs shall be prorated based on a 365-day year.
7. USE OF PREMISES AND CONDUCT OF BUSINESS
7.1 Tenant shall use and occupy the Premises during the Term of this
Lease solely for the uses specified in Article 1 and for no other purpose.
Landlord acknowledges that Tenant is a research and development company whose
use complies with the requirements of this Lease. Except as provided in Section
18.2, not less than 80% of the Premises shall be used for research and
development during the initial Term, and the entire Premises shall be used for
research and development during any Renewal Term; provided that during the Term
Tenant may use a reasonable proportion of the Premises for related
administrative and office purposes, but only to the extent necessary to support
the research and development operations at the Premises. Tenant's use of the
Premises shall in all respects comply with all Applicable Laws. Tenant shall
not use the Premises or allow the Premises to be used so as to create waste,
constitute a nuisance, or disturb other occupants of the Stanford Research Park.
Tenant shall not place any loads upon the floors, walls, or ceiling which
endanger the structure, or place any harmful fluids or other materials in the
drainage system of the Building, or overload existing electrical or other
mechanical systems. No waste materials or refuse shall be dumped upon or
permitted to remain upon any part of the Premises or outside of the Premises
except in trash containers placed inside exterior enclosures designated by
Landlord for that purpose or inside of the Premises where approved by Landlord.
No materials, supplies, equipment, finished products or semi-finished products,
raw materials or articles of any nature shall be stored upon or permitted to
remain outside the Premises or on any portion of the Exterior Areas unless
otherwise approved by Landlord in its sole discretion. No loudspeaker or other
device, system or apparatus which can be heard outside the Premises shall be
used in or at the Premises without the prior written consent of Landlord.
7.2 Tenant shall have the exclusive right to use all parking spaces in
the Exterior Areas. Tenant shall not, at any time, park, or permit the parking
of Tenant's trucks or other vehicles or the trucks and vehicles of Tenant's
suppliers or others, in any portion of the Exterior Areas not designated by
Landlord for such use by Tenant or use any area other than a designated parking
space for the parking of any vehicle. Tenant shall not park nor permit to be
parked, any inoperative vehicles or equipment on any portion of the parking area
or other areas of the Exterior Areas. Tenant agrees to assume responsibility
for compliance by its employees with the parking provisions contained herein.
Tenant hereby authorizes Landlord at Tenant's expense to tow from the Exterior
Areas any vehicle belonging to Tenant or Tenant's employees parked in violation
of these parking requirements and to attach violation stickers or notices to
such vehicles, Tenant shall use the parking areas for vehicle parking only, and
shall not use the parking areas for storage.
8. BASE BUILDING WORK; ACCEPTANCE; BUILDING CHANGES
8.1 Landlord and Tenant shall cooperate in creating a mutually
acceptable site plan and Building design and specification that is consistent
with the requirements of Tenant, Landlord, the City of Palo Alto, and all
Applicable Laws. Landlord shall construct the Building shell and the
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hardscaping (including parking areas and any necessary parking structures),
landscaping, power and utilities, and other improvements described as the "Base
Building Work" as specified in and in accordance with the provisions of attached
Exhibit B. Landlord will use diligent efforts to cause the construction of the
- ---------
Base Building Work to be completed to the extent necessary for the commencement
of the Tenant Improvement Work on or before the Projected Delivery Date
specified in Exhibit B, subject to Landlord's Unavoidable Delay and provided
---------
that Landlord shall not be required to incur overtime costs and expenses. The
date of delivery of the Premises to Tenant for the commencement of the Tenant
Improvement Work shall constitute the Commencement Date of this Lease. The
parties anticipate that the Base Building Work will continue to be under
progress during the construction of the Tenant Improvement Work, and agree that
the Base Building Work and the Tenant Improvement Work shall be prosecuted in
such a manner so as not to cause the completion of either the Base Building Work
or the Tenant Improvement Work to be delayed beyond the Scheduled Date for
Completion of the Tenant Improvement Work (as defined in Exhibit B) as such date
---------
may be extended as provided in Exhibit B. Landlord will, when construction
---------
progress so permits, notify Tenant in advance of the approximate date on which
the Premises will be available to Tenant for the commencement of the Tenant
Improvement Work, and will notify Tenant when the Premises are in fact so
available, which date will occur only after the Pre-Delivery Items, as defined
in Section 2.2 of Exhibit B, are substantially completed. Upon Substantial
Completion of the Base Building Work (as defined in Exhibit B), Landlord will
---------
notify Tenant in writing, which notice shall constitute delivery of possession
of the Premises to Tenant ("Delivery of the Premises"). Landlord will provide
Tenant a certificate furnished by Landlord's architect certifying the date of
completion of the Base Building Work.
8.2 Tenant shall perform all of the Tenant Improvement Work as specified
in, and in accordance with, the provisions of attached Exhibit B. Landlord
---------
shall provide an allowance (the "Tenant Improvement Allowance") to be applied to
the Tenant Improvement Costs in the amount of up to $25 per square foot of
Rentable Area of the Building. The exact amount of the Tenant Improvement
Allowance shall be determined at the time the exact amount of the Base Rent is
determined pursuant to Section 5.1. The Tenant Improvement Allowance shall be
applied to the actual Tenant Improvement Costs as provided in Exhibit B;
---------
provided, however, that in the event any portion of the Tenant Improvement
Allowance has not been applied after payment in full for the cost of the Tenant
Improvement Work, Landlord agrees to reserve such excess sums and to allow
Tenant to apply the remainder of the Tenant Improvement Allowance to any
remodeling of the Premises which Tenant elects to undertake upon expiration or
earlier termination of a sublease of the Premises. Any Tenant Improvement Costs
in excess of the Tenant Improvement Allowance shall be paid by Tenant. Upon
completion of the design and determination of the cost of the Tenant Improvement
Work, Landlord and Tenant shall establish the estimated total costs for the
Tenant Improvement Work as provided in Exhibit B. If the estimated total costs
---------
of the Tenant Improvement Work exceeds the amount of the Tenant Improvement
Allowance, Tenant shall pay the amount of such difference as provided in Exhibit
-------
B. Tenant shall pay the entire amount of all Tenant Improvement Costs. Tenant
- -
shall use reasonable efforts to cause the completion of the Tenant Improvement
Work to occur on or before the Scheduled Date for Completion of the Tenant
Improvement Work, as such date may be extended in accordance with the provisions
of Exhibit B. It is agreed that by occupying the Premises, Tenant formally
---------
accepts the same and acknowledges that the Premises are in the condition called
for hereunder, subject to the Punchlist Items specified by Tenant to Landlord in
writing in the certificate of acceptance executed by Tenant pursuant to the
provisions of Exhibit B.
---------
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8.3 Without limitation of the foregoing, Tenant represents to Landlord
that Tenant is aware that detectable amounts of Hazardous Materials have come to
be located on, beneath and/or in the vicinity of the Premises. (See Schedule
8.4). Tenant has made such investigations and inquiries as it deems appropriate
to ascertain the effects, if any, of such substances and contaminants on its
operations and persons using the Building and the Exterior Areas. Except as
otherwise specifically provided in Sections 8.4 and 8.5 below, Landlord makes no
representation or warranty with regard to the environmental condition of the
Building or the Exterior Areas. Tenant, on behalf of itself and Tenant's Agents
and their respective successors and assigns, hereby releases Landlord and
Landlord's officers, directors, trustees, agents and employees from any and all
claims, demands, debts, liabilities, and causes of action of whatever kind or
nature, whether known or unknown or suspected or unsuspected which Tenant or any
of Tenant's Agents may have, claim to have, or which may hereafter accrue
against the released parties or any of them, arising out of or relating to or in
any way connected with Hazardous Materials presently in, on or under, or now or
hereafter emanating from or migrating onto the Building or the Premises, except
that this release shall not extend to (a) Landlord's obligations under Section
8.5, or (b) any possible claims Tenant may have against Landlord as a matter of
law by reason of Landlord's ownership of the Premises or any other property
where the presence of Hazardous Materials is caused either by (i) migration onto
the Premises after the Commencement Date due to Environmental Activity occurring
on other property, or (ii) Hazardous Materials which meet the criteria of
Section 24.1(b) below.
In connection with the above release, Tenant hereby waives any and all
rights conferred upon it by the provisions of Section 1542 of the California
Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor",
or by the provisions of any similar statute.
8.4 Landlord represents that: (i) Schedule 8.4 is a list of written
reports submitted to public agencies relating to environmental conditions on the
Premises in the possession of Landlord as of the Effective Date; and (ii) to the
best of Landlord's actual present knowledge, the documents set forth in Schedule
8.4, together with the public correspondence records made available by Landlord
and the public records maintained by the California Environmental Protection
Agency Department of Toxic Substances Control and the City of Palo Alto,
incorporate all material data with respect to the presence of Hazardous
Materials on or under the Premises as of the Effective Date. Tenant
acknowledges that, except for Landlord's representation in the first sentence of
this Section 8.4 and in Section 8.5, neither Landlord nor anyone acting for or
on behalf of Landlord has made, and Tenant is not relying on, any
representations or warranties to Tenant or anyone acting or claiming to act on
Tenant's behalf, concerning the condition of the Premises, and Tenant is relying
solely upon the advice of Tenant's own engineering, environmental, health,
safety and other advisors.
8.5 Landlord shall indemnify, defend and hold harmless Tenant, its
shareholders, offices and directors, and its permitted Transferees (as defined
in Section 18.2) (collectively, "Tenant Indemnitees") from and against any and
all claims, demands, actions, suits, orders, proceedings, judgments or
injunctions threatened, made, brought, or entered against any Tenant Indemnitee
by any federal, state or local environmental governmental agency, or by any
other person, or class of persons, including, without limitation, those for
bodily injury, damage to real or personal property,
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or costs of response as defined by Section 101(25) of CERCLA, 42 U.S.C. 9601(25)
(collectively, "Claims") to the extent such Claims arise out of or result from
(a) Hazardous Materials in, on, under or emanating from the Premises prior to
the Commencement Date, and Hazardous Materials which are in, on, or under the
Premises prior to the Commencement Date and thereafter emanate from the
Premises, (b) any violation by Landlord of any Environmental Law, or (c) acts of
any third party present on the Premises pursuant to an agreement entered into by
Landlord permitting such party access to the Premises for purposes of testing,
monitoring or remediation of Hazardous Materials (collectively, "Landlord's
Environmental Indemnity Obligations"). Notwithstanding anything to the contrary
herein, Landlord's Environmental Indemnity Obligations shall not include any of
the following: (i) any Claims to the extent such Claims arise out of or are
proximately caused by a breach of any provision of this Lease by Tenant or
another Tenant Indemnitee, (ii) any Claims to the extent such claims arise out
of any Tenant's Hazardous Materials, (iii) any Claims brought by any employee of
Tenant or any Tenant Indemnitee to the extent such Claim is covered by worker's
compensation insurance maintained by Tenant or such Tenant Indemnitee, provided
that nothing herein shall release Landlord from liability for any such claim to
the extent that an independent basis (other than pursuant to this Lease or to
any workers' compensation laws) for any such liability exists, or (iv) any
claims based on loss of use or occupancy of the Premises or any part thereof by
Tenant or any Tenant Indemnitee, or injury to or inconvenience or interference
with Tenant's or any Tenant Indemnitee's business, and any Claims for lost
profits or lost revenues or any type or kind resulting therefrom, provided that
Tenant shall be entitled to an abatement of Rent otherwise due hereunder to the
extent that the Premises are rendered unusable as a result of the presence of
any condition which would be the subject of Landlord's Environmental Indemnity
Obligations but for this subsection (iv). In no event shall Landlord's
Environmental Indemnity Obligations include remediation to standards more
stringent than those required by the appropriate governmental agencies in order
to comply with Environmental Laws. In case any claim, action or proceeding be
brought, made or initiated against Tenant relating to any matter covered by
Landlord's indemnification obligations under this Section 8.5, Landlord, upon
notice from Tenant, shall at its sole cost and expense, resist or defend such
claim, action or proceeding by attorneys reasonably approved by Tenant.
Landlord's obligations under this Section 8.5 shall survive the expiration or
earlier termination of this Lease.
If so requested in writing, at the time that Landlord consents to a
proposed transfer, or promptly following such request in the case of a transfer
that does not require consent, Landlord shall confirm that Landlord's
Environmental Indemnity Obligations will operate in favor of the transferee in
question.
8.6 Landlord reserves the right, at any time and from time to time, to
make alterations, additions, repairs or improvements to all or any part of the
Building and the Exterior Areas, the fixtures and equipment therein and the
arcades, plazas and walkways outside the Building, including, without
limitation, the heating, ventilating, air-conditioning, plumbing, electrical,
fire protection, life safety, security and other mechanical, electrical and
communications systems of the Building (herein called the "Building Systems"),
the Exterior Areas and all other parts of the Building, and to change the
arrangement and/or location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, toilets and other public parts of the Building
provided that any such alterations or additions shall not materially diminish
the quality or quantity of services being provided to the Premises or adversely
affect the functional utilization of the Premises.
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9. ALTERATIONS BY TENANT
9.1 After completion of the Tenant Improvement Work, Tenant shall not
make or permit any alterations to the Building Systems, and shall not make or
permit any alterations, installations, additions or improvements, structural or
otherwise (herein individually called an "Alteration" and collectively called
"Alterations") in or to the Premises or the Building without Landlord's prior
written consent, which Landlord shall give or withhold in Landlord's reasonable
discretion. Notwithstanding the foregoing, Landlord's consent may be withheld
in its sole discretion in the case of Alterations that affect the Building
structure or exterior appearance. Landlord's consent shall not be required for
Alterations which do not require a building permit, do not affect the Building
structure, Building systems or exterior appearance, and which are not
anticipated to cost in excess of Fifty Thousand Dollars ($50,000) for any one
project. All Alterations shall be done at Tenant's expense, in accordance with
any design guidelines established by Landlord and plans and specifications
approved by Landlord, and subject to all other conditions which Landlord may in
its reasonable discretion impose. Tenant shall be solely responsible for
obtaining, at its sole cost and expense, all permits and approvals required for
any Alterations. Tenant shall pay to Landlord upon demand Landlord's reasonable
out-of-pocket costs incurred in reviewing plans and specifications and otherwise
incurred in connection with Landlord's review of any Alterations requiring
Landlord's approval.
9.2 The following provisions of this Section 9.2 shall apply to all
Alterations:
(a) Prior to entering into a contract for such Alterations, Tenant
shall obtain Landlord's written approval, which approval shall not be
unreasonably withheld, of the identity of each of the design architect and the
general contractor.
(b) Before commencing the construction of any such Alterations,
Tenant shall procure or cause to be procured the insurance coverage described
below in the limits hereinafter provided, and provide Landlord with certificates
of such insurance in form reasonably satisfactory to Landlord. All such
insurance shall comply with the following requirements of this Section 9.2(b)
and with Article 21.
(i) During the course of construction, to the extent not
covered by property insurance maintained by Tenant pursuant to Article 21,
comprehensive "all risk" builder's risk insurance, including vandalism and
malicious mischief, excluding earthquake and flood, covering all improvements in
place on the Premises, all materials and equipment stored at the site 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 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 construction manager, contractors or
subcontractors (excluding any contractors', subcontractors' and construction
managers' tools and equipment, and property owned by the employees of the
construction manager, any contractor or any subcontractor), such insurance to be
written on a completed value basis in an amount not less than the full estimated
replacement value of Alterations.
(ii) Comprehensive liability insurance covering Tenant, Landlord
and each construction manager, contractor and subcontractor engaged in any work
on the Premises, which insurance may be effected by endorsement, if obtainable,
on the policy required to be carried pursuant to Article 21, including insurance
for completed operations, elevators, owner's, construction
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manager's and contractor's protective liability, products completed operations
for three (3) years after the date of acceptance of the work by Tenant, broad
form blanket contractual liability, broad form property damage and full form
personal injury (including but not limited to bodily injury), covering the
performance of all work at or from the Premises by Tenant, its construction
manager, contractors and subcontractors, and in a liability amount not less than
the amount at the time carried by prudent owners of comparable construction
projects in the Santa Clara valley, but in any event not less than Two Million
Dollars ($2,000,000) combined single limit, which policy shall contain a cross-
liability clause or separation of insureds provision and an endorsement deleting
the property damage exclusion as to explosion, underground, and collapse
hazards, and shall include thereunder for the mutual benefit of Landlord and
Tenant, bodily injury liability and property damage liability automobile
insurance on any non-owned, hired or leased automotive equipment used in the
construction of any work.
(iii) Workers' Compensation Insurance, or self insurance approved
by the State of California, covering all employees of contractors engaged by
Tenant in the amounts and coverages required under workers' compensation,
disability and similar employee benefit laws applicable to the Premises, and
Employer's Liability Insurance with limits not less than One Million Dollars
($1,000,000) or such higher amounts as may be required by law, covering all
workers employed by any construction manager, contractor or subcontractor.
(c) All construction and other work in connection with any
Alterations shall be done at Tenant's sole cost and expense and in a prudent and
first class manner. Tenant shall construct the Alterations in strict accordance
with all Applicable Laws, and with plans and specifications that are in
accordance with the provisions of this Article 9 and all other provisions of
this Lease. Alterations shall be at least equal in quality to the Tenant
Improvements as initially constructed.
(d) Prior to the commencement of any construction, Alteration,
addition, improvements, repair or landscaping in excess of Ten Thousand Dollars
($10,000), Landlord shall have the right to post in a conspicuous location on
the Premises as well as to record with the County of Santa Clara, a Notice of
Landlord's Nonresponsibility. Tenant covenants and agrees to give Landlord at
least ten (10) days prior written notice of the commencement of any such
construction, alteration, addition, improvement, repair or landscaping in order
that Landlord shall have sufficient time to post such notice.
(e) Tenant shall take all necessary safety precautions during any
construction.
(f) Tenant shall prepare and maintain (i) on a current basis during
construction, annotated plans and specifications showing clearly all changes,
revisions and substitutions during construction, and (ii) upon completion of
construction, as-built drawings showing clearly all changes, revisions and
substitutions during construction, including, without limitation, field changes
and the final location of all mechanical equipment, utility lines, ducts,
outlets, structural members, walls, partitions and other significant features.
These as-built drawings and annotated plans and specifications shall be kept at
the Premises and Tenant shall update them as often as necessary to keep them
current. The as-built drawings and annotated plans and specifications shall be
made available for copying and inspection by Landlord at all reasonable times.
(g) Upon completion of the construction of any Alterations in excess
of Ten Thousand Dollars ($10,000) during the Term, Tenant shall file for
recordation, or cause to be filed for recordation, a notice of completion and
shall deliver to Landlord evidence satisfactory to
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Landlord of payment of all costs, expenses, liabilities and liens arising out of
or in any way connected with such construction (except for liens that are
contested in the manner provided herein).
9.4 Except as provided in Section 9.5, all Alterations, appurtenances,
fixtures, improvements, equipment, additions and other property attached to or
installed in the Premises at the commencement of or during the Term, whether
temporary or permanent in nature, shall immediately be and remain the property
of Landlord and at the end of the Term, all such Alterations, appurtenances,
fixtures, improvements, equipment, additions and other property shall, at
Landlord's option, either remain on the Premises without compensation to Tenant,
or be removed in accordance with Section 9.5. At the request of Tenant,
Landlord will notify Tenant in writing at the time of Landlord's approval
whether or not the proposed Alterations will be required to be removed. Tenant
shall have no obligation to remove any (a) Tenant Improvement Work, or (b) any
Alterations that Landlord has specified in writing would not be required to be
removed.
9.5 All furniture, furnishings, equipment and articles of movable
personal property installed in the Premises by or for the account of Tenant and
not paid for by the Tenant Improvement Allowance (except for ceiling and related
fixtures, HVAC equipment and floor coverings), and which can be removed without
structural or other material damage to the Building (all of which are herein
called "Tenant's Property") shall be and remain the property of Tenant and may
be removed by it at any time during the Term; provided, however, that any
equipment or other property which was paid for by the Tenant Improvement
Allowance or which is a replacement for items originally paid for by the Tenant
Improvement Allowance shall not be considered Tenant's Property. Upon the
Termination Date, Tenant shall have removed from the Premises all of Tenant's
Property except such items as the parties have agreed are to remain and to
become the property of Landlord and, upon the request of Landlord, Tenant, at
its sole cost and expense, shall also remove any Alterations designated by
Landlord to be removed and not previously specified by Landlord as not required
to be removed. Tenant shall repair or pay the cost of repairing any damage to
the Premises or to the Building resulting from such removal. If Tenant fails to
perform such obligations, Landlord, without limitation of any other right or
remedy, may perform such obligations at Tenant's expense and Tenant shall
promptly reimburse Landlord upon demand for all costs and expenses incurred by
Landlord in connection therewith. Tenant's obligations under this Section 9.5
shall survive the termination of this Lease. Any items of Tenant's Property
which shall remain in the Premises after the Termination Date may, at the option
of Landlord, be deemed abandoned and in such case may either be retained by
Landlord as its property or be disposed of, without accountability, at Tenant's
expense in such manner as Landlord may see fit.
10. REPAIRS AND MAINTENANCE
10.1 Landlord will repair and maintain the structural portions of the
Building (the structural elements of the roof, foundation and structural walls),
and the costs of such repair and maintenance shall not be included in Expenses
under Article 6 above. Landlord shall not be liable for any failure to make any
repair or to perform any maintenance which is Landlord's obligation hereunder
unless such failure shall persist for any unreasonable time after written notice
of the need for such repair or maintenance is received by Landlord. There shall
be no abatement of Rent and no liability of Landlord by reason of any injury to
Tenant's business or interference with Tenant's business arising from the making
of any repairs, alterations or improvements to any portion of the Building or to
fixtures, appurtenances and equipment therein.
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10.2 Except as otherwise provided in this Section 10, Tenant shall take
good care of the Premises and keep the Premises in good working order and in a
clean, safe and sanitary condition. Landlord shall assign to Tenant all
warranties obtained in connection with the construction of the Building which
are applicable to Tenant's repair and maintenance obligations under this Lease.
All repairs and replacements by Tenant shall be made and performed: (a) at
Tenant's cost and expense and at such time and in such manner as Landlord may
reasonably designate, (b) by contractors or mechanics approved by Landlord, (c)
so that the same shall be at least equal in quality, value and utility to the
original work or installation, and (d) in a manner and using equipment and
materials that will not interfere with or impair the operations, use or
occupation of the Building Systems or the Building, and (e) in accordance with
the Rules and Regulations adopted by Landlord from time to time and all
Applicable Laws. Tenant hereby waives and releases any right it may have to
make repairs at Landlord's expense under Sections 1941 and 1942 of the
California Civil Code or under any similar law, statute or ordinance now or
hereafter in effect.
10.3 Landlord may elect to perform repairs and maintenance to the Building
Systems and Exterior Areas, in which case, subject to the provisions of Section
6.1 above, all costs of such repair and maintenance shall be included in
Expenses. Landlord shall notify Tenant at least thirty (30) days in advance of
the effective date of Landlord's election, which notice shall state in
reasonable detail those functions which Landlord will elect to perform, which
may include all, or less than all, of the repair and maintenance functions for
the Premises. Landlord will perform the referenced repair and maintenance
functions in accordance with prudent management practices applicable to first
class properties in the vicinity of the Premises.
11. LIENS
Tenant shall keep the Premises free from any liens arising out of any work
performed, material furnished or obligations incurred by or for Tenant. If
Tenant shall not, within ten (10) days following the imposition of any such
lien, cause the lien to be released of record by payment or posting of a proper
bond, Landlord shall have, in addition to all other remedies provided herein and
by law, the right but not the obligation to cause any such lien to be released
by such means as it shall deem proper, including payment of the claim giving
rise to such lien. All such sums paid by Landlord and all expenses incurred by
it in connection therewith (including, without limitation, reasonable counsel
fees) shall be payable to Landlord by Tenant upon demand. Landlord shall have
the right at all times to post and keep posted on the Premises any notices
permitted or required by law or that Landlord shall deem proper for the
protection of Landlord, the Premises, and the Building, from mechanics' and
materialmen's liens.
12. UTILITIES
12.1 Tenant shall be solely responsible for and shall make any and all
arrangements for and shall pay for all utilities and services furnished to or
used at the Premises, including, without limitation, all water, gas,
electricity, telephone and other electronic communications service, sewer
service, waste pick-up and any other utilities, materials or services furnished
directly to the Premises.
12.2 Landlord shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar.
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13. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
13.1 Except as otherwise provided in this Lease, Tenant shall comply with
all Applicable Laws at Tenant's sole cost and expense. Without in any way
limiting the generality of the foregoing obligation of Tenant, except as
expressly provided in attached Exhibit B with respect to the Base Building Work,
---------
Tenant shall be solely responsible for compliance with and shall make or cause
to be made all such improvements and alterations to the Premises (including,
without limitation, removing such barriers and providing such alternative
services) as shall be required by the Americans with Disabilities Act of 1990,
42 USC 12111 et seq. (the "ADA"), and Title 24 of the California Code of
Regulations, as the same may be amended from time to time, or by any similar or
successor law and the rules promulgated thereunder. Tenant's liability shall be
primary and Tenant shall indemnify Landlord in accordance with Section 21.1 in
the event of any failure or alleged failure of Tenant to comply.
Notwithstanding the foregoing, capital improvements to the Building required by
any change in Applicable Laws after the Commencement Date that are not required
as a result of Tenant's operations in the Premises or the Alterations, additions
and improvements made by Tenant to the Premises, or by the acts, omissions or
negligence of Tenant or Tenant's Agents, shall be performed by Landlord and the
cost of such capital improvements shall be included in Expenses as provided in
Article 6 above. Any work or installations made or performed by or on behalf of
Tenant or any person or entity claiming through or under Tenant pursuant to the
provisions of this Article 13 shall be made in conformity with and subject to
the provisions of Article 9.
13.2 Tenant shall not do anything, or permit anything to be done, in or
about the Premises that would: (a) invalidate or be in conflict with the
provisions of or cause any increase in the applicable rates for any fire or
other insurance policies covering the Building or any property located therein,
or (b) result in a refusal by fire insurance companies of good standing to
insure the Building or any such property in amounts reasonably satisfactory to
Landlord, or (c) subject Landlord to any liability or responsibility for injury
to any person or property by reason of any business operation being conducted in
the Premises. Tenant, at Tenant's expense, shall comply with all rules, orders,
regulations or requirements of the American Insurance Association (formerly the
National Board of Fire Underwriters) and with any similar body that shall
hereafter perform the function of such Association.
14. SUBORDINATION
Without the necessity of any additional documentation, this Lease shall be
subject and subordinate at all times to: (a) all reciprocal easement
agreements, and any ground leases or underlying leases which may now exist or
hereafter be executed affecting any or all of the Building (provided that
Landlord agrees not to enter into any easement agreement that would materially
interfere with Tenant's access to the Premises or use of Tenant's parking area),
and (b) the lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the Building, the ground leases or
underlying leases, or Landlord's interest or estate in any of said items, is
specified as security. As of the date hereof, the Premises are not encumbered
with any mortgage or deed of trust. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated to this Lease
any of the items referred to in clause (a) or (b) above. In the event that any
ground lease or underlying lease terminates for any reason or any mortgage or
deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, (i) no person or entity which as a result of the foregoing succeeds
to the interest of the Landlord under the Lease, (any such person or entity
being herein referred to as a "Successor") shall be liable for any default by
Landlord or any other matter that occurred prior to the date such Successor
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succeeded to Landlord's interest in this Lease, and (ii) Tenant shall,
notwithstanding any subordination, attorn to and become the tenant of the
Successor, at the option of such Successor. The provisions of this Article 14
shall be self-operative and no further instrument shall be required. Tenant
covenants and agrees, however, to execute and deliver, upon demand by Landlord
and in the form requested by Landlord and reasonably acceptable to Tenant, any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases, underlying leases, reciprocal easement
agreements or similar documents or instruments, or with respect to the lien of
any such mortgage or deed of trust and Tenant's failure to execute and deliver
any such document within ten (10) business days after such demand by Landlord
shall constitute an Event of Default under this Lease. Notwithstanding the
foregoing, Tenant shall not be required to effectuate such subordination unless
the mortgagee or trustee named in such mortgage, deed of trust or other
encumbrance or the parties to such ground or underlying lease, shall first agree
in writing, for the benefit of Tenant, that so long as Tenant is not in default
under any of the provisions, covenants or conditions of this Lease on the part
of Tenant to be kept and performed beyond any applicable cure periods, that
neither this Lease nor any of Tenant's rights hereunder shall be terminated or
modified or be subject to termination or modification, nor shall Tenant's
possession of the Premises be disturbed or interfered with, by any trustee's
sale or by an action or proceeding to foreclose said mortgage, deed of trust or
other encumbrance or termination of such ground or underlying lease. Should a
lender or prospective lender providing financing for the Building, or a
prospective purchaser of the Building require financial statements relating to
Tenant, Tenant shall submit to such lender or prospective lender or purchaser
any such financial statements, and shall keep such reports current so long as
such lender or prospective lender or purchaser shall require, provided that
Tenant shall not be required to produce any financial statements that Tenant
does not prepare and maintain in the normal course of its business. Landlord
agrees to use its reasonable efforts to maintain the confidentiality of all
information regarding Tenant's business obtained pursuant to this Article 14.
15. LANDLORD'S INABILITY TO PERFORM
If Landlord is unable to perform, or is delayed in performing, any
construction, installations, decorations, repairs, alterations, additions or
improvements, under this Lease, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this Lease, by reason of
acts of God, accidents, breakage, repairs, strikes, lockouts, other labor
disputes, inability to obtain utilities or materials or by any other reason
beyond Landlord's reasonable control, then no such inability or delay by
Landlord shall constitute an actual or constructive eviction, in whole or in
part, or entitle Tenant to any abatement or diminution of Base Rent or
Additional Rent, or relieve Tenant from any of its obligations under this Lease,
or impose any liability upon Landlord or its agents by reason of inconvenience,
annoyance, interruption, injury or loss to or interference with Tenant's
business or use and occupancy or quiet enjoyment of the Premises or any loss or
damage occasioned thereby. Tenant hereby waives and releases any right to
terminate this Lease under Section 1932(1) of the California Civil Code or under
any similar law, statute or ordinance now or hereafter in effect.
16. DESTRUCTION
16.1 If the Building or any portion thereof is damaged by fire or other
casualty, Landlord shall forthwith repair the same (including the Tenant
Improvement Work and any Tenant's Alterations that, pursuant to Section 9.4,
Landlord has specified would not be required to be removed) provided that such
repairs can be made under the laws and regulations of the federal, state and
local governmental authorities having jurisdiction thereof within nine (9)
months after the date
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of such damage (or in the case of damage occurring during the last twenty-four
(24) months of the Term, provided that such repairs can be made within ninety
(90) days after the date of such damage) and are fully covered (except for any
deductible) by proceeds of insurance required to be maintained by Landlord
pursuant to Section 21.7 hereof (or would be covered except for the fact that
Landlord is self-insured), and, in the case of damage resulting from earthquake,
the cost of such repairs that is not fully covered by insurance proceeds or by
Landlord's self-insurance program does not exceed five percent (5%) of the
replacement cost of the Building. In such event, this Lease shall remain in full
force and effect except that Tenant shall be entitled to a proportionate
reduction of Base Rent and Tenant's obligation to pay Real Estate Taxes and
Expenses from the date of such casualty and during the period such repairs are
being made by a proportionate amount based upon the extent of interference with
Tenant's operations in the Premises. As soon as reasonably practicable but in
any event within sixty (60) days after the date of such damage, Landlord shall
notify Tenant whether or not the aforesaid requirements are met. If such
requirements are not met, Landlord shall have the option, exercisable within
sixty (60) days after the date of such damage either to: (a) notify Tenant of
Landlord's intention to repair such damage, in which event this Lease shall
continue in full force and effect (unless terminated by Tenant pursuant to
Section 16.2 below); Landlord shall diligently prosecute such repairs to
completion, and the Base Rent Real Estate Taxes and Expenses shall be reduced as
provided herein; or (b) notify Tenant of Landlord's election to terminate this
Lease as of a date specified in such notice, which date shall be not less than
thirty (30) nor more than sixty (60) days after notice is given. If such notice
to terminate is given by Landlord, this Lease shall terminate on the date
specified in such notice, unless Tenant elects within thirty (30) days (by
giving written notice to Landlord) to pay for any costs not covered by
insurance, in which case this Lease shall continue, Landlord shall make the
repairs and Tenant shall reimburse Landlord upon demand for all excess costs of
repair not covered by insurance.
16.2 If the Building is damaged by fire or other casualty to such extent
that the Premises are rendered inaccessible or substantially unusable by Tenant
for the conduct of its operations, and Landlord has not exercised its right to
terminate this Lease, and Landlord has notified Tenant that the necessary
repairs thereof cannot be completed within twelve (12) months (or in the case of
damage occurring in the last twelve (12) months of the Term, within sixty (60)
days), then Tenant shall have the option, exercisable within fifteen (15) days
after receipt of Landlord's notice, to terminate this Lease as of a date
specified in such notice which shall not be more than sixty (60) days after such
notice is given. If such notice to terminate is given by Tenant, this Lease
shall terminate on the date specified in such notice.
16.3 In case of termination pursuant to Sections 16.1 or 16.2 above, the
Base Rent, Real Estate Taxes and Expenses shall be reduced by a proportionate
amount based upon the extent to which such damage interfered with the business
carried on by Tenant in the Premises, and Tenant shall pay such reduced Base
Rent and Real Estate Taxes and Expenses up to the date of termination. Landlord
agrees to refund to Tenant any Base Rent and Additional Rent previously paid for
any period of time subsequent to such date of termination or otherwise in excess
of the amount due hereunder. The repairs to be made hereunder by Landlord shall
not include, and Landlord shall not be required to repair: (a) any damage by
fire or other cause to Tenant's Property or any Alterations (other than any
Alterations that, pursuant to Section 9.4, Landlord has specified would not be
required to be removed), or (b) any uninsured damage caused by the negligence of
Tenant, its contractors, agents, licensees or employees, which is of a type that
would not be covered by the insurance described in Section 21.7, or (c) any
repairs or replacements of any paneling, decorations, railings, floor coverings,
fixtures or other improvements installed on the Premises by or at the expense of
Tenant.
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16.4 If Landlord elects or is required hereunder to repair, reconstruct or
restore the Premises after any damage or destruction thereto, Tenant shall be
responsible for, at its own expense and at its election, the repair and
replacement of Tenant's Property (or comparable improvements approved by
Landlord) and any Alterations (other than any Alterations that, pursuant to
Section 9.4, Landlord has specified would not be required to be removed).
Tenant hereby waives the provisions of Section 1932(2) and Section 1933(4) of
the California Civil Code, or any other statute or law that may be in effect at
the time of the occurrence of any such damage or destruction, under which a
lease is automatically terminated or a tenant is given the right to terminate a
lease upon such an occurrence.
16.5 Tenant shall have no interest in or claim to any portion of the
proceeds of any insurance or self-insurance maintained by Landlord. If Landlord
is entitled and elects not to rebuild the Building hereunder or if this Lease
terminates pursuant to Section 16.1 or 16.2, Landlord shall relinquish to Tenant
such claim as Landlord may have for any part of the proceeds of any insurance
maintained by Tenant under Section 21.2(b) of this Lease. Except as otherwise
provided herein, Landlord shall have no interest in or claim to any portion of
the proceeds of any insurance maintained by Tenant under Section 21.2(b).
16.6 If Landlord is required or elects to make any repairs, reconstruction
or restoration of any damage or destruction to the Building under any of the
provisions of this Article 16, Tenant shall not be entitled to any damages by
reason of any inconvenience or loss sustained by Tenant as a result thereof.
During the period commencing with the date of any such damage or destruction
that Landlord is required or elects hereunder to repair, reconstruct or restore,
and ending with the completion of such repairs, reconstruction or restoration
the Base Rent, Real Estate Taxes and Expenses shall be proportionately reduced
based upon the extent to which such damage and the making of such repairs by
Landlord shall interfere with the business carried on by Tenant in the Premises.
The full amount of Base Rent, Real Estate Taxes and Expenses shall again become
payable immediately upon the completion of such work of repair, reconstruction
or restoration. Except as expressly hereinabove provided, there shall be no
reduction, change or abatement of any rental or other charge payable by Tenant
to Landlord hereunder, or in the method of computing, accounting for or paying
the same.
17. EMINENT DOMAIN
17.1 If all or any part of the Premises shall be taken as a result of the
exercise of the power of eminent domain or any transfer in lieu thereof, this
Lease shall terminate as to the part so taken as of the date of taking, and, in
the case of a partial taking of the Premises, either Landlord or Tenant shall
have the right to terminate this Lease as to the balance of the Premises by
written notice to the other within thirty (30) days after such date, provided,
however, that a condition to the exercise by Tenant of such right to terminate
shall be that the portion of the Premises taken shall be of such extent and
nature as substantially to handicap, impede or impair Tenant's use of the
balance of the Premises. If any material part of the Exterior Areas shall be
taken as a result of the exercise of the power of eminent domain or any transfer
in lieu thereof, whether or not the Premises are affected, Landlord shall have
the right to terminate this Lease by written notice to Tenant within thirty (30)
days of the date of taking. If any material part of the Exterior Areas shall be
taken as a result of the exercise of the power of eminent domain or any transfer
in lieu thereof, such that Tenant's access to or use of the Premises is
materially adversely affected, Tenant shall have the right to terminate this
Lease by written notice to Landlord within thirty (30) days of the date of
taking. In the event of any taking, Landlord shall be entitled to any and all
compensation, damages, income,
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rent, awards, or any interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease or otherwise; provided that Landlord
shall have no claim to any portion of the award that is specifically allocable
to Tenant's relocation expenses or the interruption of or damage to Tenant's
business. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, the Base Rent thereafter to be paid shall be
adjusted as follows:
(a) During the period between the date of such actual taking and the
completion of said repairs, reconstruction or restoration, Tenant shall be
entitled to a reduction of Base Rent, Real Estate Taxes and Expenses by a
proportionate amount based upon the extent of interference with Tenant's
operations in the Premises.
(b) Upon completion of said repairs, reconstruction or restoration,
and thereafter throughout the remainder of the Lease Term, the Base Rent shall
be recalculated based on the remaining total number of square feet of Rentable
Area of the Premises.
(c) A voluntary sale by Landlord of all or any part of the Building or
the Exterior Areas to any public or quasi-public body, agency or person,
corporate or otherwise, having the power of eminent domain, either under threat
of condemnation or while condemnation proceedings are pending, shall be deemed
to be a taking under the power of eminent domain for the purposes of this
Article 17.
17.2 Notwithstanding any other provision of this Article 17, if a taking
occurs with respect to all or any portion of the Premises for a period of twelve
months or less, this Lease shall remain unaffected thereby and Tenant shall
continue to pay Base Rent and Additional Rent and to perform all of the terms,
conditions and covenants of this Lease, provided that Tenant shall have the
right to terminate this Lease if the taking continues beyond twelve months. In
the event of any such temporary taking, and if this Lease is not terminated,
Tenant shall be entitled to receive that portion of any award which represents
compensation for the use or occupancy of the Premises during the Term up to the
total Base Rent and Additional Rent owing by Tenant for the period of the
taking, and Landlord shall be entitled to receive the balance of any award.
17.3 Tenant hereby waives and releases any right to terminate this Lease in
whole or in part under Sections 1265.120 and 1265.130 of the California Code of
Civil Procedure or under any similar law, statute or ordinance now or hereafter
in effect.
18. ASSIGNMENT AND SUBLETTING
18.1 Tenant shall not directly or indirectly (including, without
limitation, by merger, acquisition, or other transfer of any controlling
interest in Tenant), voluntarily or by operation of law, sell, assign, encumber,
pledge or otherwise transfer or hypothecate all or any part of its interest in
or rights with respect to the Premises or its leasehold estate hereunder
(collectively, "Assignment"), or permit all or any portion of the Premises to be
occupied by anyone other than itself or sublet all or any portion of the
Premises (collectively, "Sublease") without Landlord's prior written consent in
each instance, as provided herein below, which consent, subject to the remaining
provisions of this Article 18, shall not be unreasonably withheld. A
"partnering" arrangement which does not entitle a third party to exclusive
possession of any portion of the Premises to the exclusion of Tenant or a
permitted Transferee, and is not otherwise intended to circumvent the provisions
of this Article 18, shall not be considered a Sublease of the Premises.
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18.2 If Tenant desires to enter into an Assignment of this Lease or a
Sublease of the Premises or any portion thereof, it shall give written notice
(herein called "Notice of Proposed Transfer") to Landlord of its intention to do
so, which notice shall contain (i) the name and address of the proposed
assignee, subtenant or occupant ("Transferee"), (ii) the nature of the proposed
Transferee's business to be carried on in the Premises (including a description
of any proposed Environmental Activity), (iii) the terms and provisions of the
proposed Assignment or Sublease and (iv) such financial information as Landlord
may reasonably request concerning the proposed Transferee. Without limitation
of any other provision hereof, it shall not be unreasonable for Landlord to
withhold its consent if (i) an Event of Default has occurred and has not been
cured within the applicable cure period, (ii) the use of the Premises would not
comply with the provisions of this Lease, or (iii) in Landlord's judgment, the
proposed Transferee does not have the financial capability to perform its
obligations under the Lease. Notwithstanding the foregoing, Landlord's consent
to a Sublease will not be withheld solely because the Transferee is a service
firm rather than a research and development company, and the use restriction of
Section 7.1 shall not apply to an otherwise acceptable Sublease.
18.3 Landlord shall use reasonable efforts to respond to Tenant's request
for approval within thirty (30) days after receipt of the Notice of Proposed
Transfer. If Landlord approves the proposed Assignment or Sublease, Tenant may,
not later than ninety (90) days thereafter, enter into such Assignment or
Sublease with the proposed Transferee upon the terms and conditions set forth in
the Notice of Proposed Transfer. Fifty percent (50%) of the Excess Rent
received by Tenant shall be paid to Landlord as and when received by Tenant;
provided that Tenant shall not be required to pay any Excess Rent to Landlord on
any Sublease during the first six (6) years of the Term. For purposes hereof
"Excess Rent" means any rent or other consideration received by Tenant in excess
of (i) the Base Rent and Additional Rent payable hereunder (or the amount
thereof proportionate to the portion of the Premises subject to such Sublease in
the case of a sublease of a portion of the Premises), (ii) reasonable brokerage
commissions incurred in connection with such Sublease or Assignment, (iii)
tenant improvement costs that are recouped through rent charged to the
Transferee, and (iv) Tenant's legal fees in connection with the Assignment or
Sublease.
18.4 In addition to Landlord's other rights hereunder, (a) Landlord shall
have the right at any time within thirty (30) days after Landlord's receipt of
the Notice of Proposed Transfer with respect to any proposed Assignment, other
than an assignment to a related entity described in Section 18.6, by written
notice to Tenant, to elect to terminate this Lease, and (b) during the Renewal
Term, Landlord shall have the rights stated in subsection (a) with respect to
either a proposed Assignment (other than to a related entity described in
Section 18.6) or a proposed Sublease. If Landlord elects to terminate the Lease
pursuant hereto, Landlord shall be entitled to enter into a lease with respect
to the Premises (or portion thereof specified in said Notice of Proposed
Transfer) with the proposed Transferee identified in Tenant's notice.
18.5 No Sublease or Assignment by Tenant nor any consent by Landlord
thereto shall relieve Tenant of any obligation to be performed by Tenant under
this Lease. Any Sublease or Assignment that is not in compliance with this
Article 18 shall be null and void and, at the option of Landlord, shall
constitute a noncurable default by Tenant under this Lease and Landlord shall be
entitled to pursue any right or remedy available to Landlord under the terms of
this Lease or under the laws of the State of California. The acceptance of any
Rent or other payments by Landlord from a proposed Transferee shall not
constitute consent to such Sublease or Assignment by Landlord or a recognition
of any Transferee, or a waiver by Landlord of any failure of Tenant or other
transferor to comply with this Article 18.
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18.6 Notwithstanding anything in this Article 18 to the contrary, but
subject to the provisions of Section 18.7 below, Landlord's prior written
consent shall not be required, and Section 18.4 shall not apply, for a transfer
of corporate shares by bequest or inheritance between or among the present
majority stockholders of Tenant, to their immediate family, or any trust created
for the benefit of such immediate family member or members; or any Assignment of
this Lease to any of the following: (i) a subsidiary, affiliate, division or
corporation which controls, is controlled by, or which is under common control
with Tenant; (ii) a successor corporation related to Tenant by merger,
consolidation, or non-bankruptcy reorganization, (iii) a purchaser of
substantially all of Tenant's assets, or (iv) in the case of a public offering
of the stock of Tenant, the purchasers of Tenant's capital stock; provided that
after such assignment or transfer the operation of the business conducted in the
Premises shall be in the manner required by this Lease. For purposes of the
preceding sentence, the term "control" means owning directly or indirectly fifty
percent (50%) or more of the beneficial interest in such entity, or having the
direct or indirect power to control the management policies of such person or
entity, whether through ownership, by contract or otherwise. Tenant agrees to
inform Landlord in writing within thirty (30) days of any Assignment or other
transfer referred to in this Section 18.6.
18.7 With respect to any Assignment, any Transferee approved by Landlord
shall, from and after the effective date of the Assignment, assume all
obligations of Tenant under this Lease and shall be and remain liable jointly
and severally with Tenant for the payment of Rent and Additional Rent, and for
the performance of all of the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the Term. No Assignment shall be
binding on Landlord unless Tenant or Transferee shall deliver to Landlord a
counterpart of the Assignment and an instrument that contains a covenant of
assumption by such Transferee satisfactory in substance and form to Landlord,
and consistent with the requirements of this Section 18.7. Any failure or
refusal of such Transferee to execute such instrument of assumption shall
constitute a default under this Lease but shall not release or discharge such
Transferee from its liability as set forth above.
19. DEFAULT
19.1 The occurrence of any of the following shall be an Event of Default on
the part of Tenant hereunder:
(a) Failure to pay any part of the Base Rent or Additional Rent herein
reserved, or any other sums of money that Tenant is required to pay hereunder at
the times or in the manner herein provided, when such failure shall continue for
a period of five (5) days after written notice thereof from Landlord to Tenant;
any such notice shall be deemed to be the notice required under California Code
of Civil Procedure Section 1161; provided, however, that Landlord shall not be
required to provide Tenant with such notice more than twice in any calendar year
and any such failure by Tenant during such calendar year after Tenant has
received two such prior notices shall constitute an Event of Default.
(b) Failure to perform any nonmonetary provision of this Lease when
such failure shall continue for a period of thirty (30) days, or such other
period as is expressly set forth herein, after written notice thereof from
Landlord to Tenant; any such notice shall be deemed to be the notice required
under California Code of Civil Procedure Section 1161; provided that if the
nature of the default is such that more than thirty (30) days are reasonably
required for its cure, then an Event of Default shall not be deemed to have
occurred if Tenant shall commence such cure within said thirty (30) day period
and thereafter diligently and continuously prosecute such cure to
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completion. No such notice shall be deemed a forfeiture or a termination of this
Lease unless Landlord expressly so elects in such notice.
(c) The vacation of the Premises for a period of thirty consecutive
days or more except in connection with repair or restoration undertaken in
accordance with Articles 9 or 16 of this Lease, or the abandonment of the
Premises.
(d) Tenant shall admit in writing its inability to pay its debts
generally as they become due, file a petition in bankruptcy, insolvency,
reorganization, dissolution or liquidation under any law or statute of any
government or any subdivision thereof either now or hereafter in effect, make an
assignment for the benefit of its creditors, consent to or acquiesce in the
appointment of a receiver of itself or of the whole or any substantial part of
the Premises.
(e) A court of competent jurisdiction shall enter an order, judgment
or decree appointing a receiver of Tenant or of the whole or any substantial
part of the Premises and such order, judgment or decree shall not be vacated,
set aside or stayed within forty-five (45) days after the date of entry of such
order, judgment, or decree, or a stay thereof shall be thereafter set aside.
(e) A court of competent jurisdiction shall enter an order, judgment
or decree approving a petition filed against Tenant under any bankruptcy,
insolvency, reorganization, dissolution or liquidation law or statute of the
Federal government or any state government or any subdivision of either now or
hereafter in effect, and such order, judgment or decree shall not be vacated,
set aside or stayed within forty-five (45) days from the date of entry of such
order, judgment or decree, or a stay thereof shall be thereafter set aside.
19.2 Upon the occurrence of an Event of Default, Landlord shall have the
following rights and remedies:
(a) The right to terminate this Lease, in which event Tenant shall
immediately surrender possession of the Premises in accordance with Article 40,
and pay to Landlord all Base Rent, Additional Rent and other charges and amounts
due from Tenant hereunder to the date of termination.
(b) The rights and remedies described in California Civil Code Section
1951.2, including without limitation, the right to recover the worth at the time
of award of the amount by which the Base Rent, Additional Rent and other charges
payable hereunder for the balance of the Term after the time of award exceed the
amount of such rental loss for the same period that Tenant proves could be
reasonably avoided, as computed pursuant to subdivision (b) of said Section
1951.2, and the right to recover any amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom which, without limiting the generality of the
foregoing, includes unpaid taxes and assessments, any direct costs or expenses
incurred by Landlord in recovering possession of the Premises, maintaining or
preserving the Premises after such default, preparing the Premises for reletting
to a new tenant, any repairs or alterations to the Premises for such reletting,
leasing commissions, architect's fees and any other costs necessary or
appropriate either to relet the Premises or, if reasonably necessary in order to
relet the Premises, to adapt them to another beneficial use by Landlord and such
amounts in addition to or in lieu of the foregoing as may be permitted from time
to time by applicable California law.
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(c) The rights and remedies described in California Civil Code Section
1951.4 that allow Landlord to continue this Lease in effect and to enforce all
of its rights and remedies under this Lease, including the right to recover Base
Rent, Additional Rent and other charges payable hereunder as they become due,
for so long as Landlord does not terminate Tenant's right to possession. Acts
of maintenance or preservation, efforts to relet the Premises or the appointment
of a receiver upon Landlord's initiative to protect its interest under this
Lease shall not constitute a termination of Tenant's right to possession.
(d) The right and power, as attorney in fact for Tenant, to enter and
to sublet the Premises, to collect rents from all subtenants and to provide or
arrange for the provision of all services and fulfill all obligations of Tenant
under any permitted subleases and Landlord is hereby authorized on behalf of
Tenant, but shall have absolutely no obligation, to provide such services and
fulfill such obligations and to incur all such expenses and costs as Landlord
deems necessary in connection therewith. Tenant shall be liable immediately to
Landlord for all direct costs and expenses Landlord reasonably incurs in
collecting such rents and arranging for or providing such services or fulfilling
such obligations. Landlord is hereby authorized, but not obligated, to relet
the Premises or any part thereof on behalf of Tenant, to incur such expenses as
may be necessary to effect a relet and make said relet for such term or terms,
upon such conditions and at such rental as Landlord in its sole discretion may
deem proper. Tenant shall be liable immediately to Landlord for all reasonable
costs Landlord incurs in reletting the Premises including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by the
reletting. If Landlord relets the Premises or any portion thereof, such
reletting shall not relieve Tenant of any obligation hereunder, except that
Landlord shall apply the rent or other proceeds actually collected by it as a
result of such reletting against any amounts due from Tenant hereunder to the
extent that such rent or other proceeds compensate Landlord for the
nonperformance of any obligation of Tenant hereunder. Such payments by Tenant
shall be due at such times as are provided elsewhere in this Lease, and Landlord
need not wait until the termination of this Lease, by expiration of the Term
hereof or otherwise, to recover them by legal action or in any other manner.
Landlord may execute any lease made pursuant hereto in its own name, and the
Tenant thereunder shall be under no obligation to see to the application by
Landlord of any rent or other proceeds, nor shall Tenant have any right to
collect any such rent or other proceeds. Landlord shall not by any reentry or
other act be deemed to have accepted any surrender by Tenant of the Premises or
Tenant's interest therein, or be deemed to have otherwise terminated this Lease,
or to have relieved Tenant of any obligation hereunder, unless Landlord shall
have given Tenant express written notice of Landlord's election to do so as set
forth herein.
(e) The right to have a receiver appointed upon application by
Landlord to take possession of the Premises and to collect the rents or profits
therefrom and to exercise all other rights and remedies pursuant to Section
19.2(d).
(f) The right to enjoin, and any other remedy or right now or
hereafter available to a Landlord against a defaulting Tenant under the laws of
the State of California or the equitable powers of its courts, and not otherwise
specifically reserved herein.
19.3 Except as otherwise expressly provided in this Article 19, Tenant
hereby expressly waives, so far as permitted by law, the service of any notice
of intention to enter or re-enter provided for in any statute, or of the
institution of legal proceedings to that end, and Tenant, for and on behalf of
itself and all persons claiming through or under Tenant, also waives any right
of redemption or relief from forfeiture under California Code of Civil Procedure
Sections 1174 or 1179, or under any
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other present or future law, if Tenant is evicted or Landlord takes possession
of the Premises by reason of any Event of Default.
19.4 The various rights and remedies reserved to Landlord herein, including
those not specifically described herein, shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease or now or
hereafter existing at law or in equity and the exercise of the rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity shall not preclude the simultaneous or later exercise by Landlord of any
or all other rights and remedies.
20. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS
If Tenant shall fail or neglect to do or perform any act or thing herein
provided by it to be done or performed and such failure shall not be cured
within any grace period provided herein, then Landlord may, but shall not be
required to, make any payment payable by Tenant hereunder, discharge any lien,
take out, pay for and maintain any insurance required hereunder, or do or
perform or cause to be done or performed any such other act or thing (entering
upon the Premises for such purposes, if Landlord shall so elect), and Landlord
shall not be or be held liable or in any way responsible for any loss,
disturbance, inconvenience, annoyance or damage resulting to Tenant on account
thereof, and Tenant shall repay to Landlord upon demand the entire reasonable
cost and expense thereof, including, without limitation, compensation to the
agents, consultants and contractors of Landlord and reasonable attorneys' fees
and expenses. Landlord may act upon shorter notice or no notice at all if
necessary in Landlord's reasonable judgment to meet an emergency situation or
governmental or municipal time limitation or to protect Landlord's interest in
the Premises. Landlord shall not be required to inquire into the correctness of
the amount or validity of any tax or lien that may be paid by Landlord and
Landlord shall be duly protected in paying the amount of any such tax or lien
claimed and in such event Landlord also shall have the full authority, in
Landlord's sole judgment and discretion and without prior notice to or approval
by Tenant, to settle or compromise any such lien or tax. Any act or thing done
by Landlord pursuant to the provisions of this Article shall not be or be
construed as a waiver of any such default by Tenant, or as a waiver of any term,
covenant, agreement or condition herein contained or of the performance thereof.
21. INDEMNITY; INSURANCE
21.1 Tenant shall indemnify, protect, defend (with attorneys approved by
Landlord), and save and hold Landlord, and its trustees, directors, officers,
agents and employees, harmless, from and against any and all losses, costs,
liabilities, claims, damages and expenses, including, without limitation,
reasonable attorneys' fees and costs including Landlord's in-house counsel, and
reasonable investigation costs, incurred in connection with or arising from:
(a) any default by Tenant in the observance or performance of any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, or (b) the use or occupancy or manner of use or occupancy of the
Premises, or (c) any occurrence on the Premises from any cause whatsoever,
except to the extent caused by the active negligence or willful misconduct of
Landlord, Landlord's Agents, or Landlord's breach of its obligations under this
Lease, or (d) any acts or omissions or negligence of Tenant or of Tenant's
Agents, in, on or about the Building or the Exterior Areas. In case any claim,
action or proceeding be brought, made or initiated against Landlord relating to
any matter covered by Tenant's indemnification obligations under this Section
21.1 or under Section 24.3 below, Tenant, upon notice from Landlord, shall at
its sole cost and expense, resist or defend such claim, action or proceeding by
attorneys reasonably approved by Landlord. Notwithstanding
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the foregoing, and provided Tenant's insurance carrier consents, Landlord may
retain its own attorneys to defend or assist in defending any claim, action or
proceeding involving potential liability of Five Million Dollars ($5,000,000) or
more, and Tenant shall pay the reasonable fees and disbursements of such
attorneys. Tenant's obligations under this Section 21.1 shall survive the
expiration or earlier termination of this Lease with respect only to events
occurring prior to such expiration or earlier termination.
21.2 Tenant shall procure at its sole cost and expense and keep in effect
during the Term:
(a) commercial general liability insurance applying to the use and
occupancy of the Premises and the Building and any part thereof. Such insurance
shall include broad form contractual liability insurance coverage insuring
Tenant's obligations under this Lease. Such coverage shall have a minimum
combined single limit of liability of not less than three million dollars
($3,000,000.00). All such policies shall be written to apply to all bodily
injury, property damage, personal injury and other covered loss, however
occasioned occurring during the policy term, with at least the following
endorsements to the extent such endorsements are generally available: (i)
including employees as additional insureds, (ii) providing broad form property
damage coverage and products completed operations coverage (where applicable),
and (iii) providing for coverage of owned and non-owned automobile liability, if
applicable. Such insurance shall name Landlord and any other party designated
by Landlord as an additional insured, shall specifically include the liability
assumed hereunder by Tenant, shall provide that it is primary insurance, shall
provide for severability of interests, shall further provide that an act or
omission of one of the named insureds which would void or otherwise reduce
coverage shall not reduce or void the coverage as to any insured, shall afford
coverage for claims based on acts, omissions, injury or damage which occurred or
arose (or the onset of which occurred or arose in whole or in part during the
policy period, and shall provide that Landlord will receive thirty (30) days'
written notice from the insurer prior to any cancellation or material change of
coverage;
(b) standard fire and extended perils insurance, including sprinkler
leakages, vandalism and malicious mischief and plate glass damage covering all
the items specified as "Tenant's Property" herein and property of every
description including stock-in-trade, furniture, fittings, installations,
alterations, additions, partitions and fixtures or anything in the nature of a
leasehold improvement made or installed by or on behalf of the Tenant (but not
including the Tenant Improvement Work or any Tenant's Alterations that, pursuant
to Section 9.4, Landlord has specified would not be required to be removed) in
an amount of not less than one hundred percent (100%) of the full replacement
cost thereof as shall from time to time be determined by Tenant in form
satisfactory to Landlord;
(c) Worker's Compensation Insurance in the amounts and coverages
required under worker's compensation, disability and similar employee benefit
laws applicable to the Premises and Employer's Liability Insurance, with limits
of not less than one million dollars ($1,000,000) or such higher amounts as may
be required by law; and
(d) any other form or forms of insurance as Landlord may reasonably
require from time to time in amounts and for insurable risks against which a
prudent tenant would protect itself.
21.3 All policies of insurance provided for herein shall be issued by
insurance companies with general policyholders' rating of not less than (VII)
and a financial rating of B+ as rated in the
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most current available "Best's Insurance Reports," and qualified to do business
in the State of California, and shall, with the exception of Workers
Compensation Insurance, include as additional insureds Landlord, and such other
persons or firms as Landlord specifies from time to time. Such policies shall be
for the mutual and joint benefit and protection of Landlord, Tenant and others
hereinabove mentioned, and executed copies of such policies of insurance or
certificates thereof shall be delivered to Landlord within ten (10) days prior
to the delivery of possession of the Premises to Tenant and thereafter within
thirty (30) days prior to the expiration of the term of such policy. All
commercial general liability and property damage policies shall contain a
provision that Landlord and any other additional insured, although named as
additional insureds, shall nevertheless be entitled to recover under said
policies for a covered loss occasioned by it, its servants, agents and
employees, by reason of Tenant's negligence. As often as any policy shall expire
or terminate, renewal or additional policies shall be procured and maintained by
Tenant in like manner and to like extent. All such policies of insurance shall
provide that the company writing said policy will give to Landlord thirty (30)
days notice in writing in advance of any cancellation or lapse or of the
effective date of any reduction in the amounts of insurance. All commercial
general liability, property damage and other casualty policies shall be written
on an occurrence basis. Landlord's coverage shall not be contributory.
21.4 Should Tenant fail to take out and keep in force each insurance policy
required under this Article 21, or should such insurance not be approved by
Landlord and should the Tenant not rectify the situation within forty-eight (48)
hours after written notice from Landlord to Tenant, Landlord shall have the
right, without assuming any obligation in connection herewith, to effect such
insurance at the sole cost of Tenant, and all outlays by the Landlord shall be
immediately payable by the Tenant to the Landlord as Additional Rent without
prejudice to any other rights and remedies of Landlord under this Lease.
21.5 Notwithstanding anything to the contrary contained herein, to the
extent permitted by their respective policies of insurance and to the extent of
insurance proceeds received with respect to the loss, Landlord and Tenant each
hereby waive any right of recovery against the other party and against any other
party maintaining a policy of insurance with respect to the Building or any
portion thereof or the contents of any of the same, as well as the successors,
subtenants and assigns of the respective parties, for any loss or damage
maintained by such other party with respect to the Building or the Premises or
any portion thereof or the contents of the same or any operation therein,
whether or not such loss is caused by the fault or negligence of such other
party. Either party shall notify the other party if the policy of insurance
carried by it does not permit the foregoing waiver. If any policy of insurance
relating to the Premises carried by Tenant does not permit the foregoing waiver
or if the coverage under any such policy would be invalidated as a result of
such waiver, Tenant shall, if possible, obtain from the insurer under such
policy a waiver of all rights of subrogation the insurer might have against
Landlord or any other party maintaining a policy of insurance covering the same
loss, in connection with any claim, loss or damage covered by such policy. The
waiver made by Landlord in this Section 21.5 shall apply whether or not Landlord
maintains third-party insurance.
21.6 No approval by Landlord of any insurer, or the terms or conditions of
any policy, or any coverage or amount of insurance, or any deductible amount
shall be construed as a representation by Landlord of the solvency of the
insurer or the sufficiency of any policy or any coverage or amount of insurance
or deductible and Tenant assumes full risk and responsibility for any inadequacy
of insurance coverage or any failure of insurers.
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21.7 Landlord shall maintain in effect, either (1) provided it is
obtainable, a policy or policies of property insurance or (2) a program of self
insurance, in each case covering loss or damage to the Building (including the
Tenant Improvement Work and any Tenant's Alterations that, pursuant to Section
9.4, Tenant will not be required to remove), including fire and extended
coverage, vandalism, malicious mischief, special extended perils (all risk) and,
if obtainable at commercially reasonable rates, in Landlord's discretion,
earthquake in the amount of at least ninety percent (90%) of the insurable
replacement cost thereof, less such deductible amounts as Landlord may
reasonably determine, and the cost thereof shall be included in Expenses. Such
insurance may also include coverage for loss of Rent from the Building for up to
twelve (12) months. Nothing herein shall require Landlord to carry any
insurance with respect to risks or property required to be insured by Tenant
under this Lease. Landlord shall provide Tenant with certificates or other
reasonably satisfactory evidence of the maintenance of the insurance described
herein, including a description, if applicable, of the coverages maintained
under any self-insurance program.
21.8 If either party shall at any time deem the limits of any of insurance
required hereunder to either excessive or insufficient, the parties shall
endeavor to agree upon the proper and reasonable limits for such insurance then
carried and such insurance shall thereafter be carried with the limits thus
agreed upon until further change pursuant to the provisions of this section. If
the parties shall be unable to agree thereon, the proper and reasonable limits
of such insurance then to be carried shall be determined by arbitration in
accordance with the rules of the American Arbitration Association, but in no
event shall such limits be less than the coverages set forth above in this
Article 21. Tenant shall maintain the required insurance at the level that
Landlord has requested until there is a final decision in the arbitration, at
which time Tenant shall maintain the level of insurance determined by the
arbitration (but not less than the coverages set forth above in this Article
21).
22. LIMITATION OF LANDLORD'S LIABILITY
Except as specifically provided in this Lease, Landlord shall not be
responsible for or liable to Tenant and Tenant hereby releases Landlord and
waives all claims against Landlord for any injury, loss or damage to any person
or property in or about the Premises by or from any cause whatsoever (other than
the active negligence or willful misconduct of Landlord or Landlord's Agents, or
breach of this Lease) including, without limitation, acts or omissions of
persons occupying adjoining premises; theft; burst, stopped or leaking water,
gas, sewer or steam pipes; or gas, fire, oil or electricity in, on or about the
Building or the Exterior Areas.
23. ACCESS TO PREMISES
23.1 Landlord reserves (for itself, and any designated Agent) the right to
enter the Premises at all reasonable times and, except in cases of emergency,
after giving Tenant reasonable notice, to inspect the Premises, to supply any
service to be provided by Landlord hereunder, to show the Premises to
prospective purchasers, mortgagees or, during the last year of the Term of this
Lease, tenants, to post notices of nonresponsibility, and to alter, improve or
repair the Premises and any portion of the Building, without abatement of Rent,
and may for that purpose erect, use and maintain necessary structures in and
through the Premises and the Building, where reasonably required by the
character of the work to be performed, provided that the entrance to the
Premises shall not be blocked thereby, and further provided that the business of
Tenant shall not be interfered with unreasonably. Tenant hereby waives any
claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any
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other loss occasioned thereby. All locks for all of the doors in, upon and about
the Premises, excluding Tenant's vaults and safes or special security areas
(designated in advance in writing by Tenant) shall at all times be keyed to the
Building master system and Landlord shall at all times have and retain a key
with which to unlock all of said doors. Landlord shall have the right to use any
and all means that Landlord may deem necessary or proper to open said doors in
an emergency in order to obtain entry to any portion of the Premises, and any
entry to the Premises or portions thereof obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction, actual or constructive, of Tenant from the Premises or any portion
thereof.
23.2 Without limitation of the provisions of Section 23.1 above Landlord
and its authorized Agents shall be entitled to enter the Premises at all
reasonable times during business hours for the purpose of exhibiting the same to
prospective purchasers and Landlord shall be entitled to exhibit the Premises
for hire or for rent and to display thereon in such manner as will not
unreasonably interfere with Tenant's business the usual "For Rent" or "For
Lease" signs, and such signs shall remain unmolested on the Premises.
24. HAZARDOUS MATERIALS
24.1 As used herein, the following terms shall have the following meanings:
"Hazardous Material" shall mean any chemical, substance, medical or other waste,
living organism or combination thereof which is or may be hazardous to the
environment or human or animal health or safety due to its radioactivity,
ignitability, corrosivity, reactivity, explosivity, toxicity, carcinogenicity,
mutagenicity, phytotoxicity, infectiousness or other harmful or potentially
harmful properties or effects. "Hazardous Materials" shall include, without
limitation, petroleum hydrocarbons, including crude oil or any fraction thereof,
asbestos, radon, polychlorinated biphenyls (PCBs), methane and all substances
which now or in the future may be defined as "hazardous substances," "hazardous
wastes," "extremely hazardous wastes," "hazardous materials," "toxic
substances," "infectious wastes," "biohazardous wastes," "medical wastes,"
"radioactive wastes" or which are otherwise listed, defined or regulated in any
manner pursuant to any Environmental Laws. "Environmental Activity" means any
storage, holding, release, emission, discharge, generation, processing,
abatement, removal, disposition, handling or transportation of any Hazardous
Materials from, into or on the Building or the Exterior Areas. "Tenant's
Hazardous Materials" means any Hazardous Materials resulting from Environmental
Activity on the Premises after the Commencement Date; provided, however, that
"Tenant's Hazardous Materials" shall not include (a) any Hazardous Materials
that merely migrate from, through, into or onto the Premises from a
contamination source on other property located in the vicinity of the Premises,
or which were present at the Premises on or before the Effective Date, unless
such Hazardous Materials were or are introduced into the environment or to the
extent exacerbated by Tenant or any of Tenant's Agents (provided that Landlord
shall not be deemed to have waived any rights under any common law or statutory
provisions with respect to such Hazardous Materials unless such Hazardous
Materials are included in Landlord's indemnity as set forth in Section 8.5), (b)
Hazardous Materials in, on or under the Premises after the Commencement Date
that Tenant proves did not result from and were not exacerbated by any
Environmental Activity of Tenant or any of Tenant's Agents and that Tenant
proves did not result from the negligence of Tenant or any of Tenant's Agents
(provided that Landlord shall not be deemed to have waived any rights under any
common law or statutory provisions with respect to such Hazardous Materials), or
(c) Hazardous Materials resulting from any Environmental Activity caused by
Landlord, Landlord's Agents or any party which is permitted to
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enter the Building or Exterior Areas pursuant to an access agreement or other
right granted by Landlord.
24.2 Tenant shall not cause or permit (to the extent it has the power to
control) any Hazardous Materials to be used, stored, discharged, released or
disposed of in the Premises or cause any Hazardous Materials to be used, stored,
discharged, released or disposed of in, from, under or about, the Building, or
any other land or improvements in the vicinity thereof excepting only, if
applicable, such minor quantities of materials as are normally used in research
and development activities and then only in strict accordance with all
Applicable Laws, including all Environmental Laws. Tenant shall use best
efforts not to interfere with the access rights of any third parties undertaking
environmental monitoring or remediation activities pursuant to the access
agreements identified in Schedule 3.1, and to the extent Landlord enters into
any access agreements during the Term, Landlord will use best efforts to ensure
that third parties will not unreasonably interfere with Tenants operations in
the exercise of access rights. Without limitation of the foregoing, Tenant
shall, at its own expense, procure, maintain in effect and comply with all
conditions of any and all permits, licenses, and other governmental and
regulatory approvals required for Tenant's use of Hazardous Materials at the
Premises, including, without limitation, discharge of appropriately treated
materials or wastes into or through any sanitary sewer serving the Building.
Tenant shall in all respects handle, treat, deal with and manage any and all
Tenant's Hazardous Materials in total conformity with all Applicable Laws and
prudent industry practices regarding management of such Hazardous Materials.
Without limitation of the foregoing, if any Tenant's Hazardous Materials result
in contamination of the Building, or any soil or groundwater in, under or about
the Building, Tenant, at its expense, shall promptly take all actions necessary
to return the Building or portion thereof affected, to the condition existing
prior to the appearance of the Tenant's Hazardous Material. Upon the
Termination Date, Tenant shall cause all Tenant's Hazardous Materials in, on,
under or about the Building to be removed in accordance with and in compliance
with all Applicable Laws. Subject to the requirements of Applicable Laws,
Tenant shall promptly notify Landlord before taking any remedial action in
response to the presence of any Tenant's Hazardous Materials or entering into
any settlement agreement, consent decree or other compromise with respect to any
claims relating to Tenant's Hazardous Materials.
24.3 Tenant shall indemnify, defend (by counsel reasonably acceptable to
Landlord), protect and hold Landlord and Landlord's Agents and their respective
successors and assigns, free and harmless from and against any and all claims,
liabilities, penalties, forfeitures, losses or expenses (including reasonable
attorneys' and consultants' fees and oversight and response costs) to the extent
arising from (a) Environmental Activity by Tenant or Tenant's Agents; or (b)
failure of Tenant or Tenant's Agents to comply with any Environmental Law with
respect to Tenant's Environmental Activity; or (c) Tenant's failure to remove
Tenant's Hazardous Materials as required herein.
24.4 Tenant shall not suffer any lien to be recorded against the Building
or the Exterior Areas as a consequence of any Tenant's Hazardous Materials,
including any so called state, federal or local "super fund" lien related to the
"clean up" of any Tenant's Hazardous Materials in or about the Building.
24.5 In the event Hazardous Materials are discovered in or about the
Building or the Exterior Areas, and Landlord reasonably believes that such
Hazardous Materials are Tenant's Hazardous Materials, then Landlord shall have
the right to appoint a consultant to conduct an investigation to determine the
nature and extent of such Hazardous Materials and whether such Hazardous
Materials are Tenant's Hazardous Materials, and to determine the corrective
measures, if
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any, required to remove such Hazardous Materials. If such Hazardous Materials
are determined to be Tenant's Hazardous Materials, Tenant, at its expense, shall
comply with all investigation, remediation or other actions required by any
applicable governmental authority and shall promptly reimburse Landlord for all
costs incurred by Landlord in connection with such investigation.
24.6 Tenant shall immediately notify Landlord of any inquiry, test,
investigation or enforcement proceeding by or against Tenant or the Premises
known to Tenant concerning any Hazardous Materials. Tenant acknowledges that
Landlord, as the owner of the Premises, at its election, shall have the sole
right, at Tenant's expense, which shall not exceed a reasonable amount, to
participate in negotiation and defense, and to approve and appeal any action
taken or order issued with regard to Tenant's Hazardous Materials by any
applicable governmental authority.
24.7 Tenant shall surrender the Premises to Landlord, upon the expiration
or earlier termination of the Lease, free of Tenant's Hazardous Materials as
required by Applicable Law. If Tenant fails to so surrender the Premises,
Tenant shall indemnify and hold Landlord harmless from all losses, costs,
claims, damages and liabilities resulting from Tenant's failure to surrender the
Premises as required by this paragraph, including, without limitation, any
claims or damages in connection with the condition of the Premises including,
without limitation, damages occasioned by the inability to relet the Premises or
a reduction in the fair market and/or rental value of the Building or any
portion thereof, by reason of the existence of any Tenant's Hazardous Materials.
24.8 Upon or prior to the Commencement Date, Tenant shall provide to
Landlord a complete list of any and all Hazardous Materials (excluding normal
office and janitorial supplies) expected to be employed by Tenant or any of
Tenant's Agents at the Premises. Throughout the Term, Tenant shall continue to
update this list of chemicals, contaminants and Hazardous Materials.
24.9 The provisions of this Article 24 shall survive the termination of
this Lease, and shall exclusively govern the rights and obligations of Landlord
and Tenant with respect to Hazardous Materials, unless otherwise specifically
provided elsewhere in this Lease.
25. NOTICES
Notices or other communications given or required to be given under this
Lease shall be effective only if rendered or given in writing, sent by certified
mail with a return receipt requested, or delivered in person or by courier: (a)
to Tenant at Tenant's address set forth in Article 1 hereof, or (ii) at any
place where Tenant or any Agent of Tenant may be found if sent subsequent to
Tenant's vacating, deserting, abandoning or surrendering the Premises; or (b) to
Landlord at Landlord's address set forth in Article 1; or (c) to such other
address as either Landlord or Tenant may designate as its new address for such
purpose by notice given to the other in accordance with the provisions of this
Article 25. Any such notice or other communication shall be deemed to have been
rendered or given five (5) days after the date mailed, if sent by certified
mail, or upon the date of delivery in person or by courier, or when delivery is
attempted but refused. Each of the persons listed in Article 1 as contacts for
Tenant and in the address of Tenant for notices, and any other officer of Tenant
is hereby appointed by Tenant as special attorney-in-fact with full power and
authority to accept personal service on behalf of Tenant under Subdivision 1 of
Section 1162 of the California Code of Civil Procedure, as it may be amended.
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26. NO WAIVER; NO MODIFICATION
26.1 No failure by Landlord to insist upon the strict performance of any
obligation of Tenant under this Lease or to exercise any right, power or remedy
consequent upon a breach thereof, no acceptance of full or partial Base Rent or
Additional Rent during the continuance of any such breach, and no acceptance of
the keys to or possession of the Premises prior to the expiration of the Term by
any employee or agent of Landlord shall constitute a waiver of any such breach
or of such term, covenant or condition or operate as a surrender of this Lease.
26.2 Neither this Lease nor any term or provisions hereof may be changed,
waived, discharged or terminated orally, and no breach thereof shall be waived,
altered or modified, except by a written instrument signed by the party against
which the enforcement of the change, waiver, discharge or termination is sought.
No waiver of any breach shall affect or alter this Lease, but each and every
term, covenant and condition of this Lease shall continue in full force and
effect with respect to any other then-existing or subsequent breach thereof.
The consent of Landlord given in any instance under the terms of this Lease
shall not relieve Tenant of any obligation to secure the consent of Landlord in
any other or future instance under the terms of this Lease.
27. TENANT'S CERTIFICATES
Tenant, at any time and from time to time within ten (10) business days
after receipt of written notice from Landlord, shall execute, acknowledge and
deliver to Landlord or to any party designated by Landlord, a certificate of
Tenant stating: (a) that Tenant has accepted the Premises, (b) the Commencement
Date, the Rent Commencement Date and Expiration Date of this Lease, (c) that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that same is in full force and effect as modified and stating the
modifications), (d) whether or not there are then existing any defenses against
the enforcement of any of the obligations of Tenant under this Lease (and, if
so, specifying same), (e) whether or not there are then existing any defaults by
Landlord in the performance of its obligations under this Lease (and, if so,
specifying same), (f) the dates, if any, to which the Base Rent and Additional
Rent under this Lease have been paid, and (g) any other information that may
reasonably be required by any of such persons. Failure to deliver such
certificate shall constitute an Event of Default.
28. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the rules and regulations
and all reasonable modifications thereof and additions thereto from time to time
put into effect by Landlord (the "Rules and Regulations"). In the event of any
conflict between the terms, covenants, agreements and conditions of this Lease
and the terms, covenants, agreements and conditions of the Rules and
Regulations, this Lease shall control.
29. TAX ON TENANT'S PERSONAL PROPERTY
At least ten (10) days prior to delinquency, Tenant shall pay all taxes
levied or assessed upon Tenant's Property and shall deliver satisfactory
evidence of such payment to Landlord. If the assessed value of Landlord's
property is increased by the inclusion therein of a value placed upon Tenant's
Property, Tenant shall pay to Landlord, upon written demand, the taxes so levied
against Landlord, or the portion thereof resulting from said increase in
assessment, as determined from time to time by Landlord.
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30. SECURITY DEPOSIT
Upon execution of this Lease by Landlord and Tenant, Tenant shall deposit
with Landlord the amount specified in Article 1 as security for the faithful
performance of all terms, covenants and conditions of this Lease. Tenant agrees
that Landlord may, without waiving any of Landlord's other rights and remedies
under this Lease upon the occurrence of any of the events of default described
in Article 19 hereof, apply the security deposit in whole or in part to remedy
any failure by Tenant to repair or maintain the Premises or to perform any other
terms, covenants or conditions contained herein. Should Landlord so apply any
portion of the security deposit, Tenant shall forthwith replenish the security
deposit to the original amount. Landlord shall not be required to keep the
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on any such deposit.
31. PUBLIC TRANSIT INFORMATION
Tenant shall establish and carry on during the Term a program to encourage
maximum use of public transportation by personnel of Tenant employed on the
Premises, including, without limitation, the distribution to such employees of
written materials explaining the convenience and availability of public
transportation facilities adjacent or proximate to the Building and encouraging
use of such facilities, all at Tenant's sole cost and expense.
32. DEFAULT BY LANDLORD
Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord within a reasonable time, but in no event
earlier than thirty (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have heretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligations; provided,
however, (a) if the nature of Landlord's obligations is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion, and (b) if a different
cure period is specified elsewhere in this Lease, that cure period shall apply
in lieu of this Section 32.
33. BROKERS
Tenant warrants that it has had dealings with only the real estate brokers
or agents listed in Article 1 in connection with the negotiation of this Lease
and that it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. Landlord shall be responsible for the
payment of any applicable fees or commissions to the agent or broker listed in
Article 1 pursuant to a separate agreement. Tenant shall indemnify, defend and
hold Landlord harmless from and against all liabilities arising from any other
claims of brokerage commissions or finder's fees based on Tenant's dealings or
contacts.
34. SIGNS
Without Landlord's written consent, which may be given or withheld in
Landlord's sole discretion, Tenant shall not place or permit to be placed on the
front of the Premises any sign, picture, advertisement, name, notice, marquee or
awning. Landlord hereby reserves the exclusive right to the exterior side walls,
rear walls and roof of the Premises. Tenant shall not place or permit to be
placed anything on any of said reserved areas. Landlord hereby consents to the
erection of
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signs in the locations shown on the Base Building Plans; provided, however, that
Landlord reserves its right to consent to the design of such signs when
presented to Landlord for review and approval.
35. FINANCIAL STATEMENTS
Tenant shall provide Landlord upon ten (10) business days prior written
notice given prior to the execution of this Lease and at any subsequent time in
connection with a proposed financing or transfer of Landlord's interest, with
true and correct copies of Tenant's most current audited financial statements.
Landlord shall be entitled to rely upon the information provided by Tenant and
Tenant hereby represents and warrants to Landlord: (a) that all documents
provided by Tenant to Landlord are true and correct copies of the originals; (b)
Tenant has not withheld any information from Landlord that is material to
Tenant's credit worthiness, financial condition or ability to perform its
obligations hereunder; (c) all information supplied by Tenant to Landlord is
true, correct and accurate; and (d) no part of the information supplied by
Tenant to Landlord contains any misleading or fraudulent statements. A default
under this Article shall be a default by Tenant and Landlord shall be entitled
to pursue any right or remedy available to Landlord under the terms of this
Lease or available to Landlord under the laws of the State of California.
Tenant hereby acknowledges that the delivery of false financial statements shall
be a non-curable default under this Lease. All financial information shall be
disclosed by Landlord only to such prospective lender or transferee and their
counsel and representatives, and subject to reasonable confidentiality
requirements.
36. QUIET ENJOYMENT
Landlord covenants that Tenant, upon paying the Base Rent and Additional
Rent due hereunder and performing all of its obligations under this Lease, shall
peaceably and quietly enjoy the Premises, subject to the terms and provisions of
this Lease.
37. SALE OR ASSIGNMENT BY LANDLORD
37.1 It is agreed that Landlord may at any time sell, assign or transfer by
lease or otherwise its interest as Landlord in and to this Lease, or any part
thereof, and may at any time sell, assign or transfer its interest in and to the
whole or any portion of the Building. In the event of any transfer of
Landlord's interest in the Building, the transferor shall be automatically
relieved of any and all of Landlord's obligations and liabilities accruing from
and after the date of such transfer provided that the transferee assumes all of
Landlord's obligations under this Lease.
37.2 Tenant hereby agrees to attorn to Landlord's assignee, transferee, or
purchaser from and after the date of notice to Tenant of such assignment,
transfer or sale, in the same manner and with the same force and effect as
though this Lease were made in the first instance by and between Tenant and
other assignee, transferee or purchaser. In the event of the exercise of the
power of sale under, or the foreclosure of, any deed of trust, mortgage or other
encumbrances placed by Landlord against all or any portion of the Premises,
Tenant shall, upon demand, attorn to the purchaser upon the effective date of
any such sale or foreclosure of any such deed of trust, mortgagee or other
encumbrance, and shall recognize the purchaser or judgment creditor as the
Landlord under the Lease.
38. LEASE MODIFICATIONS
If Landlord in good faith determines that tax consequences to it of this
transaction are materially different than those now contemplated, or if Landlord
wishes to enter a financing
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transaction with respect to the Building and a potential lender requires
amendments to this Lease, Landlord may request reasonable amendments to this
Lease and Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications will not increase Tenant's monetary
obligations pursuant to this Lease, adversely affect its beneficial use of the
Premises, or otherwise materially adversely affect Tenant's interests hereunder.
39. AUTHORITY
If Tenant is a corporation or a partnership, Tenant and each of the persons
executing this Lease on behalf of Tenant does hereby represent and warrant as
follows: Tenant is an entity as identified in Article 1, duly formed and
validly existing and in good standing under the laws of the state of
organization specified in Article 1 and qualified to do business in the State of
California. Tenant has the power, legal capacity and authority to enter into
and perform its obligations under this Lease and no approval or consent of any
person is required in connection with the execution and performance hereof. The
execution and performance of Tenant's obligations under this Lease will not
result in or constitute any default or event that would be, or with notice or
the lapse of time would be, a default, breach or violation of the organizational
instruments governing Tenant or any agreement or any order or decree of any
court or other governmental authority to which Tenant is a party or to which it
is subject. Tenant has taken all necessary action to authorize the execution,
delivery and performance of this Lease and this Lease constitutes the legal,
valid and binding obligation of Tenant. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing representations and warranties.
40. SURRENDER
Upon the Termination Date, Tenant shall surrender the Premises to Landlord
in good order and repair, reasonable wear and tear, and damage from any casualty
excepted, free and clear of all letting and occupancies and free of Tenant's
Hazardous Materials as required pursuant to Section 24.7 above. Upon any
termination of this Lease, all improvements, except for Tenant's Property, shall
automatically and without further act by Landlord or Tenant, become the property
of Landlord, free and clear of any claim or interest therein by Tenant, and
without payment therefor by Landlord.
41. CONFIDENTIALITY
Landlord and Tenant agree that no information whatsoever shall be released
or conveyed to any third party, including, without limitation, the press or
media or other business entities, whether in the form of informal or formal
discussions, press releases, direct mail or other distributed announcements with
respect to any aspect of the negotiations, discussions relating to or provisions
of this Lease or any related agreements between the parties, without the prior
written consent of the other party. This restriction includes, without
limitation, any and all contacts with print or broadcast media as well as paid
advertising.
42. USE OF NAME
Tenant acknowledges and agrees that the names "The Leland Stanford Junior
University," "Stanford" and "Stanford University," and all variations thereof,
are proprietary to Landlord. Tenant shall not use any such name or any
variation thereof or identify Landlord in any promotional advertising or other
promotional materials to be disseminated to the public or any portion thereof or
use any trademark, service mark, trade name or symbol of Landlord or that is
associated with it, without Landlord's prior written consent, which may be given
or withheld in Landlord's sole
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discretion. Notwithstanding the foregoing, Tenant may use the term "Stanford
Research Park" only to identify the location of the Premises.
43. GUARANTY
Intentionally Omitted.
44. MISCELLANEOUS
44.1 The term "Premises" includes the space leased hereby and any
improvements now or hereafter installed therein or attached thereto. The words
"Landlord" and "Tenant" as used herein shall include the plural as well as the
singular. If there is more than one Tenant, the obligations under this Lease
imposed on Tenant shall be joint and several. The captions preceding the
articles of this Lease have been inserted solely as a matter of convenience and
such captions in no way define or limit the scope or intent of any provision of
this Lease.
44.2 The terms, covenants and conditions contained in this Lease shall bind
and inure to the benefit of Landlord and Tenant and, except as otherwise
provided herein, their respective personal representatives and successors and
assigns; provided, however, that upon the sale, assignment or transfer by
Landlord named herein (or by any subsequent landlord) of its interest in the
Building as owner or lessee, including, without limitation, any transfer by
Landlord of its interest in this Lease to a master tenant and any surrender of
the underlying ground lease, execution of a subsequent ground lease, or transfer
by operation of law, Landlord (or subsequent landlord) shall be relieved from
all subsequent obligations and liabilities arising under this Lease subsequent
to such sale, assignment or transfer.
44.3 If any provision of this Lease or the application thereof to any
person, entity or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons, entities or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision of this
Lease shall be valid and be enforced to the full extent permitted by law.
44.4 This Lease shall be construed and enforced in accordance with the laws
of the State of California. Any action that in any way involves the rights,
duties and obligations of the parties under this Lease may (and if against
Landlord, shall) be brought in the Superior Court of Santa Clara County or the
United States District Court of the Northern District of California, and the
parties hereto hereby submit to the personal jurisdiction of said courts.
44.5 This instrument, including the exhibits hereto, which are incorporated
herein and made a part of this Lease, contains the entire agreement between the
parties and all prior negotiations and agreements are merged herein. Tenant
hereby acknowledges that neither Landlord nor Landlord's Agents have made any
representations or warranties with respect to the Premises, the Building, or
this Lease except as expressly set forth herein, and no rights, easements or
licenses are or shall be acquired by Tenant by implication or otherwise unless
expressly set forth herein.
44.6 In the event that either Landlord or Tenant fails to perform any of
its obligations under this Lease or in the event a dispute arises concerning the
meaning or interpretation of any provision of this Lease, the defaulting party
or the party not prevailing in such dispute, as the case may be, shall pay any
and all costs and expenses incurred by the other party in enforcing or
establishing its rights hereunder, including, without limitation, court costs
and reasonable attorneys'
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fees including Landlord's in house counsel. Should Landlord be named as a
defendant in any suit brought against Tenant in connection with or arising out
of Tenant's occupancy hereunder Tenant shall pay to Landlord its costs and
expenses incurred in such suit, including reasonable attorneys' fees including
Landlord's in house counsel. Should Tenant be named as a defendant in any suit
brought against Landlord in connection with or arising out of any foreclosure or
mechanics lien not related to any Tenant Improvement Work or Alterations,
Landlord shall pay to Tenant its costs and expenses incurred in such suit,
including reasonable attorneys' fee including Tenant's in-house counsel.
44.7 Tenant covenants and agrees that no diminution of light, air or view
by any structure that may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of the Rent or Additional Rent under this
Lease, result in any liability of Landlord to Tenant, or in any other way affect
this Lease or Tenant's obligations hereunder.
44.8 Any holding over after the expiration of the Term with the consent of
Landlord shall be construed to automatically extend the Term of this Lease on a
month to month basis at a Base Rent equal to one hundred twenty-five percent
(125%) of the latest Base Rent payable by Tenant hereunder prior to such
expiration, together with an amount estimated by Landlord for the monthly
Additional Rent payable under this Lease, and shall otherwise be on the terms
and conditions herein specified so far as applicable. Any holding over without
Landlord's consent shall constitute a default by Tenant and entitle Landlord to
exercise any or all of its remedies as provided in Article 19 hereof,
notwithstanding that Landlord may elect to accept one or more payments of Base
Rent and Additional Rent from Tenant.
44.9 At the expiration or earlier termination of this Lease, Tenant shall
execute, acknowledge and deliver to Landlord, within ten (10) days after written
demand from Landlord to Tenant, any quitclaim deed or other document required by
any reputable title company, licensed to operate in the State of California, to
remove the cloud or encumbrance created by this Lease from the real property of
which Tenant's Premises are a part.
44.10 Neither Landlord or Tenant shall record this Lease or a short form
memorandum hereof without the consent of the other.
44.11 Clauses, plats and riders, if any, signed by Landlord and Tenant and
endorsed on or affixed to this Lease are a part hereof.
44.12 The review, approval, inspection or examination by Landlord of any
item to be reviewed, approved, inspected or examined by Landlord under the terms
of this Lease or the exhibits attached hereto shall not constitute the
assumption of any responsibility by Landlord for either the accuracy or
sufficiency of any such item or the quality of suitability of such item for its
intended use. Any such review, approval, inspection or examination by Landlord
is for the sole purpose of protecting Landlord's interests in and under this
Lease, and no third parties, including, without limitation, Tenant or any person
or entity claiming through or under Tenant, or the contractors, agents,
servants, employees, visitors or licensees of Tenant or any such person or
entity, shall have any rights hereunder with respect to such review, approval,
inspection or examination by Landlord.
44.13 In the event of any default by Landlord hereunder, Tenant shall look
only to Landlord's interest in the Building for the satisfaction of Tenant's
remedies; and no other property or assets of Landlord or any partner, member,
officer or director thereof, disclosed or undisclosed, shall
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be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease.
44.14 This Lease shall not confer or be deemed to confer upon any person
or entity other than the parties hereto, any right or interest, including
without limitation, any third party status or any right to enforce any provision
of this Lease.
44.15 Except as provided in Articles 4 hereof, time is of the essence in
respect of all provisions of this Lease in which a definite time for performance
is specified.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
THE BOARD OF TRUSTEES OF THE LELAND
STANFORD JUNIOR UNIVERSITY
By Stanford Management Company
By /s/ WILLIAM T. PHILLIPS
______________________________
Name WM. T. PHILLIPS
______________________________
Title MANAGING DIRECTOR OF R.E.
______________________________
TENANT:
TIBCO SOFTWARE INC.,
a Delaware corporation
By /s/ ROBERT P. STEFANSKI
_____________________________
Name /s/ ROBERT P. STEFANSKI
_____________________________
Title EVP
_____________________________
By _____________________________
Name _____________________________
Title _____________________________
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EXHIBIT A
LOCATION OF PREMISES AND PARKING
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EXHIBIT B
The purpose of this Exhibit B is to delineate the responsibilities of
Landlord and Tenant with respect to the design and construction of the Base
Building and the Tenant Improvement Work.
1. Definitions. Terms defined in the Lease, including without limitation,
-----------
the exhibits thereto, and not otherwise defined in this Exhibit B shall have the
meanings assigned in the Lease. As used herein, the following terms shall have
the following meanings:
"Base Building Architect" means the architect for the Base Building, which
shall be MBT Architects or such other architect as Landlord may designate.
"Base Building Contractor" means the general contractor for the Base
Building, which shall be Devcon Construction or such other contractor as
Landlord may designate.
"Base Building Plans" is as defined in Section 2.1.
"Base Building Work" means the improvement work described in Attachment 1
hereto.
"Building" is defined in Section 3.1 of the Lease.
"Construction Schedule" means the schedule for the design and construction
of the Base Building Work and the Tenant Improvement Work, as amended from time
to time in accordance with this Exhibit B. The initial Construction Schedule is
attached hereto as Attachment 2.
"Design Problem" means an objection specified by Landlord to any proposed
elements of the Tenant Improvement Work.
"Final Completion of the Base Building" means, after Substantial Completion
of the Base Building Work, the completion of all Punch List Items.
"Final Permit Approval" means the issuance or certification by the City of
Palo Alto of the final permit for the Building allowing the legal occupancy of
the Building.
"Final Plans" is as defined in Section 3.3(b).
"Landlord's Unavoidable Delay" means any delay in the construction of the
Base Building Work caused by circumstances beyond Landlord's reasonable control,
including, without limitation, Acts of God, strikes, lock-outs, inability to
obtain necessary equipment or materials, the construction of the Tenant
Improvement Work, delays by the Base Building Contractor or any subcontractor
not resulting from any act or omission of Landlord, and any delay in the
issuance of any necessary governmental permit or approval where such delay is
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not the result of Landlord's actions and exceeds the amount of time for such
permit or approval included in Landlord's Construction Schedule.
"Lease" means the Lease in and to which this Exhibit B is attached and
incorporated.
"Projected Delivery Date" means the date specified in the Construction
Schedule for commencement of Tenant Improvement Work (currently anticipated to
be December 31, 2001), subject to extension for Landlord's Unavoidable Delay.
"Punch List Items" means any incomplete or defective items in the
construction of the Base Building Work that do not materially interfere with the
ability of the Tenant Improvement Contractor to commence and conduct, without
unreasonable interference, construction of the Tenant Improvement Work. For
purposes hereof, "material interference" shall only be deemed to occur where the
Tenant Improvement Contractor cannot commence and conduct, without unreasonable
interference, the Tenant Improvement Work using normal construction practices
and after having made reasonable adjustments in the scheduling and location of
the Tenant Improvement Work to accommodate the completion of the Base Building
Work.
"Scheduled Date for Completion of the Tenant Improvement Work" means the
date that is the specified number of days after the Commencement Date stated in
the Construction Schedule for completion of the Tenant Improvement Work which is
anticipated to be one hundred eighty (180) days, which number of days may be
extended by the number of days of delay directly resulting from a Tenant's
Excusable Delay or Tenant's Unavoidable Delay provided that for Tenant's
Excusable Delay, such extension shall not in any event exceed thirty days in the
aggregate.
"Space Plan Delivery Date" means the date specified in the Construction
Schedule.
"Tenant Improvement Allowance" is defined in Section 5.1.
"Tenant Improvement Contract" means the guaranteed maximum cost contract
with the Tenant Improvement Contractor for the construction of the Tenant
Improvement Work.
"Tenant Improvement Contractor" means the general contractor for the
construction of the Tenant Improvement Work, which shall be approved by
Landlord.
"Tenant Improvement Costs" means the actual costs of the Tenant Improvement
Work, including the fees and expenses payable to the Tenant's Architect and
consultants, design and development costs, fees for the Tenant Improvement
Permits and construction costs.
"Tenant Improvement Permits" means all permits, licenses and other
approvals necessary to construct the Tenant Improvement Work in compliance with
all Applicable Laws.
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"Tenant Improvement Plans" is as defined in Section 3.3(b).
"Tenant Improvement Work" means all work required to finish the Premises to
a condition acceptable for the conduct of Tenant's business and not specifically
included in the Base Building Work.
"Tenant's Architect" means the licensed architect engaged by Tenant, and
approved by Landlord in its reasonable discretion, to develop the space plan and
working drawings for, and to oversee the construction of, the Tenant Improvement
Work.
"Tenant's Architect Agreement" means the agreement between Tenant and
Tenant's Architect for the design and oversight of the Tenant Improvement Work.
"Tenant's Excusable Delay" means any delay in the construction of the
Tenant Improvement Work to the extent caused by circumstances beyond Tenant's
reasonable control, including, without limitation, Acts of God (excluding
earthquake, fire, or other major casualty), strikes, lock-outs, inability to
obtain necessary equipment or materials, delays by the Contractor or any
subcontractor not resulting from any act or omission of Tenant, any delay in the
issuance of any necessary governmental permit or approval where such delay is
not the result of Tenant's actions and exceeds the amount of time for such
permit or approval included in Tenant's Construction Schedule.
"Tenant's Unavoidable Delay" means any delay in the construction of the
Tenant Improvement Work to the extent caused by (A) the failure to complete any
of the Pre-Delivery Items (defined in Section 2.2 below) by the date provided in
the construction schedule, (B) the failure to complete the relevant portions of
the construction of the Base Building Work on or before the Projected Delivery
Date, (C) the failure of Landlord to respond within five (5) business days to a
request for approval of any change in Tenant's Plans and Specifications after
their initial approval by Landlord, or (D) the failure to obtain the permit
required for the legal occupancy of the Building as a result of any matter
relating to the Base Building Work (and not relating to the Tenant Improvement
Work), or earthquake, fire or other major casualty.
2. Design and Construction of Base Building.
-----------------------------------------
2.1 Landlord shall deliver to Tenant the plans and specifications for the
Base Building (the "Base Building Plans"), which shall be subject to Tenant's
approval, such approval not to be unreasonably withheld, conditioned or delayed.
Landlord shall obtain all permits and approvals for the Base Building Work and
shall cause the Base Building Work to be constructed in a first class manner and
in compliance with all Applicable Laws. Landlord shall diligently prosecute the
construction of the Base Building Work and use diligent efforts to achieve
Substantial Completion of the Base Building Work within thirty (30) days after
the Projected Delivery Date, subject to Landlord's Unavoidable Delays. If
Landlord has not achieved Substantial Completion of the Base Building Work by
the date which is twelve (12) months after the Projected Delivery Date, subject
to Landlord's Unavoidable Delays, but in no event later than December 31, 2002,
then Tenant, as its sole remedy for such delay, shall be entitled to terminate
this Lease effective upon written notice
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to Landlord, and Landlord will return to Tenant all sums paid by Tenant in
connection with this Lease and not properly applied hereunder.
2.2 Landlord shall notify Tenant in writing prior to the Projected
Delivery Date, as provided in Section 8.1 of the Lease. Landlord shall notify
Tenant in writing upon receipt by Landlord of notice from the Base Building
Contractor that the Base Building Contractor believes that Substantial
Completion of the Base Building Work to be completed by Landlord has occurred
(or will occur on a specified date). Representatives of Landlord and Tenant
shall accompany the Base Building Architect and the Base Building Contractor on
a walk-through and inspection of the Premises (the "Substantial Completion
Inspection") to determine if Substantial Completion of the Base Building Work
has occurred and to identify any Punch List Items. Upon completion of the
Substantial Completion Inspection, provided that the Base Building Architect has
issued a certificate certifying that Substantial Completion of the Base Building
Work has occurred and identifying the Punch List Items, including any Punch List
Items identified by Landlord or Tenant, Tenant shall sign an acceptance form in
the form of Attachment 3 hereto acknowledging that Tenant has inspected the Base
Building Work and accepts the Premises for all purposes under the Lease, subject
only to completion of the Punch List Items identified in the Base Building
Architect's certificate. Substantial Completion of the Base Building Work shall
be deemed to occur as of the date of the issuance of the Base Building
Architect's certificate of Substantial Completion.
2.5 Landlord shall diligently monitor the Base Building Contractor's
completion of the Punch List Items and use commercially reasonable efforts to
ensure that such Punch List Items will be completed promptly. Completion of the
Punch List Items shall be undertaken so as to minimize any material interference
with Tenant's construction of the Tenant Improvement Work. Landlord shall notify
Tenant upon receipt by Landlord of notice from the Base Building Contractor that
Final Completion of the Base Building Work has occurred. Representatives of
Landlord and Tenant shall accompany the Base Building Architect and the Base
Building Contractor on a walk through and inspection of the Premises to
determine if Final Completion of the Base Building Work has occurred. If there
are any remaining Punch List Items, Landlord shall cause the completion of such
items and the parties shall conduct an additional walk through and inspection.
Upon Final Completion the parties shall execute a written acknowledgment that
Final Completion of the Base Building Work has occurred.
3. Design and Construction of the Tenant Improvement Work.
------------------------------------------------------
3.1 Subject to the provisions of the Lease, Tenant shall be responsible
for the design and construction of the Tenant Improvement Work and shall use
diligent efforts to cause the construction of the Tenant Improvement Work in a
first class manner and in compliance with all Applicable Laws.
3.2 Without limitation of any other provision of the Lease or this
Exhibit B, and except as otherwise provided herein, all of the provisions of
Article 9 (Alterations by Tenant) and Article 11 (Liens) shall apply to the
Tenant Improvement Work. Prior to Tenant's commencement of any Tenant
Improvement Work, representatives of Landlord and Tenant
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<PAGE>
shall accompany the Base Building Architect and the Base Building Contractor on
a walk through and inspection to identify items of the construction of the Base
Building Work (other than improvements outside of the Building) that are
completed and that are not completed. The parties shall execute a written
acknowledgment of the status of such items prior to Tenant's commencing
construction of the Tenant Improvement Work.
3.3 (a) Tenant shall use diligent efforts to submit to Landlord, for
Landlord's approval, on or before the Space Plan Delivery Date, a basic space
plan (the "Space Plan") prepared by the Tenant's Architect for the layout of the
Tenant Improvement Work consistent with the design of the Base Building Work.
Within five (5) business days after Landlord receives the Space Plan, Landlord
shall either approve the Space Plan or disapprove the Space Plan and, in the
event of disapproval, furnish a written statement of the Design Problems to
Tenant. Landlord's approval shall not be unreasonably withheld; provided that
it shall not be unreasonable for Landlord to withhold its approval if, in
Landlord's judgment, the Space Plan is not compatible with generic use of the
Premises by typical research and development tenants. In the event of such
disapproval, Tenant shall, within ten (10) business days thereafter, make the
changes necessary in order to correct the Design Problems and shall return the
Space Plan to Landlord. Landlord shall approve or disapprove such changes
within five (5) business days after Landlord receives the revised Space Plan.
This procedure shall be repeated until the Space Plan is finally approved by
Landlord and written approval has been received by Tenant.
(b) After the Space Plan is finally approved by Landlord, and at
the time indicated in the Construction Schedule, Tenant shall submit to Landlord
complete plans and specifications for the Tenant Improvement Work, based upon
the approved Space Plan, including, without limitation, mechanical and
electrical drawings (collectively the "Tenant Improvement Plans"). The Tenant
Improvement Plans shall be in a form sufficient to secure necessary Tenant
Improvement Permits. Tenant shall use diligent efforts to obtain, on a timely
basis in accordance with the Construction Schedule, all Tenant Improvement
Permits, and Landlord shall cooperate as reasonably necessary to assist Tenant
in obtaining the Tenant Improvement Permits. Landlord shall, within ten (10)
business days after receipt of the Tenant Improvement Plans, approve the same or
designate by notice to Tenant the specific changes reasonably required to be
made to the Tenant Improvement Plans in order to correct any Design Problem.
Within five (5) business days thereafter, Tenant shall make the changes
necessary in order to correct any such Design Problem and shall return the
Tenant Improvement Plans to Landlord. Landlord shall approve or disapprove the
revised Tenant Improvement Plans within five (5) business days after receipt by
Landlord. This procedure shall be repeated until the Tenant Improvement Plans
are finally approved by Landlord and Tenant has received Landlord's written
approval thereof. The final Tenant Improvement Plans approved by Landlord,
including any changes, additions or alterations thereto approved by Landlord and
Tenant as provided in Section 3.4, are herein referred to as the "Final Plans."
3.4 If Tenant shall request any change, addition or alteration in the
Final Plans, the Tenant's Architect shall prepare plans and specifications with
respect to such change, addition or alteration, which plans and specifications
shall be submitted to Landlord for
46
<PAGE>
Landlord's review and approval. The procedure set forth in Section 3.3(a) shall
apply to any such change, addition or alteration.
4. Construction of the Tenant Improvement Work.
-------------------------------------------
4.1 Tenant shall construct the Tenant Improvement Work in accordance with
all Applicable Laws and with the Final Plans approved by Landlord and the
requirements of Articles 8 and 9 of the Lease (provided, however, that Tenant
shall not be required to remove the Tenant Improvement Work or pay any fees to
Landlord applicable to Alterations.
4.2 Tenant shall diligently prosecute the Tenant Improvement Work to
completion using diligent efforts to cause Substantial Completion to occur by
the Scheduled Date for Completion of the Tenant Improvement Work. Landlord's
written approval shall be obtained prior to undertaking any work that deviates
from the Final Plans approved by Landlord, such approval not to be unreasonably
withheld or delayed.
4.3 Prior to commencement of construction of the Tenant Improvement Work,
Tenant shall obtain and deliver to Landlord all policies of insurance required
to be maintained by Tenant under the Lease, or certificates thereof.
5. Payment of Tenant Improvement Costs.
-----------------------------------
5.1 Landlord shall provide to Tenant a tenant improvement allowance in the
amount of $25 per square foot of Rentable Area of the Building (the "Tenant
Improvement Allowance"). The Tenant Improvement Allowance shall be disbursed as
provided below.
5.2 As a condition to the first disbursement of the Tenant Improvement
Allowance, Tenant shall have satisfied all of the following conditions:
(a) Tenant shall have delivered to Landlord duly executed originals of
each of the Tenant's Architect Agreement and the Tenant Improvement Contract.
(b) Landlord shall have reasonably approved the budget for the Tenant
Improvement Work.
(c) The Final Plans shall have been completed and approved.
(d) Tenant shall have obtained and be in compliance with all Tenant
Improvement Permits.
5.3 Disbursements of the Tenant Improvement Allowance will be made to a
demand deposit account in the name of Tenant within ten (10) days after receipt
by Landlord of the Draw Certifications required under Section 5.4 below, but not
more frequently than monthly, provided that (i) no default exists under the
Lease; (ii) no default exists under either of the Tenant Improvement Contract or
the Tenant's Architect Agreement; (iii) no lien has been filed with respect to
the Tenant Improvement Work that has not been released; (iv) Tenant is in
compliance with the Tenant Improvement Permits, and (v) all insurance required
under Articles 9 and 21 of the Lease is in full force and effect.
47
<PAGE>
5.4 As a condition to each funding, Tenant shall deliver to Landlord all
of the following:
(a) Tenant's Construction Draw Certification in the form of Attachment
4 hereto;
(b) The Tenant Improvement Contractor's Certification in the form of
Attachment 5 hereto;
(c) Conditional and unconditional lien releases, as applicable, in the
form required under California Civil Code Section 3262.
5.5 The first disbursement shall include all Tenant Improvement Costs
incurred prior to commencement of construction, including, without limitation,
fees for Tenant's Architect and Tenant Improvement Permit fees. Notwithstanding
the foregoing, the total amount remaining undisbursed shall at all times be
equivalent to the remaining outstanding costs of that portion of the Tenant
Improvement Work which the budget approved by Landlord, as such budget may be
modified with the reasonable approval of Landlord, indicates is to be financed
with the Tenant Improvement Allowance and Landlord shall not be required to make
any disbursement (or portion thereof) to the extent the remaining amount of the
undisbursed Tenant Improvement Allowance is not sufficient to fund the remaining
unpaid costs of the relevant portion of the Tenant Improvement Work.
5.6 Upon completion of the Tenant Improvement Work, Tenant shall provide
Landlord with certifications from the Tenant Improvement Contractor and the
Tenant's Architect that the Tenant Improvement Work has been substantially
completed in accordance with the Final Plans and with copies of final lien
releases from all contractors and subcontractors.
48
<PAGE>
ATTACHMENT 1 TO EXHIBIT B
BASE BUILDING WORK
Type of Construction: Type V, non-rated.
Off-Site Work: As required, scope to be determined.
Site Work: 1. Landscape and irrigation system will be first
class and equivalent to other similar
developments in the area.
2. Grass area to be turf.
3. Pavement and parking areas will be per
recommendations of the soils engineer.
4. Storm drains to meet site and jurisdictional
agency requirements.
5. Flatwork to include broom finish concrete walks,
upgraded entry apron at two main entrances, and
formed curbs.
6. Most existing trees will remain and will require
protection during construction.
7. Landscape lighting will be similar to other
developments in the area, limited uplighting is
expected.
Structure: 1. Two-story concrete tilt-up.
2. Steel columns.
3. Concrete filled metal deck supported by metal
bar joist and girders floor system for 2nd
floor.
4. 5/8" Oriented Strand Board roof supported by
metal bar joists with 2x6" sub-framing. 4-ply,
Class B roof at a minimum.
5. Steel framing with Metal deck and rigid
insulation board at (2) lobby areas and (1) link
between the two 'L'-shaped buildings.
6. Column spacing: 30'x30', or as determined by
structural engineer.
Structure-to Structure 1. First floor = 15'-0" floor-to-floor.
Heights: 2. Second floor = 14"-10 1/2" floor-to-floor at
highest point.
3. 24" approximate average mechanical duct spacing
between structure and suspended ceiling. This
may be reduced to 18" under roof drain locations
at second floor roof.
4. Roof and Second floor truss systems to
anticipate a 9'-6" suspended ceiling.
Load Bearing: 1. 100 lbs. per square foot (psf) live load plus 20
(psf) for partitions.
2. 20 (psf) live load at roof, including 7 (psf)
for suspended mechanical and electrical
equipment, plus 1,000 lb. point load at any
joist.
49
<PAGE>
Tilt-Up Concrete: 1. 31' high x 10" thick panels at first floor and 7
1/4" thick panels at second floor.
2. 3,000 (psi) normal weight concrete.
3. Integral color.
4. Surface applied crystalline waterproofing
system.
5. Some level of reveals or elevation relief is
expected.
Cast-in-Place Concrete: 1. 5" slab on grade with 3,000 (psi) concrete.
2. 10 mil. visqueen moisture barrier.
3. Footings to be 3,000 (psi) concrete.
4. Additional ad-mix by tenant.
5. Concrete fill on decks to be 3,000 (pi) normal
weight concrete.
Structural/Miscellaneous 1. Columns of tubular steel.
Steel: 2. 2nd Floor to be open web metal bar joists and
girders supporting 2" 20 Ga. metal deck with
2-1/2" concrete fill topping.
3. Roof System to be open web metal bar joists and
girders supporting 5/8" Oriented Strand Board
roof.
4. Three (3) code complaint exit stairs with
temporary handrails.
5. Two (2) vertical roof access hatch (3' x 5') and
ships ladder.
Glass/Glazing: 1. Glass to be tinted 1/4" blue green (tempered
with one inch insulated with friting backing
selected locations as required).
2. Vision area to be 9'-7 1/4" high ground level
openings.
3. Vision area to be 7'-0 1/2" high with sill at
2'-8" and head at 9'-8 1/2" on 2nd Floor level.
4. Mullion spacing to be determined by architect.
5. The shell will include primary entry doors of up
to 8' high, and additional exterior doors as
required to meet shell code.
6. Title 24 Energy use calculations and rigid
insulation above (2) lobby roofs will be
provided. Remainder of insulation to be provided
by tenant.
Plumbing: 1. Water, sewer and gas shall be provided to the
building.
2. The T.I. shall include all plumbing within the
building other than roof drainage, under main
sewer trunk line slab.
3. Roof drainage shall be piped to storm.
4. Overflow drainage shall be piped to face of
wall.
HVAC 1. The Tenant Improvements shall incorporate all
HVAC requirements, along with all structural
support and roof openings.
50
<PAGE>
Electrical 1. The shell building service shall be 1600 amps,
100% rated, 277/480V service. Main switchboard
to be provided.
2. Transformers shall be provided by the utility
and conduits shall be provided to the main
switchboards.
3. Shell building to include site lighting,
telephone/power conduits, electrical circuits
for PIV, irrigation controller, and monument
signs.
Ancillary Uses 1. On-site trash enclosure.
Utilities/Underground: 1. Gas will be provided to the building.
2. Pacific Bell service to be supplied to the
building.
3. A storm drain system shall be provided for
drainage of the parking lot and remote landscape
area drains.
Tenant-Provided 1. Tenant improvements shall include, but not be
Improvements: limited to: Toilet cores, elevators, roof
screens, partitions, lobby, corridors, stair
handrails, guardrails, electrical, telephone
equipment, fire sprinkler system (base system
and upright heads included in shell), security
system, plumbing, HVAC, insulation, structural
modifications for T.I.'s, exterior equipment
pad, equipment pad roof, equipment on pad,
ceilings, flooring, doors, frames, hardware,
finishes, equipment/storage rooms and grounding
system.
51
<PAGE>
ATTACHMENT 2 TO EXHIBIT B
CONSTRUCTION SCHEDULE
[To be agreed upon after lease execution.]
52
<PAGE>
ATTACHMENT 3 TO EXHIBIT B
ACCEPTANCE FORM
This Acceptance form is executed with reference to that certain Lease dated
as of _______________, ______ by and between by and between THE BOARD OF
TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY ("Landlord"), and
__________________ ("Tenant"). Terms defined in the Lease and the exhibits
thereto shall have the same meaning when used herein.
Tenant hereby certifies to Landlord that Tenant has inspected the Premises
as of _________ (the "Date of Inspection") and that the Base Building Work is
Substantially Complete except only for Punch List Items listed in Base Building
Architect's Certificate of Substantial Completion, a copy of which is attached
hereto. Tenant further acknowledges that Tenant hereby accepts the Premises in
its existing condition, subject only to the completion of any Punch List Items.
The person executing this Acceptance Form on behalf of Tenant represents
and warrants to Landlord that such person is duly authorized to execute this
Acceptance Form and that this Acceptance Form has been duly authorized, executed
and delivered on behalf of Tenant.
THIS ACCEPTANCE FORM is executed by Tenant as of the Date of Inspection.
__________________________________
By:_______________________________
Print Name:_______________________
Title:____________________________
Date:_____________________________
53
<PAGE>
ATTACHMENT 4 TO EXHIBIT B
TENANT'S CONSTRUCTION DRAW CERTIFICATION
General Contractor:__________________________
Design Architect:____________________________
________________________________________________________________________________
1. Original Contract Amount $
2. Additions to Contract $
3. Deductions from Contract $
4. Adjusted Amount of Contract $
5. Total Completed or Stored to Date $
6. Total Retainage $
7. Total Earned Less Retainage $
8. Previous Payments $
9. Current Payment Due $
________________________________________________________________________________
TENANT CERTIFICATION
--------------------
To induce Landlord to disburse proceeds of the Tenant Improvement Work pursuant
to the Lease, Tenant hereby certifies to Landlord as follows:
A. The amount shown on Line 9 above as Current Payment due is the actual amount
presently payable to the General Contractor.
B. No events of default presently exist, or with the giving of notice or
passage of time would exist, under the Lease.
C. Tenant has no knowledge of and has received no notices of liens or claims of
lien either filed or threatened against the premises, except:
________________________________________________________________________________
________________________________________________________________________________
D. All amounts shown on Line 8 above and in the column entitled "Previous
Payments" in the Disbursement Request Summary for this Draw Request have been
paid by Tenant.
E. The Tenant approves all work and materials for which payment is due (as
shown on Line 9 above) and confirms that to Tenant's knowledge and belief such
work and materials conform with the Tenant Improvement Plans, as defined in the
Lease, as they may be modified by written change orders in compliance with the
requirements of the Lease.
54
<PAGE>
F. The amounts shown above indicate that sufficient funds remain available
under the construction contract to complete all work required under such
contract and the following approved change orders:
________________________________________________________________________________
________________________________________________________________________________
G. The following list identifies those change order requests or proposals which
have been submitted by the Tenant Improvement Contractor but are pending
approval:
________________________________________________________________________________
________________________________________________________________________________
I. All permits, approvals and authorizations required by all governmental
authorities for the work covered by this draw request, the work which was the
subject of previous draw requests, and the work that is currently ongoing have
been obtained.
J. Approximately ____% of the Tenant Improvement Work has been completed as of
this date.
WITNESS:
BY:____________________________
TITLE:_________________________
55
<PAGE>
PAYMENT REQUEST
(Attached to and forming a part of Tenant's Construction Draw Certification)
DISBURSEMENT NO._________
DATE:________________________
<TABLE>
<CAPTION>
Revised %
------- --
Item Original Estimate Disbursed This Total Est. %
---- -------- -------- --------- ---- ----- ---- --
Number Description Estimate Date to Date Request Disbursed Disb. Comp.
- ------ ----------- -------- ---- ------- ------- --------- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Total
Reserve for Contingencies
Total Funds Available
56
<PAGE>
ATTACHMENT 5 TO EXHIBIT B
CONTRACTOR'S CONSTRUCTION DRAW CERTIFICATION
Project Name:_______________________ Date:__________________________________
Location:___________________________ Draw No:_______________________________
Landlord: The Board of Trustees of the Leland Stanford Junior University
Tenant:
General Contractor:
Design Architect:
________________________________________________________________________________
1. Original Contract Amount $_____________________
2. Additions to Contract $_____________________
3. Deductions from Contract $_____________________
4. Adjusted Amount of Contract $_____________________
5. Total Completed or Stored to Date $_____________________
6. Total Retainage $_____________________
7. Total Earned Less Retainage $_____________________
8. Previous Payments $_____________________
9. Current Payment Due $_____________________
________________________________________________________________________________
GENERAL CONTRACTOR CERTIFICATION
--------------------------------
To induce Landlord to make a disbursement of the Initial Improvements Allowance
pursuant to its Lease with Tenant, the undersigned (General Contractor)
certifies to Landlord as follows:
a. The information contained in all documents and supporting papers prepared or
signed by General Contractor and submitted to Landlord are true and correct.
b. The amount shown on Line 9 of the Draw Request Certification is the amount
presently due and payable under the contract with Tenant.
c. The amount shown on Line 8 of the Draw Request Certification has been
received by the General Contractor and applied to the amount due under the
contract with Tenant.
d. There has been no significant change in construction costs and the balance
due under the contract with Tenant is sufficient to complete the work required
under the contract.
e. All work performed to date conforms with the contract with Tenant and the
Plans and Specifications prepared and coordinated by the Design Architect.
f. There have been no change orders to the contract, proposed or approved,
except
________________________________________________________________________________
g. All subcontracted items and material/equipment items are shown in the
Application for Payment breakdown accompanying this Draw Request.
BY:_________________________
TITLE:______________________
57
<PAGE>
EXHIBIT C-1
NOTICE OF COMMENCEMENT DATE
(Letterhead of Stanford Management Company)
(Date)
____________________
____________________
____________________
Attention:__________
Re: Acknowledgment of Commencement Date,
Lease between The Board of Trustees of the Leland Stanford
Junior University (Landlord), and __________________________
(Tenant), for premises located at __________________, Palo Alto,
California
Gentlemen/Ladies:
This letter will confirm that for all purposes of the Lease, the
Commencement Date (as defined in Section 4.1 of the Lease) is ______.
Please acknowledge your acceptance of this letter by signing and returning
two copies of this letter.
Very truly yours,
Stanford Management Company
By:_______________________
Its:______________________
Accepted and Agreed:
__________________________
By:_______________________
Its:______________________
Dated:____________________
58
<PAGE>
EXHIBIT C-2
NOTICE OF RENT COMMENCEMENT DATE AND EXPIRATION DATE
(Date)
__________________________
__________________________
__________________________
Attention:________________
Re: Acknowledgment of Rent Commencement Date and Expiration Date,
Lease between The Board of Trustees of the Leland Stanford
Junior University (Landlord), and __________________________
(Tenant), for premises located at __________________, Palo Alto,
California
Gentlemen/Ladies:
This letter will confirm that for all purposes of the Lease, the Rent
Commencement Date (as defined in Section 4.1 of the Lease) is ______ and the
Expiration Date (as defined in Section 4.1 of the Lease) is
_________________________________.
Please acknowledge your acceptance of this letter by signing and returning
two copies of this letter.
Very truly yours,
Stanford Management Company
By:___________________________
Its:__________________________
Accepted and Agreed:
______________________________
By:___________________________
Its:__________________________
Dated:________________________
59
<PAGE>
EXHIBIT D
DETERMINATION OF PREVAILING MARKET RENTAL RATE
As used herein, the term "Prevailing Market Rental Rate" shall mean the
base monthly rental (net of all expenses) for space of comparable size and
location to the Premises and in buildings similar in age and quality to the
Building in the Stanford Research Park, taking into account any additional
rental and all other payments or escalations then being charged and allowances
being given in the Stanford Research Park for such comparable space over a
comparable term. The Prevailing Market Rental Rate shall be determined by
Landlord and Landlord shall give Tenant written notice of such determination not
later than thirteen (13) months prior to the expiration of the initial term or
the preceding Renewal Term, as applicable. If Tenant disputes Landlord's
determination of the Prevailing Market Rental Rate, Tenant shall so notify
Landlord within ten (10) days following Landlord's notice to Tenant of
Landlord's determination and, in such case, the Prevailing Market Rental Rate
shall be determined as follows:
(a) Within thirty (30) days following Landlord's notice to Tenant of the
Prevailing Market Rental Rate, Landlord and Tenant shall meet no less than two
(2) times, at a mutually agreeable time and place, to attempt to agree upon the
Prevailing Market Rental Rate.
(b) If within this thirty (30) day period Landlord and Tenant cannot reach
agreement as to the Prevailing Market Rental Rate, they shall each select one
appraiser to determine the Prevailing Market Rental Rate. Each such appraiser
shall arrive at a determination of the Prevailing Market Rental Rate and submit
his or her conclusions to Landlord and Tenant within thirty (30) days after the
expiration of the thirty (30) day consultation period described in (a) above.
(c) If only one appraisal is submitted within the requisite time period,
it shall be deemed to be the Prevailing Market Rental Rate. If both appraisals
are submitted within such time period, and if the two appraisals so submitted
differ by less than ten (10) percent of the higher of the two, the average of
the two shall be the Prevailing Market Rental Rate. If the two appraisals differ
by more than ten (10) percent of the higher of the two, then the two appraisers
shall immediately select a third appraiser who will within thirty (30) days of
his or her selection make a determination of the Prevailing Market Rental Rate
and submit such determination to Landlord and Tenant. This third appraisal will
then be averaged with the closer of the two previous appraisals and the result
shall be the Prevailing Market Rental Rate.
(e) All appraisers specified pursuant hereto shall be members of the
American Institute of Real Estate Appraisers with not less than five (5) years
experience appraising office, research and development and industrial properties
in the Santa Clara Valley. Each party shall pay the cost of the appraiser
selected by such party and one-half of the cost of the third appraiser plus one-
half of any other costs incurred in the determination.
60
<PAGE>
EXHIBIT E
NOTICE OF BASE RENT AND RENTABLE AREA
(Date)
_____________________
_____________________
_____________________
Attention:___________
Re: Acknowledgment of Base Rent and Rentable Area,
Lease between The Board of Trustees of the Leland Stanford
Junior University (Landlord), and __________________________
(Tenant), for premises located at __________________, Palo Alto,
California
Gentlemen/Ladies:
This letter will confirm that for all purposes of the Lease:
The Rentable Area of the Building is _______ square feet.
The Annual Base Rent is $ ______________________ ($____ x RSF of the
Building).
The Monthly Base Rent is $ ______________________ ($__ x RSF of the
Building).
As of the date hereof the Rentable Area of the other building on the Ground
Lease Property is ___ square feet.
Attached hereto is the certificate of the Architect confirming the above
square footages.
Please acknowledge your acceptance of this letter by signing and returning
two copies of this letter.
Very truly yours,
Stanford Management Company
By:_____________________________
Its:____________________________
Accepted and Agreed:
___________________________
By:________________________
Its:_______________________
Dated:_____________________
61
<PAGE>
EXHIBIT 10.14
BASIC LEASE INFORMATION
INDUSTRIAL NET
LEASE DATE: January 21, 2000
/(same as date in first paragraph of Lease)/
TENANT: TIBCO Software, Inc., a Delaware
corporation
TENANT'S NOTICE ADDRESS: 3165 Porter Drive, Palo Alto, CA
94304
TENANT'S BILLING ADDRESS: 3165 Porter Drive, Palo Alto, CA
94304
TENANT CONTACT: Gwen Waddell PHONE NUMBER: (650) 846-1000
FAX NUMBER: (650) 846-1007
LANDLORD: Spieker Properties, L.P., a
California limited partnership
LANDLORD'S NOTICE ADDRESS: 2180 Sand Hill Road, Suite 100
Menlo Park, CA 94025
LANDLORD'S REMITTANCE ADDRESS: Spieker Properties
P.O. Box 45587
Dept. # 10563
San Francisco, CA 94145-0587
Project Description: That four (4) building research
and development park commonly
known as Foothill Research Center
in Palo Alto, California. The
Project is outlined in green on
Exhibit B.
Premises: Approximately Twenty-Four
Thousand Five Hundred Forty-One
(24,541) rentable square feet
(the "Building A Premises") in
the building located at 4009
Miranda Avenue, Palo Alto,
California ("Building A"); and
approximately Forty-One Thousand
Five Hundred Four (41,504)
rentable square feet (the
"Building B Premises") in the
building located at 4005 Miranda
Avenue, Palo Alto, California
("Building B"); and approximately
Thirty Thousand Six Hundred
Thirty (30,630) rentable square
feet (the "Building C Premises")
in the building located at 4015
Miranda Avenue, Palo Alto,
California ("Building C").
Permitted Use: General office use in compliance
with all applicable laws,
including laws and ordinances of
the City of Palo Alto and in
compliance with any CC & R's or
regulations imposed by Stanford
University.
Parking Density: 3.3 spaces per 1,000 rentable
square feet of the Premises
Scheduled Term Commencement Date: See Paragraph 39.A hereof.
Scheduled Length of Term: One Hundred Twenty months from
the last occurring Term
Commencement Date.
Term Expiration Date: December 31, 2010
Rent:
1
<PAGE>
Base Rent: See Paragraph 39.C hereof
Estimated Year 2000 Operating Expenses: See Paragraph 39.C hereof
Security Deposit: $4,500,000.00, subject to
Paragraphs 19 and 39.E hereof.
Tenant's NAICS Code: 5112
Tenant's Proportionate Share:
Of Building: Building A - 45.59%
Building B - 77.10%
Building C - 100%
Of Project: 50.32%
2
<PAGE>
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
LANDLORD TENANT
Spieker Properties, L.P., TIBCO Software, Inc.,
A California limited partnership a Delaware corporation
By: Spieker Properties, Inc.,
a Maryland corporation, By: _____________________________
its general partner
Its:
By: __________________________ By: _____________________________
Eric T. Luhrs
Its: Vice President, Its:
Silicon Valley
3
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Basic Lease Information............................................... 1
Table of Contents..................................................... 2
1. Premises.............................................................. 6
2. Possession and Lease Commencement..................................... 6
3. Term.................................................................. 7
4. Use................................................................... 7
5. Rules and Regulations................................................. 7
6. Rent.................................................................. 7
7. Operating Expenses.................................................... 8
8. Insurance and Indemnification......................................... 10
9. Waiver of Subrogation................................................. 12
10. Landlord's Repairs and Maintenance.................................... 12
11. Tenant's Repairs and Maintenance...................................... 12
12. Alterations........................................................... 13
13. Signs................................................................. 14
14. Inspection/Posting Notices............................................ 14
15. Services and Utilities................................................ 14
16. Subordination......................................................... 15
17. Financial Statements.................................................. 16
18. Estoppel Certificate.................................................. 16
19. Security Deposit...................................................... 16
20. Limitation of Tenant's Remedies....................................... 16
21. Assignment and Subletting............................................. 16
22. Authority of Tenant................................................... 18
23. Condemnation.......................................................... 18
24. Casualty Damage....................................................... 19
25. Holding Over.......................................................... 19
26. Default............................................................... 20
27. Liens................................................................. 21
28. Substitution.......................................................... 21
29. Transfers by Landlord................................................. 22
30. Right of Landlord to Perform Tenant's Covenants....................... 22
31. Waiver................................................................ 22
32. Notices............................................................... 22
33. Attorney's Fees....................................................... 22
34. Successors and Assigns................................................ 23
35. Force Majeure......................................................... 23
36. Surrender of Premises................................................. 23
37. Hazardous Materials................................................... 23
38. Miscellaneous......................................................... 24
39. Additional Provisions................................................. 25
40. Jury Trial Waiver..................................................... 32
Signatures............................................................ 32
</TABLE>
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Exhibits:
Exhibit A................................................Rules and Regulations
Exhibit B......................................Site Plan, Property Description
Exhibit C..........................................Lease Improvement Agreement
Exhibit D....................................Hazardous Materials Questionnaire
Additional Exhibits as Required
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LEASE
THIS LEASE is made as of the 21/st/ day of January, by and between Spieker
Properties, L.P., a California limited partnership (hereinafter called
"Landlord"), and TIBCO Software, Inc., a Delaware corporation (hereinafter
called "Tenant").
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord, upon the terms and
conditions hereinafter set forth, those premises (the "Premises") outlined in
red on Exhibit B. The Building A Premises, the Building B Premises, and the
Building C Premises, each as described in the Basic Lease Information hereof,
shall sometimes be referred to herein, collectively, as the "Premises." The
Premises shall be all or part of Building A, Building B and Building C
(collectively, the "Building") and of a project (the "Project"), which may
consist of more than one building and additional facilities, as described in the
Basic Lease Information. The Premises shall be all or part of a building
(collectively, the "Building") and of a project (the "Project"), which may
consist of more than one building and additional facilities, as described in the
Basic Lease Information. Building A, Building B and Building C are defined in
the Basic Lease Information and depicted on Exhibit B attached hereto. The
Building and Project are outlined in blue and green respectively on Exhibit B.
Landlord and Tenant acknowledge that physical changes may occur from time to
time in the Premises, Building or Project, and that the number of buildings and
additional facilities which constitute the Project may change from time to time,
which may result in an adjustment in Tenant's Proportionate Share, as defined in
the Basic Lease Information, as provided in Paragraph 7.A.
2. POSSESSION AND LEASE COMMENCEMENT
A. Existing Improvements. To the extent this Lease pertains to the Building A
Premises and the Building C Premises in which the interior improvements have
already been constructed ("Existing Improvements"), the provisions of this
Paragraph 2.A. shall apply and the term commencement dates (each, a "Term
Commencement Date") with respect to each such portion of the Premises shall be
the dates described in Paragraph 39.A hereof. If for any reason Landlord cannot
deliver possession of the Premises to Tenant on the scheduled Term Commencement
Date, Landlord shall not be subject to any liability therefor, nor shall
Landlord be in default hereunder nor shall such failure affect the validity of
this Lease, and Tenant agrees to accept possession of the Premises at such time
as Landlord is able to deliver the same, which date shall then be deemed the
Term Commencement Date. Tenant shall not be liable for any Rent (defined below)
for any period prior to the Term Commencement Date. Tenant acknowledges that
Tenant has inspected and accepts the Premises in their present condition, broom
clean, "as is," and as suitable for, the Permitted Use (as defined below), and
for Tenant's intended operations in the Premises. Tenant agrees that the
Premises and other improvements are in good and satisfactory condition as of
when possession was taken. Tenant further acknowledges that no representations
as to the condition or repair of the Premises nor promises to alter, remodel or
improve the Premises have been made by Landlord or any agents of Landlord unless
such are expressly set forth in this Lease. Upon Landlord's request, Tenant
shall promptly execute and return to Landlord a "Start-Up Letter" in which
Tenant shall agree, among other things, to acceptance of the Premises and to the
determination of the Term Commencement Date, in accordance with the terms of
this Lease, but Tenant's failure or refusal to do so shall not negate Tenant's
acceptance of the Premises or affect determination of the Term Commencement
Date. Landlord shall deliver and Tenant shall accept possession of the Building
A Premises and the Building C Premises as-is, without any tenant improvements
whatsoever. Tenant acknowledges and agrees that Landlord's obligation to deliver
possession of the Building A Premises and the Building C Premises to Tenant as
described herein is subject to the existing tenant in possession executing the
appropriate and necessary documentation and surrendering possession of the
Building A Premises and the Building C Premises to Landlord in a manner which
shall enable Landlord to deliver possession of the Building A Premises on or
about March 31, 2000 and the Building C Premises to Tenant on or about July 1,
2000.
B. Construction of Improvements. To the extent this Lease pertains to the
Building B Premises, the provisions of this Paragraph 2.B. shall apply in lieu
of the provisions of Paragraph 2.A. above and the term commencement date ( "Term
Commencement Date") with respect to the Building B Premises shall be the date
described in Paragraph 39.A hereof. If for any reason Landlord cannot deliver
possession of the Premises to Tenant on the scheduled Term Commencement Date,
Landlord shall not be subject to any liability therefor, nor shall Landlord be
in default hereunder nor shall such failure affect the validity of this Lease,
and Tenant agrees to accept possession of the Premises on the date the Premises
are delivered by Landlord, which date shall then be deemed the Term Commencement
Date. Tenant shall not be liable for any Rent for any period prior to the Term
Commencement Date (but without affecting any obligations of Tenant under any
improvement agreement appended to this Lease). Upon Landlord's request, Tenant
shall promptly execute and return to Landlord a "Start-Up Letter" in which
Tenant shall agree, among other things, to acceptance of the Premises and to the
determination of the Term Commencement Date, in accordance with the terms of
this Lease, but Tenant's failure or refusal to do so shall not negate Tenant's
acceptance of the Premises or affect determination of the Term Commencement
Date. Exhibit C to this Lease shall govern the Tenant Improvements to be
constructed within the Building B Premises by Tenant.
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3. TERM
The term of this Lease (the "Term") shall commence on the applicable Term
Commencement Date for each portion of the Premises as set forth in Paragraph
39.A hereof, and continue in full force, until and including the Term Expiration
Date set forth in the Basic Lease Information, or until this Lease is terminated
as otherwise provided herein.
4. USE
A. General. Tenant shall use the Premises for the permitted use specified in
the Basic Lease Information and in accordance with Paragraph 39.B ("Permitted
Use") and for no other use or purpose. Tenant shall control Tenant's employees,
agents, customers, visitors, invitees, licensees, contractors, assignees and
subtenants (collectively, "Tenant's Parties") in such a manner that Tenant and
Tenant's Parties cumulatively do not exceed the parking density specified in the
Basic Lease Information (the "Parking Density") at any time. So long as Tenant
is occupying the Premises, Tenant and Tenant's Parties shall have the
nonexclusive right to use, in common with other parties occupying the Building
or Project, the parking areas, driveways and other common areas of the Building
and Project, subject to the terms of this Lease and such rules and regulations
as Landlord may from time to time prescribe. Landlord reserves the right,
without notice or liability to Tenant, and without the same constituting an
actual or constructive eviction, to alter or modify the common areas from time
to time, including the location and configuration thereof, and the amenities and
facilities which Landlord may determine to provide from time to time.
B. Limitations. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises or from any portion
of the common areas as a result of Tenant's or any Tenant's Party's use thereof,
nor take any action which would constitute a nuisance or would disturb, obstruct
or endanger any other tenants or occupants of the Building or Project or
elsewhere, or interfere with their use of their respective premises or common
areas. Storage outside the Premises of materials, vehicles or any other items is
prohibited. Tenant shall not use or allow the Premises to be used for any
immoral, improper or unlawful purpose, nor shall Tenant cause or maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer the commission of any waste in, on or about the Premises. Tenant shall
not allow any sale by auction upon the Premises, or place any loads upon the
floors, walls or ceilings which could endanger the structure, or place any
harmful substances in the drainage system of the Building or Project. No waste,
materials or refuse shall be dumped upon or permitted to remain outside the
Premises except in trash containers placed inside exterior enclosures designated
for that purpose by Landlord. Landlord shall not be responsible to Tenant for
the non-compliance by any other tenant or occupant of the Building or Project
with any of the above-referenced rules or any other terms or provisions of such
tenant's or occupant's lease or other contract.
C. Compliance with Regulations. By entering the Premises, Tenant accepts the
Premises in the condition existing as of the date of such entry. Tenant shall at
its sole cost and expense strictly comply with all existing or future applicable
municipal, state and federal and other governmental statutes, rules,
requirements, regulations, laws and ordinances, including zoning ordinances and
regulations, and covenants, easements and restrictions of record governing and
relating to the use, occupancy or possession of the Premises, to Tenant's use of
the common areas, or to the use, storage, generation or disposal of Hazardous
Materials (hereinafter defined) (collectively "Regulations"). Tenant shall at
its sole cost and expense obtain any and all licenses or permits necessary for
Tenant's use of the Premises. Tenant shall at its sole cost and expense promptly
comply with the requirements of any board of fire underwriters or other similar
body now or hereafter constituted. Tenant shall not do or permit anything to be
done in, on, under or about the Project or bring or keep anything which will in
any way increase the rate of any insurance upon the Premises, Building or
Project or upon any contents therein or cause a cancellation of said insurance
or otherwise affect said insurance in any manner. Tenant shall indemnify, defend
(by counsel reasonably acceptable to Landlord), protect and hold Landlord
harmless from and against any loss, cost, expense, damage, attorneys' fees or
liability arising out of the failure of Tenant to comply with any Regulation.
Tenant's obligations pursuant to the foregoing indemnity shall survive the
expiration or earlier termination of this Lease. Landlord shall be responsible
for complying with Regulations pertaining to the common areas of the Project
prior to the applicable Term Commencement Date for each portion of the Premises
except to the extent arising out of Tenant's occupancy or use of the Premises or
common areas or construction of any Tenant Improvements or Alterations made by
or on behalf of Tenant, whether by Landlord or otherwise and whether performed
before or after the applicable Term Commencement Date, or installation of any
equipment, fixtures, furniture or other personal property in or about the
Premises; provided, however; that Landlord may treat costs of such compliance as
an Operating Expense.
5. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the building rules and
regulations attached hereto as Exhibit A and any other rules and regulations and
any modifications or additions thereto which Landlord may from time to time
prescribe in writing for the purpose of maintaining the proper care,
cleanliness, safety, traffic flow and general order of the Premises or the
Building or Project. Tenant shall cause Tenant's Parties to comply with such
rules and regulations. Landlord shall not be responsible to Tenant for the non-
compliance by any other tenant or occupant of the Building or Project with any
of such rules and regulations, any other tenant's or occupant's lease or any
Regulations.
6. RENT
A. Base Rent. Tenant shall pay to Landlord and Landlord shall receive,
without notice or demand throughout the Term, Base Rent as specified in the
Basic Lease Information, payable in monthly installments in advance on or before
the first day of each calendar month,
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in lawful money of the United States, without deduction or offset whatsoever, at
the Remittance Address specified in the Basic Lease Information or to such other
place as Landlord may from time to time designate in writing. Base Rent for the
first full month of the Term for each portion of the Premises shall be paid by
Tenant upon Tenant's execution of this Lease. If the obligation for payment of
Base Rent for any portion of the Premises commences on a day other than the
first day of a month, then Base Rent shall be prorated and the prorated
installment shall be paid on the first day of the calendar month next succeeding
the Term Commencement Date. The Base Rent payable by Tenant hereunder is subject
to adjustment as provided elsewhere in this Lease, as applicable. As used
herein, the term "Base Rent" shall mean the Base Rent specified in the Basic
Lease Information as it may be so adjusted from time to time.
B. Additional Rent. All monies other than Base Rent required to be paid by
Tenant hereunder, including, but not limited to, Tenant's Proportionate Share of
Operating Expenses, as specified in Paragraph 7 of this Lease, charges to be
paid by Tenant under Paragraph 15, the interest and late charge described in
Paragraphs 26.D. and E., and any monies spent by Landlord pursuant to Paragraph
30, shall be considered additional rent ("Additional Rent"). "Rent" shall mean
Base Rent and Additional Rent.
7. OPERATING EXPENSES
A. Operating Expenses. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as Additional Rent, Tenant's Proportionate Share of
the Building and/or Project (as applicable), as defined in the Basic Lease
Information, of Operating Expenses (defined below) in the manner set forth
below. Tenant shall pay the applicable Tenant's Proportionate Share of each such
Operating Expenses. Landlord and Tenant acknowledge that if the number of
buildings which constitute the Project increases or decreases, or if physical
changes are made to the Premises, Building or Project or the configuration of
any thereof, Landlord may at its discretion reasonably adjust Tenant's
Proportionate Share of the Building or Project to reflect the change. Landlord's
determination of Tenant's Proportionate Share of the Building and of the Project
shall be conclusive so long as it is reasonably and consistently applied.
"Operating Expenses" shall mean all expenses and costs of every kind and nature
which Landlord shall pay or become obligated to pay, because of or in connection
with the ownership, management, maintenance, repair, preservation, replacement
and operation of the Building or Project and its supporting facilities and such
additional facilities now and in subsequent years as may be determined by
Landlord to be necessary or desirable to the Building and/or Project (as
determined in a reasonable manner) other than those expenses and costs which are
specifically attributable to Tenant or which are expressly made the financial
responsibility of Landlord or specific tenants of the Building or Project
pursuant to this Lease. Operating Expenses shall include, but are not limited
to, the following:
(1) Taxes. All real property taxes and assessments, possessory interest
taxes, sales taxes, personal property taxes, business or license taxes or
fees, gross receipts taxes, service payments in lieu of such taxes or fees,
annual or periodic license or use fees, excises, transit charges, and other
impositions, general and special, ordinary and extraordinary, unforeseen as
well as foreseen, of any kind (including fees "in-lieu" of any such tax or
assessment) which are now or hereafter assessed, levied, charged,
confirmed, or imposed by any public authority upon the Building or Project,
its operations or the Rent (or any portion or component thereof), or any
tax, assessment or fee imposed in substitution, partially or totally, of
any of the above. Operating Expenses shall also include any taxes,
assessments, reassessments, or other fees or impositions with respect to
the development, leasing, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises, Building or Project or any portion
thereof, including, without limitation, by or for Tenant, and all increases
therein or reassessments thereof whether the increases or reassessments
result from increased rate and/or valuation (whether upon a transfer of the
Building or Project or any portion thereof or any interest therein or for
any other reason). Operating Expenses shall not include (i) inheritance or
estate taxes imposed upon or assessed against the interest of any person in
the Project, (ii) transfer taxes (which transfer taxes are imposed in
connection with the recordation of a deed conveying the Building or the
Project as opposed to real property tax assessments), or (iii) taxes
computed upon the basis of the net income of any owners of any interest in
the Project. If it shall not be lawful for Tenant to reimburse Landlord for
all or any part of such taxes, the monthly rental payable to Landlord under
this Lease shall be revised to net Landlord the same net rental after
imposition of any such taxes by Landlord as would have been payable to
Landlord prior to the payment of any such taxes.
(2) Insurance. All insurance premiums and costs, including, but not
limited to, any deductible amounts, premiums and other costs of insurance
incurred by Landlord, including for the insurance coverage set forth in
Paragraph 8.A. herein.
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(3) Common Area Maintenance.
(a) Repairs, replacements, and general maintenance of and for the
Building and Project and public and common areas and facilities of and
comprising the Building and Project, including, but not limited to,
the roof and roof membrane, elevators, mechanical rooms, alarm
systems, pest extermination, landscaped areas, parking and service
areas, driveways, sidewalks, truck staging areas, rail spur areas,
fire sprinkler systems, sanitary and storm sewer lines, utility
services, heating/ventilation/air conditioning systems, electrical,
mechanical or other systems, telephone equipment and wiring servicing,
plumbing, lighting, and any other items or areas which affect the
operation or appearance of the Building or Project, which
determination shall be at Landlord's discretion, except for: those
items to the extent paid for by the proceeds of insurance; and those
items attributable solely or jointly to specific tenants of the
Building or Project.
(b) Repairs, replacements, and general maintenance shall include the
cost of any improvements made to or assets acquired for the Project or
Building that in Landlord's discretion may reduce any other Operating
Expenses, including present or future repair work, are reasonably
necessary for the health and safety of the occupants of the Building
or Project, or for the operation of the Building systems, services and
equipment, or are required to comply with any Regulation, such costs
or allocable portions thereof, including for all major replacements
whether under subparagraph (3)(a) or (b), to be amortized over such
reasonable period as Landlord shall determine, together with interest
on the unamortized balance at the publicly announced "prime rate"
charged by Wells Fargo Bank, N.A. (San Francisco) or its successor at
the time such improvements or capital assets are constructed or
acquired, plus two (2) percentage points, or in the absence of such
prime rate, then at the U.S. Treasury six-month market note (or bond,
if so designated) rate as published by any national financial
publication selected by Landlord, plus four (4) percentage points, but
in no event more than the maximum rate permitted by law, plus
reasonable financing charges.
(c) Payment under or for any easement, license, permit, operating
agreement, declaration, restrictive covenant or instrument relating to
the Building or Project.
(d) All expenses and rental related to services and costs of
supplies, materials and equipment used in operating, managing and
maintaining the Premises, Building and Project, the equipment therein
and the adjacent sidewalks, driveways, parking and service areas,
including, without limitation, expenses related to service agreements
regarding security, fire and other alarm systems, janitorial services
to the extent not addressed in Paragraph 11 hereof, window cleaning,
elevator maintenance, Building exterior maintenance, landscaping and
expenses related to the administration, management and operation of
the Project, including without limitation salaries, wages and benefits
and management office rent.
(e) The cost of supplying any services and utilities which benefit
all or a portion of the Premises, Building or Project to the extent
not addressed in Paragraph 15 hereof.
(f) Legal expenses and the cost of audits by certified public
accountants; provided, however, that legal expenses chargeable as
Operating Expenses shall not include the cost of negotiating leases,
collecting rents, evicting tenants nor shall it include costs incurred
in legal proceedings with or against any tenant or to enforce the
provisions of any lease.
(g) A management and accounting cost recovery fee equal to three
percent (3%) of the Base Rent when due and payable for each Building
hereunder.
If the rentable area of the Building and/or Project is not fully occupied during
any fiscal year of the Term as determined by Landlord, an adjustment shall be
made in Landlord's discretion in computing the Operating Expenses for such year
so that Tenant pays an equitable portion of all variable items (e.g., utilities,
janitorial services and other component expenses that are affected by variations
in occupancy levels) of Operating Expenses, as reasonably determined by
Landlord; provided, however, that in no event shall Landlord be entitled to
collect in excess of one hundred percent (100%) of the total Operating Expenses
from all of the tenants in the Building or Project, as the case may be.
Operating Expenses shall not include the cost of providing tenant improvements
or other specific costs incurred for the account of, separately billed to and
paid by specific tenants of the Building or Project, the initial construction
cost of the Building, or debt service on any mortgage or deed of trust recorded
with respect to the Project other than pursuant to Paragraph 7.A.(3)(b) above.
Notwithstanding anything herein to the contrary, in any instance wherein
Landlord, in Landlord's sole discretion, deems Tenant to be responsible for any
amounts greater than Tenant's Proportionate Share, Landlord shall have the right
to allocate costs in any manner Landlord deems appropriate.
The above enumeration of services and facilities shall not be deemed to impose
an obligation on Landlord to make available or provide such services or
facilities except to the extent if any that Landlord has specifically agreed
elsewhere in this Lease to make the same available or provide the same. Without
limiting the generality of the foregoing, Tenant acknowledges and agrees that it
shall be responsible for providing adequate security for its use of the
Premises, the Building and the Project and that Landlord shall have no
9
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obligation or liability with respect thereto, except to the extent if any that
Landlord has specifically agreed elsewhere in this Lease to provide the same.
B. Payment of Estimated Operating Expenses. "Estimated Operating Expenses" for
any particular year shall mean Landlord's estimate of the Operating Expenses for
such fiscal year made with respect to such fiscal year as hereinafter provided.
Landlord shall have the right from time to time to revise its fiscal year and
interim accounting periods so long as the periods as so revised are reconciled
with prior periods in a reasonable manner. During the last month of each fiscal
year during the Term, or as soon thereafter as practicable, Landlord shall give
Tenant written notice of the Estimated Operating Expenses for the ensuing fiscal
year. Tenant shall pay Tenant's Proportionate Share of the Estimated Operating
Expenses with installments of Base Rent for the fiscal year to which the
Estimated Operating Expenses applies in monthly installments on the first day of
each calendar month during such year, in advance. Such payment shall be
construed to be Additional Rent for all purposes hereunder. If at any time
during the course of the fiscal year, Landlord determines that Operating
Expenses are projected to vary from the then Estimated Operating Expenses by
more than five percent (5%), Landlord may, by written notice to Tenant, revise
the Estimated Operating Expenses for the balance of such fiscal year, and
Tenant's monthly installments for the remainder of such year shall be adjusted
so that by the end of such fiscal year Tenant has paid to Landlord Tenant's
Proportionate Share of the revised Estimated Operating Expenses for such year,
such revised installment amounts to be Additional Rent for all purposes
hereunder.
C. Computation of Operating Expense Adjustment. "Operating Expense Adjustment"
shall mean the difference between Estimated Operating Expenses and actual
Operating Expenses for any fiscal year determined as hereinafter provided.
Within one hundred twenty (120) days after the end of each fiscal year, or as
soon thereafter as practicable, Landlord shall deliver to Tenant a statement of
actual Operating Expenses for the fiscal year just ended, accompanied by a
computation of Operating Expense Adjustment. If such statement shows that
Tenant's payment based upon Estimated Operating Expenses is less than Tenant's
Proportionate Share of Operating Expenses, then Tenant shall pay to Landlord the
difference within twenty (20) days after receipt of such statement, such payment
to constitute Additional Rent for all purposes hereunder. If such statement
shows that Tenant's payments of Estimated Operating Expenses exceed Tenant's
Proportionate Share of Operating Expenses, then (provided that Tenant is not in
default under this Lease) Landlord shall pay to Tenant the difference within
twenty (20) days after delivery of such statement to Tenant. If this Lease has
been terminated or the Term hereof has expired prior to the date of such
statement, then the Operating Expense Adjustment shall be paid by the
appropriate party within twenty (20) days after the date of delivery of the
statement. Should this Lease commence or terminate at any time other than the
first day of the fiscal year, Tenant's Proportionate Share of the Operating
Expense Adjustment shall be prorated based on a month of 30 days and the number
of calendar months during such fiscal year that this Lease is in effect.
Notwithstanding anything to the contrary contained in Paragraph 7.A or 7.B,
Landlord's failure to provide any notices or statements within the time periods
specified in those paragraphs shall in no way excuse Tenant from its obligation
to pay Tenant's Proportionate Share of Operating Expenses.
D. Net Lease. This shall be a triple net Lease and Base Rent shall be paid to
Landlord absolutely net of all costs and expenses, except as specifically
provided to the contrary in this Lease. The provisions for payment of Operating
Expenses and the Operating Expense Adjustment are intended to pass on to Tenant
and reimburse Landlord for all costs and expenses of the nature described in
Paragraph 7.A. incurred in connection with the ownership, management,
maintenance, repair, preservation, replacement and operation of the Building
and/or Project and its supporting facilities and such additional facilities now
and in subsequent years as may be determined by Landlord to be necessary or
desirable to the Building and/or Project.
E. Tenant Audit. If Tenant shall dispute the amount set forth in any statement
provided by Landlord under Paragraph 7.B. or 7.C. above, Tenant shall have the
right, not later than twenty (20) days following receipt of such statement and
upon the condition that Tenant shall first deposit with Landlord the full amount
in dispute, to cause Landlord's books and records with respect to Operating
Expenses for such fiscal year to be audited by certified public accountants
selected by Tenant and subject to Landlord's reasonable right of approval. The
Operating Expense Adjustment shall be appropriately adjusted on the basis of
such audit. If such audit discloses a liability for a refund in excess of ten
percent (10%) of Tenant's Proportionate Share of the Operating Expenses
previously reported, the cost of such audit shall be borne by Landlord;
otherwise the cost of such audit shall be paid by Tenant. If Tenant shall not
request an audit in accordance with the provisions of this Paragraph 7.E. within
twenty (20) days after receipt of Landlord's statement provided pursuant to
Paragraph 7.B. or 7.C., such statement shall be final and binding for all
purposes hereof. Tenant acknowledges and agrees that any information revealed in
the above described audit may contain proprietary and sensitive information and
that significant damage could result to Landlord if such information were
disclosed to any party other than Tenant's auditors. Tenant shall not in any
manner disclose, provide or make available any information revealed by the audit
to any person or entity without Landlord's prior written consent, which consent
may be withheld by Landlord in its sole and absolute discretion. The information
disclosed by the audit will be used by Tenant solely for the purpose of
evaluating Landlord's books and records in connection with this Paragraph 7.E.
8. INSURANCE AND INDEMNIFICATION
A. Landlord's Insurance. All insurance maintained by Landlord shall be for the
sole benefit of Landlord and under Landlord's sole control.
(1) Property Insurance. Landlord agrees to maintain property insurance
insuring the Building against damage or destruction due to risk including
fire, vandalism, and malicious mischief in an amount not less than the
replacement cost thereof, in the form and with deductibles and endorsements
as selected by Landlord. At its election, Landlord may instead (but shall
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have no obligation to) obtain "All Risk" coverage, and may also obtain
earthquake, pollution, and/or flood insurance in amounts selected by
Landlord.
(2) Optional Insurance. Landlord, at Landlord's option, may also (but
shall have no obligation to) carry (i) insurance against loss of rent, in
an amount equal to the amount of Base Rent and Additional Rent that
Landlord could be required to abate to all Building tenants in the event of
condemnation or casualty damage for a period of twelve (12) months; and
(ii) liability insurance and such other insurance as Landlord may deem
prudent or advisable, including, without limitation, liability insurance in
such amounts and on such terms as Landlord shall determine. Landlord shall
not be obligated to insure, and shall have no responsibility whatsoever for
any damage to, any furniture, machinery, goods, inventory or supplies, or
other personal property or fixtures which Tenant may keep or maintain in
the Premises, or any leasehold improvements, additions or alterations
within the Premises.
B. Tenant's Insurance. Tenant shall procure at Tenant's sole cost and expense
and keep in effect from the date of this Lease and at all times until the end of
the Term the following:
(1) Property Insurance. Insurance on all personal property and fixtures of
Tenant and all improvements, additions or alterations made by or for Tenant
to the Premises on an "All Risk" basis, insuring such property for the full
replacement value of such property.
(2) Liability Insurance. Commercial General Liability insurance covering
bodily injury and property damage liability occurring in or about the
Premises or arising out of the use and occupancy of the Premises and the
Project, and any part of either, and any areas adjacent thereto, and the
business operated by Tenant or by any other occupant of the Premises. Such
insurance shall include contractual liability coverage insuring all of
Tenant's indemnity obligations under this Lease. Such coverage shall have a
minimum combined single limit of liability of at least Two Million Dollars
($2,000,000.00), and a minimum general aggregate limit of Three Million
Dollars ($3,000,000.00), with an "Additional Insured - Managers or Lessors
of Premises Endorsement" and the "Amendment of the Pollution Exclusion
Endorsement." All such policies shall be written to apply to all bodily
injury (including death), property damage or loss, personal and advertising
injury and other covered loss, however occasioned, occurring during the
policy term, shall be endorsed to add Landlord and any party holding an
interest to which this Lease may be subordinated as an additional insured,
and shall provide that such coverage shall be "primary" and non-
contributing with any insurance maintained by Landlord, which shall be
excess insurance only. Such coverage shall also contain endorsements
including employees as additional insureds if not covered by Tenant's
Commercial General Liability Insurance. All such insurance shall provide
for the severability of interests of insureds; and shall be written on an
"occurrence" basis, which shall afford coverage for all claims based on
acts, omissions, injury and damage, which occurred or arose (or the onset
of which occurred or arose) in whole or in part during the policy period.
(3) Workers' Compensation and Employers' Liability Insurance. Workers'
Compensation Insurance as required by any Regulation, and Employers'
Liability Insurance in amounts not less than One Million Dollars
($1,000,000) each accident for bodily injury by accident; One Million
Dollars ($1,000,000) policy limit for bodily injury by disease; and One
Million Dollars ($1,000,000) each employee for bodily injury by disease.
(4) Commercial Auto Liability Insurance. Commercial auto liability
insurance with a combined limit of not less than One Million Dollars
($1,000,000) for bodily injury and property damage for each accident. Such
insurance shall cover liability relating to any auto (including owned,
hired and non-owned autos).
(5) Alterations Requirements. In the event Tenant shall desire to perform
any Alterations, Tenant shall deliver to Landlord, prior to commencing such
Alterations (i) evidence satisfactory to Landlord that Tenant carries
"Builder's Risk" insurance covering construction of such Alterations in an
amount and form approved by Landlord, (ii) such other insurance as Landlord
shall nondiscriminatorily require, and (iii) a lien and completion bond or
other security in form and amount satisfactory to Landlord.
(6) General Insurance Requirements. All coverages described in this
Paragraph 8.B shall be endorsed to (i) provide Landlord with thirty (30)
days' notice of cancellation or change in terms; and (ii) waive all rights
of subrogation by the insurance carrier against Landlord. If at any time
during the Term the amount or coverage of insurance which Tenant is
required to carry under this Paragraph 8.B is, in Landlord's reasonable
judgment, materially less than the amount or type of insurance coverage
typically carried by owners or tenants of properties located in the general
area in which the Premises are located which are similar to and operated
for similar purposes as the Premises or if Tenant's use of the Premises
should change with or without Landlord's consent, Landlord shall have the
right to require Tenant to increase the amount or change the types of
insurance coverage required under this Paragraph 8.B. All insurance
policies required to be carried by Tenant under this Lease shall be written
by companies rated A X or better in "Best's Insurance Guide" and authorized
to do business in the State of California. In any event deductible amounts
under all insurance policies required to be carried by Tenant under this
Lease shall not exceed Five Thousand Dollars ($5,000.00) per occurrence.
Tenant shall deliver to Landlord on or before the Term Commencement Date,
and thereafter at least thirty (30) days before the expiration dates of the
expired policies, certified copies of Tenant's insurance policies, or a
certificate evidencing the same issued by the insurer thereunder; and, if
Tenant shall fail to procure such insurance,
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or to deliver such policies or certificates, Landlord may, at Landlord's
option and in addition to Landlord's other remedies in the event of a
default by Tenant hereunder, procure the same for the account of Tenant,
and the cost thereof shall be paid to Landlord as Additional Rent.
C. Indemnification. Tenant shall indemnify, defend by counsel reasonably
acceptable to Landlord, protect and hold Landlord, Spieker Properties, Inc., and
each of their respective directors, shareholders, partners, lenders, members,
managers, contractors, affiliates, and employees (collectively, "Landlord
Indemnities") harmless from and against any and all claims, liabilities, losses,
costs, loss of rents, liens, damages, injuries or expenses, including reasonable
attorneys' and consultants' fees and court costs, demands, causes of action, or
judgments, directly or indirectly arising out of or related to: (1) claims of
injury to or death of persons or damage to property or business loss occurring
or resulting directly or indirectly from the use or occupancy of the Premises,
Building or Project by Tenant or Tenant's Parties, or from activities or
failures to act of Tenant or Tenant's Parties; (2) claims arising from work or
labor performed, or for materials or supplies furnished to or at the request of
Tenant in connection with performance of any work done for the account of Tenant
within the Premises or Project; (3) claims arising from any breach or default on
the part of Tenant in the performance of any covenant contained in this Lease;
and (4) claims arising from the negligence or intentional acts or omissions of
Tenant or Tenant's Parties. Landlord shall indemnify, defend by counsel
reasonably acceptable to Tenant, protect and hold Tenant harmless from and
against any and all claims, liabilities, losses, costs, damages, injuries or
expenses, including reasonable attorneys' and consultants' fees and court costs,
demands, causes of action, or judgments arising out of or relating to the gross
negligence or willful misconduct of Landlord or Landlord's agents, employees or
invitees. Notwithstanding the foregoing or anything to the contrary contained in
this Lease, Landlord shall in no event be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury or damage to any person or
property in or about the Premises, Building or Project, including without
limitation the common areas, whether caused by theft, fire, rain or water
leakage of any character from the roof, walls, plumbing, sprinklers, pipes,
basement or any other portion of the Premises, Building or Project, or caused by
gas, fire, oil or electricity in, on or about the Premises, Building or Project,
or from any other systems except in each case to the extent caused by the gross
negligence or willful misconduct of Landlord, or by acts of God (including
without limitation flood or earthquake) or third parties, acts of a public
enemy, riot, strike, insurrection, war, court order, requisition or order of
governmental body or authority or from any other cause whatsoever, or for any
damage or inconvenience which may arise through repair. In addition, Landlord
shall in no event be liable for (i) injury to Tenant's business or any loss of
income or profit therefrom or from consequential damages, or (ii) sums up to the
amount of insurance proceeds received by Tenant. The foregoing indemnity by
Landlord shall not be applicable to claims to the extent arising from the
negligence or willful misconduct of Tenant or Tenant's Parties. The provisions
of this Paragraph shall survive the expiration or earlier termination of this
Lease.
9. WAIVER OF SUBROGATION
Landlord and Tenant each waives any claim, loss or cost it might have against
the other for any injury to or death of any person or persons, or damage to or
theft, destruction, loss, or loss of use of any property (a "Loss"), to the
extent the same is insured against (or is required to be insured against under
the terms hereof) under any property damage insurance policy covering the
Building, the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements, or business, regardless of whether the negligence of the
other party caused such Loss.
10. LANDLORD'S REPAIRS AND MAINTENANCE
Landlord shall maintain in good repair, reasonable wear and tear excepted, the
structural soundness of the roof, foundations, and exterior walls of the
Building. The term "exterior walls" as used herein shall not include windows,
glass or plate glass, doors, dock bumpers or dock plates, special store fronts
or office entries. Any damage caused by or repairs necessitated by any
negligence or act of Tenant or Tenant's Parties may be repaired by Landlord at
Landlord's option and Tenant's expense. Tenant shall immediately give Landlord
written notice of any defect or need of repairs in such components of the
Building for which Landlord is responsible, after which Landlord shall have a
reasonable opportunity and the right to enter the Premises at all reasonable
times to repair same. Landlord's liability with respect to any defects, repairs,
or maintenance for which Landlord is responsible under any of the provisions of
this Lease shall be limited to the cost of such repairs or maintenance, and
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising from the making of
repairs, alterations or improvements in or to any portion of the Premises, the
Building or the Project or to fixtures, appurtenances or equipment in the
Building, except as provided in Paragraph 24. By taking possession of the
Premises, Tenant accepts them "as is," as being in good order, condition and
repair and the condition in which Landlord is obligated to deliver them and
suitable for the Permitted Use and Tenant's intended operations in the Premises,
whether or not any notice of acceptance is given.
11. TENANT'S REPAIRS AND MAINTENANCE
Tenant shall at all times during the Term at Tenant's expense maintain all
parts of the Premises and such portions of the Building as are within the
exclusive control of Tenant in a first-class, good, clean and secure condition
and promptly make all necessary repairs and replacements, as determined by
Landlord, including but not limited to, all windows, glass, doors, walls,
including demising walls, and wall finishes, floors and floor covering, heating,
ventilating and air conditioning systems, ceiling insulation, truck doors,
hardware, dock bumpers, dock plates and levelers, plumbing work and fixtures,
downspouts, entries, skylights, smoke hatches, roof vents, electrical and
lighting systems, and fire sprinklers, with materials and workmanship of the
same character, kind and quality as the original. Tenant shall at Tenant's
expense also perform regular removal of trash and debris. If Tenant uses rail
and if required by the railroad company, Tenant
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agrees to sign a joint maintenance agreement governing the use of the rail spur,
if any. Tenant shall, at Tenant's own expense, enter into a regularly scheduled
preventative maintenance/service contract with a maintenance contractor for
servicing all hot water, heating and air conditioning systems and equipment
within or serving the Premises. The maintenance contractor and the contract must
be approved by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual
and must become effective and a copy thereof delivered to Landlord within thirty
(30) days after the Term Commencement Date. Landlord may, upon notice to Tenant,
enter into such a service contract on behalf of Tenant or perform the work and
in either case charge Tenant the cost thereof along with a reasonable amount for
Landlord's overhead. Notwithstanding anything to the contrary contained herein,
Tenant shall, at its expense, promptly repair any damage to the Premises or the
Building or Project resulting from or caused by any negligence or act of Tenant
or Tenant's Parties. Nothing herein shall expressly or by implication render
Tenant Landlord's agent or contractor to effect any repairs or maintenance
required of Tenant under this Paragraph 11, as to all of which Tenant shall be
solely responsible.
12. ALTERATIONS
A. Tenant shall not make, or allow to be made, any alterations, physical
additions, improvements or partitions, including without limitation the
attachment of any fixtures or equipment, in, about or to the Premises
("Alterations") without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to proposed Alterations
which: (a) comply with all applicable Regulations; (b) are, in Landlord's
opinion, compatible with the Building or the Project and its mechanical,
plumbing, electrical, heating/ventilation/air conditioning systems, and will not
cause the Building or Project or such systems to be required to be modified to
comply with any Regulations (including, without limitation, the Americans With
Disabilities Act); and (c) will not interfere with the use and occupancy of any
other portion of the Building or Project by any other tenant or its invitees.
Specifically, but without limiting the generality of the foregoing, Landlord
shall have the right of written consent for all plans and specifications for the
proposed Alterations, construction means and methods, all appropriate permits
and licenses, any contractor or subcontractor to be employed on the work of
Alterations, and the time for performance of such work, and may impose rules and
regulations for contractors and subcontractors performing such work. Tenant
shall also supply to Landlord any documents and information reasonably requested
by Landlord in connection with Landlord's consideration of a request for
approval hereunder. Tenant shall cause all Alterations to be accomplished in a
first-class, good and workmanlike manner, and to comply with all applicable
Regulations and Paragraph 27 hereof. Tenant shall at Tenant's sole expense,
perform any additional work required under applicable Regulations due to the
Alterations hereunder. No review or consent by Landlord of or to any proposed
Alteration or additional work shall constitute a waiver of Tenant's obligations
under this Paragraph 12. Tenant shall reimburse Landlord for all costs which
Landlord may incur in connection with granting approval to Tenant for any such
Alterations, including any costs or expenses which Landlord may incur in
electing to have outside architects and engineers review said plans and
specifications, and shall pay Landlord an administration fee of ten percent
(10%) of the cost of the Alterations as Additional Rent hereunder. All such
Alterations shall remain the property of Tenant until the expiration or earlier
termination of this Lease, at which time they shall be and become the property
of Landlord; provided, however, that Landlord may, at Landlord's option, require
that Tenant, at Tenant's expense, remove any or all Alterations made by Tenant,
whether permitted or otherwise, and restore the Premises by the expiration or
earlier termination of this Lease, to their condition existing prior to the
construction of any such Alterations. All such removals and restoration shall be
accomplished in a first-class and good and workmanlike manner so as not to cause
any damage to the Premises or Project whatsoever. If Tenant fails to remove such
Alterations or Tenant's trade fixtures or furniture or other personal property,
Landlord may keep and use them or remove any of them and cause them to be stored
or sold in accordance with applicable law, at Tenant's sole expense. In addition
to and wholly apart from Tenant's obligation to pay Tenant's Proportionate Share
of Operating Expenses, Tenant shall be responsible for and shall pay prior to
delinquency any taxes or governmental service fees, possessory interest taxes,
fees or charges in lieu of any such taxes, capital levies, or other charges
imposed upon, levied with respect to or assessed against its fixtures or
personal property, on the value of Alterations within the Premises, and on
Tenant's interest pursuant to this Lease, or any increase in any of the
foregoing based on such Alterations. To the extent that any such taxes are not
separately assessed or billed to Tenant, Tenant shall pay the amount thereof as
invoiced to Tenant by Landlord.
Notwithstanding the foregoing, at Landlord's option (but without obligation),
all or any portion of the Alterations shall be performed by Landlord for
Tenant's account and Tenant shall pay Landlord's estimate of the cost thereof
(including a reasonable charge for Landlord's overhead and profit) prior to
commencement of the work. In addition, at Landlord's election and
notwithstanding the foregoing, however, Tenant shall pay to Landlord the cost of
removing any such Alterations and restoring the Premises to their original
condition such cost to include a reasonable charge for Landlord's overhead and
profit as provided above, and such amount may be deducted from the Security
Deposit or any other sums or amounts held by Landlord under this Lease.
Notwithstanding the foregoing, Tenant shall have the right, without consent of,
but upon at least ten (10) business days' prior written notice (as provided
under Paragraph 12.B below) to, Landlord, to make non-structural cosmetic
Alterations within the interior of the Premises (and which are not visible from
outside of the Premises) which do not impair the value of the Building, and
which do not cost, in the aggregate, less than thirty thousand dollars
($30,000.00) in any twelve (12) month period during the Term of this Lease,
provided that such Alterations shall nevertheless be subject to all of the
remaining requirements of this Paragraph 12, including without limitation,
subparagraphs (a) through (c) above and payment of the administration fee
referred to in this Paragraph 12.A, other than the requirement of Landlord's
prior consent. In addition all Alterations shall be performed by duly licensed
contractors or subcontractors reasonably acceptable to Landlord, proof of
insurance shall be submitted to Landlord as required under Paragraph 8 above,
and Landlord reserves the right to impose reasonable rules and regulations for
contractors and subcontractors. Tenant shall, if requested by Landlord, promptly
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furnish Landlord with complete as built plans and specifications for any
Alterations performed by Tenant to the Premises, at Tenant's sole cost and
expense.
B. In compliance with Paragraph 27 hereof, at least ten (10) business days
before beginning construction of any Alteration, Tenant shall give Landlord
written notice of the expected commencement date of that construction to permit
Landlord to post and record a notice of non-responsibility. Upon substantial
completion of construction, if the law so provides, Tenant shall cause a timely
notice of completion to be recorded in the office of the recorder of the county
in which the Building is located.
13. SIGNS
Tenant shall not place, install, affix, paint or maintain any signs, notices,
graphics or banners whatsoever or any window decor which is visible in or from
public view or corridors, the common areas or the exterior of the Premises or
the Building, in or on any exterior window or window fronting upon any common
areas or service area or upon any truck doors or man doors without Landlord's
prior written approval which Landlord shall have the right to withhold in its
absolute and sole discretion; provided that Tenant's name shall be included in
any Building-standard door and directory signage, if any, in accordance with
Landlord's Building signage program, including without limitation, payment by
Tenant of any fee charged by Landlord for maintaining such signage, which fee
shall constitute Additional Rent hereunder. Any installation of signs, notices,
graphics or banners on or about the Premises or Project approved by Landlord
shall be subject to any Regulations and to any other requirements imposed by
Landlord. Tenant shall remove all such signs or graphics by the expiration or
any earlier termination of this Lease. Such installations and removals shall be
made in such manner as to avoid injury to or defacement of the Premises,
Building or Project and any other improvements contained therein, and Tenant
shall repair any injury or defacement including without limitation discoloration
caused by such installation or removal. Notwithstanding the foregoing, Tenant
shall be entitled to one (1) sign to be located on Building C approximately as
indicated in blue on the attached floor plan (Exhibit B). Such sign will be
designed and constructed at Tenant's sole cost and expense. All signs shall be
subject to Landlord's approval, which Landlord shall have the right to withhold
in its absolute and sole discretion, and approval of any public authorities
having jurisdiction. Tenant shall be responsible for electrical energy used in
connection with its signs, repairs and maintenance necessary to maintain the
signs in their original condition.
14. INSPECTION/POSTING NOTICES
After reasonable notice, except in emergencies where no such notice shall be
required, Landlord and Landlord's agents and representatives, shall have the
right to enter the Premises to inspect the same, to clean, to perform such work
as may be permitted or required hereunder, to make repairs, improvements or
alterations to the Premises, Building or Project or to other tenant spaces
therein, to deal with emergencies, to post such notices as may be permitted or
required by law to prevent the perfection of liens against Landlord's interest
in the Project or to exhibit the Premises to prospective tenants, purchasers,
encumbrancers or to others, or for any other purpose as Landlord may deem
necessary or desirable; provided, however, that Landlord shall use reasonable
efforts not to unreasonably interfere with Tenant's business operations. Tenant
shall not be entitled to any abatement of Rent by reason of the exercise of any
such right of entry. Tenant waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby.
Landlord shall at all times have and retain a key with which to unlock all of
the doors in, upon and about the Premises, excluding Tenant's vaults and safes
or special security areas (designated in advance), and Landlord shall have the
right to use any and all means which Landlord may deem necessary or proper to
open said doors in an emergency, in order to obtain entry to any portion of the
Premises, and any entry to the Premises or portions thereof obtained by Landlord
by any of said means, or otherwise, shall not be construed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an eviction, actual or
constructive, of Tenant from the Premises or any portions thereof. At any time
within six (6) months prior to the expiration of the Term or following any
earlier termination of this Lease or agreement to terminate this Lease, Landlord
shall have the right to erect on the Premises, Building and/or Project a
suitable sign indicating that the Premises are available for lease.
15. SERVICES AND UTILITIES
A. Tenant shall (where practicable) contract for and pay directly when due,
for all water, gas, heat, air conditioning, light, power, telephone, sewer,
sprinkler charges, cleaning, waste disposal and other utilities and services
used on or from the Premises, together with any taxes, penalties, surcharges or
the like pertaining thereto, and maintenance charges for utilities and shall
furnish all electric light bulbs, ballasts and tubes. If any such services are
not separately billed or metered to Tenant, Tenant shall pay an equitable
proportion, as determined in good faith by Landlord, of all charges billed or
metered with other premises. All sums payable under this Paragraph 15 shall
constitute Additional Rent hereunder.
B. Tenant acknowledges that Tenant has inspected and accepts the water,
electricity, heat and air conditioning and other utilities and services being
supplied or furnished to the Premises as of the date Tenant takes possession of
the Premises, if any, as being sufficient in their present condition, "as is,"
for the Permitted Use, and for Tenant's intended operations in the Premises.
Landlord shall have no obligation to provide additional or after-hours
electricity, heating or air conditioning, but if Landlord elects to provide such
services at Tenant's request, Tenant shall pay upon demand to Landlord a
reasonable charge for such services as determined by Landlord. Tenant agrees to
keep and cause to be kept closed all window covering when necessary because of
the sun's position, and Tenant also agrees at all times to cooperate fully with
Landlord and to abide by all of the regulations and requirements which Landlord
may prescribe for the proper functioning and protection of electrical, heating,
ventilating and air conditioning systems. Wherever heat-generating machines,
excess
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lighting or equipment are used in the Premises which affect the temperature
otherwise maintained by the air conditioning system, Landlord reserves the right
to install supplementary air conditioning units in the Premises and the cost
thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
C. Tenant shall not without written consent of Landlord use any apparatus,
equipment or device in the Premises, including without limitation, computers,
electronic data processing machines, copying machines, and other machines, using
excess lighting or using electric current, water, or any other resource in
excess of or which will in any way increase the amount of electricity, water, or
any other resource being furnished or supplied for the use of the Premises for
reasonable and normal office use, in each case as of the date Tenant takes
possession of the Premises and as determined by Landlord, or which will require
additions or alterations to or interfere with the Building power distribution
systems; nor connect with electric current, except through existing electrical
outlets in the Premises or water pipes, any apparatus, equipment or device for
the purpose of using electrical current, water, or any other resource. If Tenant
shall require water or electric current or any other resource in excess of that
being furnished or supplied for the use of the Premises as of the date Tenant
takes possession of the Premises, if any, as determined by Landlord, Tenant
shall first procure the written consent of Landlord which Landlord may refuse,
to the use thereof, and Landlord may cause a special meter to be installed in
the Premises so as to measure the amount of water, electric current or other
resource consumed for any such other use. Tenant shall pay directly to Landlord
upon demand as an addition to and separate from payment of Operating Expenses
the cost of all such additional resources, energy, utility service and meters
(and of installation, maintenance and repair thereof and of any additional
circuits or other equipment necessary to furnish such additional resources,
energy, utility or service). Landlord may add to the separate or metered charge
a recovery of additional expense incurred in keeping account of the excess
water, electric current or other resource so consumed. Landlord shall in no case
be liable for any damages directly or indirectly resulting from nor shall the
Rent or any monies owed Landlord under this Lease herein reserved be abated by
reason of: (a) the installation, use or interruption of use of any equipment
used in connection with the furnishing of any such utilities or services, or any
change in the character or means of supplying or providing any such utilities or
services or any supplier thereof; (b) the failure to furnish or delay in
furnishing any such utilities or services when such failure or delay is caused
by acts of God or the elements, labor disturbances of any character, or
otherwise, or because of any interruption of service due to Tenant's use of
water, electric current or other resource in excess of that being supplied or
furnished for the use of the Premises as of the date Tenant takes possession of
the Premises; or (c) the inadequacy, limitation, curtailment, rationing or
restriction on use of water, electricity, gas or any other form of energy or any
other service or utility whatsoever serving the Premises or Project otherwise;
or (d) the partial or total unavailability of any such utilities or services to
the Premises or the Building or the diminution in the quality or quantity
thereof, whether by Regulation or otherwise; or (e) any interruption in Tenant's
business operations as a result of any such occurrence; nor shall any such
occurrence constitute an actual or constructive eviction of Tenant or a breach
of an implied warranty by Landlord. Landlord shall further have no obligation to
protect or preserve any apparatus, equipment or device installed by Tenant in
the Premises, including without limitation by providing additional or after-
hours heating or air conditioning. Landlord shall be entitled to cooperate
voluntarily and in a reasonable manner with the efforts of national, state or
local governmental agencies or utility suppliers in reducing energy or other
resource consumption. The obligation to make services available hereunder shall
be subject to the limitations of any such voluntary, reasonable program. In
addition, Landlord reserves the right to change the supplier or provider of any
such utility or service from time to time. Landlord may, but shall not be
obligated to, upon notice to Tenant, contract with or otherwise obtain any
electrical or other such service for or with respect to the Premises or Tenant's
operations therein from any supplier or provider of any such service. Tenant
shall cooperate with Landlord and any supplier or provider of such services
designated by Landlord from time to time to facilitate the delivery of such
services to Tenant at the Premises and to the Building and Project, including
without limitation allowing Landlord and Landlord's suppliers or providers, and
their respective agents and contractors, reasonable access to the Premises for
the purpose of installing, maintaining, repairing, replacing or upgrading such
service or any equipment or machinery associated therewith.
16. SUBORDINATION
Without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination, this Lease shall be and is hereby
declared to be subject and subordinate at all times to: (a) all ground leases or
underlying leases which may now exist or hereafter be executed affecting the
Premises and/or the land upon which the Premises and Project are situated, or
both; and (b) any mortgage or deed of trust which may now exist or be placed
upon the Building, the Project and/or the land upon which the Premises or the
Project are situated, or said ground leases or underlying leases, or Landlord's
interest or estate in any of said items which is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. If any ground lease or underlying lease terminates for any
reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord provided that Tenant shall not be disturbed in its possession under
this Lease by such successor in interest so long as Tenant is not in default
under this Lease. Within ten (10) days after request by Landlord, Tenant shall
execute and deliver any additional documents evidencing Tenant's attornment or
the subordination of this Lease with respect to any such ground leases or
underlying leases or any such mortgage or deed of trust, in the form requested
by Landlord or by any ground landlord, mortgagee, or beneficiary under a deed of
trust, subject to such nondisturbance requirement. If requested in writing by
Tenant, Landlord shall use commercially reasonable efforts to obtain a
subordination, nondisturbance and attornment agreement for the benefit of Tenant
reflecting the foregoing from any ground landlord, mortgagee or beneficiary, at
Tenant's expense, subject to such other terms and conditions as the ground
landlord, mortgagee or beneficiary may require.
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17. FINANCIAL STATEMENTS
At the request of Landlord from time to time, Tenant shall provide to Landlord
Tenant's and any guarantor's current financial statements or other information
discussing financial worth of Tenant and any guarantor, which Landlord shall use
solely for purposes of this Lease and in connection with the ownership,
management, financing and disposition of the Project.
18. ESTOPPEL CERTIFICATE
Tenant agrees from time to time, within ten (10) days after request of Landlord,
to deliver to Landlord, or Landlord's designee, an estoppel certificate stating
that this Lease is in full force and effect, that this Lease has not been
modified (or stating all modifications, written or oral, to this Lease), the
date to which Rent has been paid, the unexpired portion of this Lease, that
there are no current defaults by Landlord or Tenant under this Lease (or
specifying any such defaults), that the leasehold estate granted by this Lease
is the sole interest of Tenant in the Premises and/or the land at which the
Premises are situated, and such other matters pertaining to this Lease as may be
reasonably requested by Landlord or any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or Project or any interest therein.
Failure by Tenant to execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant that the statements
included are true and correct without exception. Tenant agrees that if Tenant
fails to execute and deliver such certificate within such ten (10) day period,
Landlord may execute and deliver such certificate on Tenant's behalf and that
such certificate shall be binding on Tenant. Landlord and Tenant intend that
any statement delivered pursuant to this Paragraph may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the Building or
Project or any interest therein. The parties agree that Tenant's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Landlord's execution of this Lease, and shall be an event of default
(without any cure period that might be provided under Paragraph 26.A(3) of this
Lease) if Tenant fails to fully comply or makes any material misstatement in any
such certificate.
19. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord upon execution of this Lease, a security
deposit as stated in the Basic Lease Information (the "Security Deposit"), which
sum shall be held and owned by Landlord, without obligation to pay interest, as
security for the performance of Tenant's covenants and obligations under this
Lease. The Security Deposit is not an advance rental deposit or a measure of
damages incurred by Landlord in case of Tenant's default. Upon the occurrence
of any event of default by Tenant, Landlord may from time to time, without
prejudice to any other remedy provided herein or by law, use such fund as a
credit to the extent necessary to credit against any arrears of Rent or other
payments due to Landlord hereunder, and any other damage, injury, expense or
liability caused by such event of default, and Tenant shall pay to Landlord, on
demand, the amount so applied in order to restore the Security Deposit to its
original amount. Although the Security Deposit shall be deemed the property of
Landlord, any remaining balance of such deposit shall be returned by Landlord to
Tenant at such time after termination of this Lease that all of Tenant's
obligations under this Lease have been fulfilled, reduced by such amounts as may
be required by Landlord to remedy defaults on the part of Tenant in the payment
of Rent or other obligations of Tenant under this Lease, to repair damage to the
Premises, Building or Project caused by Tenant or any Tenant's Parties and to
clean the Premises. Landlord may use and commingle the Security Deposit with
other funds of Landlord. Tenant hereby waives the provisions of Section 1950.7
of the California Civil Code, and all other provisions of any Regulations, now
or hereinafter in force, which restricts the amount or types of claim that a
landlord may make upon a security deposit or imposes upon a landlord (or its
successors) any obligation with respect to the handling or return of security
deposits.
20. LIMITATION OF TENANT'S REMEDIES
The obligations and liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease are not personal obligations of Landlord or of the
individual or other partners of Landlord or its or their partners, directors,
officers, or shareholders, and Tenant agrees to look solely to Landlord's
interest in the Project for the recovery of any amount from Landlord, and shall
not look to other assets of Landlord nor seek recourse against the assets of the
individual or other partners of Landlord or its or their partners, directors,
officers or shareholders. Any lien obtained to enforce any such judgment and
any levy of execution thereon shall be subject and subordinate to any lien,
mortgage or deed of trust on the Project. Under no circumstances shall Tenant
have the right to offset against or recoup Rent or other payments due and to
become due to Landlord hereunder except as expressly provided in this Lease,
which Rent and other payments shall be absolutely due and payable hereunder in
accordance with the terms hereof. In no case shall Landlord be liable to Tenant
for any lost profits, damage to business, or any form of special, indirect or
consequential damage on account of any breach of this Lease or otherwise,
notwithstanding anything to the contrary contained in this Lease.
21. ASSIGNMENT AND SUBLETTING
A. (1) General. This Lease has been negotiated to be and is granted as an
accommodation to Tenant. Accordingly, this Lease is personal to Tenant,
and Tenant's rights granted hereunder do not include the right to assign
this Lease or sublease the Premises, or to receive any excess, either in
installments or lump sum, over the Rent which is expressly reserved by
Landlord as hereinafter provided, except as otherwise expressly hereinafter
provided. Tenant shall not assign or pledge this Lease or sublet the
Premises or any part thereof, whether voluntarily or by operation of law,
or permit the use or occupancy of the Premises or any part thereof by
anyone other than Tenant, or suffer or permit any such assignment, pledge,
subleasing or occupancy, without Landlord's prior written consent except as
provided herein. If Tenant desires to assign this Lease or sublet any or
all of the Premises, Tenant shall give Landlord written notice (the
"Transfer Notice") at least sixty (60) days prior to the anticipated
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effective date of the proposed assignment or sublease, which shall contain
all of the information reasonably requested by Landlord to address
Landlord's decision criteria specified hereinafter. Landlord shall then
have a period of thirty (30) days following receipt of the Transfer Notice
to notify Tenant in writing that Landlord elects either: (i) to terminate
this Lease as to the space so affected as of the date so requested by
Tenant; or (ii) to consent to the proposed assignment or sublease, subject,
however, to Landlord's prior written consent of the proposed assignee or
subtenant and of any related documents or agreements associated with the
assignment or sublease. If Landlord should fail to notify Tenant in
writing of such election within said period, Landlord shall be deemed to
have waived option (i) above, but written consent by Landlord of the
proposed assignee or subtenant shall still be required. If Landlord does
not exercise option (i) above, Landlord's consent to a proposed assignment
or sublease shall not be unreasonably withheld. Consent to any assignment
or subletting shall not constitute consent to any subsequent transaction to
which this Paragraph 21 applies. Notwithstanding anything to the contrary
contained in this Lease, Landlord's right to terminate pursuant to option
(i) above shall not apply so long as Tenant is in occupancy of at least
55,171 square feet of the entire Premises and is not in default under this
Lease.
(2) Conditions of Landlord's Consent. Without limiting the other instances in
which it may be reasonable for Landlord to withhold Landlord's consent to
an assignment or subletting, Landlord and Tenant acknowledge that it shall
be reasonable for Landlord to withhold Landlord's consent in the following
instances: if the proposed assignee does not agree to be bound by and
assume the obligations of Tenant under this Lease in form and substance
satisfactory to Landlord; the use of the Premises by such proposed assignee
or subtenant would not be a Permitted Use or would violate any exclusivity
or other arrangement which Landlord has with any other tenant or occupant
or any Regulation or would increase the Occupancy Density or Parking
Density of the Building or Project, or would otherwise result in an
undesirable tenant mix for the Project as determined by Landlord; the
proposed assignee or subtenant is not of sound financial condition as
determined by Landlord in Landlord's sole discretion; the proposed assignee
or subtenant is a governmental agency; the proposed assignee or subtenant
does not have a good reputation as a tenant of property or a good business
reputation; the proposed assignee or subtenant is a person with whom
Landlord is negotiating to lease space in the Project or is a present
tenant of the Project; the assignment or subletting would entail any
Alterations which would lessen the value of the leasehold improvements in
the Premises or use of any Hazardous Materials or other noxious use or use
which may disturb other tenants of the Project; or Tenant is in default of
any obligation of Tenant under this Lease, or Tenant has defaulted under
this Lease on three (3) or more occasions during any twelve (12) months
preceding the date that Tenant shall request consent. Failure by or refusal
of Landlord to consent to a proposed assignee or subtenant shall not cause
a termination of this Lease. Upon a termination under Paragraph
21.A.(1)(i), Landlord may lease the Premises to any party, including
parties with whom Tenant has negotiated an assignment or sublease, without
incurring any liability to Tenant. At the option of Landlord, a surrender
and termination of this Lease shall operate as an assignment to Landlord of
some or all subleases or subtenancies. Landlord shall exercise this option
by giving notice of that assignment to such subtenants on or before the
effective date of the surrender and termination. In connection with each
request for assignment or subletting, Tenant shall pay to Landlord
Landlord's standard fee for approving such requests, as well as all costs
incurred by Landlord or any mortgagee or ground lessor in approving each
such request and effecting any such transfer, including, without
limitation, reasonable attorneys' fees.
(3) Permitted Transfers. An "Affiliate" means any entity that (i) controls, is
controlled by, or is under common control with Tenant (ii) results from the
transfer of all or substantially all of Tenant's assets or stock, or (iii)
results from the merger or consolidation of Tenant with another entity.
"Control," as used in the previous sentence, means the direct or indirect
ownership of more than fifty percent (50%) of the voting securities of an
entity or possession of the right to vote more than fifty percent (50%) of
the voting interest in the ordinary direction of the entity's affairs.
Notwithstanding anything to the contrary contained in this Lease,
Landlord's consent is not required for and Landlord's recapture rights
shall not apply to any assignment of this Lease or sublease of all or a
portion of the Premises to an Affiliate so long as the following conditions
are met: (a) at least ten (10) business days before any such assignment or
sublease, Landlord receives written notice of such assignment or sublease
(as well as any documents or information reasonably requested by Landlord
regarding the proposed intended transfer and the transferee); (b) Tenant is
not then and has not been in default more than three (3) times during the
Term of this Lease; (c) if the transfer is an assignment or any other
transfer to an Affiliate other than a sublease, the intended assignee
assumes in writing all of Tenant's obligations under this Lease relating to
the Premises in form satisfactory to Landlord or, if the transfer is a
sublease, the intended sublessee accepts the sublease in form satisfactory
to Landlord; (d) the intended transferee has a tangible net worth, as
evidenced by financial statements delivered to Landlord and certified by an
independent certified public accountant in accordance with generally
accepted accounting principles that are consistently applied, at least
equal to $150,000,000.00; (e) the Premises shall continue to be operated
solely for the use specified in the Basic Lease Information; and (f) Tenant
shall pay to Landlord Landlord's standard fee for approving assignments and
subleases and all costs reasonably incurred by Landlord or any mortgagee or
ground lessor for such assignment or subletting, including, without
limitation, reasonable attorneys' fees. No transfer to an Affiliate in
accordance with this subparagraph shall relieve Tenant named herein of any
obligation under this Lease or alter the primary liability of Tenant named
herein for the payment of Rent or for the performance of any other
obligation to be performed by Tenant, including the obligations contained
in Paragraph 25 with respect to any Affiliate.
B. Bonus Rent. Any Rent or other consideration realized by Tenant under any
such sublease or assignment in excess of the Rent payable hereunder, after (i)
amortization of a reasonable brokerage commission, (ii) unamortized tenant
improvements paid for by Tenant solely with respect to the Building B Premises
and (iii) amortization of the reasonable, actual out of pocket costs of tenant
improvements made solely in connection with the sublease or assignment in each
case to the extent reasonably and actually, incurred by Tenant, shall be
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divided and paid, fifty percent (50%) to Tenant, fifty percent (50%) to
Landlord. In any subletting or assignment undertaken by Tenant to a party other
than a Permitted Affiliate as defined herein, Tenant shall diligently seek to
obtain the maximum rental amount available in the marketplace for comparable
space available for primary leasing.
C. Corporation. If Tenant is a corporation, a transfer of corporate shares by
sale, assignment, bequest, inheritance, operation of law or other disposition
(including such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings) resulting in a change in the
present control of such corporation or any of its parent corporations by the
person or persons owning a majority of said corporate shares, shall constitute
an assignment for purposes of this Lease. Notwithstanding anything to the
contrary in this Lease, the transfer of outstanding capital stock or other
listed equity interests, or the purchase of outstanding capital stock or other
listed equity interests, or the purchase of equity interests issued in an
initial public offering of stock through the "over-the-counter" market or any
recognized national or international securities exchange shall not be included
in determining whether control has been transferred.
D. Unincorporated Entity. If Tenant is a partnership, joint venture,
unincorporated limited liability company or other unincorporated business form,
a transfer of the interest of persons, firms or entities responsible for
managerial control of Tenant by sale, assignment, bequest, inheritance,
operation of law or other disposition, so as to result in a change in the
present control of said entity and/or of the underlying beneficial interests of
said entity and/or a change in the identity of the persons responsible for the
general credit obligations of said entity shall constitute an assignment for all
purposes of this Lease.
E. Liability. No assignment or subletting by Tenant, permitted or otherwise,
shall relieve Tenant of any obligation under this Lease or any guarantor of this
Lease of any liability under its guaranty or alter the primary liability of the
Tenant named herein for the payment of Rent or for the performance of any other
obligations to be performed by Tenant, including obligations contained in
Paragraph 25 with respect to any assignee or subtenant. Landlord may collect
rent or other amounts or any portion thereof from any assignee, subtenant, or
other occupant of the Premises, permitted or otherwise, and apply the net rent
collected to the Rent payable hereunder, but no such collection shall be deemed
to be a waiver of this Paragraph 21, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of the obligations of Tenant under this Lease or any
guarantor of this Lease of any liability under its guaranty. Any assignment or
subletting which conflicts with the provisions hereof shall be void.
22. AUTHORITY
This Lease is subject to the written consent of The Board of Trustees of the
Leland Stanford Junior University (Stanford Management Company). Except for
such consent, Landlord represents and warrants that it has full right and
authority to enter into this Lease and to perform all of Landlord's obligations
hereunder and that all persons signing this Lease on its behalf are authorized
to do and that no other consents or approvals are required from any other person
or entity, or if such other consents or approvals are required, such other
consents or approvals have been obtained. Tenant and the person or persons, if
any, signing on behalf of Tenant, jointly and severally represent and warrant
that Tenant has full right and authority to enter into this Lease, and to
perform all of Tenant's obligations hereunder, and that all persons signing this
Lease on its behalf are authorized to do so.
23. CONDEMNATION
A. Condemnation Resulting in Termination. If the whole or any substantial
part of the Premises should be taken or condemned for any public use under any
Regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the Permitted
Use of the Premises, either party shall have the right to terminate this Lease
at its option. If any material portion of the Building or Project is taken or
condemned for any public use under any Regulation, or by right of eminent
domain, or by private purchase in lieu thereof, Landlord may terminate this
Lease at its option. In either of such events, the Rent shall be abated during
the unexpired portion of this Lease, effective when the physical taking of said
Premises shall have occurred.
B. Condemnation Not Resulting in Termination. If a portion of the Project of
which the Premises are a part should be taken or condemned for any public use
under any Regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking prevents or materially interferes with the
Permitted Use of the Premises, and this Lease is not terminated as provided in
Paragraph 23.A. above, the Rent payable hereunder during the unexpired portion
of this Lease shall be reduced, beginning on the date when the physical taking
shall have occurred, to such amount as may be fair and reasonable under all of
the circumstances, but only after giving Landlord credit for all sums received
or to be received by Tenant by the condemning authority. Notwithstanding
anything to the contrary contained in this Paragraph, if the temporary use or
occupancy of any part of the Premises shall be taken or appropriated under power
of eminent domain during the Term, this Lease shall be and remain unaffected by
such taking or appropriation and Tenant shall continue to pay in full all Rent
payable hereunder by Tenant during the Term; in the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that portion of any
award which represents compensation for the use of or occupancy of the Premises
during the Term.
C. Award. Landlord shall be entitled to (and Tenant shall assign to Landlord)
any and all payment, income, rent, award or any interest therein whatsoever
which may be paid or made in connection with such taking or conveyance and
Tenant shall have no claim against Landlord or otherwise for any sums paid by
virtue of such proceedings, whether or not attributable to the value of any
unexpired portion of this Lease, except as expressly provided in this Lease.
Notwithstanding the foregoing, any compensation specifically and separately
awarded Tenant for Tenant's personal property and moving costs, shall be and
remain the property of Tenant.
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D. Waiver of CCP(S)1265.130. Each party waives the provisions of California
Civil Code Procedure Section 1265.130 allowing either party to petition the
superior court to terminate this Lease as a result of a partial taking.
24. CASUALTY DAMAGE
A. General. If the Premises or Building should be damaged or destroyed by
fire, tornado, or other casualty (collectively, "Casualty"), Tenant shall give
immediate written notice thereof to Landlord. Within thirty (30) days after
Landlord's receipt of such notice, Landlord shall notify Tenant whether in
Landlord's estimation material restoration of the Premises can reasonably be
made within one hundred eighty (180) days from the date of such notice and
receipt of required permits for such restoration. Landlord's determination
shall be binding on Tenant.
B. Within 180 Days. If the Premises or Building should be damaged by Casualty
to such extent that material restoration can in Landlord's estimation be
reasonably completed within one hundred eighty (180) days after the date of such
notice and receipt of required permits for such restoration, this Lease shall
not terminate. Provided that insurance proceeds are received by Landlord to
fully repair the damage, Landlord shall proceed to rebuild and repair the
Premises diligently and in the manner determined by Landlord, except that
Landlord shall not be required to rebuild, repair or replace any part of any
Alterations which may have been placed on or about the Premises or paid for by
Tenant. If the Premises are untenantable in whole or in part following such
damage, the Rent payable hereunder during the period in which they are
untenantable shall be abated proportionately, but only to the extent of rental
abatement insurance proceeds received by Landlord during the time and to the
extent the Premises are unfit for occupancy.
C. Greater than 180 Days. If the Premises or Building should be damaged by
Casualty to such extent that rebuilding or repairs cannot in Landlord's
estimation be reasonably completed within one hundred eighty (180) days after
the date of such notice and receipt of required permits for such rebuilding or
repair, then Landlord shall have the option of either: (1) terminating this
Lease effective upon the date of the occurrence of such damage, in which event
the Rent shall be abated during the unexpired portion of this Lease; or (2)
electing to rebuild or repair the Premises diligently and in the manner
determined by Landlord. Landlord shall notify Tenant of its election within
thirty (30) days after Landlord's receipt of notice of the damage or
destruction. Notwithstanding the above, Landlord shall not be required to
rebuild, repair or replace any part of any Alterations which may have been
placed, on or about the Premises or paid for by Tenant. If the Premises are
untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable shall be abated
proportionately, but only to the extent of rental abatement insurance proceeds
received by Landlord during the time and to the extent the Premises are unfit
for occupancy.
D. Tenant's Fault. Notwithstanding anything herein to the contrary, if the
Premises or any other portion of the Building are damaged by Casualty resulting
from the fault, negligence, or breach of this Lease by Tenant or any of Tenant's
Parties, Base Rent and Additional Rent shall not be diminished during the repair
of such damage and Tenant shall be liable to Landlord for the cost and expense
of the repair and restoration of the Building caused thereby to the extent such
cost and expense is not covered by insurance proceeds.
E. Insurance Proceeds. Notwithstanding anything herein to the contrary, if
the Premises or Building are damaged or destroyed and are not fully covered by
the insurance proceeds received by Landlord or if the holder of any indebtedness
secured by a mortgage or deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then in either case Landlord
shall have the right to terminate this Lease by delivering written notice of
termination to Tenant within thirty (30) days after the date of notice to
Landlord that said damage or destruction is not fully covered by insurance or
such requirement is made by any such holder, as the case may be, whereupon this
Lease shall terminate.
F. Waiver. This Paragraph 24 shall be Tenant's sole and exclusive remedy in
the event of damage or destruction to the Premises or the Building. As a
material inducement to Landlord entering into this Lease, Tenant hereby waives
any rights it may have under Sections 1932, 1933(4), 1941 or 1942 of the Civil
Code of California with respect to any destruction of the Premises, Landlord's
obligation for tenantability of the Premises and Tenant's right to make repairs
and deduct the expenses of such repairs, or under any similar law, statute or
ordinance now or hereafter in effect.
G. Tenant's Personal Property. In the event of any damage or destruction of
the Premises or the Building, under no circumstances shall Landlord be required
to repair any injury or damage to, or make any repairs to or replacements of,
Tenant's personal property.
25. HOLDING OVER
Unless Landlord expressly consents in writing to Tenant's holding over, Tenant
shall be unlawfully and illegally in possession of the Premises, whether or not
Landlord accepts any rent from Tenant or any other person while Tenant remains
in possession of the Premises without Landlord's written consent. If Tenant
shall retain possession of the Premises or any portion thereof without
Landlord's consent following the expiration of this Lease or sooner termination
for any reason, then Tenant shall pay to Landlord for each day of such retention
triple the amount of daily rental as of the last month prior to the date of
expiration or earlier termination. Tenant shall also indemnify, defend, protect
and hold Landlord harmless from any loss, liability or cost, including
consequential and incidental damages and reasonable attorneys' fees, incurred by
Landlord resulting from delay by Tenant in surrendering the Premises, including,
without limitation, any claims made by the succeeding tenant founded on such
delay. Acceptance of Rent by Landlord following expiration or earlier
termination of this Lease, or following demand by Landlord for possession of the
Premises, shall not constitute a renewal of this
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Lease, and nothing contained in this Paragraph 25 shall waive Landlord's right
of reentry or any other right. Additionally, if upon expiration or earlier
termination of this Lease, or following demand by Landlord for possession of the
Premises, Tenant has not fulfilled its obligation with respect to repairs and
cleanup of the Premises or any other Tenant obligations as set forth in this
Lease, then Landlord shall have the right to perform any such obligations as it
deems necessary at Tenant's sole cost and expense, and any time required by
Landlord to complete such obligations shall be considered a period of holding
over and the terms of this Paragraph 25 shall apply. The provisions of this
Paragraph 25 shall survive any expiration or earlier termination of this Lease.
26. DEFAULT
A. Events of Default. The occurrence of any of the following shall constitute
an event of default on the part of Tenant:
(1) Abandonment. Abandonment or vacation of the Premises for a continuous
period in excess of five (5) days without providing prior written notice to
Landlord. Tenant waives any right to notice Tenant may have under Section
1951.3 of the Civil Code of the State of California, the terms of this
Paragraph 26.A. being deemed such notice to Tenant as required by said
Section 1951.3.
(2) Nonpayment of Rent. Failure to pay any installment of Rent or any
other amount due and payable hereunder upon the date when said payment is
due, as to which time is of the essence.
(3) Other Obligations. Failure to perform any obligation, agreement or
covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this Paragraph 26.A., and in Paragraphs 8, 16,
18 and 25, such failure continuing for fifteen (15) days after written
notice of such failure, as to which time is of the essence.
(4) General Assignment. A general assignment by Tenant for the benefit of
creditors.
(5) Bankruptcy. The filing of any voluntary petition in bankruptcy by
Tenant, or the filing of an involuntary petition by Tenant's creditors,
which involuntary petition remains undischarged for a period of thirty (30)
days. If under applicable law, the trustee in bankruptcy or Tenant has the
right to affirm this Lease and continue to perform the obligations of
Tenant hereunder, such trustee or Tenant shall, in such time period as may
be permitted by the bankruptcy court having jurisdiction, cure all defaults
of Tenant hereunder outstanding as of the date of the affirmance of this
Lease and provide to Landlord such adequate assurances as may be necessary
to ensure Landlord of the continued performance of Tenant's obligations
under this Lease.
(6) Receivership. The employment of a receiver to take possession of
substantially all of Tenant's assets or the Premises, if such appointment
remains undismissed or undischarged for a period of fifteen (15) days after
the order therefor.
(7) Attachment. The attachment, execution or other judicial seizure of all
or substantially all of Tenant's assets or Tenant's leasehold of the
Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of fifteen (15) days after the levy thereof.
(8) Insolvency. The admission by Tenant in writing of its inability to pay
its debts as they become due.
B. Remedies Upon Default.
(1) Termination. In the event of the occurrence of any event of default,
Landlord shall have the right to give a written termination notice to
Tenant, and on the date specified in such notice, Tenant's right to
possession shall terminate, and this Lease shall terminate unless on or
before such date all Rent in arrears and all costs and expenses incurred by
or on behalf of Landlord hereunder shall have been paid by Tenant and all
other events of default of this Lease by Tenant at the time existing shall
have been fully remedied to the satisfaction of Landlord. At any time
after such termination, Landlord may recover possession of the Premises or
any part thereof and expel and remove therefrom Tenant and any other person
occupying the same, including any subtenant or subtenants notwithstanding
Landlord's consent to any sublease, by any lawful means, and again
repossess and enjoy the Premises without prejudice to any of the remedies
that Landlord may have under this Lease, or at law or equity by any reason
of Tenant's default or of such termination. Landlord hereby reserves the
right, but shall not have the obligation, to recognize the continued
possession of any subtenant. The delivery or surrender to Landlord by or
on behalf of Tenant of keys, entry codes, or other means to bypass security
at the Premises shall not terminate this Lease.
(2) Continuation After Default. Even though an event of default may have
occurred, this Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession under Paragraph 26.B.(1) hereof.
Landlord shall have the remedy described in California Civil Code Section
1951.4 ("Landlord may continue this Lease in effect after Tenant's breach
and abandonment and recover Rent as it becomes due, if Tenant has the right
to sublet or assign, subject only to reasonable limitations"), or any
successor code section. Accordingly, if Landlord does not elect to
terminate this Lease on account of any event of default by Tenant, Landlord
may enforce all of Landlord's rights and remedies under this Lease,
including the right to recover Rent as it becomes due. Acts of
maintenance, preservation or efforts to lease the Premises or the
appointment of a receiver under application of Landlord to protect
Landlord's interest under this Lease or other entry by Landlord upon the
Premises shall not constitute an election to terminate Tenant's right to
possession.
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(3) Increased Security Deposit. If Tenant is in default under Paragraph
26.A.(2) hereof and such default remains uncured for ten (10) days after
such occurrence or such default occurs more than three times in any twelve
(12) month period, Landlord may require that Tenant increase the Security
Deposit to the amount of three times the current month's Rent at the time
of the most recent default.
C. Damages After Default. Should Landlord terminate this Lease pursuant to
the provisions of Paragraph 26.B.(1) hereof, Landlord shall have the rights and
remedies of a Landlord provided by Section 1951.2 of the Civil Code of the State
of California, or any successor code sections. Upon such termination, in
addition to any other rights and remedies to which Landlord may be entitled
under applicable law or at equity, Landlord shall be entitled to recover from
Tenant: (1) the worth at the time of award of the unpaid Rent and other amounts
which had been earned at the time of termination, (2) the worth at the time of
award of the amount by which the unpaid Rent and other amounts that would have
been earned after the date of termination until the time of award exceeds the
amount of such Rent loss that Tenant proves could have been reasonably avoided;
(3) the worth at the time of award of the amount by which the unpaid Rent and
other amounts for the balance of the Term after the time of award exceeds the
amount of such Rent loss that the Tenant proves could be reasonably avoided; and
(4) any other amount and court costs necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease or which, in the ordinary course of things, would be likely to
result therefrom. The "worth at the time of award" as used in (1) and (2) above
shall be computed at the Applicable Interest Rate (defined below). The "worth
at the time of award" as used in (3) above shall be computed by discounting such
amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco
at the time of award plus one percent (1%). If this Lease provides for any
periods during the Term during which Tenant is not required to pay Base Rent or
if Tenant otherwise receives a Rent concession, then upon the occurrence of an
event of default, Tenant shall owe to Landlord the full amount of such Base Rent
or value of such Rent concession, plus interest at the Applicable Interest Rate,
calculated from the date that such Base Rent or Rent concession would have been
payable.
D. Late Charge. In addition to its other remedies, Landlord shall have the
right without notice or demand to add to the amount of any payment required to
be made by Tenant hereunder, and which is not paid and received by Landlord on
or before the first day of each calendar month, an amount equal to five percent
(5%) of the delinquent amount, or $150.00, whichever amount is greater, for each
month or portion thereof that the delinquency remains outstanding to compensate
Landlord for the loss of the use of the amount not paid and the administrative
costs caused by the delinquency, the parties agreeing that Landlord's damage by
virtue of such delinquencies would be extremely difficult and impracticable to
compute and the amount stated herein represents a reasonable estimate thereof.
Any waiver by Landlord of any late charges or failure to claim the same shall
not constitute a waiver of other late charges or any other remedies available to
Landlord.
E. Interest. Interest shall accrue on all sums not paid when due hereunder at
the lesser of eighteen percent (18%) per annum or the maximum interest rate
allowed by law ("Applicable Interest Rate") from the due date until paid.
F. Remedies Cumulative. All of Landlord's rights, privileges and elections or
remedies are cumulative and not alternative, to the extent permitted by law and
except as otherwise provided herein.
G. Replacement of Statutory Notice Requirements. When this Lease requires
service of a notice, that notice shall replace rather than supplement any
equivalent or similar statutory notice, including any notice required by
California Code of Civil Procedure Section 1161 or any similar or successor
statute. When a statute requires service of a notice in a particular manner,
service of that notice (or a similar notice required by this Lease) in the
manner required by this Paragraph 26 shall replace and satisfy the statutory
service-of-notice procedures, including those required by California Code of
Civil Procedure Section 1162 or any similar or successor statute.
27. LIENS
Tenant shall at all times keep the Premises and the Project free from liens
arising out of or related to work or services performed, materials or supplies
furnished or obligations incurred by or on behalf of Tenant or in connection
with work made, suffered or done by or on behalf of Tenant in or on the Premises
or Project. If Tenant shall not, within ten (10) days following the imposition
of any such lien, cause the same to be released of record by payment or posting
of a proper bond, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but not the obligation, to cause the same
to be released by such means as Landlord shall deem proper, including payment of
the claim giving rise to such lien. All sums paid by Landlord on behalf of
Tenant and all expenses incurred by Landlord in connection therefor shall be
payable to Landlord by Tenant on demand with interest at the Applicable Interest
Rate as Additional Rent. Landlord shall have the right at all times to post and
keep posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord, the Premises, the
Project and any other party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not less than ten (10)
business days prior written notice of the commencement of any work in the
Premises or Project which could lawfully give rise to a claim for mechanics' or
materialmen's liens to permit Landlord to post and record a timely notice of
non-responsibility, as Landlord may elect to proceed or as the law may from time
to time provide, for which purpose, if Landlord shall so determine, Landlord may
enter the Premises. Tenant shall not remove any such notice posted by Landlord
without Landlord's consent, and in any event not before completion of the work
which could lawfully give rise to a claim for mechanics' or materialmen's liens.
28. SUBSTITUTION
(Intentionally omitted)
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29. TRANSFERS BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building or a
foreclosure by any creditor of Landlord, the same shall operate to release
Landlord from any liability upon any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, to the extent required to be
performed after the passing of title to Landlord's successor-in-interest. In
such event, Tenant agrees to look solely to the responsibility of the successor-
in-interest of Landlord under this Lease with respect to the performance of the
covenants and duties of "Landlord" to be performed after the passing of title to
Landlord's successor-in-interest. This Lease shall not be affected by any such
sale and Tenant agrees to attorn to the purchaser or assignee. Landlord's
successor(s)-in-interest shall not have liability to Tenant with respect to the
failure to perform any of the obligations of "Landlord," to the extent required
to be performed prior to the date such successor(s)-in-interest became the owner
of the Building.
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
All covenants and agreements to be performed by Tenant under any of the terms of
this Lease shall be performed by Tenant at Tenant's sole cost and expense and
without any abatement of Rent. If Tenant shall fail to pay any sum of money,
other than Base Rent, required to be paid by Tenant hereunder or shall fail to
perform any other act on Tenant's part to be performed hereunder, including
Tenant's obligations under Paragraph 11 hereof, and such failure shall continue
for fifteen (15) days after notice thereof by Landlord, in addition to the other
rights and remedies of Landlord, Landlord may make any such payment and perform
any such act on Tenant's part. In the case of an emergency, no prior
notification by Landlord shall be required. Landlord may take such actions
without any obligation and without releasing Tenant from any of Tenant's
obligations. All sums so paid by Landlord and all incidental costs incurred by
Landlord and interest thereon at the Applicable Interest Rate, from the date of
payment by Landlord, shall be paid to Landlord on demand as Additional Rent.
31. WAIVER
If either Landlord or Tenant waives the performance of any term, covenant or
condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein, or constitute a course of dealing contrary to the
expressed terms of this Lease. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach at the time Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for any length of time
shall not be deemed to waive or decrease the right of Landlord to insist
thereafter upon strict performance by Tenant. Waiver by Landlord of any term,
covenant or condition contained in this Lease may only be made by a written
document signed by Landlord, based upon full knowledge of the circumstances.
32. NOTICES
Each provision of this Lease or of any applicable governmental laws, ordinances,
regulations and other requirements with reference to sending, mailing, or
delivery of any notice or the making of any payment by Landlord or Tenant to the
other shall be deemed to be complied with when and if the following steps are
taken:
A. Rent. All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at Landlord's Remittance Address
set forth in the Basic Lease Information, or at such other address as Landlord
may specify from time to time by written notice delivered in accordance
herewith. Tenant's obligation to pay Rent and any other amounts to Landlord
under the terms of this Lease shall not be deemed satisfied until such Rent and
other amounts have been actually received by Landlord.
B. Other. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in writing
and either personally delivered, sent by commercial overnight courier, mailed,
certified or registered, postage prepaid or sent by facsimile with confirmed
receipt (and with an original sent by commercial overnight courier), and in each
case addressed to the party to be notified at the Notice Address for such party
as specified in the Basic Lease Information or to such other place as the party
to be notified may from time to time designate by at least fifteen (15) days
notice to the notifying party. Notices shall be deemed served upon receipt or
refusal to accept delivery. Tenant appoints as its agent to receive the service
of all default notices and notice of commencement of unlawful detainer
proceedings the person in charge of or apparently in charge of occupying the
Premises at the time, and, if there is no such person, then such service may be
made by attaching the same on the main entrance of the Premises.
C. Required Notices. Tenant shall immediately notify Landlord in writing of
any notice of a violation or a potential or alleged violation of any Regulation
that relates to the Premises or the Project, or of any inquiry, investigation,
enforcement or other action that is instituted or threatened by any governmental
or regulatory agency against Tenant or any other occupant of the Premises, or
any claim that is instituted or threatened by any third party that relates to
the Premises or the Project.
33. ATTORNEYS' FEES
If Landlord places the enforcement of this Lease, or any part thereof, or the
collection of any Rent due, or to become due hereunder, or recovery of
possession of the Premises in the hands of an attorney, Tenant shall pay to
Landlord, upon demand, Landlord's reasonable attorneys' fees and court costs,
whether incurred at trial, appeal or review. In any action which Landlord or
Tenant brings to enforce its
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respective rights hereunder, the unsuccessful party shall pay all costs incurred
by the prevailing party including reasonable attorneys' fees, to be fixed by the
court, and said costs and attorneys' fees shall be a part of the judgment in
said action.
34. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of Landlord, its
successors and assigns, and shall be binding upon and inure to the benefit of
Tenant, its successors, and to the extent assignment is approved by Landlord as
provided hereunder, Tenant's assigns.
35. FORCE MAJEURE
If performance by a party of any portion of this Lease is made impossible by any
prevention, delay, or stoppage caused by strikes, lockouts, labor disputes, acts
of God, inability to obtain services, labor, or materials or reasonable
substitutes for those items, government actions, civil commotions, fire or other
casualty, or other causes beyond the reasonable control of the party obligated
to perform, performance by that party for a period equal to the period of that
prevention, delay, or stoppage is excused. Tenant's obligation to pay Rent,
however, is not excused by this Paragraph 35.
36. SURRENDER OF PREMISES
Tenant shall, upon expiration or sooner termination of this Lease, surrender the
Premises to Landlord in the same condition as existed on the date Tenant
originally took possession thereof, including, but not limited to, all interior
walls cleaned, all interior painted surfaces repainted in the original color,
all holes in walls repaired, all carpets shampooed and cleaned, all HVAC
equipment in operating order and in good repair, and all floors cleaned, waxed,
and free of any Tenant-introduced marking or painting, all to the reasonable
satisfaction of Landlord. Tenant shall remove all of its debris from the
Project. At or before the time of surrender, Tenant shall comply with the terms
of Paragraph 12.A. hereof with respect to Alterations to the Premises and all
other matters addressed in such Paragraph. If the Premises are not so
surrendered at the expiration or sooner termination of this Lease, the
provisions of Paragraph 25 hereof shall apply. All keys to the Premises or any
part thereof shall be surrendered to Landlord upon expiration or sooner
termination of the Term. Tenant shall give written notice to Landlord at least
thirty (30) days prior to vacating the Premises and shall meet with Landlord for
a joint inspection of the Premises at the time of vacating, but nothing
contained herein shall be construed as an extension of the Term or as a consent
by Landlord to any holding over by Tenant. In the event of Tenant's failure to
give such notice or participate in such joint inspection, Landlord's inspection
at or after Tenant's vacating the Premises shall conclusively be deemed correct
for purposes of determining Tenant's responsibility for repairs and restoration.
Any delay caused by Tenant's failure to carry out its obligations under this
Paragraph 36 beyond the term hereof, shall constitute unlawful and illegal
possession of Premises under Paragraph 25 hereof.
37. HAZARDOUS MATERIALS
A. General Restrictions. Tenant shall conduct its business and shall cause
each Tenant Party to act in such a manner as to (a) not release or permit the
release of any Hazardous Material in, under, on or about the Premises or
Project, or (b) not use, store, generate, treat, discharge, disperse, handle,
manufacture, transport or dispose of (collectively, "Handle") any Hazardous
Materials (other than incidental amounts of customary cleaning and office
supplies) in or about the Premises or Project without the prior written consent
of Landlord, which consent Landlord may withhold in its sole and absolute
discretion ("Hazardous Materials Consent Requirements"). "Hazardous Material"
means any hazardous, explosive, radioactive or toxic substance, material or
waste which is or becomes regulated by any local, state or federal governmental
authority or agency, including, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste," "extremely hazardous
waste," "restricted hazardous waste," "hazardous substance," "hazardous
material," "pollutant" or "contaminant" under any Regulation, (ii) petroleum or
petroleum derivative, (iii) a flammable explosive, (iv) a radioactive material
or waste, (v) a polychlorinated biphenyl, (vi) asbestos or asbestos containing
material, (vii) infectious waste, or (viii) a carcinogen.
B. Required Disclosures. Prior to Tenant (and at least five (5) days prior to
any assignee or any subtenant of Tenant) taking possession of any part of the
Premises, and on each anniversary of the Term Commencement Date (each such date
is hereinafter referred to as a "Disclosure Date"), until and including the
first Disclosure Date occurring after the expiration or sooner termination of
this Lease, Tenant shall disclose to Landlord in writing the names and amounts
of all Hazardous Materials, or any combination thereof, which were Handled on,
in, under or about the Premises or Project for the twelve (12) month period
prior to such Disclosure Date, or which Tenant intends to Handle on, under or
about the Premises during the twelve (12) month period following the Disclosure
Date by executing and delivering to Landlord a "Hazardous Materials
Questionnaire", in the form attached hereto as Exhibit D (as updated and
---------
modified by Landlord, from time to time). Tenant's disclosure obligations under
this Paragraph 37.B shall include a requirement that, to the extent any
information contained in a Hazardous Materials Questionnaire previously
delivered by Tenant shall become inaccurate in any material respect, Tenant
shall immediately deliver to Landlord a new updated Hazardous Materials
Questionnaire.
C. Additional Obligations. If any Hazardous Materials shall be released into
the environment comprising or surrounding the Project in connection with the
acts, omissions or operations of Tenant or any Tenant Party, Tenant shall at its
sole expense promptly prepare a remediation plan therefor consistent with
applicable Regulations and recommended industry practices (and approved by
Landlord and all governmental agencies having jurisdiction) to fully remediate
such release, and thereafter shall prosecute the remediation plan so approved to
completion with all reasonable diligence and to the satisfaction of Landlord and
applicable governmental agencies. If
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any Hazardous Materials are Handled in, under, on or about the Premises during
the Term, or if Landlord determines in good faith that any release of any
Hazardous Material or violation of Hazardous Materials Regulations may have
occurred in, on, under or about the Premises during the Term, Landlord may
require Tenant to at Tenant's sole expense, (i) retain a qualified environmental
consultant reasonably satisfactory to Landlord to conduct a reasonable
investigation (an "Environmental Assessment") of a nature and scope reasonably
approved in writing in advance by Landlord with respect to the existence of any
Hazardous Materials in, on, under or about the Premises and providing a review
of all Hazardous Materials activities of Tenant and the Tenant Parties, and (ii)
provide to Landlord a reasonably detailed, written report, prepared in
accordance with the institutional real estate standards, of the Environmental
Assessment.
D. Indemnity. Tenant shall indemnify, defend (by counsel reasonably acceptable
to Landlord), protect and hold Landlord harmless from and against any and all
claims, liabilities, losses, costs, loss of rents, liens, damages, injuries or
expenses (including attorneys' and consultants' fees and court costs), demands,
causes of action, or judgments directly or indirectly arising out of or related
to the use, generation, storage, release, or disposal of Hazardous Materials by
Tenant or any of Tenant's Parties in, on, under or about the Premises, the
Building or the Project or surrounding land or environment, which indemnity
shall include, without limitation, damages for personal or bodily injury,
property damage, damage to the environment or natural resources occurring on or
off the Premises, losses attributable to diminution in value or adverse effects
on marketability, the cost of any investigation, monitoring, government
oversight, repair, removal, remediation, restoration, abatement, and disposal,
and the preparation of any closure or other required plans, whether such action
is required or necessary prior to or following the expiration or earlier
termination of this Lease. Neither the consent by Landlord to the use,
generation, storage, release or disposal of Hazardous Materials nor the strict
compliance by Tenant with all laws pertaining to Hazardous Materials shall
excuse Tenant from Tenant's obligation of indemnification pursuant to this
Paragraph 37.D. Tenant's obligations pursuant to the foregoing indemnity shall
survive the expiration or earlier termination of this Lease.
Landlord shall indemnify, defend and hold Tenant harmless from and against any
and all claims, judgments, damages, penalties, fines, costs, liabilities or
losses, including without limitation reasonable attorneys' fees and costs,
arising out of any Hazardous Material in, on or about the Project or the
Premises which was created, handled, placed, stored, used, transported or
disposed of by Landlord or by Landlord's employees or representatives in
violation of applicable Regulations, excluding, however, any Hazardous Material
whose presence was caused by Tenant or any Tenant's Parties. Landlord's
obligations pursuant to the foregoing indemnity shall survive the expiration or
earlier termination of this Lease.
38. MISCELLANEOUS
A. General. The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their respective successors, executors,
administrators and permitted assigns, according to the context hereof.
B. Time. Time is of the essence regarding this Lease and all of its
provisions.
C. Choice of Law. This Lease shall in all respects be governed by the laws of
the State of California.
D. Entire Agreement. This Lease, together with its Exhibits, addenda and
attachments and the Basic Lease Information, contains all the agreements of the
parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its Exhibits, addenda and
attachments and the Basic Lease Information.
E. Modification. This Lease may not be modified except by a written
instrument signed by the parties hereto. Tenant accepts the area of the
Premises as specified in the Basic Lease Information as the approximate area of
the Premises for all purposes under this Lease, and acknowledges and agrees that
no other definition of the area (rentable, usable or otherwise) of the Premises
shall apply. Tenant shall in no event be entitled to a recalculation of the
square footage of the Premises, rentable, usable or otherwise, and no
recalculation, if made, irrespective of its purpose, shall reduce Tenant's
obligations under this Lease in any manner, including without limitation the
amount of Base Rent payable by Tenant or Tenant's Proportionate Share of the
Building and of the Project.
F. Severability. If, for any reason whatsoever, any of the provisions hereof
shall be unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
G. Recordation. Tenant shall not record this Lease or a short form memorandum
hereof.
H. Examination of Lease. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective otherwise
until execution and delivery by both Landlord and Tenant.
I. Accord and Satisfaction. No payment by Tenant of a lesser amount than the
total Rent due nor any endorsement on any check or letter accompanying any check
or payment of Rent shall be deemed an accord and satisfaction of full payment of
Rent, and Landlord may accept such payment without prejudice to Landlord's right
to recover the balance of such Rent or to pursue other remedies. All offers by
or on behalf of Tenant of accord and satisfaction are hereby rejected in
advance.
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J. Easements. Landlord may grant easements on the Project and dedicate for
public use portions of the Project without Tenant's consent; provided that no
such grant or dedication shall materially interfere with Tenant's Permitted Use
of the Premises. Upon Landlord's request, Tenant shall execute, acknowledge and
deliver to Landlord documents, instruments, maps and plats necessary to
effectuate Tenant's covenants hereunder.
K. Drafting and Determination Presumption. The parties acknowledge that this
Lease has been agreed to by both the parties, that both Landlord and Tenant have
consulted with attorneys with respect to the terms of this Lease and that no
presumption shall be created against Landlord because Landlord drafted this
Lease. Except as otherwise specifically set forth in this Lease, with respect
to any consent, determination or estimation of Landlord required or allowed in
this Lease or requested of Landlord, Landlord's consent, determination or
estimation shall be given or made solely by Landlord in Landlord's good faith
opinion, whether or not objectively reasonable. If Landlord fails to respond to
any request for its consent within the time period, if any, specified in this
Lease, Landlord shall be deemed to have disapproved such request.
L. Exhibits. The Basic Lease Information, and the Exhibits, addenda and
attachments attached hereto are hereby incorporated herein by this reference and
made a part of this Lease as though fully set forth herein.
M. No Light, Air or View Easement. Any diminution or shutting off of light,
air or view by any structure which may be erected on lands adjacent to or in the
vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. No Third Party Benefit. This Lease is a contract between Landlord and
Tenant and nothing herein is intended to create any third party benefit.
O. Quiet Enjoyment. Upon payment by Tenant of the Rent, and upon the
observance and performance of all of the other covenants, terms and conditions
on Tenant's part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term hereby demised without
hindrance or interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject, nevertheless, to all
of the other terms and conditions of this Lease. Landlord shall not be liable
for any hindrance, interruption, interference or disturbance by other tenants or
third persons, nor shall Tenant be released from any obligations under this
Lease because of such hindrance, interruption, interference or disturbance.
P. Counterparts. This Lease may be executed in any number of counterparts,
each of which shall be deemed an original.
Q. Multiple Parties. If more than one person or entity is named herein as
Tenant, such multiple parties shall have joint and several responsibility to
comply with the terms of this Lease.
R. Prorations. Any Rent or other amounts payable to Landlord by Tenant
hereunder for any fractional month shall be prorated based on a month of 30
days. As used herein, the term "fiscal year" shall mean the calendar year or
such other fiscal year as Landlord may deem appropriate.
39. ADDITIONAL PROVISIONS
A. Term Commencement Date.
(1) For the portion of the Premises depicted on Exhibit B comprising the
Building A Premises, the Term Commencement Date (the "Building A Term
Commencement Date") shall be the later of (i) March 31, 2000, or (ii) the date
on which the Building A Premises are delivered by Landlord to Tenant.
(2) For the portion of the Premises depicted on Exhibit B comprising the
Building B Premises, the Term Commencement Date (the "Building B Term
Commencement Date") shall be the date Landlord delivers possession of the
Building B Premises to Tenant. Rent for the Building B Premises only shall
commence sixty (60) days from such date that Landlord delivers possession of the
Building B Premises to Tenant.
(3) For the portion of the Premises depicted on Exhibit B comprising the
Building C Premises, the Term Commencement Date (the "Building C Term
Commencement Date") shall be the later of (1) July 1, 2000, or (ii) the date on
which the Building C Premises are delivered by Landlord to Tenant.
The Building A Term Commencement Date, Building B Term Commencement Date and the
Building C Term Commencement Date are sometimes collectively referred to herein
as the "Term Commencement Date."
B. Use. In addition to and without limiting any of the provisions of this
----
Paragraph and Paragraph 37 of this Lease, Tenant agrees to strictly comply
with the following:
(a) Use of Toxic Material. Except for the use, keeping, storage or
---------------------
disposal by Tenant of normal and ordinary types and amounts of Toxic Materials
normally used by similar type tenants renting similar type space, which use,
keeping, storage or disposal shall
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at all times be in full compliance with all Toxic Material Laws (as hereinafter
defined), Tenant shall not cause or permit any Toxic Materials to be brought
upon, kept or used in or about the Premises, the Building or the Project by
either Tenant or any of its agents, employees, contractors, licensees, invitees,
sublessees or assignees without the prior written consent of the Landlord.
(b) Compliance with Laws. In addition to all other obligations of Tenant
--------------------
under the Lease, Tenant shall comply, at its sole cost, with all federal, state
and local laws, statutes, ordinances, codes, regulations and orders
(collectively, the "Toxic Materials Laws") relating to the receiving, handling,
use, storage, accumulation, transportation, generation, spillage, migration,
discharge, release and disposal of any flammable, combustible, explosive,
infectious, corrosive, caustic, irritant, strong sensitizing, carcinogenic or
radioactive materials, hazardous wastes, hazardous substances, toxic substances
or related materials used by Tenant. Such materials and substances are
hereinafter collectively referred to as "Toxic Materials". Tenant shall become
aware of the content of such Toxic Materials Laws and all other Toxic Materials
Laws regulating Toxic Materials as enforced by, but not limited to, the Santa
Clara County Health Department, California Regional Water Quality Control Board,
California Department of Health Services and all city, county, state and federal
offices enforcing regulations concerning occupational safety and health. It
shall be the sole obligation of Tenant to obtain any permits and approvals
required pursuant to the Toxic Materials Laws.
(c) Indemnity. Tenant shall be solely responsible for and shall
---------
indemnify, protect, defend and hold harmless Landlord and its agents, employees,
representatives, shareholders, directors and officers and Stanford and its
trustees, directors, officers, faculty, employees, students, agents and
affiliated organizations (collectively hereinafter referred to as the
"Indemnitees") from and against any and all claims, costs, penalties, fines,
losses (including, without limitation, (1) diminution in value of the Premises,
the Building or the Project; (2) damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, the Building or the
Project; (3) all costs incurred in connection with any investigation of site
conditions, cleanup, remediation, removal or restoration work required by any
federal, state or local governmental agency or political subdivision or by
Stanford or any mortgagee of Landlord; and (4) sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees, liabilities, damages,
injuries, causes of action, judgments and expenses which arise during or after
the term of the Lease as a result of the receiving, handling, use, storage,
accumulation, transportation, generation, spillage, migration, discharge,
release or disposal of Toxic Materials from, onto, in, upon, under or about the
Premises, the Building or the Project, by Tenant or any of its agents,
employees, contractors, licensees, sublessees, assignees or invitees. This
indemnification by Tenant under this Paragraph shall survive the expiration or
termination of the Lease.
(d) Notices and Consent. Tenant shall immediately provide Landlord with
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telephonic notice, which shall later be confirmed by written notice, of any and
all accumulation, spillage, discharge, release or disposal of Toxic Materials
onto or within the Premises, the Building or the Project and any injuries or
damages resulting directly or indirectly therefrom. Further, Tenant shall
deliver to Landlord each and every notice or order received from governmental
agencies concerning Toxic Materials or the possession, handling, release, use,
migration, generation, accumulation, transportation, storage, spillage and/or
disposal thereof promptly upon receipt of each such notice or order.
(e) Storage and Use of Toxic Materials. Tenant shall store in appropriate
----------------------------------
leak proof containers, or in any other manner approved or prescribed by Toxic
Materials Laws, any and all Toxic Materials permitted within the Premises
pursuant to the Lease which if discharged or emitted into the atmosphere, upon
the ground or into or on any body of water does or may (1) pollute or
contaminate the same, or (2) adversely affect the (a) health, safety or welfare
of persons, whether on the Premises or elsewhere, or (b) condition use or
enjoyment of the Premises, the Building or the Project, or any real or personal
property whether on the Premises, within the Building or the Project or anywhere
else, or (c) the Premises or any of the improvements thereto or thereon or the
Building or the Project.
(f) Disposal of Toxic Materials. Notwithstanding anything to the contrary
---------------------------
contained in this Paragraph 4 or any other provision of the Lease, Tenant shall
not dispose of any Toxic Materials regardless of the quantity or concentration
within the drains and plumbing facilities within the Premises, the Building or
the Project or other property of the Landlord. The disposal of Toxic Materials
shall be in approved containers and removed from the Premises only by duly
licensed carriers. If Tenant becomes aware of or suspects the presence of any
Toxic Material existing within or coming onto the Premises, the Building or the
Project or of any release of a Toxic Material that has come to be located on or
beneath the Premises, the Building or the Project, other than as disclosed to
Tenant by Landlord, Tenant shall immediately give written notice of such
condition to Landlord as required by California Health and Safety Code 25359.7
and any other applicable Toxic Materials Laws.
(g) Safety. Tenant shall maintain Material Safety and Data Sheets for all
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Toxic Materials brought onto the Premises, the Building or the Project. Such
information shall be kept current at all times and shall be kept in a place
accessible to Landlord at any time for inspection and in the event of ally
emergency.
(h) Fees, Taxes and Fines. Tenant shall pay, prior to delinquency, any
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and all fees, taxes (including excise taxes) and fines which are charged upon
Tenant's activities related to Toxic Materials, and shall not allow such
obligations to become a lien or charge against the Premises, the Building, the
Project or upon any other property of Landlord.
(i) Delivery of Documentation. Tenant shall deliver to Landlord true and
-------------------------
correct copies of all permits related to receiving, handling, use, storage,
accumulation, transportation, generation, spillage, migration, discharge,
release or disposal of Toxic Materials used on or about the Premises by Tenant
or any of its agents, employees, contractors, licensees, invitees, sublessees,
or assignees. Concurrently
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with the receipt from any governmental agency, and upon request of Landlord,
Tenant shall provide Landlord with copies of all other reports, plans and
correspondence related thereto.
(j) Expiration of Term of Lease. On or before the expiration of this
---------------------------
Lease, Tenant shall take any and all action required to be taken under Toxic
Materials Laws in order to surrender the Premises, including such portions of
the Building and the Project which are subject to this Lease, to Landlord in a
condition which would be completely free of any and all Toxic Materials actually
used by Tenant and attributable solely to such use.
(k) Inspections. Landlord or its agents may inspect the Premises as and
-----------
when desirable, in its sole discretion, to determine whether Tenant is strictly
complying with the provisions of this paragraph; provided, however, that such
inspections shall not unreasonably disrupt Tenant's business operations.
(l) Existing Conditions. Tenant acknowledges that (i) the soil and/or
-------------------
groundwater underlying the Project contain hazardous substances, including
volatile organic compounds, (ii) the Project is subject to certain orders by the
California Regional Water Quality Control Board, San Francisco Bay Region (the
"Board"), and (iii) Tenant has reviewed, to its satisfaction, an environmental
site assessment report dated August 1993, prepared by EMCOM Associates and
entitled "Phase I Environmental Site Assessment", together with all publicly
available information regarding the environmental condition of such soil and
groundwater, and that Landlord has provided to Tenant an opportunity to review
all other materials in Landlord's possession regarding the environmental
condition of the Project. Tenant acknowledges that the land underlying the
Premises may be subject to various covenants and restrictions imposed by the
Regional Board, which covenants and restrictions may impose certain limitations
on the use of the Premises, and Tenant covenants to comply with all of the terms
and conditions of any such covenants and restrictions.
C. Rent.
Subject to the provisions of Paragraph 2.B. and this Paragraph 39, Base Rent,
net of Operating Expenses per Paragraph 7 of this Lease, for the Premises shall
be as follows:
<TABLE>
<S> <C>
For the period commencing upon the Building A Premises Term Commencement $125,159.00 per month plus Operating Expenses per
Date through the day preceding the last occurring of the Term Commencement Paragraph 7 of this Lease. Operating Expenses for
Dates and with respect only to the Building A Premises: calendar year 2000 for the Building A Premises
are estimated to be $14,507.00 per month.
For the period commencing sixty (60) days from the Building B Premises $211,670.00 per month plus Operating Expenses per
Term Commencement Date through the day preceding the last occurring of Paragraph 7 of this Lease. Operating Expenses for
the Term Commencement Dates and with respect only to the Building B Premises: calendar year 2000 for the Building B Premises
are estimated to be $20,031.00 per month.
For the period commencing upon the Building C Premises Term Commencement $156,213.00 per month plus Operating Expenses per
Date through the day preceding the last occurring of the Term Commencement Paragraph 7 of this Lease. Operating Expenses for
Dates and with respect only to the Building C Premises: calendar year 2000 for the Building C Premises
are estimated to be $10,386.00 per month
</TABLE>
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<PAGE>
From the last occurring Term Commencement Date, through the twelfth (12/th/)
month thereafter and with respect to the entire Premises:
<TABLE>
<S> <C>
$493,043.00 in the aggregate per month (Building
A $125,159.00, Building B $211,670.00 and
Building C $156,213.00) plus Operating Expenses
per Paragraph 7 of this Lease. Operating Expenses
for calendar year 2000 for the entire Premises
are estimated to be $44,924.00 per month.
(Provided that the monthly rent in the amount of
$211,670.00 for the Building B Premises shall not
be payable for sixty (60) days from the Building
B Premises Term Commencement Date).
For Month 13 through Month 24: $507,834.00 plus Operating Expenses (Provided
that the monthly rent in the amount of
$217,896.00 for the Building B Premises shall not
be payable for sixty (60) days from the Building
B Premises Term Commencement Date).
For Month 25: through Month 36: $523,069.00 plus Operating Expenses
For Month 37 through Month 48: $538,761.00 plus Operating Expenses
For Month 49 through Month 60: $554,924.00 plus Operating Expenses
For Month 61 through Month 72: $571,571.00 plus Operating Expenses
For Month 73 through Month 84: $588,719.00 plus Operating Expenses
For Month 84 through Month 96: $606,380.00 plus Operating Expenses
For Month 97 through Month 108: $624,571.00 plus Operating Expenses
For Month 109 through Term Expiration Date: $643,308.00 plus Operating Expenses
</TABLE>
D. Early Occupancy of the Building B Premises. Tenant shall have the right to
occupy the Building B Premises commencing on the Building B Term Commencement
Date for purposes of commencing construction of the Tenant Improvements to be
constructed by Tenant pursuant to Exhibit C attached hereto, with all terms and
conditions of this Lease in full force and effect, excluding payment of Rent and
Operating Expenses with respect to the Building B Premises only.
E. Letter of Credit.
(1) Delivery of Letter of Credit. In lieu of depositing a security deposit
with Landlord, Tenant shall, on execution of this Lease, deliver to
Landlord and cause to be in effect during the Lease Term an unconditional,
irrevocable letter of credit ("LOC") in the amount specified for the
Security Deposit in the Basic Lease Information, as it may be increased as
provided in this Lease (the "LOC Amount") for an initial term expiring July
30, 2001 which shall renew automatically from year to year through 30 days
beyond the expiration date of this Lease or, if Tenant validly exercises
any extension option granted in this Lease or the parties hereto otherwise
agree in writing to extend the Term hereof, any extension to the Term. The
LOC shall be in a form acceptable to Landlord and shall be issued by an LOC
bank selected by Tenant and acceptable to Landlord. The text of the LOC
shall expressly state that the LOC shall survive the termination of this
Lease. An LOC bank is a bank that accepts deposits, maintains accounts,
has a local office that will negotiate a letter of credit, and the deposits
of which are insured by the Federal Deposit Insurance Corporation. Tenant
shall pay all expenses, points, or fees incurred by Tenant in obtaining the
LOC. The LOC shall not be mortgaged, assigned or encumbered in any manner
whatsoever by Tenant without the prior written consent of Landlord. Tenant
acknowledges that Landlord has the right to transfer or mortgage its
interest in the Project, the Building and in this Lease and Tenant agrees
that in the event of any such transfer or mortgage, Landlord shall have the
right to transfer or assign the LOC and/or the LOC Security Deposit (as
defined below) to the transferee or mortgagee, and in the event of such
transfer, Tenant shall look solely to such transferee or mortgagee for the
return of the LOC and/or the LOC Security Deposit.
(2) Replacement of Letter of Credit. Tenant may, from time to time, replace
any existing LOC with a new LOC if the new LOC (a) becomes effective at
least thirty (30) days before expiration of the LOC that it replaces; (b)
is in the required LOC amount; (c) is issued by an LOC bank acceptable to
Landlord; and (d) otherwise complies with the requirements of this
Paragraph 39.E.
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<PAGE>
(3) Landlord's Right to Draw on Letter of Credit. Landlord shall hold the LOC
as security for the performance of Tenant's obligations under this Lease.
If, after notice and failure to cure within any applicable period provided
in this Lease, Tenant defaults on any provision of this Lease, Landlord
may, without prejudice to any other remedy it has, draw on that portion of
the LOC necessary to (a) pay Rent or other sum in default; (b) pay or
reimburse Landlord for any amount that Landlord may spend or become
obligated to spend in exercising Landlord's rights under Paragraph 30
(Right of Landlord to Perform Tenant's Covenant); (c) compensate Landlord
for any expense, loss, or damage that Landlord may suffer because of
Tenant's default; and/or (d) if this Lease terminates prior to the
expiration date, compensate Landlord for the cost of any Tenant
Improvements (as defined in Exhibit C) paid for by Landlord (via any Tenant
Improvement Allowance (as defined in Exhibit C) or otherwise) and not
recouped via Base Rent or otherwise, plus the pro rata portion of any
brokerage commission paid for by Landlord and covering that portion of the
Term which would have occurred after such premature termination. If Tenant
fails to renew or replace the LOC at least thirty (30) days before its
expiration, Landlord may, without prejudice to any other remedy it has,
draw on the entire amount of the LOC.
(4) LOC Security Deposit. Any amount of the LOC that is drawn on by Landlord
but not applied by Landlord shall be held by Landlord as a security deposit
(the "LOC Security Deposit") in accordance with Paragraph 19 of this Lease.
(5) Restoration of Letter of Credit and LOC Security Deposit. If Landlord
draws on any portion of the LOC and/or applies all or any portion of such
draw, Tenant shall, within five (5) business days after demand by Landlord,
either (a) deposit cash with Landlord in an amount that, when added to the
amount remaining under the LOC and the amount of any LOC Security Deposit,
shall equal the LOC Amount then required under this Paragraph 39.E; or (b)
reinstate the LOC to the full LOC Amount.
(6) Reduction of Letter of Credit. Upon the forty-eight (48/th/) month
following the Building B Premises Term Commencement Date, and on an annual
basis thereafter and in no event more than one time in a twelve (12) month
period, Tenant may request in writing that the LOC Amount be reduced in
accordance with the terms hereof. In the event that Tenant makes such
written request to Landlord, Tenant shall deliver to Landlord for review
Tenant's financial statements prepared in accordance with generally
accepted accounting principles and audited by a nationally recognized
public accounting firm acceptable to Landlord, and any other financial
information requested by Landlord ("Tenant's Financial Information"). If:
(i) Tenant has a tangible net worth (as described below) in excess of One
Hundred Fifty Million and No/100 Dollars ($150,000,000.00) as reflected in
Tenant's Financial Information, which amount shall be determined by
Landlord to its satisfaction prior to any reduction in the LOC Amount; and
(ii) Tenant's Financial Information reflects two (2) consecutive calendar
quarters of profitability, as determined by Landlord, during the time
period immediately preceding Tenant's request for reduction in the LOC
Amount, then the LOC Amount may be reduced by an amount equal to Five
Hundred Thousand and No/100 Dollars ($500,000.00) per twelve (12) month
period; provided, however, that the LOC Amount shall not at any time be
reduced below an amount equal to One Million Five Hundred Thousand and
No/100 Dollars ($1,500,000.00).
"Tangible net worth" shall be determined by Landlord in its sole discretion
and shall mean assets less intangible assets and total liabilities, with
intangible assets including nonmaterial benefits such as goodwill, patents,
copyrights, and trademarks. In the event that any of the above described
reductions to the LOC is made and, subsequently, Tenant fails to meet the
corresponding profitability and tangible net worth condition precedent for
a period of thirty (30) days following delivery by Landlord of written
notice of any such failure, Tenant shall within forty-eight (48) hours,
increase the face amount of the LOC to an amount equal to the LOC Amount
existing prior to such reduction. If Tenant fails to increase the LOC
Amount as provided above, such failure shall constitute a default hereunder
(which default shall not be subject to any cure rights afforded anywhere in
this Lease) and Landlord shall be entitled to draw on the LOC for the full
LOC Amount and hold such LOC Amount as a Security Deposit in accordance
with the terms of this Lease.
F. Option To Renew. Tenant shall, provided this Lease is in full force and
effect and Tenant is not and has not been in material default under any of the
terms and conditions of this Lease, have one (1) option to renew this Lease for
a term of five (5) years each, for the Premises in "as is" condition and on the
same terms and conditions set forth in this Lease, except as modified by the
terms, covenants and conditions set forth below:
(1) The option right granted to Tenant hereunder is personal to Tenant and
shall not inure to the benefit of any sublessee or assignee, whether permitted
or otherwise, without the express prior written consent of Landlord in each
instance, which may be withheld in Landlord's sole discretion. If Tenant elects
to exercise such option, then Tenant shall provide Landlord with written notice
no earlier than the date which is 360 days prior to the expiration of the then
current term of this Lease, but no later than 5:00 p.m. (Pacific Standard Time)
on the date which is 270 days prior to the expiration of the then current term
of this Lease. If Tenant fails to provide such notice, Tenant shall have no
further or additional right to extend or renew the term of this Lease.
(2) The Base Rent in effect at the expiration of the then current term of this
Lease shall be increased to reflect the current fair market rental for
comparable space in the Building or Project and in other similar buildings
in the same rental market as of the date the renewal term is to commence,
taking into account the specific provisions of this Lease which will remain
constant, and the Building amenities, location, identity, quality, age,
condition, term of lease, tenant improvements, services provided, and other
pertinent items.
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<PAGE>
(3) Landlord shall advise Tenant of the new Base Rent for the Premises for the
applicable renewal term based on Landlord's determination of fair market
rental value, as well as the terms and conditions for the renewal term, no
later than fifteen (15) days after receipt of notice of Tenant's exercise
of its option to renew.
(4) Landlord and Tenant shall negotiate in good faith to agree on the fair
market rental value of the Premises and terms and conditions for each
renewal term. If Tenant and Landlord are unable to agree on a mutually
acceptable rental rate for any renewal term within thirty (30) days after
notification by Landlord to Tenant of Landlord's determination of the new
Base Rent for the applicable renewal term, but in any event no later than
the date which is ninety (90) days prior to the expiration of the then
current term, then on or before such date Landlord and Tenant shall each
appoint a licensed real estate broker with at least ten (10) year's
experience in leasing office space in the area in which the Building is
located to act as arbitrators. The two (2) arbitrators so appointed shall
determine the fair market rental value for the Premises for the applicable
renewal term based on the above criteria and each shall submit his or her
determination of such fair market rental value to Landlord and Tenant in
writing, within sixty (60) days after their appointment.
If the two (2) arbitrators so appointed cannot agree on the fair market
rental value for the applicable renewal term within such 60-day period, the
two (2) arbitrators shall within five (5) days thereafter appoint a third
arbitrator who shall be a licensed real estate broker with at least ten
(10) year's experience in leasing office space in the area in which the
Building is located. The third arbitrator so appointed shall independently
determine the fair market rental value for the Premises for the renewal
term within thirty (30) days after appointment, by selecting from the
proposals submitted by each of the first two arbitrators the one that most
closely approximates the third arbitrator's determination of such fair
market rental value. The third arbitrator shall have no right to adopt a
compromise or middle ground or any modification of either of the proposals
submitted by the first two arbitrators. The proposal chosen by the third
arbitrator as most closely approximating the third arbitrator's
determination of the fair market rental value shall constitute the decision
and award of the arbitrators and shall be final and binding on the parties.
Each party shall pay the fees and expenses of the arbitrator appointed by
such party and one-half (1/2) of the fees and expenses of the third
arbitrator. Notwithstanding the foregoing, in the event the Base Rent is
found to be within fifteen percent (15%) of the original rate quoted by
Landlord, then Tenant shall bear the full cost of the arbitration process.
If either party fails to appoint an arbitrator, or if either of the first
two arbitrators fails to submit his or her proposal of fair market rental
value to the other party, in each case within the time periods set forth
above, then the decision of the other party's arbitrator shall be
considered final and binding.
In the event the third arbitrator fails to present a fair market rental
value within such 30-day period, then by mutual consent of the Landlord and
Tenant :
(a) the time period will be extended, or
(b) If either Landlord or Tenant do not wish to extend the time period, a
fourth arbitrator shall be selected by the first two arbitrators and a
new thirty (30) day period shall begin
(5) Notwithstanding anything to the contrary contained in this Paragraph, in no
event shall the Base Rent for any renewal term be less than the Base Rent in
effect at the expiration of the previous term. In addition, Landlord shall have
no obligation to provide or pay for any tenant improvements or brokerage
commissions during any renewal term.
(6) Tenant's right to exercise the option to renew under this Paragraph shall
be conditioned upon Tenant occupying the entire Premises and the same not being
occupied by any assignee, subtenant or licensee other than Tenant or its
affiliate at the time of exercise of any option and commencement of the renewal
term. Tenant's exercise of the option to renew shall constitute a representation
by Tenant to Landlord that as of the date of exercise of the option and the
commencement of the renewal term, Tenant does not intend to seek to assign this
Lease in whole or in part, or sublet all or any portion of the Premises.
(7) Any exercise by Tenant of any option to renew under this Paragraph shall be
irrevocable. If requested by Landlord, Tenant agrees to execute a lease
amendment or, at Landlord's option, a new lease agreement on Landlord's then
standard lease form for the Building, reflecting the foregoing terms and
conditions, prior to the commencement of the renewal term. The option to renew
granted under this Paragraph is not transferable; the parties hereto acknowledge
and agree that they intend that each option to renew this Lease under this
Paragraph shall be "personal" to the specific Tenant named in this Lease and
that in no event will any assignee or sublessee have any rights to exercise such
option to renew.
G. Ground Lease. Tenant acknowledges and agrees that Landlord leases the land
underlying the Project pursuant to a ground lease (the "Ground Lease"), under
which Landlord is the lessee and the Board of Trustees of the Leland Stanford
Junior University, a body having corporate powers under the laws of the State of
California ("Ground Lessor") is the lessor. Tenant further acknowledges that
this
30
<PAGE>
Lease is subject and subordinate to the Ground Lease. To the extent the same
relates to the Premises, Tenant hereby covenants and agrees to fully perform in
a timely manner all obligations, terms, covenants and conditions imposed upon
Landlord as lessee under the Ground Lease, except for those involving the
payment of "rent" by Landlord as lessee. In the event that Ground Lessor
succeeds to the interest of Landlord under this Lease, Tenant agrees, at the
written request of Ground Lessor, to attorn to Ground Lessor or at the option of
Ground Lessor, to enter into a new lease with Ground Lessor for the balance of
the Term hereof and on substantially the same terms and conditions as are
contained in this Lease.
H. Tenant's Option to Terminate. Tenant shall have a one-time right to
terminate this Lease, in whole, but not in part, if the tenant currently
occupying the Building A Premises does not execute a Lease termination agreement
agreeing to vacate the Building A Premises on or before March 31, 2000, or if
the tenant currently occupying the Building C Premises does not waive its
holdover rights with respect to such premises, in each case prior to February
15, 2000. Tenant shall execute such termination right by written notice to
Landlord on or before February 20, 2000. In the event of such termination, the
parties shall have no rights or obligations under this Lease except those which
survive the expiration or earlier termination of this Lease.
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<PAGE>
40. JURY TRIAL WAIVER
EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL
REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY
JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH
THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE
COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS
LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 40. THE
PROVISIONS OF THIS PARAGRAPH 40 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and the year first above written.
LANDLORD
Spieker Properties, L.P.,
a California limited partnership
By: Spieker Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ ERIC T. LUHRS
__________________________________________
Eric T. Luhrs
Its: Vice President, Silicon Valley
Date: January ___, 2000
TENANT
TIBCO Software, Inc.
a Delaware corporation
By: /s/ ROBERT P. STEFANSKI
______________________________________________
Its: EVP, SECRETARY
By: ______________________________________________
Its:
Date: January 21, 2000
32
<PAGE>
EXHIBIT A
Industrial Lease
Rules and Regulations
1. Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building, the Project and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities. No
tenant, and no employees or invitees of any tenant, shall go upon the roof
of any Building, except as authorized by Landlord.
2. No sign, placard, banner, picture, name, advertisement or notice, visible
from the exterior of the Premises or the Building or the common areas of
the Building shall be inscribed, painted, affixed, installed or otherwise
displayed by Tenant either on its Premises or any part of the Building or
Project without the prior written consent of Landlord in Landlord's sole
and absolute discretion. Landlord shall have the right to remove any such
sign, placard, banner, picture, name, advertisement, or notice without
notice to and at the expense of Tenant, which were installed or displayed
in violation of this rule. If Landlord shall have given such consent to
Tenant at any time, whether before or after the execution of Tenant's
Lease, such consent shall in no way operate as a waiver or release of any
of the provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, banner, picture, name, advertisement
or notice so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, banner, picture,
name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person or vendor
approved by Landlord and shall be removed by Tenant at the time of vacancy
at Tenant's expense.
3. The directory of the Building or Project will be provided exclusively for
the display of the name and location of tenants only and Landlord reserves
the right to charge for the use thereof and to exclude any other names
therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung in offices
or spaces along the perimeter of the Building must be fluorescent or of a
quality, type, design, and bulb color approved by Landlord. No articles
shall be placed or kept on the window sills so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which Landlord considers unsightly from outside
Tenant's Premises.
5. Each tenant shall be responsible for all persons for whom it allows to
enter the Building or the Project and shall be liable to Landlord for all
acts of such persons.
Landlord and its agents shall not be liable for damages for any error concerning
the admission to, or exclusion from, the Building or the Project of any
person.
During the continuance of any invasion, mob, riot, public excitement or other
circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right (but shall not be obligated) to prevent access
to the Building and the Project during the continuance of that event by any
means it considers appropriate for the safety of tenants and protection of
the Building, property in the Building and the Project.
6. Tenant shall not alter any lock or access device or install a new or
additional lock or access device or bolt on any door of its Premises,
without the prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys for all doors which have been furnished to Tenant, and in
the event of loss of any keys so furnished, shall pay Landlord therefor.
7. The restrooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown into them. The
expense of any breakage, stoppage, or damage resulting from violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused the breakage, stoppage, or damage.
8. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or
material except in strict accordance with the terms of the Lease.
9. Tenant shall not use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance. Tenant shall not allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise,
33
<PAGE>
odors and/or vibrations or interfere in any way with other tenants or those
having business therein, nor shall any animals or birds be brought or kept
in or about the Premises, the Building, or the Project.
10. Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall Tenant carry on, or permit or allow any employee or other person
to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of
occupants of any other portion of the Building, or the business of a public
barber shop, beauty parlor, nor shall the Premises be used for any illegal,
improper, immoral or objectionable purpose, or any business or activity
other than that specifically provided for in such Tenant's Lease. Tenant
shall not accept hairstyling, barbering, shoeshine, nail, massage or
similar services in the Premises or common areas except as authorized by
Landlord.
11. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain, and
comply with, Landlord's instructions in their installation. The cost of
purchasing, installation and maintenance of such services shall be borne
solely by Tenant.
12. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the prior
written approval of Landlord.
13. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with radio
or television broadcasting or reception from or in the Building, the
Project or elsewhere.
14. Tenant shall not mark, or drive nails, screws or drill into the partitions,
woodwork or drywall or in any way deface the Premises or any part thereof.
Tenant shall not lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floor of its Premises in any manner
except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by the tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
15. Tenant shall not place a load upon any floor of its Premises which exceeds
the load per square foot which such floor was designed to carry or which is
allowed by law.
Business machines and mechanical equipment belonging to Tenant which cause noise
or vibration that may be transmitted to the structure of the Building or to
any space therein to such a degree as to be objectionable to Landlord or to
any tenants in the Building shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment
in or out of the Building must be acceptable to Landlord.
16. Each tenant shall store all its trash and garbage within the interior of
the Premises or as otherwise directed by Landlord from time to time. Tenant
shall not place in the trash boxes or receptacles any personal trash or any
material that may not or cannot be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the
city, without violation of any law or ordinance governing such disposal.
17. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Project are prohibited and
each tenant shall cooperate to prevent the same. No tenant shall make room-
to-room solicitation of business from other tenants in the Building or the
Project, without the written consent of Landlord.
18. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building and
the Project.
19. Landlord reserves the right to exclude or expel from the Project any person
who, in Landlord's judgment, is under the influence of alcohol or drugs or
who commits any act in violation of any of these Rules and Regulations.
20. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building or the Project or any photograph or other likeness of
the Building or the Project in connection with, or in promoting or
advertising, Tenant's business except that Tenant may include the
Building's or Project's name in Tenant's address.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
22. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
23. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking spaces with one car.
No trucks, truck tractors, trailers or fifth wheel are
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<PAGE>
allowed to be parked anywhere at any time within the Project other than in
Tenant's own truck dock well. Vehicles in violation of the above shall be
subject to tow-away, at vehicle owner's expense. Vehicles parked on the
Project overnight without prior written consent of the Landlord shall be
deemed abandoned and shall be subject to tow-away at vehicle owner's
expense. No tenant of the Building shall park in visitor or reserved
parking areas or loading areas. Any tenant found parking in such designated
visitor or reserved parking areas or loading areas or unauthorized areas
shall be subject to tow-away at vehicle owner's expense. The parking areas
shall not be used to provide car wash, oil changes, detailing, automotive
repair or other services unless otherwise approved or furnished by
Landlord. Tenant will from time to time, upon the request of Landlord,
supply Landlord with a list of license plate numbers of vehicles owned or
operated by its employees or agents.
24. No Tenant is allowed to unload, unpack, pack or in any way manipulate any
products, materials or goods in the common areas of the Project including
the parking and driveway areas of the Project. All products, goods and
materials must be manipulated, handled, kept, and stored within the
Tenant's Premises and not in any exterior areas, including, but not limited
to, exterior dock platforms, against the exterior of the Building, parking
areas and driveway areas of the Project. Tenant also agrees to keep the
exterior of the Premises clean and free of nails, wood, pallets, packing
materials, barrels and any other debris produced from their operation. All
products, materials and goods are to enter and exit the Premises by being
loaded or unloaded through dock high doors into trucks and or trailers,
over dock high loading platforms into trucks and or trailers or loaded or
unloaded into trucks and or trailers within the Premises through grade
level door access.
25. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
26. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Project.
27. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Building.
Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and the Project and for the
preservation of good order therein. Tenant agrees to abide by all such Rules and
Regulations herein stated and any additional rules and regulations which are
adopted.
35
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Exhibit B
---------
36
<PAGE>
EXHIBIT C
LEASE IMPROVEMENT AGREEMENT
---------------------------
This Lease Improvement Agreement ("Improvement Agreement") sets forth
the terms and conditions relating to construction of the initial tenant
improvements described in the Plans to be prepared and approved as provided
below (the "Tenant Improvements") in the Building B Premises. Capitalized terms
used but not otherwise defined herein shall have the meanings set forth in the
Lease (the "Lease") to which this Improvement Agreement is attached and forms a
part.
1. Base Building Work. (Intentionally omitted)
------------------
2. Plans and Specifications.
------------------------
2.1 Tenant shall retain the services of a space planner mutually
satisfactory to Tenant and Landlord (the "Space Planner") to prepare a
detailed space plan (the "Space Plan") mutually satisfactory to Landlord
and Tenant for the construction of the Tenant Improvements in the Building
B Premises. Tenant shall submit the Space Plan and any proposed revisions
thereto to Landlord for Landlord's approval.
2.2 Based on the approved Space Plan, Tenant shall cause the Space
Planner to prepare detailed plans, specifications and working drawings
mutually satisfactory to Landlord and Tenant for the construction of the
Tenant Improvements (the "Plans"). Landlord and Tenant shall diligently
pursue the preparation of the Plans. Tenant shall submit the Plans and any
proposed revisions thereto, including the estimated cost of the Tenant
Improvements. All necessary revisions to the Space Plan and the Plans shall
be made within two (2) business days after Landlord's response thereto.
This procedure shall be repeated until Landlord ultimately approves the
Space Plan and Plans. Landlord shall approve or disapprove the Plans and
any proposed revisions thereto, including the estimated cost of the Tenant
Improvements, in writing within three (3) business days after receipt
thereof. If Landlord fails to approve or disapprove the Space Plan or the
Plans or any revisions thereto within the time limits specified herein,
Landlord shall be deemed to have disapproved the same.
2.3 Tenant shall be responsible for ensuring that the Plans are
compatible with the design, construction and equipment of the Building,
comply with applicable Regulations and the Standards (defined below), and
contain all such information as may be required to show locations, types
and requirements for all heat loads, people loads, floor loads, power and
plumbing, regular and special HVAC needs, telephone communications,
telephone and electrical outlets, lighting, light fixtures and related
power, and electrical and telephone switches, B.T.U. calculations,
electrical requirements and special receptacle requirements. The Plans
shall also include mechanical, electrical, plumbing, structural and
engineering drawings mutually satisfactory to Landlord and Tenant which
shall be prepared by an engineer/architect mutually satisfactory to Tenant
and Landlord. Notwithstanding Landlord's preparation, review and approval
of the Space Plan and the Plans and any revisions thereto, Landlord shall
have no responsibility or liability whatsoever for any errors or omissions
contained in the Space Plan or Plans or any revisions thereto, or to verify
dimensions or conditions, or for the quality, design or compliance with
applicable Regulations of any improvements described therein or constructed
in accordance therewith. Tenant hereby waives all claims against Landlord
relating to, or arising out of the design or construction of, the Tenant
Improvements.
2.4 Landlord may approve or disapprove the Space Plan or Plans or
any proposed revision thereto submitted to Landlord in Landlord's sole
discretion. Landlord shall not be deemed to have approved the Space Plan,
the Plans, or any proposed revisions thereto, unless approved by Landlord
in writing. Landlord shall approve or disapprove any Space Plan, Plans or
proposed revisions thereto submitted to Landlord for Landlord's approval
within five (5) business days after Landlord's receipt thereof. If Landlord
has not approved in writing any Space Plan, Plans, or proposed revisions
thereto submitted to Landlord within five (5) business days after
Landlord's receipt thereof, Landlord shall be deemed to have disapproved
the same.
3. Specifications for Standard Tenant Improvements.
-----------------------------------------------
3.1 Specifications and quantities of standard building components
which will comprise and be used in the construction of the Tenant
Improvements ("Standards") are set forth in Schedule 2 to this Exhibit C.
As used herein, "Standards" or "Building Standards" shall mean the
standards for a particular item selected from time to time by Landlord for
the Building, including those set forth on Schedule 2 of this Exhibit C, or
such other standards of equal or better quality as may be mutually agreed
between Landlord and Tenant in writing.
3.2 No deviations from the Standards are permitted.
4. Tenant Improvement Cost.
-----------------------
37
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4.1 The cost of the Tenant Improvements shall be paid for by Tenant,
without limitation, the cost of: Standards; space plans and
studies; architectural and engineering fees; permits, approvals
and other governmental fees; labor, material, equipment and
supplies; construction fees and other amounts payable to
contractors or subcontractors; taxes; off-site improvements; and
preparation of the Building B Premises for construction of the
Tenant Improvements; taxes; filing and recording fees; premiums
for insurance and bonds; attorneys' fees; financing costs; and
all other costs expended or to be expended in the construction
of the Tenant Improvements, including those costs incurred for
construction of elements of the Tenant Improvements in the
Building B Premises, which construction was performed by
Landlord prior to the execution of the Lease or for materials
comprising the Tenant Improvements which were purchased by
Landlord prior to the execution of the Lease; and an
administration fee of five percent (5%) in the total cost of the
Tenant Improvements.
4.2 Provided Tenant is not in default under the Lease, including
this Improvement Agreement, Landlord shall contribute a one-time
tenant improvement allowance not to exceed Two Hundred Seven
Thousand Five Hundred Twenty and No/100 Dollars ($207,520.00)
("Tenant Improvement Allowance") toward the cost of the initial
Tenant Improvements. Provided Tenant is not then in default
under the Lease, including this Improvement Agreement, Landlord
shall disburse the Tenant Improvement Allowance to Tenant upon
completion of construction of the Tenant Improvements and
expiration of the time for filing of any mechanics' liens
claimed or which might be filed on account of any work ordered
by Tenant or its contractor or any subcontractor, and upon
receipt by Landlord of a certificate of completion executed by
the Space Planner and Tenant's contractor, and unconditional
mechanics' lien releases (which mechanics' lien releases shall
be executed by the subcontractors, labor suppliers and
materialmen in addition to Tenant's contractor), in each case in
form and substance satisfactory to Landlord, and all appropriate
bills and supporting documentation for the work ordered by
Tenant or its contractor or any subcontractor.
4.3 In the event the cost of the design and construction of the
Tenant exceeds the Tenant Improvement Allowance, Tenant shall
pay such excess cost. No credit shall be given to Tenant if the
cost of the Tenant Improvements is less than the Tenant
Improvement Allowance.
5. Construction of Tenant Improvements.
-----------------------------------
5.1 Within ten (10) days after Tenant's and Landlord's approval of
the Plans including the estimate of the cost of the Tenant Improvements,
Tenant shall cause the contractor to proceed to secure a building permit
and commence construction of the Tenant Improvements provided that the
Building has in Landlord's discretion reached the stage of construction
where it is appropriate to commence construction of the Tenant Improvements
in the Building B Premises.
5.2 Tenant shall be responsible for obtaining all governmental
approvals to the full extent necessary for the construction and
installation of the Tenant Improvements and for Tenant's occupancy of the
Building B Premises, in compliance with all applicable Regulations. Tenant
shall employ a contractor mutually satisfactory to Tenant and Landlord as
the contractor, or such other contractor or contractors as approved by
Landlord in writing to construct the Tenant Improvements in conformance
with the approved Space Plan and Plans. The construction contracts between
Tenant and the approved contractor shall be subject to Landlord's prior
reasonable approval and shall provide for progress payments. The
contractor(s) shall be duly licensed and Landlord's approval of the
contractor(s) shall be conditioned, among other things, upon the
contractor's reputation for quality of work, timeliness of performance,
integrity and Landlord's prior experience with such contractor.
5.3 Without limiting the provisions of Paragraph 35 of the Lease,
Landlord shall not be liable for any direct or indirect damages suffered by
Tenant as a result of delays in construction beyond Landlord's reasonable
control, including, but not limited to, delays due to strikes or
unavailability of materials or labor, or delays caused by Tenant (including
delays by the Space Planner, the contractor or anyone else performing
services on behalf of Landlord or Tenant).
5.4 All work to be performed on the Building B Premises by Tenant or
Tenant's contractor or agents shall be subject to the following conditions:
(a) Such work shall proceed upon Landlord's written approval
of Tenant's contractor, and public liability and property damage insurance
carried by Tenant's contractor, and shall further be subject to the
provisions of Paragraphs 12 and 27 of the Lease.
(b) All work shall be done in conformity with a valid
building permit when required, a copy of which shall be furnished to
Landlord before such work is commenced, and in any case, all such work
shall be performed in a good and workmanlike and first-class manner, and in
accordance with all applicable Regulations and the requirements and
standards of any insurance underwriting board, inspection bureau or
insurance carrier insuring the Building B Premises pursuant to the Lease.
Notwithstanding any failure by Landlord to object to any such work,
Landlord shall have no responsibility for Tenant's failure to comply with
all applicable Regulations. Tenant shall be responsible for ensuring that
construction and installation of the Tenant Improvements will not affect
the structural integrity of the Building.
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<PAGE>
(c) If required by Landlord or any lender of Landlord, all
work by Tenant or Tenant's contractor shall be done with union labor in
accordance with all union labor agreements applicable to the trades being
employed.
(d) Landlord or Landlord's agents shall have the right to
inspect the construction of the Tenant Improvements by Tenant during the
progress thereof. If Landlord shall give notice of faulty construction or
any other deviation from the approved Space Plan or Plans, Tenant shall
cause its contractor to make corrections promptly. However, neither the
privilege herein granted to Landlord to make such inspections, nor the
making of such inspections by Landlord, shall operate as a waiver of any
right of Landlord to require good and workmanlike construction and
improvements erected in accordance with the approved Space Plan or Plans.
(e) Tenant shall cause its contractor to complete the Tenant
Improvements as soon as reasonably possible.
(f) Tenant's construction of the Tenant Improvements shall
comply with the following: (i) the Tenant Improvements shall be constructed
in strict accordance with the approved Space Plan or Plans; (ii) Tenant's
and its contractor shall submit schedules of all work relating to the
Tenant Improvements to Landlord for Landlord's approval within two (2)
business days following the selection of the contractor and the approval of
the Plans. Landlord shall within five (5) business days after receipt
thereof inform Tenant of any changes which are necessary and Tenant's
contractor shall adhere to such corrected schedule; and (iii) Tenant shall
abide by all rules made by Landlord with respect to the use of freight,
loading dock, and service elevators, storage of materials, coordination of
work with the contractors of other tenants, and any other matter in
connection with this Improvement Agreement, including, without limitation,
the construction of the Tenant Improvements.
(g) Tenant or Tenant's contractor or agents shall arrange
for necessary utility, hoisting and elevator service with Landlord's
contractor and shall pay such reasonable charges for such services as may
be charged by Tenant's or Landlord's contractor.
(h) Tenant's entry to the Building B Premises for any
purpose, including, without limitation, inspection or performance of Tenant
construction by Tenant's agents, prior to the date Tenant's obligation to
pay rent commences shall be subject to all the terms and conditions of the
Lease except the payment of Rent. Tenant's entry shall mean entry by
Tenant, its officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors.
(i) Tenant shall promptly reimburse Landlord upon demand for
any reasonable expense actually incurred by the Landlord by reason of
faulty work done by Tenant or its contractors or by reason of any delays
caused by such work, or by reason of inadequate clean-up.
(j) Tenant hereby indemnifies and holds Landlord harmless
with respect to any and all costs, losses, damages, injuries and
liabilities relating in any way to any act or omission of Tenant or
Tenant's contractor or agents, or anyone directly or indirectly employed by
any of them, in connection with the Tenant Improvements and any breach of
Tenant's obligations under this Improvement Agreement, or in connection
with Tenant's non-payment of any amount arising out of the Tenant
Improvements. Such indemnity by Tenant, as set forth above, shall also
apply with respect to any and all costs, losses, damages, injuries, and
liabilities related in any way to Landlord's performance or any ministerial
acts reasonably necessary (i) to permit Tenant to complete the Tenant
Improvements, and (ii) to enable Tenant to obtain any building permit or
certificate of occupancy for the Building B Premises.
(k) Tenant's contractor and the subcontractors utilized by
Tenant's contractor shall guarantee to Tenant and for the benefit of
Landlord that the portion of the Tenant Improvements for which it is
responsible shall be free from any defects in workmanship and materials for
a period of not less than one (1) year from the date of completion thereof.
Each of Tenant's contractor and the subcontractors utilized by Tenant's
contractor shall be responsible for the replacement or repair, without
additional charge, of all work done or furnished in accordance with its
contract that shall become defective within one (1) year after the later to
occur of (i) completion of the work performed by such contractor of
subcontractors and (ii) the Term Commencement Date. The correction of such
work shall include, without additional charge, all additional expenses and
damages incurred in connection with such removal or replacement of all or
any part of the Tenant Improvements, and/or the Building and/or common
areas that may be damaged or disturbed thereby. All such warranties or
guarantees as to materials or workmanship of or with respect to the Tenant
Improvements shall be contained in the construction contract or subcontract
and shall be written such that such guarantees or warranties shall inure to
the benefit of both Landlord and Tenant, as their respective interests may
appear, and can be directly enforced by either. Tenant covenants to give to
Landlord any assignment or other assurances which may be necessary to
effect such rights of direct enforcement.
(l) Commencing upon the execution of the Lease, Tenant shall
hold weekly meetings at a reasonable time with the Space Planner and the
contractor regarding the progress of the preparation of the Plans and the
construction of the Tenant Improvements, which meetings shall be held at a
location designated by Tenant, and Landlord and/or its agents shall receive
prior notice of, and shall have the right to attend, all such meetings, and
upon Landlord's request, certain of Tenant's contractors shall attend such
meetings. One such meeting each month shall include the review of
contractor's current request for payment.
(m) Tenant and Tenant's contractors and all other parties
performing work on the Building B Premises on Tenant's behalf shall comply
with the each of the Building rules and regulations as described in the
Lease and with the contractor
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<PAGE>
rules and regulations, attached hereto as Schedule 3. Tenant shall be
liable for any violation of the Building or the contractor rules and
regulations by Tenant's contractors or any other party performing work on
the Building B Premises on Tenant's behalf.
6. Insurance Requirements.
-----------------------
6.1 All of Tenant's contractors shall carry worker's compensation
insurance covering all of their respective employees, and shall also carry
public liability insurance, including property damage, all with limits, in
form and with companies as are required to be carried by Tenant as set
forth in Paragraph 8 of the Lease.
6.2 Tenant shall carry "Builder's All Risk" insurance in an amount
approved by Landlord covering the construction of the Tenant Improvements,
and such other insurance as Landlord may require, it being understood and
agreed that the Tenant Improvements shall be insured by Tenant pursuant to
Paragraph 8 of the Lease immediately upon completion thereof. Such
insurance shall be in amounts and shall include such extended coverage
endorsements as may be reasonably required by Landlord including, but not
limited to, the requirement that all of Tenant's contractors shall carry
excess liability and Products and Completed Operation coverage insurance,
each in amounts not less than $500,000 per incident, $1,000,000 in
aggregate, and in form and with companies as are required to be carried by
Tenant as set forth in Paragraph 8 of the Lease.
6.3 Certificates for all insurance carried pursuant to this
Improvement Agreement must comply with the requirements of Paragraph 8 of
the Lease and shall be delivered to Landlord before the commencement of
construction of the Tenant Improvements and before the contractor's
equipment is moved onto the site. In the event the Tenant Improvements are
damaged by any cause during the course of the construction thereof, Tenant
shall immediately repair the same at Tenant's sole cost and expense.
Tenant's contractors shall maintain all of the foregoing insurance coverage
in force until the Tenant Improvements are fully completed and accepted by
Landlord, except for any Product and Completed Operation Coverage insurance
required by Landlord, which is to be maintained for ten (10) years
following completion of the work and acceptance by Landlord and Tenant. All
policies carried under this Paragraph 6 shall insure Landlord and Tenant,
as their interests may appear, as well as the contractors. All insurance
maintained by Tenant's contractors shall preclude subrogation claims by the
insurer against anyone insured thereunder. Such insurance shall provide
that it is primary insurance as respects the owner and that any other
insurance maintained by owner is excess and noncontributing with the
insurance required hereunder. Landlord may, in its discretion, require
Tenant to obtain a lien and completion bond or some alternate form of
security satisfactory to Landlord in an amount sufficient to ensure the
lien-free completion of the Tenant Improvements and naming Landlord as a
co-obligee.
7. Completion and Rental Commencement Date.
---------------------------------------
7.1 Tenant's obligation to pay Rent under the Lease shall commence on
the Scheduled Term Commencement Date and the Scheduled Term Commencement
Date shall be the Term Commencement Date notwithstanding anything to the
contrary contained in Paragraph 2 of the Lease. However, except as
otherwise provided herein, Landlord Delays (as defined below) shall extend
the Term Commencement Date, but only in the event that substantial
completion of the Tenant Improvements is actually delayed beyond sixtieth
(60th) day after the date Landlord delivers possession of the Building B
Premises to Tenant, despite Tenant's best efforts to adapt and compensate
for such delays. In addition, no Landlord Delays shall be deemed to have
occurred unless Tenant has provided notice, in compliance with the Lease,
to Landlord specifying that a delay shall be deemed to have occurred
because of actions, inactions or circumstances specified in the notice in
reasonable detail. If such actions, inactions or circumstances are not
cured by Landlord within one (1) business day after receipt of such notice
("Count Date"), and if such actions, inaction or circumstances otherwise
qualify as a Landlord Delay, then a Landlord Delay shall be deemed to have
occurred commencing as of the Count Date. The Term Commencement Date shall
be extended by one day for each day from the Count Date that a Landlord
Delay has occurred, as calculated as provided above. The term "Landlord
Delays," as such term may be used in this Improvement Agreement, shall mean
any actual delays in the completion of the Tenant Improvements which are
due to any act or omission of Landlord, its agents or contractors. Landlord
Delays shall include but not be limited to: (i) delays in the giving of
authorizations or approvals by Landlord beyond the periods provided in this
Improvement Agreement, (ii) delays due to the acts or failures to act, of
Landlord, its agents or contractors, where such acts or failures to act are
required by the terms of this Improvement Agreement and actually result in
a delay of the completion of the Tenant Improvements beyond the sixtieth
(60th) day after the date Landlord delivers possession of the Building B
Premises to Tenant, provided that Tenant acts in a commercially reasonable
manner to mitigate any such delay, and (iii) delays due to the unreasonable
interference of Landlord, its agents or contractors with the completion of
the Tenant Improvements. Notwithstanding anything to the contrary contained
in this Improvement Agreement or in the Lease, if a Landlord Delay does
occur but the Building B Premises is substantially complete on or before
sixtieth (60th) day after the date Landlord delivers possession of the
Building B Premises to Tenant, then the Term Commencement Date shall not be
extended and shall be the date described in Paragraph 39.A of the Lease. In
the event a Landlord Delay shall not occur, then the Term Commencement Date
shall be the date described in Paragraph 39.A of the Lease.
7.2 Within ten (10) days after completion of construction of the
Tenant Improvements, Tenant shall cause a Notice of Completion to be
recorded in the office of the Recorder of the county in which the Building
is located in accordance with Section 3093 of the Civil Code of the State
of California or any successor statute, and shall furnish a copy thereof to
Landlord upon such recordation. If Tenant fails to do so, Landlord may
execute and file the same on behalf of Tenant as Tenant's agent for such
purpose, at Tenant's sole cost and expense. At the conclusion of
construction, (i) Tenant shall cause the Space Planner and the contractor
(i) to
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update the approved working drawings as necessary to reflect all changes
made to the approved working drawings during the course of construction,
(ii) to certify to the best of their knowledge that the "record-set" of as-
built drawings are true and correct, which certification shall survive the
expiration or termination of the Lease, and (c) to deliver to Landlord two
(2) sets of copies of such record set of drawings within ninety (90) days
following issuance of a certificate of occupancy for the Building B
Premises, and (iii) Tenant shall deliver to Landlord a copy of all
warranties, guarantees, and operating manuals and information relating to
the improvements, equipment, and systems in the Building B Premises.
7.3 A default under this Improvement Agreement shall constitute a
default under the Lease, and the parties shall be entitled to all rights
and remedies under the Lease in the event of a default hereunder by the
other party (notwithstanding that the Term thereof has not commenced).
7.4 Without limiting the "as-is" provisions of the Lease, except for
the Base Building Work to be constructed by Landlord pursuant to this
Improvement Agreement, Tenant accepts the Building B Premises in its "as-
is" condition and acknowledges that it has had an opportunity to inspect
the Building B Premises prior to signing the Lease.
41
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SCHEDULE 1
TO EXHIBIT C
BASE BUILDING WORK
NONE
42
<PAGE>
SCHEDULE 2
TO EXHIBIT C
CONTRACTOR RULES AND REGULATIONS
--------------------------------
General Requirements for Building Construction Work
- --------------------------------------------------------------------------------
Intent
The intent of these General Requirements is to communicate Spieker Properties
general performance expectations and requirements of contractors performing work
in our projects. While these requirements may not cover all specific project
requirements, or may not apply to all projects, they are intended to communicate
a basic overall methodology for doing construction work in Spieker Properties
projects.
Preliminary
-----------
1. All work performed shall be performed by union signatory general contractor
utilizing all union labor and must comply with all applicable rules,
regulations, and codes of the building, city, state, and federal
governmental agencies having jurisdiction. The General Contractor will file
drawings and secure all required permits prior to beginning work, unless
circumstances require earlier construction commencement, as directed by the
Owner's architect. All construction within the leased premises shall
conform to applicable sections of California Title 24 Standards and the
American with Disabilities Act (ADA).
2. All work shall be performed during regular business hours (7:00 A.M. - 6:00
P.M.), Monday through Friday, with the exception of work types listed
below. All building system operations will be maintained in normal
operation, and will not be adversely impacted by construction work, unless
specifically authorized by a Project Management representative. The
contractor shall communicate requests to the Management Office 24 hours in
advance of any required interruption of any building services.
Exceptions - The following work is required to be performed on an
overtime or off-hours basis: core drilling, nailing of tackless carpet
stripping, spray painting of any lacquer or other volatile or odor
creating substances, and any type of concrete chipping. Any scheduling
requests for these types of off-hours work must be approved and
authorized by the Management Office prior to performance any of work.
3. All contractors must supply Certificate(s) of Insurance naming Spieker
Properties, L.P. as additionally insured prior to the start of any
construction. Insurance certificates and copies of permits, as required,
must be provided to Project Management prior to the commencement of any
work.
4. Contractors representative will meet with Project Management representative
prior to beginning contracted work, to review the scope of construction
work, construction methods, these general requirements, any additional
project specific requirements, and any potential impact to the satisfactory
on-going operation of building services.
5. The contractor will coordinate proper parking locations for construction
personnel with Project Management prior to starting construction, to avoid
impacting our tenants parking availability.
Project Area Access
1. Access to project buildings, parking structures, suites, etc. will be
coordinated in advance with Project Office. No installed access control or
security system will be over ridden or bypassed for any reason, or at any
time. All construction personnel will be limited to those areas for which
they have been given specific access.
2. Access to all electrical closets, telephone closets, mechanical rooms, and
suites must be coordinated in advance through the Project Office.
Electrical, telephone, and other equipment rooms will be kept closed and
locked when they are not physically occupied.
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During Work Performance
1. Upon the start of construction, the contractor will provide walk-off mats
at all entrances to the construction area(s) from stairwells (if used) and
entrances to all elevators.
2. Contractors shall maintain cleanliness throughout; do not clutter or block
hallways, exits, elevator lobby, electrical or telephone rooms. Building
fire rated doors will not be propped open, removed, or their door closures
disconnected. Nor will elevator doors be propped or jammed open to prevent
the automatic function of it's timed door actuators. Contractors are
required to utilize the freight elevator only! Where a freight elevator is
not available, Project Management will designate the appropriate elevator
for contractor use. Where available, elevator protective pads will be used
whenever moving materials or equipment in the elevator. Contractors are
responsible for all damage they cause and clean-up.
3. Building electrical closets will not, at any time, or for any reason, be
utilized for the storage of any construction project materials or trash, as
such storage constitutes a violation of prevailing fire codes.
4. All material deliveries, and debris removal, must be made as expeditiously
as possible so as to not have these vehicles blocking accesses to / from
the building. The contractor, at contractor expense must remove all
construction debris from the building. Building trash dumpsters are not to
be utilized for the disposal of construction project debris, as these are
provided for tenant use. As may be required, Contractor will make
arrangements for delivery of a debris box for his use. The Project Office
will approve an appropriate location for the debris box while it is on the
project. Delivery or removal of large amounts of material is to be done
after normal business hours with 24-hr. prior approval of the Project
Manager.
5. The contractor is responsible for taking the following precautions / steps
to protect the satisfactory on-going operation of all building systems and
tenant operations:
. Covering HVAC supply and return duct openings to protect from
construction dirt / dust being spread to other areas of the building
or into the HVAC equipment / system. This can be accomplished by
sealing off, covering with filtering media, or other Project
Management approved method.
. Coordinate with Project Manager prior to construction to have fire
sprinkler systems isolated, smoke detectors disabled, or alarm systems
de-activated for periods as may be necessary. Contractor will protect
those smoke detectors or fire sprinkler heads left installed in the
area, after disabling, by covering them with plastic bags during
construction.
. Where electrical components or circuits are removed, contractor will
ensure full compliance with OSHA required lockout / tagout procedures
to prevent personal injuries or system outages.
. Develop the best isolation possible of the construction area to
contain any dirt, dust, noise or other potential tenant impact which
may be generated by demo, construction work and clean-up.
6. Any damage to any project area including but not limited to, parking areas,
doors, freight elevators, and carpets will be reported to the Project
Office and repaired by the contractor immediately. Spieker Properties
reserves the right to remedy any damage at the Contractors expense if the
damage is not repaired in a timely manner.
7. No powder-actuated guns are to be used without the specific prior
authorization of the Project Management Office.
8. No foreign substances are to be poured down any restroom floor drains, or
into other restroom fixtures.
9. All firewall and floor penetrations shall be sleeved and sealed in
accordance with applicable fire code, using only approved, UL listed, fire
stop materials. All firestop installations must be reviewed and approved by
the Project Manager prior to closing the associated area of work.
10. All electrical panel and circuit breaker labeling will be performed in
accordance with acceptable industry methods, or as may be directed by
Project Management.
11. Contractor will notify the Management Office at least 48 hours in advance
of construction completion. A walk-through and punch list will be developed
for each job.
12. Smoking is prohibited in all buildings, and parking garages, at all times.
44
<PAGE>
13. The Contractor is responsible for ensuring, on an on-going basis, that
common areas, work space, and construction use restrooms are thoroughly
cleaned upon completion of work, including trash and material disposal,
removal of all noise and dust shielding materials installed at beginning of
project, windows cleaned, etc.
14. The Project Office is to be notified immediately should any emergency
develop, any building system or operation be impacted, or any aspect of the
construction effort impact any tenant.
Safety / Compliance
1. General Contractor is responsible for ensuring jobsite safety compliance.
This includes the work force as well as anyone entering the construction
area. Protective barricades will be placed as required to ensure general
area safety. Material Safety Data Sheets (MSDS) for all materials to be
used on the jobsite must be provided to the Project Manager for review
prior to bringing the materials into the project. The contractor will
further ensure that a copy of each MSDS is available at the jobsite
whenever a specific material is in use.
2. No welding, burning, or cutting with an open flame will be performed
without prior notification to the Project Office so that appropriate
actions may be taken with fire alarm systems and fire sprinkler systems.
Appropriate fire extinguishers will be immediately available at all times.
3. The contractor is responsible for ensuring that all of their sub-
contractors are aware, and in compliance, with these general requirements.
Materials
1. The contractor shall contact the Management Office at the start of
construction for instructions on building keying, specific hardware and
other standards, as may be applicable, unless this coordination is
accomplished through hardware submittals. All permanent keying will be
provided through the Management Office.
2. All HVAC, electrical, plumbing, fire alarm system, fire sprinkler, building
control and lighting components installed will be of Building Standard
manufacture, unless noted as otherwise on the approved plans and
specifications. This includes but is not limited to thermostats, controls,
diffusers, lighting fixtures, switches, lamps, relays, smoke detectors,
fire sprinkler heads, sprinkler flow switches, manual pull stations,
indicator horns / strobes, etc.
Project Completion
------------------
1. Upon completion of project, contractor will perform a full air balance of
any installed or modified HVAC systems, providing one copy of each air
balance report to the Management Office.
2. Upon completion of project, a completed test report (witnessed by a Fire
Department representative as required) will be provided to the Project
Management Office for all fire sprinkler or fire alarm systems having been
impacted by any aspect of the construction work.
3. Upon completion of construction, one (1) set of as-built prints, and one
(1) set of as-built sepias, are to be provided to the Management Office.
4. Contractor will ensure that specific submittals, manufacturers operation
and maintenance manuals, and applicable manufacturers cut sheets are
delivered to the Project Office for all equipment or components installed
in the course of their work. This includes, but is not limited to,
mechanical equipment, fire alarm system components, fire sprinkler system
components, HVAC system equipment or components, lighting system
components, electrical distribution or control components, and any sensing
or monitoring components.
5. Upon completion of construction clean inside of all perimeter windows and
the interior of all lighting fixtures and louvers. Thoroughly clean all
work areas, common areas where impacted, construction use restrooms, and
freight elevators. Coordinate construction clean-up schedule with
Management Office.
Building Contact List
---------------------
Any questions or concerns should be directed to:
45
<PAGE>
Project Director _ ___________________
Building Managers _ ___________________
Customer Serv. Rep. _ ___________________
Building Engineer _ ___________________
Management Office _ ___________________
Management Office Fax _ ___________________
46
<PAGE>
EXHIBIT D
---------
HAZARDOUS MATERIALS QUESTIONNAIRE
---------------------------------
This questionnaire is designed to solicit information regarding Tenant's
proposed use, generation, treatment, storage, transfer or disposal of hazardous
or toxic materials, substances or wastes. If this Questionnaire is attached to
or provided in connection with a lease, the reference herein to any such items
shall include all items defined as "Hazardous Materials," "Hazardous
Substances," "Hazardous Wastes," "Toxic Materials," "Toxic Substances, "Toxic
Wastes," or such similar definitions contained in the lease. Please complete
the questionnaire and return it to Landlord for evaluation. If your use of
materials or substances, or generation of wastes is considered to be
significant, further information may be requested regarding your plans for
hazardous and toxic materials management. Your cooperation in this matter is
appreciated. If you have any questions, do not hesitate to call us for
assistance.
1. PROPOSED TENANT
Name (Corporation, Individual, Corporate or Individual DBA, or Public
Agency): ____________________________________________________________________
_____________________________________________________________________________
Standard Industrial Classification Code (SIC): ______________________________
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
Contact Person & Title: _____________________________________________________
Telephone Number: (___) ____________ Facsimile Number: (___) _________
2. LOCATION AND ADDRESS OF PROPOSED LEASE
Street Address: _____________________________________________________
City, State, Zip Code: _____________________________________________________
Bordering Streets: _____________________________________________________
Streets to which Premises has Access: _______________________________________
3. DESCRIPTION OF PREMISES
Floor Area: _____________________________________________________
Number of Parking Spaces: ___________________________________________________
Date of Original Construction: ______________________________________________
Past Uses of Premises: _____________________________________________________
Dates and Descriptions of Significant Additions, Alterations or Improvements:
____________________________________________
D-1
<PAGE>
_____________________________________________________________________________
Proposed Additions, Alterations or Improvements, if any: ____________________
4. DESCRIPTION OF PROPOSED PREMISES USE
Describe proposed use and operation of Premises including (i) services to be
performed, (ii) nature and types of manufacturing or assembly processes, if
any, and (iii) the materials or products to be stored at the Premises.
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Will the operation of your business at the Premises involve the use,
generation, treatment, storage, transfer or disposal of hazardous wastes or
materials? Do they now? Yes ____ No ____ If the answer is "yes," or if your
SIC code number is between 2000 to 4000, please complete Section V.
5. PERMIT DISCLOSURE
Does or will the operation of any facet of your business at the Premises
require any permits, licenses or plan approvals from any of the following
agencies?
U.S. Environmental Protection Agency Yes ____ No ____
City or County Sanitation District Yes ____ No ____
State Department of Health Services Yes ____ No ____
U.S. Nuclear Regulatory Commission Yes ____ No ____
Air Quality Management District Yes ____ No ____
Bureau of Alcohol, Firearms and Tobacco Yes ____ No ____
City or County Fire Department Yes ____ No ____
Regional Water Quality Control Board Yes ____ No ____
Other Governmental Agencies (if yes, Yes ____ No ____
identify: ___________________________)
If the answer to any of the above is "yes," please indicate permit or license
numbers, issuing agency and expiration date or renewal date, if applicable.
_____________________________________________________________________________
D-2
<PAGE>
_____________________________________________________________________________
_____________________________________________________________________________
If your answer to any of the above is "yes," please complete Sections VI and
VII.
6. HAZARDOUS MATERIALS DISCLOSURE
Will any hazardous or toxic materials or substances be stored on the
Premises? Yes ____ No ____ If the answer is "yes," please describe the
materials or substances to be stored, the quantities thereof and the proposed
method of storage of the same (i.e., drums, aboveground or underground
storage tanks, cylinders, other), and whether the material is a Solid (S),
Liquid (L) or Gas (G):
<TABLE>
<CAPTION>
Material/ Quantity to be Amount to be Stored Maximum Period of
Substance Stored on Premises Storage Method on a Monthly Basis Premises Storage
--------- ------------------ -------------- ------------------- -----------------
<S> <C> <C> <C> <C>
_________ __________________ ______________ ___________________ _________________
_________ __________________ ______________ ___________________ _________________
_________ __________________ ______________ ___________________ _________________
</TABLE>
Attach additional sheets if necessary.
Is any modification of the Premises improvements required or planned to
mitigate the release of toxic or hazardous materials substance or wastes into
the environment? Yes ____ No ____ If the answer is "yes," please
describe the proposed Premises modifications:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
7. HAZARDOUS WASTE DISCLOSURE
Will any hazardous waste, including recyclable waste, be generated by the
operation of your business at the Premises? Yes ___ No ___ If the answer is
"yes," please list the hazardous waste which is expected to be generated (or
potentially will be generated) at the Premises, its hazard class and
volume/frequency of generation on a monthly basis.
Maximum Period of
Waste Name Hazard Class Volume/Month Premises Storage
---------- ------------ ------------ -----------------
______________ _______________ ______________ ____________________
______________ _______________ ______________ ____________________
Attach additional sheets if necessary.
D-3
<PAGE>
If the answer is "yes," please also indicate if any such wastes are to be
stored within the Premises and the proposed method of storage (i.e., drums,
aboveground or underground storage tanks, cylinders, other).
Waste Name Storage Method
---------- --------------
______________ _______________
______________ _______________
Attach additional sheets if necessary.
If the answer is "yes," please also describe the method(s) of disposal for
each waste. Indicate where disposal will take place including the methods,
equipment and companies to be used to transport the waste:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Is any treatment or processing of hazardous wastes to be conducted at the
Premises? Yes ____ No ____ If the answer is "yes," please describe proposed
treatment/processing methods:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Which agencies are responsible for monitoring and evaluating compliance with
respect to the storage and disposal of hazardous materials or wastes at or
from the Premises? (Please list all agencies):
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Have there been any agency enforcement actions regarding Tenant (or any
affiliate thereof), or any existing Tenant's (or any affiliate's) facilities,
or any past, pending or outstanding administrative orders or consent decrees
with respect to Tenant or any affiliate thereof? Yes ____ No ____ If the
answer is "yes," have there been any continuing compliance obligations
imposed on Tenant or its affiliates as a result of the decrees or orders? Yes
___ No ___ If the answer is "yes," please describe:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
D-4
<PAGE>
Has Tenant or any of its affiliates been the recipient of requests for
information, notice and demand letters, cleanup and abatement orders, or
cease and desist orders or other administrative inquiries? Yes ____ No ____
If the answer is "yes," please describe:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Are there any pending citizen lawsuits, or have any notices of violations
been provided to Tenant or its affiliates or with respect to any existing
facilities pursuant to the citizens suit provisions of any statute? Yes ____
No ____ If the answer is "yes," please describe:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Have there been any previous lawsuits against the company regarding
environmental concerns? Yes ____ No ____ If the answer is "yes," please
describe how these lawsuits were resolved:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Has an environmental audit ever been conducted at any of your company's
existing facilities? Yes ____ No ____ If the answer is "yes," please
describe:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Does your company carry environmental impairment insurance? Yes ____ No ____
If the answer is "yes," what is the name of the carrier and what are the
effective periods and monetary limits of such coverage?
_____________________________________________________________________________
_____________________________________________________________________________
D-5
<PAGE>
_____________________________________________________________________________
8. EQUIPMENT LOCATED OR TO BE LOCATED AT THE PREMISES
Is (or will there be) any electrical transformer or other equipment
containing polychlorinated biphenyls located at the Premises? Yes _____ No
____ If the answer is "yes," please specify the size, number and location (or
proposed location):
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Is (or will there be) any tank for storage of a petroleum product located at
the Premises? Yes ___ No ___ If the answer is "yes," please specify capacity
and contents of tank; permits, licenses and/or approvals received or to be
received therefor and any spill prevention control or conformance plan to be
taken in connection therewith:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
9. ONGOING ACTIVITIES (APPLICABLE TO TENANTS IN POSSESSION)
Has any hazardous material, substance or waste spilled, leaked, discharged,
leached, escaped or otherwise been released into the environment at the
Premises? Yes ___ No ___ If the answer is "yes," please describe including
(i) the date and duration of each such release, (ii) the material, substance
or waste released, (iii) the extent of the spread of such release into or
onto the air, soil and/or water, (iv) any action to clean up the release, (v)
any reports or notifications made of filed with any federal, state, or local
agency, or any quasi-governmental agency (please provide copies of such
reports or notifications) and (vi) describe any legal, administrative or
other action taken by any of the foregoing agencies or by any other person as
a result of the release:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
This Hazardous Materials Questionnaire is certified as being true and accurate
and has been completed by the party whose signature appears below on behalf of
Tenant as of the date set forth below.
DATED: ______________________________
D-6
<PAGE>
Signature __________________________________________
Print Name _________________________________________
Title ______________________________________________
D-7
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