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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 Quarter Ended March 31, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File Number 0-28252
BROADVISION, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 94-3184303
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
585 Broadway, Redwood City, California 94063
-------------------------------------- -----
(Address of principal executive offices) (Zip code)
(650) 261-5100
--------------
(Registrant's telephone number, including area code)
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
--- ---
As of April 30, 1999 there were 25,289,572 shares of the Registrant's
Common Stock issued and outstanding.
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<PAGE>
<TABLE>
BROADVISION, INC. AND SUBSIDIARIES
FORM 10-Q
QUARTER ENDED MARCH 31, 1999
TABLE OF CONTENTS
<CAPTION>
Page No.
--------
<S> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets -
March 31, 1999 and December 31, 1998 3
Consolidated Statements of Operations -
Three months ended March 31, 1999 and 1998 4
Consolidated Statements of Cash Flows -
Three months ended March 31, 1999 and 1998 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosures About Market Risk 16
PART II OTHER INFORMATION
Item 1. Legal Proceedings 16
Item 2. Changes in Securities and Use of Proceeds 16
Item 3. Defaults upon Senior Securities 16
Item 4. Submission of Matters to a Vote of Security Holders 16
Item 5. Other Information 16
Item 6. Exhibits and Reports on Form 8-K 16
SIGNATURES 17
</TABLE>
2
<PAGE>
<TABLE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BROADVISION, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except per share data)
<CAPTION>
March 31, December 31,
1999 1998
--------- ---------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 66,932 $ 61,878
Accounts receivable, less allowance for doubtful accounts and returns
of $938 and $788, for 1999 and 1998, respectively 16,264 15,361
Prepaids and other 4,030 3,589
--------- ---------
Total current assets 87,226 80,828
Property and equipment, net 8,233 8,034
Long-term investments 23,593 11,546
Prepaids and other 1,121 1,154
--------- ---------
Total assets $ 120,173 $ 101,562
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable $ 2,119 $ 2,243
Accrued expenses 4,859 4,933
Unearned revenue 2,308 1,918
Deferred maintenance 7,768 6,157
Current portion of capital lease obligations 622 709
Current portion of long-term debt 548 548
--------- ---------
Total current liabilities 18,224 16,508
Capital lease obligations 141 270
Long-term debt 2,729 2,924
Deferred income taxes 594 --
Other 44 51
--------- ---------
Total liabilities 21,732 19,753
Commitments
Stockholders' equity:
Convertible preferred stock, $0.0001 par value; 5,000 shares
authorized; none issued and outstanding -- --
Common stock, $0.0001 par value; 50,000 shares authorized; 25,214 and
24,796 shares issued and outstanding for 1999 and 1998, respectively
3 2
Additional paid-in capital 105,147 98,767
Deferred compensation (470) (555)
Accumulated other comprehensive income, net of tax 10,427 3,198
Accumulated deficit (16,666) (19,603)
--------- ---------
Total stockholders' equity 98,441 81,809
--------- ---------
Total liabilities and stockholders' equity $ 120,173 $ 101,562
========= =========
<FN>
See Accompanying Notes to Consolidated Financial Statements
</FN>
</TABLE>
3
<PAGE>
BROADVISION, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
Three Months
Ended March 31,
---------------------
1999 1998
-------- --------
Revenues:
Software licenses $ 12,783 $ 7,279
Services 5,681 2,800
-------- --------
Total revenues 18,464 10,079
Cost of revenues:
Cost of software licenses 747 187
Cost of services 3,322 1,620
-------- --------
Total cost of revenues 4,069 1,807
-------- --------
Gross profit 14,395 8,272
Operating expenses:
Research and development 2,901 2,033
Sales and marketing 7,664 5,861
General and administrative 1,271 824
-------- --------
Total operating expenses 11,836 8,718
-------- --------
Operating income (loss) 2,559 (446)
Other income (expense), net 516 (53)
-------- --------
Income (loss) before provision for income taxes 3,075 (499)
Provision for income taxes 138 --
-------- --------
Net income (loss) $ 2,937 $ (499)
======== ========
Basic earnings (loss) per share $ 0.12 $ (0.02)
======== ========
Diluted earnings (loss) per share $ 0.11 $ (0.02)
======== ========
Shares used in computing
basic earnings (loss) per share 24,670 20,456
======== ========
Shares used in computing
diluted earnings (loss) per share 27,780 20,456
======== ========
See Accompanying Notes to Consolidated Financial Statements
4
<PAGE>
<TABLE>
BROADVISION, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<CAPTION>
Three Months Ended
March 31,
1999 1998
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 2,937 $ (499)
Adjustments to reconcile net income (loss) to net cash provided by (used for)
operating activities:
Depreciation and amortization 907 608
Amortization of deferred compensation 85 92
Allowance for doubtful accounts and returns 150 245
Amortization of prepaid royalties 83 --
Changes in operating assets and liabilities:
Accounts receivable (1,053) (1,451)
Prepaids and other (447) (418)
Accounts payable and accrued expenses (198) 310
Unearned revenue and deferred maintenance 2,001 867
-------- --------
Net cash provided by (used for) operating activities 4,465 (246)
Cash flows from investing activities:
Additions to property and equipment (1,106) (1,254)
Other assets (50) (77)
Maturity of short-term investments -- 796
-------- --------
Net cash used for investing activities (1,156) (535)
Cash flows from financing activities:
Net change in restricted cash -- 1,400
Proceeds from issuance of common stock 2,156 47,243
Borrowings, net proceeds (repayments) (195) 1,187
Capital lease payments (216) (197)
-------- --------
Net cash provided by financing activities 1,745 49,633
Net increase in cash and cash equivalents 5,054 48,852
Cash and cash equivalents at beginning of period 61,878 8,277
-------- --------
Cash and cash equivalents at end of period $ 66,932 $ 57,129
======== ========
Supplemental disclosures of cash flow information:
Cash paid for interest $ 92 $ 63
======== ========
Cash paid for income taxes $ 159 $ 42
======== ========
Non-cash investing and financing activities:
Unrealized gain on long-term investments, net of tax of $4,819 $ 7,228 $ --
======== ========
Contributed capital - Income tax benefits from stock option exercises $ 4,225 $ --
======== ========
<FN>
See Accompanying Notes to Consolidated Financial Statements
</FN>
</TABLE>
5
<PAGE>
BROADVISION, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Organization and Summary of Significant Accounting Policies
Nature of Business - BroadVision, Inc. ("BroadVision" or the "Company")
develops, markets and supports fully integrated application software solutions
exclusively designed to manage one-to-one relationships for the extended
enterprise. The Company's total end-to-end solutions empower a business to
capitalize on the Internet as a unique platform to enhance commerce, provide
critical self-service functions or deliver targeted personalized information to
customers, suppliers, distributors, employees, or any other constituent of their
extended enterprise on a real-time interactive basis.
Basis of Presentation - The accompanying consolidated financial statements
include the accounts of BroadVision and its wholly owned subsidiaries. They have
been prepared in accordance with the established guidelines for interim
financial information as provided by the instructions to Form 10-Q and Article
10 of Regulation S-X. All significant intercompany transactions have been
eliminated in consolidation. The financial results and related information as of
March 31, 1999, and for the three months ended March 31, 1999, and 1998 are
unaudited. The balance sheet at December 31, 1998, has been derived from the
audited consolidated financial statements at that date but does not necessarily
reflect all informational disclosures previously reported in accordance with
Generally Accepted Accounting Principles. In the Company's opinion, the
consolidated financial statements presented herein include all necessary
adjustments, consisting of normal recurring adjustments, to fairly state the
Company's financial position, results of operations, and cash flows for the
periods indicated. The accompanying consolidated financial statements should be
read in conjunction with the consolidated financial statements and notes thereto
included with the Company's annual report on Form 10-K and other documents filed
with the Securities and Exchange Commission. The results of the Company's
operations for the interim periods presented are not necessarily indicative of
operating results for the full fiscal year or any future interim periods.
<TABLE>
Net Loss Per Share - SFAS No. 128, Earnings Per Share, requires the presentation
of basic and diluted earnings per share. Earnings per share is calculated by
dividing net income applicable to common stockholders by a weighted average
number of shares outstanding for the period. Basic earnings per share are
determined solely on common shares, whereas, diluted earnings per share includes
common equivalent shares, as determined under the treasury stock method. The
following table sets forth the basic and diluted earnings (loss) per share
computational data for the periods presented.
<CAPTION>
Three Months Ended March 31,
----------------------------------
(In thousands, except per share amounts) 1999 1998
-------- --------
<S> <C> <C>
Net income (loss) $ 2,937 $ (499)
======== ========
Weighted average common shares outstanding utilized for basic
earnings (loss) per share 24,670 20,456
Weighted average common equivalent shares outstanding:
Employee common stock options 3,061 -- [1]
Common stock warrant 49 -- [1]
-------- --------
Total weighted average common and common equivalent shares
outstanding utilized for diluted earnings (loss) per share 27,780 20,456
======== ========
Basic earnings (loss) per share $ 0.12 $ (0.02)
======== ========
Diluted earnings (loss) per share $ 0.11 $ (0.02)
======== ========
<FN>
[1] The Company incurred a net loss for the indicated period. Accordingly,
common equivalent shares are excluded from the diluted loss per share
calculation because they are antidilutive.
</FN>
</TABLE>
Other Comprehensive Income - For the three months ended March 31, 1999, other
comprehensive income was $7.2 million which consisted of unrealized gains on
long-term investments, and total comprehensive income was $10.1 million. For the
three months ended March 31, 1998, total comprehensive loss did not differ from
net loss.
6
<PAGE>
New Accounting Pronouncements - The Financial Accounting Standards Board
("FASB") recently issued SFAS No. 133, Accounting for Derivative Instruments and
Hedging Activities. SFAS No. 133 addresses the accounting for derivative
instruments, including certain derivative instruments embedded in other
contracts. Under SFAS No. 133, entities are required to carry all derivative
instruments in the balance sheet at fair value. The accounting for changes in
the fair value (i.e., gains or losses) of a derivative instrument depends on
whether it has been designated and qualifies as part of a hedging relationship
and, if so, the reason for holding it. The Company must adopt SFAS No. 133 by
January 1, 2000. The Company does not expect that the adoption of SFAS No. 133
will have a material effect on its financial statements.
In December 1998, the Accounting Standards Executive Committee
("AcSEC") of the American Institute of Certified Public Accountants issued
Statement of Position ("SOP") 98-9 Software Revenue Recognition, With Respect to
Certain Transactions, which requires recognition of revenue using the "residual
method" in a multiple-element arrangement when fair value does not exist for one
or more of the delivered elements in the arrangement. Under the "residual
method", the total fair value of the undelivered elements is deferred and
subsequently recognized in accordance with SOP 97-2. The Company will adopt SOP
98-9 on Janurary 1, 2000. The Company does not expect a material change to its
revenue accounting as a result of the provisions of SOP 98-9.
Note 2. Selective Balance Sheet Detail
Property and Equipment consisted of the following (in thousands):
March 31, December 31,
1999 1998
-------- --------
Furniture and fixtures $ 1,041 $ 1,001
Computers and software 9,688 8,662
Leasehold improvements 3,765 3,725
-------- --------
14,494 13,388
Less accumulated depreciation and amortization (6,261) (5,354)
-------- --------
$ 8,233 $ 8,034
======== ========
Accrued expenses consisted of the following (in thousands):
March 31, December 31,
1999 1998
------ ------
Employee benefits $ 849 $ 678
Commissions and bonuses 1,554 2,013
Taxes payable 712 785
Other 1,744 1,457
------ ------
$4,859 $4,933
====== ======
Note 3. Commercial Credit Facilities
As of March 31, 1999, the Company has a credit facility with a
commercial lender which includes outstanding borrowings of $3.3 million under a
note payable and a revolving line of credit that provides for up to $2.3 million
of total borrowings (based on eligible accounts receivable). As of March 31,
1999, the Company had outstanding commitments totaling $2.7 million in the form
of standby letters of credit.
The Company's credit facilities include covenants that impose certain
restrictions on the payment of dividends and other distributions and require the
Company to maintain monthly financial covenants, including a minimum quick
ratio, tangible net worth ratio and minimum cash reserves. The minimum cash
reserves covenant is replaced with a minimum debt service coverage ratio upon
six consecutive quarters of profitability. Borrowings are collateralized by a
security interest in substantially all of the Company's owned assets. As of
March 31, 1999 the Company was in compliance with its commercial credit facility
covenants.
7
<PAGE>
Note 4 Geographic, Segment and Significant Customer Information
The Company adopted the provisions of SFAS No. 131, Disclosure about
Segments of an Enterprise and Related Information, during 1998. SFAS No. 131
establishes standards for the reporting by public business enterprises of
information about operating segments, products and services, geographic areas,
and major customers. The method for determining what information to report is
based on the way that management organizes the operating segments within the
Company for making operational decisions and assessments of financial
performance. The Company's chief operating decision maker is considered to be
the Company's Chief Executive Officer ("CEO"). The CEO reviews financial
information presented on a consolidated basis accompanied by disaggregated
information about revenues by geographic region and by product for purposes of
making operating decisions and assessing financial performance.
The disaggregated financial information on a product basis reviewed by
the CEO is as follows (in thousands):
Three Months Ended
March 31,
-------------------------
1999 1998
------- -------
Software licenses
One-To-One Enterprise $ 3,827 $ 3,969
One-To-One WebApps 8,956 3,310
Services 3,731 2,012
Maintenance 1,950 788
------- -------
Total Company $18,464 $10,079
======= =======
The Company sells its products and provides services worldwide through
a direct sales force, independent distributors, value-added resellers, and
system integrators. It currently operates in three primary regions, the Americas
which includes North and South America, Europe which includes Eastern and
Western Europe and the Middle East, and Asia/Pacific which includes the Pacific
Rim and the Far East.
Information regarding the business operations of these regions are as
follows:
Three Months Ended
March 31,
-------------------------
(In thousands) 1999 1998
-------- --------
Revenues
Americas $ 11,340 $ 6,061
Europe 3,962 2,779
Asia/Pacific 3,162 1,239
-------- --------
Total Company $ 18,464 $ 10,079
======== ========
Identifiable assets: March 31, December 31,
1999 1998
-------- --------
Americas $117,818 $ 99,343
Europe 1,844 1,754
Asia/Pacific 511 465
-------- --------
Total Company $120,173 $101,562
======== ========
During the three months ended March 31, 1999, one customer accounted
for approximately 15% of the Company's revenues. During the three months ended
March 31, 1998, two customers accounted for approximately 15% and 10% of the
Company's revenues, respectively.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THE FOLLOWING
DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER significantly from
those discussed hereIN. Factors that could cause or contribute to such
differences include, but are not limited to, those discussed HEREIN WITH this
QUARTERLY REPORT ON Form 10-Q, the Company's annual report ON Form 10-k, and
other documents filed with the securities and exchange commission. Any such
forward-looking statements speak only as of the date such statements are made.
OVERVIEW
BroadVision develops, markets and supports real time interactive fully
integrated application software solutions exclusively designed to manage
one-to-one relationships for the extended enterprise. The Company's total
end-to-end solutions allow a business to capitalize on the Internet as a unique
platform and take full advantage of emerging technologies. By utilizing
BroadVision products and technology, a business is empowered to enhance
commerce, provide critical self-service functions, and deliver targeted
personalized information to their customers, suppliers, distributors, employees,
or any other constituent of their extended enterprise.
BroadVision's product line provides a competitive advantage for
businesses by allowing them to specifically tailor Web site content to the
personalized needs and interests of individual visitors on a real-time
interactive basis. The BroadVision One-To-One(TM) applications accomplish this
by capturing Web site visitor profiles, dynamically organizing enterprise
information, targeting content to each individual visitor based on easily
constructed business rules, and by providing the means to facilitate the
execution of secure transactions. The Company believes the competitive
advantages of these applications include, among other things, enhanced customer
satisfaction and loyalty, increased business volumes, lower costs to service
customers and execute transactions, as well as significantly enhanced employee
productivity.
The Company's core product, BroadVision One-To-One Enterprise, was
first made commercially available in December 1995. The Company's latest
commercially available version, Version 4.0, was made available for general
release on September 30, 1998 and supports five languages (English, German,
Japanese, Chinese, and Korean) and four major client server databases (Oracle,
Sybase, Informix, and Microsoft SQL Server). A complementary family of packaged
application products (One-To-One Commerce, One-To-One Financial, and One-To-One
Knowledge) were first introduced in 1997 and are built upon and tightly
integrated with the Company's core technology. These complementary application
products provide specifically enhanced functionality for the distinct customer
requirements involved in managing one-to-one relationships within product
merchandising, financial services, and knowledge management. The Company sells
its products and services worldwide through direct sales forces, independent
distributors, value-added resellers, and system integrators. It also has a
global network of strategic business relationships with key industry platform
and Web developer partners.
RESULTS OF OPERATIONS
Revenues
The Company's revenues are derived from software license fees and fees
charged for its services.
The Company recognizes software license revenues when a non-cancelable
license agreement has been signed and the customer acknowledges an unconditional
obligation to pay, the software product has been delivered, there are no
uncertainties surrounding product acceptance, the fees are fixed and
determinable, and collection is considered probable. Revenues allocated to
software license fees, in general, are recognized upon consummation of the sale.
The Company's professional services include its Strategic Services Group, its
Interactive Services Group, its Content and Creative Services Group, its
Education Services Group, and its Technical Support Group. Consulting related
services are typically recognized as services are performed. Maintenance fees
relating to technical support and upgrades are recognized ratably over the
contracted period, which is typically one year.
9
<PAGE>
<TABLE>
Total Company revenues increased 83% during the current quarter ended
March 31, 1999 to $18.5 million as compared to $10.1 million for the quarter
ended March 31, 1998. A summary of the Company's revenues by geographic region
is as follows:
<CAPTION>
(In thousands) Software % Services % Total %
------------- ----------- -------------- ----------- ---------------- ----------
<S> <C> <C> <C> <C> <C> <C>
Quarter Ended:
March 31, 1999
Americas $ 7,457 58% $ 3,883 69% $ 11,340 61%
Europe 2,467 19 1,495 26 3,962 22
Asia/Pacific 2,859 23 303 5 3,162 17
- ----------------------------------------------------------------------------------------------------------------------
Total $ 12,783 100% $ 5,681 100% $ 18,464 100%
======================================================================================================================
March 31, 1998
Americas $ 4,110 56% $ 1,951 70% $ 6,061 60%
Europe 2,253 31 526 19 2,779 28
Asia/Pacific 916 13 323 11 1,239 12
- ----------------------------------------------------------------------------------------------------------------------
Total $ 7,279 100% $ 2,800 100% $ 10,079 100%
======================================================================================================================
</TABLE>
Software product license revenues increased 76% during the current
quarter ended March 31, 1999 to $12.8 million as compared to $7.3 million for
the quarter ended March 31, 1998.
The increase in software license revenues is attributable to continued strong
market acceptance of the Company's core technology (BroadVision One-To-One
Enterprise), expanding sales volumes of its three complementary WebApp packaged
solutions (BroadVision One-To-One Commerce, BroadVision One-To-One Financial,
and BroadVision One-To-One Knowledge), increasingly higher deployment license
revenues; and to a lesser extent, product pricing increases that were effective
October 1, 1998. The WebApp packaged solutions were first introduced in 1997 and
have become an integral part of the Company's total applications solution which
has proven to be a successful strategy for a highly evolving and intensely
competitive marketplace.
Total services revenues increased 103% during the current quarter ended
March 31, 1999 to $5.7 million as compared to $2.8 million for the quarter ended
March 31, 1998.
The increase in professional services revenue is a result of a higher level
of consulting related services associated with the increased business volumes
and a higher level of customer support revenues derived from an increasingly
larger installed customer base. Maintenance revenues were $2.0 million for the
quarter ended March 31, 1999 as compared to $788,000 for the quarter ended March
31, 1998. During the quarter ended March 31, 1999, the Company licensed
approximately 43 new customers (including system integration/distributor
partners), which compares with approximately 32 during the quarter ended March
31, 1998. As of March 31, 1999, the Company had a total installed license base
of over 300 customers which compares with over 250 as of December 31, 1998 and
over 175 as of March 31, 1998. The Company's professional services revenues as a
percentage of total revenues may decline to the extent the Company's strategy of
developing business alliances with third parties, such as system integrators,
continues to expand.
The Company continues to make available newly enhanced applications and
associated tools for industries that require unique one-to-one relationship
management functionality, such as product merchandising, retail financial
services, and knowledge management. During May 1998, the Company expanded its
product line by introducing a new application to the BroadVision One-To-One
family of products: One-To-One Knowledge. In addition, the BroadVision
One-To-One Enterprise application product was significantly enhanced with
Version 4, which shipped during September 1998 and enhanced versions of
One-To-One Commerce and One-To-One Financial Version 4 application products were
shipped during December 1998.
Also during 1998, the Company enhanced its associated One-To-One tools which
included the One-To-One Command Center (used by non-technical business managers
to make rapid changes to their Web site without a programmer's intervention);
the One-To-One Publishing Center (which allows a distributed team of
non-technical content experts to collaboratively manage every aspect of content
management), and the One-To-One Instant Publisher (a tool designed for casual
content contributors).
10
<PAGE>
The Company continues to place an emphasis on expanding its strategic
alliances with key industry partners and has entered into various arrangements
to develop highly specialized applications and reduce the development time cycle
associated with Web applications. The Company expects to introduce these
additional specialized products during 1999 and beyond.
During the quarter ended March 31, 1999, the Company entered into a strategic
alliance with Hewlett-Packard Company ("HP") to jointly develop and brand a new
generation of e-commerce and knowledge-management solutions. The alliance
includes the resale and support of existing and future BroadVision products; and
the joint development, sale, and support of integrated business-portal solutions
to act as interfaces for the next-generation of enterprise customer e-services.
HP has committed up to $35.5 million in quarterly installments over the next
three and half years which consists of approximately $24.5 million for licenses
and approximately $11 million for services. To date, approximately $2.5 million
of the total arrangement has been recognized as revenue during the quarter ended
March 31, 1999.
Some of the Company's other strategic alliances to date include ventures with
Macromedia to jointly develop the next version of its BroadVision One-To-One
Design Center product; Cisco Systems to create unique Cisco-BroadVision
One-To-One reference architecture, configuration guides, and performance /
scaleability benchmarks; S1 to jointly develop and market products based on VFM,
S1's suite of Internet-based financial services applications; and Sema Group to
jointly develop and market BroadVision One-To-One applications for the
telecommunications sector.
To date the Company has achieved good market acceptance for its products and
has experienced continued revenue growth. The Company anticipates that
international revenues will continue to account for a significant amount of
total revenues, and management expects to continue to commit significant time
and financial resources to the maintenance and ongoing development of direct and
indirect international sales and support channels. There can be no assurance,
however, that the Company will be able to maintain or increase international
market acceptance for its family of products.
Cost of Revenues
Cost of license revenues includes royalties payable to third parties for
software that is either embedded in, or bundled and sold with, the Company's
products; commissioned agent fees paid to distributors; and the costs of product
media, duplication, packaging and other associated manufacturing costs.
Cost of services consists primarily of employee-related costs, third-party
consultant fees incurred on consulting projects, post contract customer support,
and instructional training services.
Three Months Ended March 31,
---------------------------------------
(in thousands) 1999 % 1998 %
------ ---- ------ ----
Cost of software licenses [1] $ 747 5.8% $ 187 2.6%
Cost of services [2] 3,322 58.5 1,620 57.9
------ ------
Total cost of revenues [3] $4,069 22.0 $1,807 17.9
====== ======
[1] -- Percentage is calculated based on total software license revenues for the
period indicated
[2] -- Percentage is calculated based on total services revenues for the period
indicated
[3] -- Percentage is calculated based on total revenues for the period indicated
Cost of software licenses increased 300% in absolute dollar terms
during the current quarter ended March 31, 1999 to $747,000 as compared to
$187,000 for the quarter ended March 31, 1998.
The increase in cost of software licenses, in both absolute dollar and
relative percentage terms, was principally a result of fees and royalties paid
to third party vendors for software that was bundled with the Company's product.
The higher third party software sales add incremental revenues to the Company's
own product sales but carry a higher cost of license factor in relation to the
Company's own product sales. Royalty costs for third party software embedded in
the Company's product decreased in relative percentage terms as a result of the
Company renegotiating a previously existing percentage based royalty arrangement
into a prepaid fixed fee royalty for the period through 2001.
11
<PAGE>
Cost of services increased 105% during the current quarter ended March
31, 1999 to $3.3 million as compared to $1.6 million for the quarter ended March
31, 1998.
The increase in cost of services in absolute dollar terms is a result
of expanded business volumes as evidenced by increased services revenues.
Overall costs increased as a result of additions to the Company's professional
services staff and the employment of outside consultants to meet short-term
consulting arrangements. The increase in cost of services as a percentage of
services revenues for the quarter ended March 31, 1999 is a result of higher
utilization of outside consultants in relation to the extent previously utilized
during the prior period. The Company expects that services costs will continue
to increase in absolute dollars as the Company continues to expand its services
organization to support higher business volumes.
Operating Expenses and Other Income, net
Research and development expenses consist primarily of salaries,
employee-related benefit costs, and consulting fees incurred in association with
the development of the Company's products. Costs incurred for the research and
development of new software products are expensed as incurred until such time
that technological feasibility, in the form of a working model, is established
at which time such costs are capitalized subject to recoverability. The costs
incurred by the Company subsequent to the establishment of a working model but
prior to general release have not been significant. To date, the Company has not
capitalized any software development costs.
Sales and marketing expenses consist primarily of salaries, employee-related
benefit costs, commissions and other incentive compensation, travel and
entertainment, and marketing program related expenditures such as collateral
materials, trade shows, public relations, and creative services.
General and administrative expenses consist primarily of salaries,
employee-related benefit costs, and professional service fees.
Three Months Ended March 31,
---------------------------------------
(in thousands) 1999 % [1] 1998 % [1]
------- ---- ------- ----
Research and Development $ 2,901 15.7% $ 2,033 20.2%
Sales and Marketing 7,664 41.5 5,861 58.1
General and Administrative 1,271 6.9 824 8.2
------- ---- ------- ----
Total Operating Expenses $11,836 64.1% $ 8,718 86.5%
======= ==== ======= ====
[1] -- Expressed as a percent of total revenues for the period indicated
Research and development expenses increased 43% during the current
quarter ended March 31, 1999 to $2.9 million as compared to $2.0 million for the
quarter ended March 31, 1998. The increase in research and development expenses
in absolute dollars terms is primarily attributable to personnel costs for added
headcount within those operations involved in the enhancement of existing
applications and the development of the Company's next generation of products.
Research and development expenses, as a percentage of total revenues, decreased
because revenues have increased at a higher rate relative to expenses. The
Company expects research and development expenses will continue to increase in
absolute dollar terms.
Sales and marketing expenses increased 31% during the current quarter
ended March 31, 1999 to $7.7 million as compared to $5.9 million for the quarter
ended March 31, 1998. The increases in sales and marketing expenses in absolute
dollar terms reflect the cost of hiring additional sales and marketing
personnel, developing and expanding its sales distribution channels, and
expanding promotional activities and marketing related programs. Sales and
marketing expenses, as a percentage of total revenues, decreased because
revenues have increased at a higher rate relative to expenses. The Company
expects sales and marketing expenses will continue to increase in absolute
dollar terms.
General and administrative expenses increased 54% during the current
quarter ended March 31, 1999 to $1.3 million as compared to $824,000 for the
quarter ended March 31, 1998. The increase in general and administrative
expenses in absolute dollar terms is attributable to additional administrative
and management personnel, higher professional fees and additional infrastructure
to support the expansion of the Company's operations.
12
<PAGE>
General and administrative expenses, as a percentage of total revenues,
decreased because revenues have increased at a higher rate relative to expenses.
The Company expects general and administrative expenses will continue to
increase in absolute dollar terms.
Income Taxes
During the quarter ended March 31, 1999, the Company recognized tax
expense of $138,000 for an effective tax rate of approximately 4.5%. Due to the
Company's continuing trend of positive earnings, the Company reversed a portion
of its valuation allowance against the previously established deferred tax
assets for which realization is considered more likely than not. As of December
31, 1998, the Company has federal and state net operating loss carryforwards of
approximately $12,973,000 and $5,539,000, respectively, available to offset
future regular and alternative minimum taxable income.
LIQUIDITY AND CAPITAL RESOURCES
(dollars in thousands) March 31, December 31,
1999 1998
--------- ---------
Cash and cash equivalents $ 66,932 $ 61,878
========= =========
Working capital $ 69,002 $ 64,320
========= =========
Working capital ratio 4.8 : 1 4.9 : 1
========= =========
At March 31, 1998, the Company had $66.9 million in cash and cash equivalents
which represents an increase of $5.1 million as compared to December 31, 1998.
The Company currently has no significant capital commitments other than
obligations under equipment and operating leases and $3.3 million of outstanding
term debt under its existing credit facility with a commercial bank.
Cash provided by operating activities was $4.5 million for the quarter ended
March 31, 1999 as compared to cash used for operating activities of $246,000 for
the quarter ended March 31, 1998. Cash used for investing activities was $1.2
million and $535,000 for the quarters ended March 31, 1999 and 1998,
respectively, and was primarily for capital expenditures. Cash provided by
financing activities was $1.7 million and $49.6 million for the quarters ended
March 31, 1999 and 1998, respectively, and consists primarily of proceeds from
the issuance of common stock.
The Company believes that its available cash resources, cash generated from
operations and amounts available under its commercial credit facilities will be
sufficient to meet its expected working capital and capital expenditure
requirements for at least the next 12 months.
This estimate is a forward-looking statement that involves risks and
uncertainties, and actual results may vary as a result of a number of factors,
including those discussed under "Risk Factors" and elsewhere herein. The Company
may need to raise additional funds in order to support more rapid expansion,
develop new or enhanced services, respond to competitive pressures, acquire
complementary businesses or technologies, or respond to unanticipated
requirements.
The Company may seek to raise additional funds through private or public
sales of securities, strategic relationships, bank debt, financing under leasing
arrangements, or otherwise. If additional funds are raised through the issuance
of equity securities, the percentage ownership of the stockholders of the
Company will be reduced, stockholders may experience additional dilution, or
such equity securities may have rights, preferences, or privileges senior to
those of the holders of the Company's Common Stock. There can be no assurance
that additional financing will be available on acceptable terms, if at all. If
adequate funds are not available or are not available on acceptable terms, the
Company may be unable to develop or enhance its products, take advantage of
future opportunities, or respond to competitive pressures or unanticipated
requirements, which could have a material adverse effect on the Company's
business, financial condition, and operating results.
13
<PAGE>
FACTORS AFFECTING QUARTERLY OPERATING RESULTS
The Company expects to experience significant fluctuations in quarterly
operating results that may be caused by many factors including, but not limited
to, those discussed below and herein with this quarterly report on Form 10-Q, as
contained in the Company's annual report on Form 10-K under the caption "Risk
Factors" and elsewhere therein, and as disclosed in other documents filed with
the Securities and Exchange Commission.
Significant fluctuations in future quarterly operating results that may be
caused by many factors including, among others, the timing of introductions or
enhancements of products and services by the Company or its competitors, the
length of the Company's sales cycle, market acceptance of new products, the pace
of development of the market for online commerce, the mix of the Company's
products sold, the size and timing of significant orders and the timing of
customer production or deployment, demand for the Company's products, changes in
pricing policies by the Company or its competitors, changes in the Company's
sales incentive plans, budgeting cycles of its customers, customer order
deferrals in anticipation of new products or enhancements by the Company or its
competitors, nonrenewal of maintenance agreements, product life cycles, software
defects and other product quality problems, changes in strategy, changes in key
personnel, the extent of international expansion, seasonal trends, the mix of
distribution channels through which the Company's products are sold, the mix of
international and domestic sales, changes in the level of operating expenses to
support projected growth, and general economic conditions.
The Company anticipates that a significant portion of its revenues will be
derived from a limited number of orders, and the timing of receipt and
fulfillment of any such orders is expected to cause material fluctuations in the
Company's operating results, particularly on a quarterly basis. As with many
software companies, the Company anticipates that it will make the major portion
of each quarter's deliveries near the end of each quarter and, as a result,
short delays in delivery of products at the end of a quarter could adversely
affect operating results for that quarter. In addition, the Company intends, in
the near term, to increase significantly its personnel, including its domestic
and international direct sales force. The timing of such expansion and the rate
at which new sales people become productive could also cause material
fluctuations in the Company's quarterly operating results.
Due to the foregoing factors, quarterly revenues and operating results are
difficult to forecast, and the Company believes that period-to-period
comparisons of its operating results will not necessarily be meaningful and
should not be relied upon as any indication of future performance. It is likely
that the Company's future quarterly operating results from time to time will not
meet the expectations of market analysts or investors, which may have an adverse
effect on the price of the Company's Common Stock. The Company anticipates that
its operating expenses will continue to be substantial in relation to total
revenues as it continues the development of its technology, increases its sales
and marketing activities, and creates and expands its distribution channels. In
addition, the Company's limited operating history makes the prediction of future
results of operations difficult and, accordingly, there can be no assurance that
the Company will be able to sustain its revenue growth or profitability.
The Company's limited operating history also requires that its prospects be
evaluated in light of the risks and uncertainties frequently encountered by a
company in its early stages of development. Some of these risks and
uncertainties relate to the new and rapidly evolving nature of the markets in
which the Company operates. These related market risks include, among other
things, the early stage of the developing online commerce market, the dependence
of online commerce on the development of the Internet and its related
infrastructure, the uncertainty pertaining to widespread adoption of online
commerce, and the risk of government regulation of the Internet. Other risks and
uncertainties facing the Company relate to the Company's ability to, among other
things, successfully implement its marketing strategies, respond to competitive
developments, continue to develop and upgrade its products and technologies more
rapidly than its competitors, and commercialize its products and services by
incorporating these enhanced technologies. There can be no assurance that the
Company will succeed in addressing any or all of these risks. A more complete
description of these and other risks relating to the Company's business is set
forth in the Company's annual report on Form 10-K under the caption "Risk
Factors" and elsewhere therein and other documents filed with the Securities and
Exchange Commission. It is also likely that the Company's future quarterly
operating results from time to time will not meet the expectations of market
analysts or investors, which may have an adverse effect on the price of the
Company's Common Stock.
14
<PAGE>
Year 2000 Compliance
Background and Risks - Many currently installed computer systems and software
and devices with imbedded technology are coded to two digits for time sensitive
dating purposes. Beginning with the year 2000, these date code fields will need
to be four digit functional in order to distinguish between 21st century dates
and 20th century dates. For example, computer programs that have date sensitive
software may incorrectly recognize a date using "00" as the year 1900 rather
than the year 2000. As a result, in less than a year, computer systems, software
products and devices with imbedded technology used by many companies may need to
be upgraded to comply with such "Year 2000" requirements. This type of Year 2000
error could potentially cause system failures or miscalculations that could
disrupt operations, including among other things a temporary inability to
process transactions, issue invoices or engage in similar normal business
activities. The most likely worst case scenarios could include hardware failure
and the failure of infrastructure services provided by government agencies and
other third parties (e.g., electricity, telephone service, water transport,
Internet services, etc.). Although the Company's products are Year 2000
compliant, the Company believes that the purchasing patterns of customers could
potentially be affected by Year 2000 issues as companies expend significant
resources to correct or patch their current software systems for Year 2000
compliance. These expenditures may result in reduced funds available to purchase
software products such as those offered by the Company, which could have a
material adverse effect on the Company's business, financial condition, and
operating results. In addition, even if the Company's products are Year 2000
compliant, other systems or software used by the Company's customers may not be
Year 2000 compliant. The failure of such noncompliant third-party software or
systems could affect the perceived performance of the Company's products, which
could have a material adverse effect on the Company's business, financial
condition, and operating results.
State of Readiness - The Company utilizes various financial and managerial
information systems within its operations in the United States, Europe and Asia
which the Company believes to be or will be Year 2000 compliant by the end of
1999. As part of its normal course of business, the Company analyzes its
information system requirements in relation to its business operating goals and
strategic objectives and expects to implement new systems during 1999 that will
be Year 2000 compliant. The Company is also analyzing its other systems to
identify any potential Year 2000 issues and will take appropriate corrective
action based on the results of such analysis. Such other systems include
non-information technology systems and services utilized by the Company in its
business operations, such as power, telecommunications, security and general
facilities. The Company is in the process of completing its analysis as to
whether its material suppliers and vendors are Year 2000 compliant. The Company
expects to complete its analysis of these other systems and the assessment of
its third party vendor readiness by June 30, 1999.
Costs for Year 2000 Compliance - Costs that may be incurred by the Company
pertaining to Year 2000 compliance issues include identification, assessment,
remediation and testing efforts, as well as potential costs to be incurred by
the Company with respect to Year 2000 issues of third parties. To date, the
costs incurred by the Company directly related to Year 2000 issues have been
minimal, even in cases where non-compliant information technology systems were
redeployed or replaced. Although the Company has not completed its assessment of
all specific costs, if any, related to achieving complete Year 2000 compliance,
management believes such costs will not be material to the Company's financial
condition or results of operations based on its analysis to date.
Contingency Plans - The Company continues to assess certain of its Year 2000
exposure areas in order to determine what additional steps, beyond those
identified by the Company's internal review to date, are advisable. The Company
is currently in the process of developing a contingency plan for handling Year
2000 problems that are not detected and corrected prior to their occurrence. The
Company expects to complete its plan by June 30, 1999. The Company presently
believes that the Year 2000 issue will not pose significant operational problems
for the Company. However, any failure of the Company to adequately address any
unforeseen Year 2000 issue could adversely affect the Company's business,
financial condition, and results of operations. In addition, if all of the Year
2000 issues are not properly identified, or adequate assessment, remediation and
testing are not effected timely with respect to Year 2000 problems that are
identified, there can be no assurance that the Year 2000 issue would not have a
material adverse impact on the Company's results of operations or adversely
affect the Company's relationships with customers, vendors, partners or others.
Additionally, there can be no assurance that the Year 2000 issues of other
entities will not have a material adverse impact on the Company's systems or
results of operations.
15
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's exposure to market risk for interest rate changes relates
primarily to its investment portfolio. The Company had no derivative financial
instruments as of March 31, 1999 or December 31, 1998. The Company places its
investment portfolio in high credit quality instruments and the amount of credit
exposure to any one issue, issuer and type of instrument is limited. The Company
does not expect any material loss with respect to its investment portfolio.
The Company's investment portfolio holdings as of March 31, 1999 were
analyzed to determine their sensitivity to interest rate changes. In our
sensitivity analysis, we assumed an adverse change in interest rates of 500
basis points and the expected effect on net income was insignificant.
The Company is subject to market risk relating to equity price changes with
regards to its long-term investment holdings which consist of marketable and
non-marketable equity securities. As of March 31, 1999, the Company's long-term
investment holdings had a carrying value of $23.6 million, a historical cost of
value of $8.3 million and associated unrealized gains of $15.3 million.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On December 11, 1998, BroadVision filed a lawsuit against Art
Technology Group, Inc. ("ATG") in the Northern District of California.
The complaint alleges that ATG is infringing BroadVision's U.S. Patent
No. 5,710,887 and seeks injunctive relief and unspecified damages. On
February 3, 1999, ATG filed an answer and counterclaim against
BroadVision in which ATG seeks declaratory judgment for
non-interference and declaratory judgment for invalidity of the patent.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Not applicable
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable
ITEM 5. OTHER INFORMATION
Not applicable
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Item Description
---- -----------
10.1* Equity Incentive Plan, as amended
10.2* Employee Stock Purchase Plan, as amended
10.19 Lease dated February 10, 1999 between the Company and
Martin/Campus Associates, L.P.
27 Financial Data Schedule
* Filed as an annex to the Company's Proxy Statement filed on
April 12, 1999 and incorporated herein by reference
16
<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.
BROADVISION, INC
Date: May 14, 1999 /s/ Pehong Chen
--------------------- -----------------------------------------
Pehong Chen
President and Chief Executive Officer
(Principal Executive Officer)
Date: May 14, 1999 /s/ Randall C. Bolten
--------------------- -----------------------------------------
Randall C. Bolten
Vice President, Operations and Chief
Financial Officer
(Principal Financial and Accounting
Officer)
17
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
10.1* Equity Incentive Plan, as amended
10.2* Employee Stock Purchase Plan, as amended
10.19 Lease dated February 10, 1999 between the Company and
Martin/Campus Associates, L.P.
27 Financial Data Schedule
* Filed as an annex to the Company's Proxy Statement filed on April 12, 1999 and
incorporated herein by reference
18
LEASE
-----
by and between
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.
"Landlord"
and
BROADVISION, INC.
"Tenant"
For the approximately 55,282 sq. ft. Premises at
405 Broadway,
Redwood City, CA 94063
<PAGE>
LEASE SUMMARY
-------------
Lease Date: February 10, 1999
Landlord: Martin/Campus Associates No. 4, L.P.
Address of Landlord: c/o The Martin Group
100 Bush Street, 26th Floor
San Francisco, CA 94104
Tenant: Broadvision, Inc.
Address of Tenant: 585 Broadway
Redwood City, CA 94063
Contact: _________________________
Telephone: (650) 261-5100
Building Addresses: 405 Broadway
Redwood City, California
Total Premises Square Footage: Approximately 55,282 square
feet
Estimated Commencement Date: August 26, 1999
Term: approximately one hundred
(100)months (see PARAGRAPH
4.A.)
Monthly Rent: An amount equal to Two and
25/100ths Dollars ($2.25)
<PAGE>
multiplied by the amount of
Rentable Area of the Premises,
as determined under PARAGRAPH
2, subject to adjustment(see
PARAGRAPHS 4.C AND 5.B)
Security Deposit: An amount equal to four (4)
installments of the initial
Monthly Rent, subject to
adjustment(see PARAGRAPH 7)
Exhibits A-1 and A-2: Floor Plans of Premises
Exhibit B: Work Letter Agreement
Exhibit B-1: Rendering of Building Exterior and
Elevation for Premises
Exhibit B-2: Site Plan for the Premises
Exhibit B-3: Schedule for Construction of
Improvements
Exhibit C: Site Plan for the Project
Exhibit D: Commencement Date Memorandum
Exhibit E: Subordination, Nondisturbance and
Attornment Agreement
Exhibit F: Memorandum of Lease
<PAGE>
TABLE OF CONTENTS
-----------------
Page
1. PARTIES..............................................................1
2. PREMISES.............................................................1
3. DEFINITIONS..........................................................1
A. AFFILIATE...................................................1
B. ALTERATIONS.................................................2
C. BUILDING....................................................2
D. CAPITAL IMPROVEMENTS........................................2
E. CC&RS.......................................................2
F. COMMENCEMENT DATE...........................................2
G. COMMON AREA.................................................2
H. COMMON AREA MAINTENANCE COSTS...............................3
I. EXISTING BUILDINGS..........................................7
J. EXISTING PROJECT SPACE......................................8
K. FINAL PLANS.................................................8
L. HVAC........................................................8
M. IMPOSITIONS.................................................8
N. IMPROVEMENTS................................................9
O. INTEREST RATE...............................................9
P. LANDLORD'S AGENTS...........................................9
Q. MONTHLY RENT................................................9
R. PARKING AREA................................................9
S. PERSON......................................................9
T. PREMISES...................................................10
U. PROJECT....................................................10
V. REAL PROPERTY TAXES........................................10
W. RENT.......................................................11
X. RENTABLE AREA..............................................11
Y. SECURITY DEPOSIT...........................................11
Z. SUBLET.....................................................11
AA. SUBRENT....................................................12
BB. SUBTENANT..................................................12
CC. TENANT DELAY...............................................12
DD. TENANT IMPROVEMENTS........................................12
EE. TENANT'S BUILDING SHARE....................................13
FF. TENANT'S PERCENTAGE SHARE..................................13
GG. TENANT'S PERSONAL PROPERTY.................................13
HH. TERM.......................................................13
4. LEASE TERM..........................................................13
A. TERM ...........................................................13
<PAGE>
B. DELAYS IN COMPLETION............................................14
C. OPTION TO EXTEND................................................15
(i) GRANT OF OPTION.......................................15
(ii) MANNER OF EXERCISE...................................15
(iii) TERMS AND RENT......................................16
(iv) DETERMINATION OF RENT................................16
(v) LANDLORD'S INITIAL DETERMINATION......................17
(vi) ARBITRATION..........................................17
5. RENT AND ADDITIONAL CHARGES.........................................19
A. MONTHLY RENT....................................................19
B. ADJUSTMENTS TO MONTHLY RENT.....................................20
C. MANAGEMENT FEE..................................................20
D. COMMON AREA MAINTENANCE COSTS...................................20
(i) ESTIMATED PAYMENTS....................................20
(ii) ADJUSTMENT...........................................21
(iii) LAST YEAR...........................................21
(iv) AUDIT................................................22
E. ADDITIONAL RENT.................................................22
F. PRORATIONS......................................................23
G. INTEREST........................................................23
6. LATE PAYMENT CHARGES................................................23
7. SECURITY DEPOSIT....................................................23
A. DEPOSIT REQUIRED................................................23
(i) REDUCTION OR REPLACEMENT..............................24
(ii) CONSEQUENCES OF DEFAULT..............................25
(iii) FORM OF L-C.........................................25
8. HOLDING OVER........................................................26
9. TENANT IMPROVEMENTS.................................................27
10. CONDITION OF PREMISES...............................................27
A. CAPITAL IMPROVEMENTS............................................27
B. ACCEPTANCE OF PREMISES..........................................27
C. LANDLORD'S REPRESENTATIONS AND WARRANTIES.......................28
D. LANDLORD'S ADDITIONAL REPRESENTATION AND WARRANTY...............28
11. USE OF THE PREMISES AND COMMON AREA.................................29
A. TENANT'S USE...............................................29
B. HAZARDOUS MATERIALS........................................29
(i) HAZARDOUS MATERIALS DEFINED............................29
(ii) ENVIRONMENTAL LAWS DEFINED............................30
(iii) USE OF HAZARDOUS MATERIALS...........................30
(iv) HAZARDOUS MATERIALS REPORT; WHEN REQUIRED.............31
<PAGE>
(v) HAZARDOUS MATERIALS REPORT; CONTENTS...................31
(vi) RELEASE OF HAZARDOUS MATERIALS; NOTIFICATION AND
CLEANUP...........................................33
(vii) INSPECTION AND TESTING BY LANDLORD..................34
(viii) INDEMNITY..........................................35
(ix) SURVIVAL.............................................36
C. SPECIAL PROVISIONS RELATING TO THE AMERICANS WITH
DISABILITIES ACT OF 1990...................................36
(i) ALLOCATION OF RESPONSIBILITY TO LANDLORD..........36
(ii) ALLOCATION OF RESPONSIBILITY TO TENANT...............36
(iii) GENERAL.............................................37
D. USE AND MAINTENANCE OF COMMON AREA.........................37
12. QUIET ENJOYMENT.....................................................37
13. ALTERATIONS.........................................................38
A. ALTERATION RIGHTS...............................................38
B. PERFORMANCE OF ALTERATIONS......................................38
14. SURRENDER OF THE PREMISES...........................................39
15. IMPOSITIONS AND REAL PROPERTY TAXES.................................40
A. PAYMENT BY TENANT..........................................40
(i) TAX PARCELS.......................................41
(ii) PAYMENT...........................................42
B. TAXES ON TENANT IMPROVEMENTS AND PERSONAL PROPERTY.........42
C. PRORATION..................................................42
16. UTILITIES AND SERVICES..............................................43
17. REPAIR AND MAINTENANCE..............................................43
A. LANDLORD'S OBLIGATIONS.....................................43
B. TENANT'S OBLIGATIONS.......................................46
C. CONDITIONS APPLICABLE TO REPAIRS...........................46
D. LANDLORD'S RIGHTS..........................................47
E. COMPLIANCE WITH GOVERNMENTAL REGULATIONS...................47
18. LIENS...............................................................48
19. LANDLORD'S RIGHT TO ENTER THE PREMISES..............................48
20. SIGNS...............................................................49
21. INSURANCE...........................................................49
A. INDEMNIFICATION............................................49
B. TENANT'S INSURANCE.........................................51
C. BUILDING INSURANCE.........................................52
<PAGE>
D. INCREASED COVERAGE.........................................53
E. FAILURE TO MAINTAIN........................................53
F. INSURANCE REQUIREMENTS.....................................53
G. WAIVER AND RELEASE.........................................54
22. WAIVER OF SUBROGATION...............................................54
23. DAMAGE OR DESTRUCTION...............................................55
A. LANDLORD'S OBLIGATION TO REBUILD...........................55
B. RIGHT TO TERMINATE.........................................55
C. LIMITED OBLIGATION TO REPAIR...............................57
D. ABATEMENT OF RENT..........................................57
E. DAMAGE NEAR END OF TERM....................................57
24. CONDEMNATION........................................................58
25. ASSIGNMENT AND SUBLETTING...........................................59
A. LANDLORD'S CONSENT.........................................59
B. TENANT'S NOTICE............................................59
C. INFORMATION TO BE FURNISHED................................59
D. LANDLORD'S ALTERNATIVES....................................60
E. PRORATION..................................................60
F. PARAMETERS OF LANDLORD'S CONSENT...........................60
G. PERMITTED TRANSFERS........................................61
26. DEFAULT.............................................................62
A. TENANT'S DEFAULT...........................................62
B. REMEDIES...................................................63
C. LANDLORD'S DEFAULT.........................................65
27. SUBORDINATION.......................................................66
A. SUBORDINATION..............................................66
B. ATTORNMENT.................................................66
C. NON-DISTURBANCE............................................67
28. NOTICES.............................................................67
29. ATTORNEYS' FEES.....................................................68
30. ESTOPPEL CERTIFICATES...............................................68
A. TENANT ESTOPPEL.................................................68
B. LANDLORD ESTOPPEL...............................................69
31. TRANSFER OF THE PREMISES BY LANDLORD................................69
32. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS......................70
<PAGE>
33. TENANT'S REMEDY.....................................................70
34. MORTGAGEE PROTECTION................................................71
35. BROKERS.............................................................71
36. ACCEPTANCE..........................................................71
37. PARKING.............................................................71
38. GENERAL.............................................................72
A. CAPTIONS...................................................72
B. EXECUTED COPY..............................................72
C. TIME.......................................................72
D. SEPARABILITY...............................................72
E. CHOICE OF LAW..............................................72
F. GENDER; SINGULAR, PLURAL...................................72
G. BINDING EFFECT.............................................72
H. WAIVER.....................................................73
I. ENTIRE AGREEMENT...........................................73
J. AUTHORITY..................................................73
K. EXHIBITS...................................................73
L. LEASE SUMMARY..............................................73
39. EQUIPMENT LEASING/LANDLORD'S LIEN...................................74
40. RIGHT OF EARLY ENTRY................................................74
<PAGE>
LEASE
-----
1. PARTIES.
THIS LEASE (the "LEASE"), dated as of February 10, 1999, is
entered into by and between MARTIN/CAMPUS ASSOCIATES NO. 4, L.P., a Delaware
limited partnership ("LANDLORD"), whose address is 100 Bush Street, San
Francisco, California 94104, and BROADVISION, INC., a Delaware corporation
("TENANT"), whose address is 585 Broadway, Redwood City, California 94063.
2. PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those certain premises consisting of a total area of approximately
Fifty-Five Thousand Two Hundred Eighty-Two (55,282) square feet, which comprises
all of the Rentable Area (as defined below) of that certain building commonly
known as 405 Broadway (the "BUILDING"), in the City of Redwood City, County of
San Mateo, State of California, as more particularly shown on EXHIBITS A-1 AND
A-2 (the "PREMISES"). On or before the Commencement Date, Landlord shall measure
the Rentable Area of the Premises to the outside of all exterior walls, and to
the middle of the interior demising wall, that form the boundaries of the
Premises, and Landlord and Tenant shall amend this Lease if necessary to reflect
any discrepancy in the size of the Premises disclosed by Landlord's measurement
of the Premises by Landlord's architect. The Premises also includes the
appurtenant right to use in common with other tenants of the Project (as defined
below) the Common Area (as defined below) of the Project owned by Landlord.
3. DEFINITIONS.
The following terms shall have the following meanings in this
Lease:
A. AFFILIATE. Any Person that controls, or is controlled by or
is under common control with, Landlord or Tenant. No Person shall be deemed in
control of another simply by virtue of being a partner, director, officer or
holder of voting securities of any Person. For purposes of this PARAGRAPH 3.A,
"control" shall mean the ownership of, and/or the right to vote, stock,
partnership interests, membership interests, or
1
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other indicia of ownership possessing at least fifty-one percent (51%) of either
the total combined interests in a Person, or the voting power of all classes of
a Person's capital stock, partnership interests, membership interests, or other
indicia of ownership, that have been issued, outstanding, and (if applicable)
are entitled to vote.
B. ALTERATIONS. Any alterations, additions or improvements
made in, on or about the Premises after the substantial completion of the
Improvements, including, but not limited to, lighting, heating, ventilating, air
conditioning, electrical, partitioning, drapery and carpentry installations.
C. BUILDING. The term "Building" shall have the meaning set
forth in PARAGRAPH 2.A above.
D. CAPITAL IMPROVEMENTS. Those certain improvements to the
Building to be constructed by Landlord pursuant to PARAGRAPH 10.A and the Work
Letter Agreement attached to this Lease as EXHIBIT B (the "WORK LETTER").
E. CC&RS. Any declaration of conditions, covenants and/or
restrictions, or similar instrument, that now encumbers, or may in the future
encumber the Project or the Premises, as adopted by Landlord or its successors
in interest from time to time, and any modifications or amendments thereto.
F. COMMENCEMENT DATE. The Commencement Date of this Lease
shall be the first day of the Term determined in accordance with PARAGRAPH 4.A.
G. COMMON AREA. All areas and facilities within the Project
not appropriated to the exclusive occupancy of tenants, including the Parking
Area, the sidewalks, pedestrian ways, driveways, signs, pools, ponds, service
delivery facilities, common storage areas, common utility facilities and all
other areas in the Project established by Landlord and/or its successors for
non-exclusive use. Landlord may, by written notice to Tenant, elect in its sole
discretion to increase and/or decrease the Common Area from time to time during
the Term for any reason whatsoever (including without limitation an election by
Landlord and/or its successors in their sole discretion to make changes to the
buildings situated in the Project, and/or to subdivide, sell, exchange, dispose
of, transfer, or change the configuration of all or any portion of the Common
Area from time
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to time), so long as Landlord neither unreasonably interferes with ingress to or
egress from the Building, nor reduces the number of parking spaces available for
Tenant's use below the minimum requirements set forth in PARAGRAPH 37 for a
period of sixty (60) consecutive days or more. No such subdivision, sale,
exchange, disposition, transfer, or change to the configuration of all or any
portion of the Common Area shall cause the Common Area to be increased or
decreased unless and until Landlord has given Tenant written notice of such
increase or decrease. However, Landlord shall make no changes which have a
material adverse effect upon Tenant's use and enjoyment of the Premises or the
accessibility of parking thereto.
H. COMMON AREA MAINTENANCE COSTS. The total of all costs and
expenses paid or incurred by Landlord in connection with the operation,
maintenance, ownership and repair of the Common Area, and the performance of
Landlord's obligations under PARAGRAPHS 17.A, and the exercise of Landlord's
rights under PARAGRAPH 17.D. Without limiting the generality of the foregoing,
Common Area Maintenance Costs include all costs of and expense for: (i)
maintenance and repairs of the Common Area; (ii) resurfacing, resealing,
remarking, painting, repainting, striping or restriping the Parking Area; (iii)
maintenance and repair of all public or common facilities; (iv) maintenance,
repair and replacement of sidewalks, curbs, paving, walkways, Parking Area,
Project signs, landscaping, planting and irrigation systems, trash facilities,
loading and delivery areas, lighting, drainage and common utility facilities,
directional or other signs, markers and bumpers, and any fixtures, equipment and
personal property located on the Common Area; (v) wages, salaries, benefits,
payroll burden fees and charges of personnel employed by Landlord and the
charges of all independent contractors retained by Landlord (to the extent that
such personnel and contractors are utilized by Landlord) for the maintenance,
repair, management and/or supervision of the Project, and of any security
personnel retained by Landlord in connection with the operation and maintenance
of the Common Area (although Landlord shall not be required to obtain security
services); (vi) maintenance, repair and replacement of security systems and
alarms installed by Landlord (if any); (vii) depreciation or amortization (or in
lieu thereof, rental payments) on all tools, equipment and machinery used in the
operation and maintenance of the Common Area; (viii) premiums for Comprehensive
General Liability Insurance or Commercial General Liability Insurance, casualty
insurance, workers' compensation
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insurance or other insurance on the Common Area, or any portion thereof or
interest therein, and any deductibles payable with respect to such insurance
policies; (ix) all personal property or real property taxes and assessments
levied or assessed on the Project, or any portion thereof or interest therein,
including without limitation the Real Property Taxes for the Project, if
applicable under PARAGRAPH 15.A; (x) cleaning, collection, storage and removal
of trash, rubbish, dirt and debris, and sweeping and cleaning the Common Area;
(xi) legal, accounting and other professional services for the Project,
including costs, fees and expenses of contesting the validity or applicability
of any law, ordinance, rule, regulation or order relating to the Building, and
of contesting, appealing or otherwise attempting to reduce any Real Property
Taxes assessed against the Project; (xii) any alterations, additions or
improvements required to be made to the Common Area in order to reduce Common
Area Maintenance Costs or to protect the health or safety of occupants of the
Project, but only to the extent of any actual cost savings realized thereby
(provided that if the cost of any such alterations, additions or improvements
during any year exceeds the amount of cost savings realized thereby for that
year, Landlord may in its sole discretion elect to include such excess amounts
in Common Area Maintenance Costs for the following year, but only to the extent
of any actual cost savings realized during such year by reason of such
alterations, additions or improvements); (xiii) all costs and expenses of
providing, creating, maintaining, repairing, managing, operating, and
supervising an amenity center for the Project, which may include without
limitation a dining facility (provided, however, that Landlord shall not be
required to provide or create such an amenity center), which costs and expenses
may include without limitation rent charged by Landlord for the space occupied
by such amenity center; (xiv) all costs and expenses incurred by Landlord in
performing its obligations under PARAGRAPHS 17.A or exercising its rights under
PARAGRAPH 17.D, including without limitation all costs and expenses incurred in
performing any alterations, additions or improvements required to be made to the
Building in order to comply with applicable laws, ordinances, rules, regulations
and orders (to the extent that such laws, ordinances, rules, regulations and
orders are either enacted after, or become applicable to the Building due to an
amendment thereto that becomes effective after, the Commencement Date) and all
capital improvements required to made in connection with the operation,
maintenance and repair of the Building, provided that the cost of any such
alterations, additions, improvements or
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capital improvements, together with interest at the Interest Rate, shall be
amortized over the useful life of the alteration, addition, improvement or
capital improvement in question and included in Common Area Maintenance Costs
for each year over which such costs are amortized; (xv) all costs and expenses
incurred in performing any alterations, additions or improvements required to be
made to the Common Area in order to comply with applicable laws, ordinances,
rules, regulations and orders and all capital improvements required to made in
connection with the operation, maintenance and repair of the Common Area,
provided that the cost of any such alterations, additions, improvements or
capital improvements, together with interest at the Interest Rate, shall be
amortized over the useful life of the alteration, addition, improvement or
capital improvement in question and included in Common Area Maintenance Costs
for each year over which such costs are amortized; and (xvi) any and all
payments due and owing on behalf of the Project or any portion thereof with
respect to any CC&Rs, including without limitation any and all assessments and
association dues. However, notwithstanding the foregoing or anything to the
contrary in this Lease, Common Area Maintenance Costs shall not include the cost
of or expenses for the following: (A) leasing commissions, attorneys' fees or
other costs or expenses incurred in connection with negotiations or disputes
with other tenants of the Project; (B) depreciation of buildings in the Project;
(C) payments of principal, interest, late fees, prepayment fees or other charges
on any debt secured by a mortgage covering the Project, or rental payments under
any ground lease or underlying lease; (D) any penalties incurred due to
Landlord's violation of any governmental rule or authority (but not excluding
the cost of compliance therewith, if such cost is chargeable to Tenant pursuant
to this Lease); (E) any Real Property Taxes or costs for which Landlord is
separately and directly reimbursed by Tenant or any other tenant of the Project
which are assessed against the Premises or the premises leased by such other
tenant(s); (F) items for which Landlord is reimbursed by insurance; (G) all
costs associated with the operation of the business of the entity which
constitutes "Landlord" (as distinguished from the costs of operations, the costs
described in clause (v) of this PARAGRAPH 3.H, and the property management fee
described in PARAGRAPH 5.C below), including, but not limited to, costs of
partnership accounting and legal matters, costs of defending any lawsuits with
any mortgagee (except as the actions of Tenant may be in issue), costs of
selling, syndicating, financing, mortgaging, or hypothecating any of the
Landlord's interest in the Project and/or Common Area, or any portion
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thereof, costs of any disputes between Landlord and its employees, costs of
disputes of Landlord with Building management or costs paid in connection with
disputes with Tenant or any other tenants; (H) all costs (including permit,
license and inspection fees) incurred in renovating or otherwise improving or
decorating, painting or redecorating space for other tenants in the Project; (I)
the creation of any reserves for equipment or capital replacement (but not the
expenditure of any funds from such reserves); (J) all costs arising from
monitoring, cleaning up and otherwise remediating any release of Hazardous
Materials at the Premises to the extent that either (1) Landlord (who shall use
reasonable efforts to obtain reimbursement) is actually reimbursed by third
parties for such costs (but not the costs of collection incurred by Landlord,
unless such costs of collection are also reimbursed by third parties), or (2)
such release of Hazardous Materials occurred prior to the Commencement Date and
did not arise from Tenant's early occupancy of the Premises pursuant to
PARAGRAPH 40 below; (K) all costs and expenses incurred in performing any
alterations, additions or improvements required to be made to the Building in
order to comply with applicable laws, ordinances, rules, regulations and orders,
to the extent that such laws, ordinances, rules, regulations and orders are
enacted before the Commencement Date (unless any such law, ordinance, rule,
regulation or order becomes applicable to the Building due to an amendment that
becomes effective after the Commencement Date, in which event such costs and
expenses shall be includable in Common Area Maintenance Costs); and (L) all
costs and expenses incurred in removing asbestos-containing materials from, or
encapsulating asbestos-containing materials within, the Premises.
Notwithstanding anything to the contrary in the definition of
Common Area Maintenance Costs set forth in this Lease, Common Area Maintenance
Costs shall not include the following:
1. any depreciation on the Building and Project;
2. interest, principal, points and fees on debt or
amortization on any mortgages and deeds of trust or other debt instruments
secured by the Building or the Project or any underlying ground lease;
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3. costs of repairs and general maintenance paid from
insurance proceeds but excluding the amount of any deductibles paid by Landlord;
4. repairs and replacements covered by warranties or
guaranties (to the extent actually collected by Landlord);
5. costs of special services rendered to individual
tenants (including Tenant) for which a special charge is made;
6. costs of improvements for other tenants in the
Building or Project;
7. costs of the Landlord for which a tenant is
obligated to reimburse Landlord, including, for example, taxes and property
insurance premiums on improvements for tenants of the Building and Project that
are above the building standard;
8. costs incurred by Landlord due to violations of
any of the terms and conditions of any lease in the Building or Project (other
than this Lease);
9. Marketing costs including without limitation,
leasing commissions, attorneys' fees, space planning costs and other costs and
expenses incurred in connection with the leasing of the Building; and
10. Overhead and profit increment paid to Landlord
and Landlord's subsidiaries for goods and/or services in or to the Building or
Project to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis.
I. EXISTING BUILDINGS. Those buildings currently situated
within the Project and commonly known as 405 Broadway, 425 Broadway, 475
Broadway, 555 Broadway, and 575-585 Broadway, provided, however, that if at any
time Landlord sells, exchanges, disposes of, or otherwise transfers its interest
in any such building, then effective upon the date of such sale, exchange,
disposition, or other transfer, the building shall cease to be an Existing
Building for the purposes of this Lease; and provided further, that if at any
time Landlord demolishes any Existing Building, neither the demolished building
nor any new building constructed on or about the location of the demolished
building
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(even if such new building uses the same address as the demolished building)
shall be considered to be an Existing Building for the purposes of this Lease.
J. EXISTING PROJECT SPACE. All Rentable Area located within
the Existing Buildings.
K. FINAL PLANS. As defined in the Work Letter.
L. HVAC. Heating, ventilating and air conditioning.
M. IMPOSITIONS. Taxes, assessments, charges, excises and
levies, business taxes, license, permit, inspection and other authorization
fees, transit development fees, assessments or charges for housing funds,
service payments in lieu of taxes and any other fees or charges of any kind at
any time levied, assessed, charged or imposed by any federal, state or local
entity, (i) upon, measured by or reasonably attributable to the cost or value of
Tenant's equipment, furniture, fixtures or other personal property located in
the Premises, or the cost or value of any Alterations; (ii) upon, or measured
by, any Rent payable hereunder, including any gross receipts tax; (iii) upon,
with respect to or by reason of the development, possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises, or any portion thereof; or (iv) upon this Lease transaction, or any
document to which Tenant is a party creating or transferring any interest or
estate in the Premises. Impositions do not include franchise, transfer,
inheritance or capital stock taxes, or income taxes measured by the net income
of Landlord from all sources, except to the extent any such taxes are levied or
assessed against Landlord as a substitute for, in whole or in part, any item
that would otherwise be deemed an Imposition under this PARAGRAPH 3.M.
Impositions also do not include any increases in the taxes, assessments,
charges, excises and levies assessed against the Project due solely to the
construction or installation of tenant improvements or other alterations by
tenants of the Project other than Tenant and any other tenants or occupants of
the Building; provided, however, that if any Impositions are imposed or
increased due to the construction or installation of tenant improvements or
other alterations in the Building, such Impositions shall be equitably prorated
in Landlord's reasonable judgment between Tenant and any other tenants of the
Building.
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N. IMPROVEMENTS. Collectively, the Tenant Improvements and the
Capital Improvements.
O. INTEREST RATE. Either (i) the greater of (a) eleven percent
(11%) per annum, or (b) the reference rate, or succeeding similar index,
announced from time to time by the Bank of America's main San Francisco office,
plus two percent (2%) per annum; or (ii) the maximum rate of interest permitted
by law, whichever is less.
P. LANDLORD'S AGENTS. Landlord's authorized agents, partners,
subsidiaries, directors, officers, and employees.
Q. MONTHLY RENT. The rent payable pursuant to PARAGRAPHS 4.D
AND 5.A., as adjusted from time to time pursuant to the terms of this Lease.
R. PARKING AREA. All Common Area (except sidewalks and service
delivery facilities) now or hereafter designated by Landlord for the parking or
access of motor vehicles, including roads, traffic lanes, vehicular parking
spaces, landscaped areas and walkways, and including any parking structure
constructed during the Term. Landlord and/or its successors may, by written
notice to Tenant, elect in their sole discretion to increase and/or decrease the
Parking Area from time to time during the Term for any reason whatsoever
(including without limitation an election by Landlord and/or its successors in
their sole discretion to make changes to the buildings situated in the Project,
and/or to subdivide, sell, exchange, dispose of, transfer, or change the
configuration of all or any portion of the Parking Area from time to time), so
long as such changes to the Parking Area do not reduce the number of parking
spaces available for Tenant's use below the minimum requirements set forth in
PARAGRAPH 37 for a period of sixty (60) consecutive days or more. No such
subdivision, sale, exchange, disposition, transfer, or change to the
configuration of all or any portion of the Parking Area shall cause the Parking
Area to be increased or decreased unless and until Landlord has given Tenant
written notice of such increase or decrease.
S. PERSON. Any individual, partnership, firm, association,
corporation, limited liability company, trust, or other form of business or
legal entity.
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T. PREMISES. The term "Premises" shall have the meaning set
forth in PARAGRAPH 2 above.
U. PROJECT. That certain real property shown on EXHIBIT C,
upon which are currently located the Building and four (4) other buildings,
currently consisting of a total building square footage of approximately Four
Hundred Eleven Thousand Three Hundred Five and 00/100 (411,305) square feet of
Rentable Area. Landlord and/or its successors may, by written notice to Tenant,
elect in their sole discretion to increase and/or decrease the number of
buildings and/or the amount of Rentable Area situated in the Project from time
to time during the Term for any reason whatsoever.
V. REAL PROPERTY TAXES. Taxes, assessments and charges now or
hereafter levied or assessed upon, or with respect to, the Project, or any
personal property of Landlord used in the operation thereof or located therein,
or Landlord's interest in the Project or such personal property, by any federal,
state or local entity, including: (i) all real property taxes and general and
special assessments; (ii) charges, fees or assessments for transit, housing, day
care, open space, art, police, fire or other governmental services or benefits
to the Project, including assessments, taxes, fees, levies and charges imposed
by governmental agencies for such purposes as street, sidewalk, road, utility
construction and maintenance, refuse removal and for other governmental
services; (iii) service payments in lieu of taxes; (iv) any tax, fee or excise
on the use or occupancy of any part of the Project, or on rent for space in the
Project; (v) any other tax, fee or excise, however described, that may be levied
or assessed as a substitute for, or as an addition to, in whole or in part, any
other Real Property Taxes; and (vi) reasonable consultants' and attorneys' fees
and expenses incurred in connection with proceedings to contest, determine or
reduce Real Property Taxes. Real Property Taxes do not include: (A) franchise,
transfer, inheritance or capital stock taxes, or income taxes measured by the
net income of Landlord from all sources, unless any such taxes are levied or
assessed against Landlord as a substitute for, in whole or in part, any Real
Property Tax; (B) Impositions and all similar amounts payable by tenants of the
Project under their leases; and (C) penalties, fines, interest or charges due
for late payment of Real Property Taxes by Landlord. If any Real Property Taxes
are payable, or may at the option of the taxpayer be paid, in installments, such
Real Property Taxes shall, together with any interest that would
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otherwise be payable with such installment, be deemed to have been paid in
installments, amortized over the maximum time period allowed by applicable law.
If the tax statement from a taxing authority does not allocate Real Property
Taxes to the Building, Landlord shall make the determination of the proper
allocation of such Real Property Taxes based, to the extent possible, upon
records of the taxing authority and, if not so available, then on an equitable
basis. Real Property Taxes also do not include any increases in the taxes,
assessments, charges, excises and levies assessed against the Project due solely
to the construction or installation of tenant improvements or other alterations
by tenants of the Project other than Tenant and any other tenants or occupants
of the Building; provided, however, that if any Real Property Taxes are imposed
or increased due to the construction or installation of tenant improvements or
other alterations in the Building, such Real Property Taxes shall be equitably
prorated in Landlord's reasonable judgment between Tenant and any other tenants
of the Building.
W. RENT. Monthly Rent plus the Additional Rent as defined in
PARAGRAPH 5.E.
X. RENTABLE AREA. The aggregate square footage in any one or
more buildings in the Project, as appropriate, as reasonably determined by
Landlord's architect from time to time.
Y. SECURITY DEPOSIT. That amount paid by Tenant pursuant to
PARAGRAPH 7.
Z. SUBLET. Any transfer, sublet, assignment, license or
concession agreement, change of ownership, mortgage, or hypothecation of this
Lease or the Tenant's interest in the Lease or in and to all or a portion of the
Premises. As used herein, a Sublet includes the following: (i) if Tenant is a
partnership or a limited liability company, a transfer, voluntary or
involuntary, of all or any part of any interest in such partnership or limited
liability company, or the dissolution of the partnership or limited liability
company, whether voluntary or involuntary; (ii) if Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or the
transfer, either by a single transaction or in a series of transactions, of a
controlling percentage of the stock of Tenant (except that a Sublet shall not
include any such transfer of a controlling percentage of the stock of Tenant
occurring at a time when the stock of Tenant is publicly traded on a nationally
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recognized stock exchange or over the counter), or the sale, by a single
transaction of or series of transaction, within any one (1) year period, of
corporate assets equaling or exceeding twenty percent (20%) of the total value
of Tenant's assets (except in connection with an initial public offering of the
stock of Tenant on a nationally recognized stock exchange or over the counter);
(iii) if Tenant is a trust, the transfer, voluntarily or involuntarily, of all
or any part of the controlling interest in such trust; and (iv) if Tenant is any
other form of entity, a transfer, voluntary or involuntary, of all or any part
of any interest in such entity. As used herein, the phrases "controlling
percentage" and "controlling interest" means the ownership of, and/or the right
to vote, stock, partnership interests, membership interests, or other indicia of
ownership possessing at least fifty-one percent (51%) of either the total
combined interests in Tenant, or the voting power of all classes of Tenant's
capital stock, partnership interests, membership interests, or other indicia of
ownership, that have been issued, outstanding, and (if applicable) are entitled
to vote.
AA. SUBRENT. Any consideration of any kind received, or to be
received, by Tenant from a subtenant if such sums are related to Tenant's
interest in this Lease or in the Premises.
BB. SUBTENANT. The person or entity with whom a Sublet
agreement is proposed to be or is made.
CC. TENANT DELAY. Any delay that Landlord may encounter in the
performance of Landlord's obligations under the Lease because of any act or
omission of any nature by Tenant or its agents or contractors, including without
limitation any (i) delay attributable to the postponement of any Improvements at
the request of Tenant; (ii) delay by Tenant in the submission of information or
the giving of authorizations or approvals within the time limits set forth in
the Lease or the Work Letter; (iii) delay attributable to the failure of Tenant
to pay, when due, any amounts required to be paid by Tenant pursuant to the
Lease or the Work Letter; and (iv) delay resulting from any change order request
initiated or requested by Tenant.
DD. TENANT IMPROVEMENTS. Those certain improvements to the
Premises to be constructed by Landlord pursuant to EXHIBIT B, other than the
Capital Improvements. The Tenant Improvements shall at all times be the property
of Landlord and shall not be deemed Tenant's Personal Property.
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EE. TENANT'S BUILDING SHARE. The ratio (expressed as a
percentage) of the total Rentable Area of the Premises to the total Rentable
Area of the Building as determined by Landlord from time to time, which as of
the Commencement Date shall equal one hundred percent (100%). Tenant's Building
Share shall be recalculated any time that the amount of Rentable Area contained
in Premises is adjusted, or there is a change in the total Rentable Area of the
Building.
FF. TENANT'S PERCENTAGE SHARE. The ratio (expressed as a
percentage) of the total Rentable Area of the Premises to the total Rentable
Area of all of the buildings at the Project owned by Landlord from time to time,
which as of the Commencement Date shall equal Thirteen and 44/100ths percent
(13.44%) (i.e., the Rentable Area of the Premises divided by the Rentable Area
of the buildings at the Project owned by Landlord as of the date of this Lease).
Tenant's Percentage Share shall be recalculated any time that the amount of
Rentable Area contained in Premises is adjusted, or there is a change in the
total Rentable Area of those buildings in the Project owned by Landlord, or
Landlord sells, exchanges, or otherwise transfers any or all of the buildings
situated in the Project (including without limitation the Building). The parties
acknowledge and agree that the total Rentable Area of all of the buildings in
the Project owned by Landlord may increase and/or decrease from time to time
during the Term, since Landlord may elect in its sole discretion to sell a
building or buildings or to make changes to the buildings it owns in the
Project.
GG. TENANT'S PERSONAL PROPERTY. Tenant's trade fixtures,
furniture, equipment and other personal property in the Premises.
HH. TERM. The Term of this Lease set forth in PARAGRAPH 4.A.,
as it may be extended hereunder pursuant to any options to extend granted
herein.
4. LEASE TERM.
A. TERM. The Term shall commence on the date that Landlord has
substantially completed the Improvements (the "COMMENCEMENT DATE"), and shall
terminate December 4, 2007. For the purposes of this Lease, Landlord shall be
deemed to have substantially completed the Improvements at such time as the
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building inspector and fire marshall for the City of Redwood City has granted
temporary occupancy of the Improvements.
B. DELAYS IN COMPLETION. Landlord shall diligently prosecute
the completion of the Improvements in accordance with the schedule attached to
EXHIBIT B-3. Tenant agrees that if Landlord, for any reason whatsoever, is
unable to substantially complete the Improvements on or before the Estimated
Commencement Date (as defined below), Landlord shall not be liable to Tenant for
any loss or damage therefrom, nor shall this Lease be void or voidable. Landlord
and Tenant estimate that the Commencement Date shall be August 26, 1999 (the
"ESTIMATED COMMENCEMENT DATE"). Upon the establishment of the actual
Commencement Date, Landlord and Tenant shall execute a Commencement Date
Memorandum in the form set forth in EXHIBIT D. No delay in Landlord's completion
of the Improvements caused by any Tenant Delay shall delay the commencement of
Monthly Rent or the commencement of the Term hereunder. In the event of a delay
caused by any Tenant Delay, Landlord shall set the "Commencement Date" by
written notice to Tenant as the date the Improvements would have been
substantially completed without such delay as reasonably determined by Landlord.
Landlord shall then subsequently deliver the Premises to Tenant upon substantial
completion as hereinabove defined. Such right of Landlord to reset the
Commencement Date shall not be permitted if the delay in Landlord's completion
of the Improvements is due to any delay caused by Landlord or by the City of
Redwood City provided that Tenant has timely submitted its plans in accordance
with the schedule attached to EXHIBIT B-3. Tenant shall pay any and all costs
and expenses incurred by Landlord which result from any Tenant Delay, including,
without limitation, any and all costs and expenses attributable to increases in
the cost of labor or materials. Notwithstanding the foregoing, if Landlord is
delayed in the performance of the Improvements because of acts of any other
party, actions of the elements, acts of nature, war, riot, strikes, lockouts,
labor disputes, inability to procure or general shortage of labor or materials
in the normal channels of trade, or delay in governmental action or inaction
where action is required (collectively, "Force Majuere Delays"), then the
Commencement Date shall be extended by the period of the delay, and the period
for Landlord's performance of the Improvements shall be extended for a period
equivalent to the period of such delay. Notwithstanding anything to the contrary
contained herein, if (i) Landlord has not delivered the Premises substantially
completed to Tenant on or before the date that is sixty (60) days after the
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Estimated Commencement Date for any reason other than Tenant Delay or Force
Majeure Delays, or (ii) Landlord has not delivered the Premises substantially
completed to Tenant on or before the date that is ninety (90) days after the
Estimated Commencement Date for any reason, including but not limited to Force
Majeure Delays, then in either such event Tenant shall have the right to cancel
this Lease, and upon such cancellation, Landlord shall return all sums
theretofore deposited by Tenant with Landlord, and neither party shall have any
further liability to the other; provided, however, in the event of cancellation
pursuant to clause (ii) above, Landlord shall not be required to return to
Tenant the expended portion of the Set Aside Funds as defined in EXHIBIT B.
Tenant shall exercise its cancellation right within fifteen (15) days after such
sixty (60) or ninety (90) day period as applicable.
C. OPTION TO EXTEND.
(i) GRANT OF OPTION. Landlord hereby grants to Tenant
one (1) option ("OPTION TO EXTEND") to extend the Term of this Lease for an
additional term of five (5) years. The five-year option term (the "EXTENDED
TERM") shall commence upon the expiration of the initial Term. The Option to
Extend is expressly conditioned upon Tenant's not being in default under any
term or condition of this Lease after notice from Landlord and the expiration of
any applicable cure period granted by this Lease, either at the time the Option
to Extend is exercised or at the time the Extended Term would commence. The
Option to Extend shall be personal to the Tenant originally named in this Lease,
and shall not be assigned, sold, conveyed or otherwise transferred to any other
party, except to an Affiliate or a Permitted Transferee in accordance with
PARAGRAPH 25.G below (including without limitation any assignee or sublessee of
such Tenant) without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion. The Option to Extend shall be
exercisable only so long as the Lease remains in full force and effect and shall
be an interest appurtenant to and not separable from Tenant's estate under the
Lease. Under no circumstances shall Landlord be required to pay any real estate
commission to any party with respect to Tenant's exercise of the Option to
Extend.
(ii) MANNER OF EXERCISE. Tenant may exercise the
Option to Extend only by giving Landlord written notice not less than one (1)
year prior to the expiration of the Term. If Tenant fails to exercise the Option
to Extend, then the Option to Extend
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automatically shall lapse and thereafter Tenant shall have no right to exercise
the Option to Extend.
(iii) TERMS AND RENT. The initial Monthly Rent for
the Premises for the Extended Term shall be equal to the greater of (x) one
hundred percent (100%) of the fair market rent, as determined below, for the
Premises as of the commencement of the Extended Term, or (x) an amount equal to
the Monthly Rent payable during the last year of the Term, multiplied by one
hundred three and one fourth percent (103.25%). All other terms and conditions
of the Lease, as amended from time to time by the parties in accordance with the
provisions of the Lease, shall remain in full force and effect and shall apply
during the Extended Term; provided, however, that neither the Option to Extend
nor Landlord's obligations under the Work Letter shall be of any force or effect
during the Extended Term.
(iv) DETERMINATION OF RENT. For the purposes of
calculating the Monthly Rent for the Extended Term, the fair market rent shall
be equal to the net effective rent per rentable square foot being charged for
leases executed within the preceding twelve (12) months for comparable space at
either the Project (if any), or if there are none, for comparable space in
office and research and development complexes located in the Redwood Shores area
or the Menlo Oaks Business Park (located in Menlo Park, California), with terms
comparable to the terms contained in this Lease, taking into consideration
relevant factors such as the presence or absence of tenant improvement
contributions by the lessor (but excluding the value of any tenant improvements
paid for by Tenant), and incorporating increases in the Rent during the Extended
Term, if appropriate. Any value added to the Premises by the Tenant Improvements
and any Alterations paid for by Tenant shall not be considered or included in
the determination of the fair market rent. The fair market rent shall be
determined by mutual agreement of the parties or, if the parties are unable to
agree within forty-five (45) days after Tenant's exercise of the Option to
Extend, then fair market rent shall be determined pursuant to the procedure set
forth in PARAGRAPHS 4.C.(V) and 4.C.(VI). The determination of the Monthly Rent
for the Extended Term for the Premises shall take into account the fact that the
Premises shall be leased in its shell condition with a tenant improvement
allowance of Ten and 00/100 Dollars ($10.00)per square foot.
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(v) LANDLORD'S INITIAL DETERMINATION. If the parties
are unable mutually to agree upon the fair market rent pursuant to PARAGRAPH
4.C.(IV), then the fair market rent initially shall be determined by Landlord by
written notice ("LANDLORD'S NOTICE") given to Tenant promptly following the
expiration of the 45-day period set forth in PARAGRAPH 4.C.(IV). If Tenant
disputes the amount of fair market rent set forth in Landlord's Notice, then,
within thirty (30) days after the date of Landlord's Notice, Tenant shall send
Landlord a written notice ("TENANT'S NOTICE") which specifically (a) disputes
the fair market rent set forth in Landlord's Notice, (b) demands arbitration
pursuant to PARAGRAPH 4.C.(VI), and (c) states the name and address of the
person who shall act as arbitrator on Tenant's behalf. Tenant's Notice shall be
deemed defective, and not given to Landlord, if it fails to substantially comply
with the requirements or fails to strictly comply with the time period set forth
above. If Tenant does not send Tenant's Notice within thirty (30) days after the
date of Landlord's Notice, or if Tenant's Notice fails to contain all of the
required information, then Tenant shall be deemed to have rejected Landlord's
Notice. If Tenant is deemed to have rejected Landlord's Notice, and Landlord
thereafter gives Tenant a written notice ("LANDLORD'S SECOND NOTICE") demanding
that Tenant respond to Landlord's Notice, and Tenant does not send Tenant's
Notice within five (5) days of the date of Landlord's Second Notice, then the
Monthly Rent for the Extended Term shall equal one hundred percent (100%) of the
fair market rent specified in Landlord's Notice. If Tenant sends Tenant's Notice
in the proper form within thirty (30) days after the date of Landlord's Notice,
then the Monthly Rent for the Extended Term shall be determined by arbitration
pursuant to PARAGRAPH 4.C(VI) below. If the arbitration is not concluded prior
to the commencement of the Extended Term, then Tenant shall pay Monthly Rent
equal to one hundred twenty-five percent (125%) of the Monthly Rent payable
immediately prior to the commencement of the Extended Term. If the fair market
rent determined by arbitration differs from that paid by Tenant pending the
results of arbitration, then any adjustment required to adjust the amount
previously paid shall be made by payment by the appropriate party within ten
(10) days after the determination of fair market rent.
(vi) ARBITRATION. The arbitration shall be conducted
in the City of San Francisco in accordance with the then prevailing rules of the
American Arbitration Association (or its successor) for the arbitration of
commercial disputes, except
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that the procedures mandated by such rules shall be modified as follows:
(a) Each arbitrator must be a real estate
appraiser with at least five (5) years of full-time commercial appraisal
experience who is familiar with the fair market rent of office and research and
development complexes located in the vicinity of the Premises. Within ten (10)
business days after receipt of Tenant's Notice, Landlord shall notify Tenant of
the name and address of the person designated by Landlord to act as arbitrator
on Landlord's behalf.
(b) The two arbitrators chosen pursuant to
PARAGRAPH 4.C.(VI)(A) shall meet within ten (10) business days after the second
arbitrator is appointed and shall either agree upon the fair market rent or
appoint a third arbitrator possessing the qualifications set forth in PARAGRAPH
4.C.(VI)(A). If the two arbitrators agree upon the fair market rent within such
ten (10) business day period, the Monthly Rent for the Extended Term shall equal
one hundred percent (100%) of such fair market rent. If the two arbitrators are
unable to agree upon the fair market rent and are unable to agree upon the third
arbitrator within five (5) business days after the expiration of such ten (10)
business day period, the third arbitrator shall be selected by the parties
themselves. If the parties do not agree on the third arbitrator within five (5)
business days after the expiration of such five (5) business day period, then
either party, on behalf of both, may request appointment of the third arbitrator
by the Association of South Bay Brokers. The three arbitrators shall decide the
dispute, if it has not been previously resolved, by following the procedures set
forth in PARAGRAPH 4.C.(VI)(C). Each party shall pay the fees and expenses of
its respective arbitrator and both shall share the fees and expenses of the
third arbitrator. Each party shall pay its own attorneys' fees and costs of
witnesses.
(c) The three arbitrators shall determine
the fair market rent in accordance with the following procedures. Each of
Landlord's arbitrator and Tenant's arbitrator shall state, in writing, his or
her determination of the fair market rent, supported by the reasons therefor,
and shall make counterpart copies for the other arbitrators. All of the
arbitrators shall arrange for a simultaneous exchange of the proposed
resolutions within ten (10) business days after appointment of the third
arbitrator. If any arbitrator fails to
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deliver his or her own determination to the other arbitrators within such ten
(10) business day period, then the fair market rent shall equal the average of
the resolutions submitted by the other arbitrators. If all three (3) arbitrators
deliver their determinations to the other arbitrators within such ten (10)
business day period, then the two (2) closest determinations of the arbitrators
shall be averaged, and the resulting quotient shall be the fair market rent, and
the Monthly Rent for the Extended Term shall equal one hundred percent (100%) of
such fair market rent; provided, however, that if the determination of one (1)
of the arbitrators (the "AVERAGE DETERMINATION") is equal to the average of the
determinations of the other two (2) arbitrators, then the Average Determination
shall be the fair market rent. However, the arbitrators shall not attempt to
reach a mutual agreement of the fair market rent; each arbitrator shall
independently arrive at his or her proposed resolution.
(d) The arbitrators shall have the right to
consult experts and competent authorities for factual information or evidence
pertaining to a determination of fair market rent, but any such consultation
shall be made in the presence of both parties with full right on their part to
cross-examine. The arbitrators shall render the decision and award in writing
with counterpart copies to each party. The arbitrators shall have no power to
modify the provisions of this Lease. In the event of a failure, refusal or
inability of any arbitrator to act, his or her successor shall be appointed by
him or her, but in the case of the third arbitrator, his or her successor shall
be appointed in the same manner as that set forth herein with respect to the
appointment of the original third arbitrator.
5. RENT AND ADDITIONAL CHARGES.
A. MONTHLY RENT. Tenant shall pay to Landlord, in lawful money
of the United States, Monthly Rent as follows: commencing on the Commencement
Date, and continuing throughout the balance of the Term (subject to adjustment
pursuant to PARAGRAPH 5.B), the Monthly Rent shall equal Two and 25/100ths
Dollars ($2.25) multiplied by the number of square feet of Rentable Area
situated within the Premises, as determined by Landlord under PARAGRAPH 2.
Monthly Rent shall be paid in advance, on the first day of
each calendar month during the Term, without abatement, deduction, claim,
offset, prior notice or demand. The sum of One
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Hundred Twenty Four Three Hundred Eighty Four and 50/100 Dollars ($124,384.50),
representing an advance payment of Landlord's initial estimate of the Monthly
Rent for the Premises, shall be paid by Tenant to Landlord upon the execution of
this Lease by Landlord and Tenant. Additionally, Tenant shall pay, as and with
the Monthly Rent, the management fee described in PARAGRAPH 5.C., Tenant's share
of Common Area Maintenance Costs pursuant to PARAGRAPH 5.D, the Real Property
Taxes and Impositions payable by Tenant pursuant to PARAGRAPH 15, and the
monthly cost of insurance premiums required pursuant to PARAGRAPH 21.C.
B. ADJUSTMENTS TO MONTHLY RENT. The Monthly Rent shall be
increased, but not decreased, as of the first day of the month that is thirteen
(13) months from the Commencement Date and each and every anniversary of such
date occurring thereafter during the Term (including without limitation the
Extended Term) (each, an "ADJUSTMENT DATE") by three and one-fourth percent
(3.25%). If, however, the last Adjustment Date occurs at any time after the
first day of a calendar month, the first Adjustment Date shall be the first day
of the immediately following calendar month. On each Adjustment Date, the total
aggregate amount of Monthly Rent then in effect shall be multiplied by one
hundred three and one fourth percent (103.25%); and the corresponding product
shall be the Monthly Rent in effect until the next Adjustment Date.
C. MANAGEMENT FEE. Tenant shall pay to Landlord monthly, as
Additional Rent, a management fee equal to three percent (3%) of the then
Monthly Rent.
D. COMMON AREA MAINTENANCE COSTS.
(i) ESTIMATED PAYMENTS. Commencing on the
Commencement Date and continuing throughout the entire Term, Tenant shall pay
Tenant's Percentage Share of all Common Area Maintenance Costs paid or payable
by Landlord in each year; provided, however, that Tenant shall pay Tenant's
Building Share of those Common Area Maintenance Costs arising from Landlord's
performance of its obligations under PARAGRAPHS 17.A and Tenant's obligations
under PARAGRAPH 17.D. Before commencement of the Term and during December of
each calendar year or as soon thereafter as practicable, Landlord shall give
Tenant notice of its estimate of amounts payable under this PARAGRAPH 5.D.(I)
for the ensuing calendar year. Such notice shall show in reasonable detail the
basis on which the estimate was determined. On or
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before the first day of each month during the ensuing calendar year, Tenant
shall pay to Landlord one-twelfth (1/12th) of such estimated amounts, provided
that if such notice is not given in December, Tenant shall continue to pay on
the basis of the prior year's estimate until the month after such notice is
given. If at any time or times it appears to Landlord, in its reasonable
judgment, that the amounts payable under this PARAGRAPH 5.D.(I) for the current
calendar year will vary from its then-current estimate by more than five percent
(5%), Landlord may, in its sole discretion, by notice to Tenant, showing in
reasonable detail the basis for such variance, revise its estimate for such
year, in which case subsequent payments by Tenant for such year shall be based
upon such revised estimate. Landlord's election not to give the notice described
in the foregoing sentence shall not affect Landlord's ability to charge Tenant
for, nor Tenant's liability to pay for, any shortfall in the estimated payments
for such calendar year previously made by Tenant, as set forth in PARAGRAPH
5.D.(II).
(ii) ADJUSTMENT. Within one hundred twenty (120) days
after the close of each calendar year or as soon after such 120-day period as
reasonably practicable, Landlord shall deliver to Tenant a reasonably detailed
statement of Common Area Maintenance Costs for such calendar year, certified by
Landlord or its property manager, subject to Tenant's right to audit as
hereinafter provided. At that time, Landlord shall also deliver to Tenant a
statement, certified as correct by Landlord, of the adjustments to be made
pursuant to PARAGRAPH 5.D.(I) above. If Landlord's statement shows that Tenant
owes an amount that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall refund such excess to Tenant within
thirty (30) days after delivery of the statement. If such statement shows that
Tenant owes an amount that is more than the estimated payments for such calendar
year previously made by Tenant, Tenant shall pay the deficiency to Landlord
within thirty (30) days after delivery of the statement.
(iii) LAST YEAR. If this Lease shall terminate on a
day other than the last day of a calendar year, the adjustment in Rent
applicable to the calendar year in which such termination shall occur shall be
prorated on the basis which the number of days from the commencement of such
calendar year to and including such termination date bears to three hundred
sixty (360). The termination of this Lease shall not affect the
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obligations of Landlord and Tenant pursuant to PARAGRAPH 5.D.(II) to be
performed after such termination.
(iv) AUDIT. Within one hundred eighty (180) days
after receipt of Landlord's statement of Common Area Maintenance Costs as
provided in PARAGRAPH 5.D.(II), Tenant or its designee, on not less than five
(5) days' prior written notice to Landlord, shall have the right to, at Tenant's
sole cost and expense, audit, examine and copy Landlord's books and records with
respect to the Common Area Maintenance Costs for the year for which the
Landlord's statement pertains. If Tenant fails to give such written notice to
Landlord within such 180-day period, Tenant shall be deemed to have forever
waived its right to audit the Common Area Maintenance Costs for the year for
which the Landlord's statement pertains. Landlord shall cooperate with Tenant in
any such examination of its books and records. Tenant shall have the right to
audit at Landlord's local offices, at Tenant's expense, Landlord's accounts and
records relating to Common Area Maintenance Costs and Impositions. If such audit
reveals to the reasonable satisfaction of Landlord and Tenant that Landlord has
overcharged Tenant, the amount overcharged shall be paid to Tenant within thirty
(30) days after the audit is concluded. If such audit reveals to the reasonable
satisfaction of Landlord and Tenant that Landlord has undercharged Tenant, the
amount undercharged shall be paid to Landlord within thirty (30) days after the
audit is concluded. In addition, if the audit reveals to the reasonable
satisfaction of Landlord and Tenant that Landlord's statement exceeds the actual
Common Area Maintenance Costs and Impositions which should have been charged to
Tenant by more than seven percent (7%), the cost of the audit shall be paid by
Landlord. If Tenant retains or utilizes a third party to perform such an audit
of the Common Area Maintenance Costs and Impositions, Tenant shall not
compensate such third party on anything other than an hourly basis.
E. ADDITIONAL RENT. All monies required to be paid by Tenant
under this Lease, including, without limitation, the Tenant Improvement costs
pursuant to EXHIBIT B, the management fee described in PARAGRAPH 5.D, Tenant's
share of Common Area Maintenance Costs pursuant to PARAGRAPH 5.D, Real Property
Taxes and Impositions pursuant to PARAGRAPH 15, and the monthly cost of
insurance premiums required pursuant to PARAGRAPH 21.C, shall be deemed
Additional Rent.
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F. PRORATIONS. If the Commencement Date is not the first (1st)
day of a month, or if the termination date of this Lease is not the last day of
a month, a prorated installment of Monthly Rent based on a 30-day month shall be
paid for the fractional month during which such date occurs or the Lease
terminates.
G. INTEREST. Any amount of Rent or other charges provided for
under this Lease due and payable to Landlord which is not paid within five (5)
days after written notice from Landlord shall bear interest at the Interest Rate
from (i) the date such Rent is due until such Rent is paid, or (ii) the date
that is ten (10) days after Tenant receives written notice from Landlord that
any other charge provided for under this Lease (other than Rent) is due and
payable, until such other charge is paid.
6. LATE PAYMENT CHARGES.
Tenant acknowledges that late payment by Tenant to Landlord of
Rent and other charges provided for under this Lease will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult or impracticable to fix. Therefore, if any installment of
Rent or any other charge due from Tenant is not received by Landlord within five
(5) days after Landlord gives Tenant notice that such Rent or other charge is
due, Tenant shall pay to Landlord an additional sum equal to seven percent (7%)
of the amount overdue as a late charge for every month or portion thereof that
the Rent or other charges remain unpaid. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Landlord will incur
by reason of the late payment by Tenant.
INITIALS:
/s/ signature illegible /s/ signature illegible
- ------------------------ -------------------------
Landlord Tenant
7. SECURITY DEPOSIT.
A. DEPOSIT REQUIRED. Tenant shall deposit with Landlord upon
the execution of this Lease by Landlord and Tenant, the sum of Four Hundred
Ninety-Seven Thousand Five Hundred
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Thirty-Eight and 00/100 Dollars ($497,538.00) (i.e., an amount equal to four (4)
installments of Monthly Rent) as the "SECURITY DEPOSIT" for the full and
faithful performance of every provision of this Lease to be performed by Tenant.
At Tenant's option, the Security Deposit may be in the form of an irrevocable
standby letter of credit ("L-C"). Landlord shall not be required to segregate
the Security Deposit from Landlord's general funds; Landlord's obligations with
respect to the Security Deposit shall be those of a debtor and not a trustee,
and Tenant shall not be entitled to any interest on the Security Deposit.
Invocation by Landlord of its rights hereunder shall not constitute a waiver of
nor relieve Tenant from any liability or obligation for any default by Tenant
under this Lease.
(i) REDUCTION OR REPLACEMENT. So long as Tenant has
not committed any default under this Lease, which default is continuing after
notice from Landlord and the expiration of any applicable grace period provided
for in this Lease, (a) as of each of the second (2nd) anniversary of the Lease
Commencement Date and the fourth (4th) anniversary of the Lease Commencement
Date, Tenant may reduce the Security Deposit in the amount of One Hundred
Twenty-Four Thousand Three Hundred Eighty-Four and 50/100 Dollars ($124,384.50)
on each such anniversary date; or (b) if Tenant is profitable for a period of
eight (8) consecutive quarters commencing after the Commencement Date, then
Tenant may elect to reduce the Security Deposit to the sum equal to two (2)
installments of the initial Monthly Rent. For the purposes of this PARAGRAPH 7,
in order for Tenant to demonstrate that it has been profitable for the calendar
quarter in question, Tenant must at a minimum deliver to Landlord an audited
financial statement of Tenant, showing that Tenant has earned a net profit for
each calendar quarter in question. In no event shall Tenant be entitled to
reduce the Security Deposit below an amount equal to two (2) installments of the
initial Monthly Rent.
If Tenant is entitled to and does elect to reduce the amount
of the Security Deposit pursuant to this PARAGRAPH 7.A.(I), and Tenant delivers
to Landlord written notice of its election to so reduce the amount of the
Security Deposit and the financial statements described in the foregoing
paragraph, then if the Security Deposit is in the form of cash, Landlord shall
pay to Tenant the excess amount of the Security Deposit, without interest,
within thirty (30) days after Landlord's receipt of such notice and statements;
or if the Security Deposit is in the form of an L-C, then Tenant may, not less
than ten (10) days
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after Landlord's receipt of such notice and statement, replace the L-C with an
L-C in an amount equal to the reduced amount of the Security Deposit.
(ii) CONSEQUENCES OF DEFAULT. If Tenant defaults with
respect to any provision of this Lease, after notice from Landlord and the
expiration of any applicable cure or grace periods expressly provided for in
this Lease, Landlord may apply all or any part of the Security Deposit for the
payment of any Rent or other sum in default, the repair of such damage to the
Premises or the payment of any other amount which Landlord may spend or become
obligated to spend by reason of Tenant's default or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's default
to the full extent permitted by law. If any portion of a cash Security Deposit
is so applied, or any portion of an L-C posted as the Security Deposit, if
applicable, is drawn upon, by Landlord for such purposes, Tenant shall either,
within ten (10) days after written demand therefor, deposit cash with Landlord
in an amount sufficient to restore the Security Deposit to its original amount
or deposit a replacement L-C with Landlord in the amount of the original L-C.
The Security Deposit or any balance thereof remaining after Landlord cures any
default of Tenant hereunder shall be returned to Tenant within thirty (30) days
of termination of the Lease.
(iii) FORM OF L-C. If at any time Tenant elects to
deposit an L-C as the Security Deposit, the L-C shall be issued by a bank
reasonably acceptable to Landlord, shall be issued for a term of at least twelve
(12) months and shall be in a form and with such content acceptable to Landlord
in its sole discretion. Tenant shall either replace the expiring L-C with an L-C
in an amount equal to the original L-C or renew the expiring L-C, in any event
no later than thirty (30) days prior to the expiration of the term of the L-C
then in effect. If Tenant fails to deposit a replacement L-C or renew the
expiring L-C, Landlord shall have the right to draw upon the expiring L-C for
the full amount thereof and hold the same as the Security Deposit; provided,
however, that if Tenant provides a replacement L-C that meets the requirements
of this PARAGRAPH 7.A, then Landlord shall return to Tenant promptly in cash
that amount of the L-C that had been drawn upon by Landlord. Drawing upon the
L-C shall be conditioned upon notice to Tenant of Landlord's intention to draw
upon the L-C and the presentation to the issuer of the L-C of a certified
statement executed by a general partner of Landlord
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that (i) Tenant is in default under the Lease, which default is continuing after
notice to Tenant and the expiration of any applicable grace period provided for
herein, and Landlord is exercising its right to draw upon so much of the L-C as
is necessary to cure Tenant's default, or (ii) Tenant has not renewed or
replaced an expiring L-C as required by this Lease and Landlord is authorized to
draw upon the L-C prior to its expiration. The L-C shall not be mortgaged,
assigned or encumbered in any manner whatsoever by Tenant without the prior
written consent of Landlord. The use, application or retention of the L-C, or
any portion thereof, by Landlord shall not prevent Landlord from exercising any
other right or remedy provided by this Lease or by law, it being intended that
Landlord shall not first be required to proceed against the L-C, and such use,
application or retention shall not operate as a limitation on any recovery to
which Landlord may otherwise be entitled.
8. HOLDING OVER.
If Tenant remains in possession of all or any part of the
Premises after the expiration of the Term, with the express or implied consent
of Landlord, such tenancy shall be at sufferance only, and shall not constitute
a renewal or extension for any further term. If Tenant remains in possession
after the expiration of the Term, without Landlord's consent, Rent shall be
payable at a rental equal to one hundred fifty percent (150%) of the Monthly
Rent payable during the last month of the Term (which rental shall be due and
payable at the same time as Monthly Rent is due under this Lease), and any other
sums due under this Lease shall be payable in the amount and at the times
specified in this Lease. If Tenant remains in possession after the expiration of
the Term with Landlord's consent, Rent shall be payable at a rental equal to one
hundred percent (100%) of the Monthly Rent payable during the last month of the
Term (which rental shall be due and payable at the same time as Monthly Rent is
due under this Lease), and any other sums due under this Lease shall be payable
in the amount and at the times specified in this Lease. Any such holdover
tenancy (with or without Landlord's consent) shall be subject to every other
term, condition, and covenant contained herein; provided, however, that
Landlord's obligations under the Work Letter shall not be of any force or effect
during any such holdover tenancy.
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9. TENANT IMPROVEMENTS.
Landlord agrees to construct the Tenant Improvements pursuant
to the terms of EXHIBIT B.
10. CONDITION OF PREMISES.
A. CAPITAL IMPROVEMENTS. Prior to the Commencement Date,
Landlord shall complete the Capital Improvements to the Premises in accordance
with the terms of EXHIBIT B. Except for its obligation to perform the Capital
Improvements and the Tenant Improvements as set forth in this Lease and the Work
Letter, Landlord shall have no obligation whatsoever to do any work or perform
any improvements whatsoever to any portion of the Premises or the Building.
B. ACCEPTANCE OF PREMISES. Within ten (10) days after
completion of the Tenant Improvements, Tenant shall conduct a walk-through
inspection of the Premises with Landlord and complete a punch list of items
needing additional work. Other than the items specified in the punch list, if
any, and latent defects in the Capital Improvements that could not have been
discovered by a reasonably thorough visual inspection of the Capital
Improvements, and subject to Landlord's representations and warranties described
below, by taking possession of the Premises, Tenant shall be deemed to have
accepted the Premises in good, clean and completed condition and repair, subject
to all applicable laws, codes and ordinances. Any damage to the Premises caused
by Tenant's move-in shall be repaired or corrected by Tenant, at its sole cost
and expense. Tenant acknowledges that neither Landlord nor Landlord's Agents
have made any representations or warranties as to the suitability or fitness of
the Premises for the conduct of Tenant's business or for any other purpose, nor
has Landlord or Landlord's Agents agreed to undertake any Alterations or
construct any Improvements to the Premises except as expressly provided in this
Lease. If Tenant fails to submit a punch list to Landlord within such 10-day
period, it shall be deemed that there are no Improvement items needing
additional work or repair. Landlord's contractor shall complete all reasonable
punch-list items within thirty (30) days after the walk-through inspection;
provided, however, that if such punch-list items cannot reasonably be completed
within the 30-day period, Landlord's contractor shall commence such performance
within the 30-day period and diligently thereafter prosecute the same to
completion. Upon completion of such
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punch-list items, Tenant shall approve such completed items in writing to
Landlord. If Tenant fails to approve such items within fourteen (14) days of
completion, such items shall be deemed approved by Tenant.
C. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord
represents and warrants (the "Condition Warranties") to Tenant that as of the
Commencement Date the following portions of the Building shall be in good
condition (i.e. in an operable (but not new) state of repair, free of defects
that would adversely affect Tenant's operation of its business in the Premises):
(i) the HVAC system serving the Premises, (ii) the roof of the Building, (iii)
the main electrical supply to a main distribution point in the Building, (iv)
the working sanitary sewer lines to the Building, and (v) water service to the
Building. The Condition Warranties shall terminate on a date one hundred eighty
(180) days after the Commencement Date, except to the extent that Tenant has
delivered to Landlord within such 180-day period a written notice specifying in
detail any defaults by Landlord under the Condition Warranties (a "Violation
Notice"), and Landlord shall thereafter have absolutely no liability to Tenant
for the inaccuracy of any Condition Warranty, except to the extent set forth in
a Violation Notice. Landlord's liability for the correction of any defects
described in a Violation Notice shall be subject to Landlord's reasonable right
to dispute the claims set forth in any Violation Notice. Landlord's sole
liability with respect to any breach of any Condition Warranty that is properly
set forth in a timely delivered Violation Notice shall be to promptly correct
such defect; Landlord shall have no liability for any other loss, cost, damage,
expense or lost profit in connection with such breach, and Tenant shall have no
right to any abatement or offset of Rent in connection with such breach.
D. LANDLORD'S ADDITIONAL REPRESENTATION AND WARRANTY. Landlord
represents and warrants (the "Environmental Warranty") to Tenant that to the
best of Landlord's knowledge, as of the Commencement Date, no
asbestos-containing materials (other than asbestos-containing materials that are
fully encapsulated or that are within the transite panels of the curtain wall of
the Building)shall be present in the Premises. Landlord's sole liability with
respect to any breach of the Environmental Warranty shall be to promptly correct
such defect; Landlord shall have no liability for any other loss, cost, damage,
expense or lost profit in connection with such breach, and Tenant shall have
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no right to any abatement or offset of Rent in connection with such breach.
11. USE OF THE PREMISES AND COMMON AREA.
A. TENANT'S USE. Tenant shall use the Premises only for
general office, administration, research and development, manufacturing,
warehousing and any other legal use related to such activities and consistent
with any CC&Rs. Tenant shall not use the Premises or suffer or permit anything
to be done in or about the Premises which will in any way conflict with any law,
statute, zoning restriction, ordinance or governmental law, rule, regulation or
requirement of public authorities now in force or which may hereafter be in
force, relating to or affecting the condition, use or occupancy of the Premises.
Tenant shall not commit any public or private nuisance or any other act or thing
which might or would disturb the quiet enjoyment of any other tenant of Landlord
or any occupant of nearby property. Tenant shall place no loads upon the floors,
walls or ceilings in excess of the maximum designed load determined by a
licensed structural engineer or which endanger the structure; nor place any
harmful liquids in the drainage systems; nor dump or store waste materials or
refuse or allow waste materials or refuse to remain outside the Building proper,
except in the enclosed trash areas provided. Tenant shall not store or permit to
be stored or otherwise placed any other material of any nature whatsoever
outside the Building, except on a temporary basis.
B. HAZARDOUS MATERIALS.
(i) HAZARDOUS MATERIALS DEFINED. As used herein, the
term "HAZARDOUS MATERIALS" shall mean any wastes, materials or substances
(whether in the form of liquids, solids or gases, and whether or not air-borne),
which are or are deemed to be (a) pollutants or contaminants, or which are or
are deemed to be hazardous, toxic, ignitable, reactive, corrosive, dangerous,
harmful or injurious, or which present a risk to public health or to the
environment, or which are or may become regulated by or under the authority of
any applicable local, state or federal laws, judgments, ordinances, orders,
rules, regulations, codes or other governmental restrictions, guidelines or
requirements, any amendments or successor(s) thereto, replacements thereof or
publications promulgated pursuant thereto, including, without limitation, any
such items or substances which are or may become regulated by any of the
Environmental Laws (as hereinafter
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defined); (b) listed as a chemical known to the State of California to cause
cancer or reproductive toxicity pursuant to Section 25249.8 of the California
Health and Safety Code, Division 20, Chapter 6.6 (Safe Drinking Water and Toxic
Enforcement Act of 1986); or (c) a pesticide, petroleum, including crude oil or
any fraction thereof, asbestos or any asbestos-containing material, a
polychlorinated biphenyl, radioactive material, or urea formaldehyde.
(ii) ENVIRONMENTAL LAWS DEFINED. In addition to the
laws referred to in PARAGRAPH 11.B.(I) above, the term "ENVIRONMENTAL LAWS"
shall be deemed to include, without limitation, 33 U.S.C. Section 1251 ET SEQ.,
42 U.S.C. Section 6901 ET SEQ., 42 U.S.C. Section 7401 ET SEQ., 42 U.S.C.
Section 9601 ET SEQ., and California Health and Safety Code Section 25100 ET
SEQ., and 25300 ET SEQ., California Water Code, Section 13020 ET SEQ., or any
successor(s) thereto, all local, state and federal laws, judgments, ordinances,
orders, rules, regulations, codes and other governmental restrictions,
guidelines and requirements, any amendments and successors thereto, replacements
thereof and publications promulgated pursuant thereto, which deal with or
otherwise in any manner relate to, air or water quality, air emissions, soil or
ground conditions or other environmental matters of any kind.
(iii) USE OF HAZARDOUS MATERIALS. Tenant agrees that
during the Term of this Lease, Tenant shall not use, or permit the use of, nor
store, generate, treat, manufacture or dispose of Hazardous Materials on, from
or under the Premises (individually and collectively, "HAZARDOUS USE") except to
the extent that, and in accordance with such conditions as, Landlord may have
previously approved in writing in its sole and absolute discretion.
Notwithstanding the foregoing, Tenant shall be entitled to use and store only
those Hazardous Materials which are (a) set forth in a list prepared by Tenant
and approved in writing by Landlord, which shall be deemed given with respect to
the Approved Hazardous Materials (hereinafter defined), (b) necessary for
Tenant's business, but then only in the amounts and for the purposes previously
disclosed in writing to and approved in writing by Landlord, and (c) in full
compliance with Environmental Laws, and all judicial and administrative
decisions pertaining thereto. All Hazardous Materials approved in writing by
Landlord as provided in the preceding sentence shall collectively be referred to
as the "APPROVED HAZARDOUS MATERIALS". Within thirty (30) days after request by
Landlord,
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Tenant shall deliver to Landlord a list of the Approved Hazardous Materials.
Tenant shall not be entitled to install any tanks under, on or about the
Premises for the storage of Hazardous Materials without the express written
consent of Landlord, which may be given or withheld in Landlord's sole
discretion. For the purposes of this PARAGRAPH 11.B.(III), the term Hazardous
Use shall include Hazardous Use(s) on, from or under the Premises by Tenant, any
Subtenant occupying all or any portion of the Premises during the Term, or any
of their directors, officers, employees, shareholders, partners, invitees,
agents, contractors or occupants (collectively, "TENANT'S PARTIES"), whether
known or unknown to Tenant, occurring during the Term of this Lease. The term
"TENANT'S PARTIES" shall not include any tenants of the Project other than
Tenant, except that the term "TENANT'S PARTIES" shall include any Subtenant
occupying all or any portion of the Premises during the Term. Notwithstanding
anything herein to the contrary, Tenant may use normal amounts of cleaning
supplies and office products customarily used by office tenants without
Landlord's prior consent thereto.
(iv) HAZARDOUS MATERIALS REPORT; WHEN REQUIRED.
Tenant shall submit to Landlord a written report with respect to Hazardous
Materials ("REPORT") in the form prescribed in PARAGRAPH 11.B.(V) below on the
following dates:
(a) At any time within ten (10) days after
written request by Landlord, and
(b) At any time when there has been a
violation of any Environmental Law, or in connection with any proposed request
for Landlord's consent to any change in the list of Approved Hazardous Materials
or for an increase in the intensity of usage or storage of such Approved
Hazardous Materials.
(v) HAZARDOUS MATERIALS REPORT; CONTENTS. The Report
shall contain, without limitation, the following information:
(a) Whether on the date of the Report and
(if applicable) during the period since the last Report there has been any
Hazardous Use on, from or under the Premises, other than the use of Approved
Hazardous Materials.
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(b) If there was such Hazardous Use, the
exact identity of the Hazardous Materials (other than the Approved Hazardous
Materials), the dates upon which such materials were brought upon the Premises,
the dates upon which such Hazardous Materials were removed therefrom, and the
quantity, location, use and purpose thereof.
(c) If there was such Hazardous Use, any
governmental permits maintained by Tenant with respect to such Hazardous
Materials, the issuing agency, original date of issue, renewal dates (if any)
and expiration date. Copies of any such permits and applications therefor shall
be attached.
(d) If there was such Hazardous Use, any
governmental reporting or inspection requirements with respect to such Hazardous
Materials, the governmental agency to which reports are made and/or which
conducts inspections, and the dates of all such reports and/or inspections (if
applicable) since the last Report. Copies of any such Reports shall be attached.
(e) If there was such Hazardous Use,
identification of any operation or business plan prepared for any government
agency with respect to Hazardous Use.
(f) Any liability insurance carried by
Tenant with respect to Hazardous Materials, if any, the insurer, policy number,
date of issue, coverage amounts, and date of expiration. Copies of any such
policies or certificates of coverage shall be attached.
(g) Any notices of violation of
Environmental Laws, written or oral, received by Tenant from any governmental
agency since the last Report, the date, name of agency, and description of
violation. Copies of any such written notices shall be attached.
(h) Any knowledge, information or
communication which Tenant has acquired or received relating to (x) any
enforcement, cleanup, removal or other governmental or regulatory action
threatened or commenced against Tenant or with respect to the Premises pursuant
to any Environmental Laws; (y) any claim made or threatened by any person or
entity against Tenant or the Premises on account of any alleged loss or injury
claimed to result from any alleged Hazardous Use on or about the Premises; or
(z) any report, notice or complaint made to or filed
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with any governmental agency concerning any Hazardous Use on or about the
Premises. The Report shall be accompanied by copies of any such claim, report,
complaint, notice, warning or other communication that is in the possession of
or is available to Tenant.
(i) Such other pertinent information or
documents as are reasonably requested by Landlord in writing.
(vi) RELEASE OF HAZARDOUS MATERIALS; NOTIFICATION AND
CLEANUP.
(a) At any time during the Term, if Tenant
knows or believes that any release of any Hazardous Materials has come or will
come to be located upon, about or beneath the Premises, then Tenant shall
immediately, either prior to the release or following the discovery thereof by
Tenant, give verbal and follow-up written notice of that condition to Landlord.
(b) At its sole cost and expense, Tenant
covenants to investigate, clean up and otherwise remediate any release of
Hazardous Materials which were caused or created by Tenant or any of Tenant's
Parties. Such investigation, clean-up and remediation shall be performed only
after Tenant has obtained, if practicable, Landlord's written consent, which
shall not be unreasonably withheld; provided, however, that Tenant shall be
entitled to respond immediately to an emergency without first obtaining
Landlord's written consent. All clean-up and remediation shall be done in
compliance with Environmental Laws and to the reasonable satisfaction of
Landlord; provided, however, that Landlord shall not require Tenant to perform
any clean-up or remediation work in excess of that work required to return the
property affected by such release of Hazardous Materials to the condition it was
in prior to the date of such release.
(c) Notwithstanding the foregoing, Landlord
shall have the right, but not the obligation, in Landlord's sole and absolute
discretion, exercisable by written notice to Tenant, to undertake within or
outside the Premises all or any portion of any reasonable investigation,
clean-up or remediation with respect to any Hazardous Use of such Hazardous
Materials by Tenant or any of Tenant's Parties (or, once having undertaken any
of such work, to cease same, in which case Tenant shall perform the work), all
at Tenant's sole cost and expense, which shall be
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paid by Tenant as Additional Rent within ten (10) days after receipt of written
request therefor by Landlord (and which Landlord may require to be paid prior to
commencement of any work by Landlord); provided, however, that Tenant's
obligation to pay for such work shall only be applicable if Tenant fails to
perform its obligations under this PARAGRAPH 11 (including without limitation
the obligations described in PARAGRAPH 11.B.(VI)(B)). No such work by Landlord
shall create any liability on the part of Landlord to Tenant or any other party
in connection with such Hazardous Materials by Tenant or any of Tenant's Parties
or constitute an admission by Landlord of any responsibility with respect to
such Hazardous Materials.
(d) It is the express intention of the
parties hereto that Tenant shall be liable under this PARAGRAPH 11.B.(VI) for
any and all conditions covered hereby which were or are caused or created by
Tenant or any of Tenant's Parties, whether occurring (x) on or after the
Commencement Date, or (y) prior to the Commencement Date (to the extent that
such condition or conditions occurring prior to the Commencement Date arise from
Tenant's early occupancy of the Premises pursuant to PARAGRAPH 40 below). Tenant
shall not enter into any settlement agreement, consent decree or other
compromise with respect to any claims relating to any Hazardous Materials in any
way connected to the Premises without first (A) notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to participate in any
such proceedings, and (B) obtaining Landlord's written consent, which shall not
be unreasonably withheld.
(vii) INSPECTION AND TESTING BY LANDLORD. Landlord
shall have the right at all times during the Term of this Lease to (a) inspect
the Premises, as well as such of Tenant's books and records pertaining to the
Premises and the conduct of Tenant's business therein, and to (b) conduct tests
and investigations to determine whether Tenant is in compliance with the
provisions of this PARAGRAPH 11.B. Except in case of emergency, Landlord shall
give reasonable notice to Tenant before conducting any inspections, tests, or
investigations in accordance with PARAGRAPH 19, shall provide Tenant with a work
plan describing any testing that shall be performed at the Premises, and shall
use reasonable efforts to minimize interference with the conduct of Tenant's
business at the Premises caused by any such inspections, tests, or
investigations. The cost of all such inspections, tests and investigations shall
be borne by Tenant if Landlord reasonably
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concludes on the basis of such investigation that Tenant has failed to comply
with its obligations under this PARAGRAPH 11.B. Neither any action nor inaction
on the part of Landlord pursuant to this PARAGRAPH 11.B.(VII) shall be deemed in
any way to release Tenant from, or in any way modify or alter, Tenant's
responsibilities, obligations, and liabilities incurred pursuant to PARAGRAPH
11.B hereof.
(viii) INDEMNITY. Tenant shall indemnify, defend,
protect, hold harmless, and, at Landlord's option (with such attorneys as
Landlord may approve in advance and in writing), defend Landlord, Landlord's
Agents, and Landlord's officers, directors, shareholders, partners, employees,
contractors, property managers, agents and mortgagees and other lien holders,
from and against any and all Losses (as defined below), whenever such Losses
arise, arising from or related to: (a) any violation or alleged violation by
Tenant or any of Tenant's Parties of any of the requirements, ordinances,
statutes, regulations or other laws referred to in this PARAGRAPH 11.B,
including, without limitation, the Environmental Laws, whether such violation or
alleged violation occurred prior to (but only to the extent that such violation
or alleged violation arises from Tenant's early occupancy of the Premises
pursuant to PARAGRAPH 40 below), on, or after the Commencement Date; (b) any
breach of the provisions of this PARAGRAPH 11.B by Tenant or any of Tenant's
Parties; or (c) any Hazardous Use on, about or from the Premises by Tenant or
any of Tenant's Parties of any Hazardous Materials (whether or not approved by
Landlord under this Lease), whether such Hazardous Use occurred prior to, on, or
after the Commencement Date. The term "LOSSES" shall mean all claims, demands,
expenses, actions, judgments, damages (whether consequential, direct or
indirect, known or unknown, foreseen or unforeseen), penalties, fines,
liabilities, losses of every kind and nature (including, without limitation,
property damage, diminution in value of Landlord's interest in the Premises,
damages for the loss of restriction on use of any space or amenity within the
Premises, damages arising from any adverse impact on marketing space in the
Premises, sums paid in settlement of claims and any costs and expenses
associated with injury, illness or death to or of any person), suits,
administrative proceedings, costs and fees, including, but not limited to,
reasonable attorneys' and consultants' fees and expenses, and the costs of
cleanup, remediation, removal and restoration, that are in any way related to
any matter covered by the foregoing indemnity.
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(ix) SURVIVAL. The provisions of this PARAGRAPH 11.B
shall survive the expiration or earlier termination of this Lease.
C. SPECIAL PROVISIONS RELATING TO THE AMERICANS WITH
DISABILITIES ACT OF 1990.
(i) ALLOCATION OF RESPONSIBILITY TO LANDLORD. As
between Landlord and Tenant, Landlord shall be responsible for assuring that the
Common Area owned by Landlord and the exterior of the Building comply with the
requirements of Title III of the Americans with Disabilities Act of 1990 (42
U.S.C. 12181, et seq., The Provisions Governing Public Accommodations and
Services Operated by Private Entities), and all regulations promulgated
thereunder, and all amendments, revisions or modifications thereto now or
hereafter adopted or in effect in connection therewith (hereinafter collectively
referred to as the "ADA"), and to take such actions and make such alterations
and improvements as are necessary for such compliance; provided, however, that
to the extent such requirements arise from the construction of any Alterations
to the Premises made by or on behalf of Tenant, then as between Landlord and
Tenant, Tenant shall be responsible that the Common Area complies with the
requirements of the ADA, and to take such actions and make such alterations and
improvements as are necessary for such compliance.
(ii) ALLOCATION OF RESPONSIBILITY TO TENANT. Except
as expressly provided in the Work Letter, as between Landlord and Tenant,
Tenant, at its sole cost and expense, shall be responsible for assuring that the
Premises (and all modifications made by Tenant of access to the Premises from
the street), and all alterations and improvements in the Premises (including
without limitation the Tenant Improvements), and Tenant's use and occupancy of
the Premises, and Tenant's performance of its obligations under this Lease,
comply with the requirements of the ADA, and to take such actions and make such
alterations and improvements as are necessary for such compliance; provided,
however, that Tenant shall not make any such alterations or improvements except
upon Landlord's prior written consent (which shall not be unreasonably withheld)
pursuant to the terms and conditions of this Lease. If Tenant fails diligently
to take such actions or make such alterations or improvements as are necessary
for such compliance, Landlord may, but shall not be obligated to, take such
actions and make such
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alterations and improvements and may recover all of the costs and expenses of
such actions, alterations and improvements from Tenant as Additional Rent.
Tenant shall be entitled to utilize the Tenant Improvements Allowance to pay for
the cost of any improvements required by ADA that are triggered by the
construction of the Tenant Improvements.
(iii) GENERAL. Notwithstanding anything in this Lease
contained to the contrary, no act or omission of either party, including any
approval, consent or acceptance by it or its agents, employees or other
representatives, shall be deemed an agreement, acknowledgment, warranty, or
other representation by it that the other party has complied with the ADA as
provided under PARAGRAPHS 11.C.(I) or 11.C.(II) or that any action, alteration
or improvement by it complies or will comply with the ADA as provided under
PARAGRAPHS 11.C.(I) or 11.C.(II) or constitutes a waiver by it of the other
party's obligations to comply with the ADA under PARAGRAPHS 11.C.(I) or
11.C.(II) of this Lease or otherwise. Any failure of either party to comply with
its obligations of the ADA under PARAGRAPHS 11.C.(I) or 11.C.(II) shall not
relieve such party from any obligations under this Lease or in the case of
Landlord's failure to comply under PARAGRAPH 11.C.(I), constitute or be
construed as a constructive or other eviction of Tenant or disturbance of
Tenant's use and possession of the Premises.
D. USE AND MAINTENANCE OF COMMON AREA. Tenant and its
employees and invitees shall have the non-exclusive right to use the Common Area
in common with other persons during the Term of this Lease, subject to the CC&Rs
and such reasonable rules and regulations as may from time to time be deemed
necessary or advisable in Landlord's reasonable discretion for the proper and
efficient operation and maintenance of the Common Area. Such rules and
regulations may include, among other things, the hours during which the Common
Area shall be open for use. Landlord shall maintain and operate the Common Area
from time to time owned by Landlord in good condition, provided that any damage
thereto, other than normal wear and tear, occasioned by the negligence of Tenant
or its employees or invitees shall be paid by Tenant upon demand by Landlord.
12. QUIET ENJOYMENT.
Landlord covenants that Tenant, upon performing the terms,
conditions and covenants of this Lease, shall have quiet
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and peaceful possession of the Premises as against any person claiming the same
by, through or under Landlord.
13. ALTERATIONS.
A. ALTERATION RIGHTS. After the Commencement Date, Tenant
shall not make or permit any Alterations in, on or about the Premises, without
the prior written consent of Landlord, and according to plans and specifications
approved in writing by Landlord, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing Tenant shall not, without the prior
written consent of Landlord, make any:
(i) Alterations to the exterior of the Building;
(ii) Alterations to the roof of the Building; and
(iii) Alterations visible from outside the Building,
to which Landlord may withhold Landlord's consent on wholly aesthetic grounds.
Notwithstanding anything to the contrary herein, Tenant may make alterations to
the Premises without Landlord's prior consent (but with notice to Landlord)
provided the same do not cost in excess of Twenty-Five Thousand Dollars
($25,000) in each instance (and that Tenant has not performed alterations to the
Premises during any period of twelve (12) consecutive months that in the
aggregate cost in excess of Seventy-Five Thousand Dollars ($75,000)), are not
structural in nature, do not affect Building systems or the exterior of or the
roof of the Building, and are not visible from the outside of the Building.
B. PERFORMANCE OF ALTERATIONS. All Alterations shall be
installed at Tenant's sole expense, in compliance with all applicable laws, by a
licensed contractor, shall be done in a good and workmanlike manner conforming
in quality and design with the Premises existing as of the Commencement Date,
and shall not diminish the value of either the Building or the Premises. All
Alterations made by Tenant shall be and become the property of Landlord upon
installation and shall not be deemed Tenant's Personal Property, and Tenant
shall not remove any Alterations from the Premises unless Tenant has first
obtained Landlord's written consent to such removal. Landlord may require Tenant
to remove, at Tenant's expense, any Alterations from the Premises at the
expiration or earlier termination of this Lease; provided,
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however, that at the time any Alterations are constructed, Tenant shall have the
right to request Landlord's written approval (which shall not be unreasonably
withheld or delayed) that Landlord will not require the removal of such
Alterations at the expiration or earlier termination of this Lease.
Notwithstanding any other provision of this Lease, Tenant shall be solely
responsible for the maintenance and repair of any and all Alterations made by it
to the Premises. Tenant shall give Landlord written notice of Tenant's intention
to perform work on the Premises at least ten (10) days prior to the commencement
of such work to enable Landlord to post and record a Notice of Nonresponsibility
or other notice deemed proper before the commencement of any such work.
Notwithstanding anything to the contrary contained herein, Tenant shall not be
required to remove (i) any of the initial Tenant Improvements constructed by or
on behalf of Tenant, and (ii) any alterations, additions or improvements for
which Tenant has obtained Landlord's consent, but only if at the time Tenant
requested Landlord's consent thereto, Tenant gave Landlord a written request
that Landlord identify in writing which, if any, of Tenant's alterations,
additions or improvements must in Landlord's sole discretion be removed upon the
expiration of the Term, and Landlord did not notify Tenant within twenty (20)
days after Landlord's receipt of such notice that such alterations, additions or
improvements must be removed upon the expiration of the Term.
14. SURRENDER OF THE PREMISES.
Upon the expiration or earlier termination of the Term, Tenant
shall surrender the Premises to Landlord in its condition existing as of the
date of substantial completion of the Improvements, normal wear and tear and
fire or other casualty excepted, with all interior walls repaired if damaged,
all broken, marred or nonconforming acoustical ceiling tiles replaced, all
windows washed, the plumbing and electrical systems and lighting in good order
and repair, including replacement of any burned out or broken light bulbs or
ballasts, the HVAC equipment serviced and repaired by a reputable and licensed
service firm, and all floors cleaned, all to the reasonable satisfaction of
Landlord. Tenant shall remove from the Premises all of Tenant's Alterations
required to be removed pursuant to PARAGRAPH 13, and all of Tenant's Personal
Property, and repair any damage and perform any restoration work caused by such
removal. If Tenant fails to remove such Alterations and Tenant's Personal
Property, and such failure continues after the
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expiration or earlier termination of this Lease, Landlord may, to the extent
permitted by law, retain such Alterations and Tenant's Property and all rights
of Tenant with respect to it shall cease, or Landlord may place all or any
portion of such Alterations and Tenant's Property in public storage for Tenant's
account. Tenant shall be liable to Landlord for costs of removal of any such
Alterations and Tenant's Personal Property and storage and transportation costs
of same, and the cost of repairing and restoring the Premises, together with
interest at the Interest Rate from the date of expenditure by Landlord. If the
Premises are not so surrendered at the expiration or earlier termination of this
Lease, Tenant shall indemnify Landlord and Landlord's Agents against all loss or
liability, including reasonable attorneys' fees and costs, resulting from delay
by Tenant in so surrendering the Premises.
Normal wear and tear, for the purposes of this Lease, shall be
construed to mean wear and tear caused to the Premises by a natural aging
process which occurs in spite of prudent application of good standards for
maintenance, repair and janitorial practices. It is not intended, nor shall it
be construed, to include items of neglected or deferred maintenance which would
have or should have been attended to during the Term of the Lease if good
standards had been applied to properly maintain and keep the Premises at all
times in good condition and repair.
15. IMPOSITIONS AND REAL PROPERTY TAXES.
A. PAYMENT BY TENANT. Tenant shall pay all Impositions prior
to delinquency. If billed directly, Tenant shall pay such Impositions and
concurrently present to Landlord satisfactory evidence of such payments. If any
Impositions are billed to Landlord or included in bills to Landlord for Real
Property Taxes, then Tenant shall pay to Landlord all such amounts not less than
five (5) days prior to the date such Imposition would be delinquent. If
applicable law prohibits Tenant from reimbursing Landlord for an Imposition, but
Landlord may lawfully increase the Monthly Rent to account for Landlord's
payment of such Imposition, the Monthly Rent payable to Landlord shall be
increased so that the amount of such increased Monthly Rent, together with any
accompanying increases in the Real Property Taxes payable by Tenant with respect
to such Imposition, are sufficient to net to Landlord the same return without
reimbursement of such Imposition as would have been received by
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Landlord with reimbursement of such Imposition. In addition, on or before April
10 and December 10 of each year of the Term, Tenant shall pay directly to the
San Mateo County assessor the Real Property Taxes for the Premises as set forth
on the assessor's tax bill for the Premises. If, however, the Premises are not a
separate parcel for tax purposes but constitute a portion of a larger tax parcel
or parcels, the Real Property Taxes payable by Tenant under this Lease shall be
a percentage of the Real Property Taxes payable for such parcel or parcels,
which percentage shall be determined by dividing the Rentable Area of the
Premises by the total Rentable Area of all buildings on such parcel or parcels
and multiplying the result by 100, which Real Property Taxes shall be payable by
Tenant to Landlord monthly as part of the Common Area Maintenance Costs. Tenant,
at its cost, shall have the right at any time to seek a reduction in or
otherwise contest any Real Property Taxes for which it is obligated to reimburse
Landlord pursuant to this PARAGRAPH 15, by action or proceeding against the
entity with authority to assess or impose the same. Landlord shall not be
required to join in any proceeding or action brought by Tenant unless the
provisions of applicable regulations require that such proceeding or action be
brought by or in the name of Landlord, in which event Landlord shall join in
such proceeding or action or permit it to be brought in Landlord's name,
provided that Tenant shall protect, indemnify, defend, and hold Landlord free
and harmless from and against any and all loss, liability, cost, damage, claim
or expense in connection with such proceeding or contest. Tenant shall continue,
during the pendency of such proceeding or action, to pay the Real Property Taxes
due as determined by landlord pursuant to this PARAGRAPH 15. If Tenant is
successful in such action or proceeding, Landlord shall reimburse to Tenant its
prorata share of the reduction in Real Property Taxes realized by Tenant in such
contest or proceeding within ten (10) days after the amount of such reduction
has been determined.
(i) TAX PARCELS. If Landlord determines in its
reasonable discretion that the configuration of tax parcels within the Project
(including without limitation the tax parcel on which the Premises is situated)
causes the allocation of Real Property Taxes between the affected tax parcels to
be unfair or inequitable, Landlord reserves the right to internally reallocate
the Real Property Taxes assessed against such affected tax parcels in a manner
that reasonably addresses such unfairness or inequity. If Landlord effects any
such reallocation, then the
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Real Property Taxes payable by Tenant under this Lease shall be those Real
Property Taxes allocated to the Premises pursuant to this PARAGRAPH 15.A.(I).
(ii) PAYMENT. Promptly following payment of the Real
Property Taxes, Tenant shall provide Landlord with copies of paid receipts or
other documentary evidence that the Real Property Taxes have been paid by
Tenant. If Tenant fails to pay the Real Property Taxes on or before April 10 and
December 10, respectively, or if Tenant fails to pay its share of Real Property
Taxes as part of the Common Area Maintenance Costs, Tenant shall pay to Landlord
any penalty incurred by such late payment. In addition, Tenant shall pay any
Real Property Tax not included within the county tax assessor's tax bill within
ten (10) days after being billed for same by Landlord. The foregoing dates are
based on the dates established by the county as the dates on which Real Property
Taxes become delinquent if not paid. If such delinquency dates change, the dates
on which Tenant must pay the Real Property Taxes for the Premises shall be at
least ten (10) days prior to the new delinquency dates. Assessments, taxes,
fees, levies and charges may be imposed by governmental agencies for such
purposes as fire protection, street, sidewalk, road, utility construction and
maintenance, refuse removal and for other governmental services which may
formerly have been provided without charge to property owners or occupants. It
is the intention of the parties that all new and increased assessments, taxes,
fees, levies and charges are to be included within the definition of Real
Property Taxes for the purposes of this Lease.
B. TAXES ON TENANT IMPROVEMENTS AND PERSONAL PROPERTY. Tenant
shall pay any increase in Real Property Taxes resulting from any and all
Alterations and Tenant Improvements of any kind whatsoever placed in, on or
about the Premises for the benefit of, at the request of, or by Tenant. Tenant
shall pay prior to delinquency all taxes assessed or levied against Tenant's
Personal Property in, on or about the Premises or elsewhere. When possible,
Tenant shall cause its Personal Property to be assessed and billed separately
from the Premises and the real property or Personal Property of Landlord.
C. PRORATION. Tenant's liability to pay Real Property Taxes
shall be prorated on the basis of a 360-day year to account for any fractional
portion of a fiscal tax year included at the commencement or expiration of the
Term. With
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respect to any assessments which may be levied against or upon the Premises or
all or any portion of the Project, or which under the laws then in force may be
evidenced by improvements or other bonds or may be paid in annual installments,
only the amount of such annual installment (with appropriate proration for any
partial year) and interest due thereon shall be included within the computation
of the annual Real Property Taxes levied against the Premises or such portion of
the Project, as applicable.
16. UTILITIES AND SERVICES.
Tenant shall be responsible for and shall pay promptly all
charges for water, gas, electricity, telephone, refuse pick-up, janitorial
service and all other utilities, materials and services furnished directly to or
used by Tenant in, on or about the Premises during the Term, together with any
taxes thereon. If any utility, material or service is not separately charged or
metered to any portion of the Premises, Tenant shall pay to Landlord, within ten
(10) days after written demand therefor, Tenant's pro rata share of the total
cost thereof as may be determined by Landlord. Landlord shall not be liable in
damages or otherwise for any failure or interruption of any utility service or
other service furnished to the Premises, except that resulting from the gross
negligence or willful misconduct of Landlord. Tenant shall have the right to
contract directly with vendors for janitorial and maintenance services, provided
such vendors must be approved in advance by Landlord, which approval shall not
be unreasonably withheld; and provided further, that Tenant shall have no right
to contract with any vendor to maintain the Building's HVAC system, which shall
be the sole responsibility of Landlord as set forth in PARAGRAPH 17.A.
17. REPAIR AND MAINTENANCE.
A. LANDLORD'S OBLIGATIONS. Landlord shall keep in good order,
condition and repair the structural parts of the Building, which structural
parts consist only of the foundation, subflooring, exterior walls (excluding the
interior of all walls and the exterior and interior of all windows, doors,
ceilings, and plate glass), and roof of the Building, and all plumbing and
electrical facilities leading up to (but not situated within) the Building,
except for any damage thereto caused by the negligence or willful acts or
omissions of Tenant or of Tenant's agents, employees or invitees, or by reason
of the failure of Tenant to perform or comply with any terms of this Lease, or
caused by
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Alterations made by Tenant or by Tenant's agents, employees or contractors. It
is an express condition precedent to all obligations of Landlord to repair and
maintain that Tenant shall have notified Landlord of the need for such repairs
or maintenance. Tenant waives the provisions of Sections 1941 and 1942 of the
California Civil Code and any similar or successor law regarding Tenant's right
to make repairs and deduct the expenses of such repairs from the Rent due under
this Lease. Landlord shall keep in good order, condition, repair and maintenance
the Building's HVAC system and roof, and shall maintain an HVAC system
preventive maintenance service contract from a qualified vendor at a competitive
price for the purpose of maintaining the Building's HVAC system, and a roof
maintenance service contract from a qualified vendor for the purpose of
maintaining the Building's roof. Landlord shall determine in its sole discretion
whether any such vendor is qualified. Any and all costs of any maintenance or
repair of the HVAC system or the roof (including without limitation the cost of
maintaining HVAC system preventative maintenance contracts and roof maintenance
service contracts) shall be included in the Common Area Maintenance Costs
payable by Tenant for the year in which such cost is incurred. Landlord may
elect, in its sole discretion, to paint the exterior of the Building and/or to
replace or perform capital improvements to any area or aspect of the Building
which Landlord is required keep in good order, condition and repair. Subject to
the provisions of PARAGRAPH 17.A(I) below, if Landlord decides, in its sole
discretion, to replace the roof of the Building or make other capital
improvements or replacements to the Building or its systems during the Term,
then the cost of so replacing the roof or performing such replacement, together
with interest at the Interest Rate, shall be amortized on a straight-line basis
over the useful life of the roof or capital improvement or replacement (as
determined by Landlord in its sole discretion) (the "USEFUL LIFE"), and the
entire amount of such amortized costs and interest allocable to each month,
multiplied by Tenant's Building Share, shall be included in the monthly Common
Area Maintenance Costs payable by Tenant during the entire period over which
such costs are amortized, until Tenant has paid to Landlord that proportion of
the total amount of such amortized costs equal to (a) the number of months
remaining during the Term as of the date such roof replacement was completed,
divided by (b) the number of months of the Useful Life, multiplied by (c)
Tenant's Building Share. For the purposes of example only and not by way of
limitation, if the Building's roof is replaced twenty-four (24) months before
the end of the Term, at a cost of
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Fifty Thousand Dollars ($50,000.00), and the Useful Life is one hundred twenty
(120) months, then (a) the cost of such replacement shall be amortized at the
rate of Four Hundred Sixteen and 67/100ths Dollars ($416.67) per month, with
interest at the Interest Rate, and (b) the amount to be included in the monthly
Common Area Maintenance Costs payable solely by Tenant for the balance of the
Term shall equal Two Hundred Ninety-One and 67/100ths Dollars ($291.67), with
interest at the Interest Rate, until Tenant has paid to Landlord a total
aggregate amount of Seven Thousand Dollars ($7,000.00), together with interest
at the Interest Rate, towards such amortized costs (i.e., Fifty Thousand Dollars
($50,000.00) multiplied by [Twenty-Four (24) months divided by One Hundred
Twenty (120) months]) multiplied by Tenant's Building Share. If Tenant exercises
the Option to Extend, the total length of the Term (i.e., the initial Term and
the Extended Term) shall be utilized to calculate the maximum amount of such
amortized costs that shall be includable in the monthly Common Area Maintenance
Costs payable solely by Tenant pursuant to this PARAGRAPH 17.A.
It is the express intent of the parties that except as
specifically set forth in this PARAGRAPH 17.A, Landlord shall have no obligation
whatsoever to repair or maintain the Premises or the Building, and that Tenant
shall be responsible for performing all repair, operation, and maintenance of
the Premises except for those tasks specifically described in this PARAGRAPH
17.A. If Tenant gives Landlord written notice ("DEFECT NOTICE") that there is a
defect or other problem with the Capital Improvements that may be covered by a
warranty issued by Contractor (as defined in EXHIBIT B) or any subcontractor
that performed any of the Capital Improvements, Landlord shall (i) assign to
Tenant the benefit of those warranties (if any) held by Landlord that are
applicable to the defects described in the Defect Notice, (ii) at no cost or
expense to Landlord, take such actions as may be reasonably requested by Tenant
to assist Tenant's efforts to enforce any such warranties.
It is also the express intent of the parties that if Landlord
for any reason fails to complete all of the Capital Improvements before the
Commencement Date, Landlord shall complete the construction of the Capital
Improvements at its sole cost and expense, and shall have no right to include
the cost of completing the Capital Improvements in Common Area Maintenance Costs
or otherwise seek reimbursement from Tenant for the cost of completing the
Capital Improvements.
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(i) The parties acknowledge and agree that as part of
the Capital Improvements, Landlord will install a new roof on the Building, that
the roof will be covered by one or more warranties (collectively, the "Roof
Warranties"), and that the roof has an estimated useful life of ten (10) years.
Notwithstanding anything to the contrary set forth above in this PARAGRAPH 17.A,
if Landlord elects to replace the roof of the Building within ten (10) years
from the date such roof was originally installed, and the cost of so replacing
the roof exceeds any amounts covered or paid for under the Roof Warranties, then
(i) the amount of any such excess shall be collectively called the "Excess Roof
Replacement Costs"; (ii) the cost of the initial roof installation (as
reasonably determined by Landlord) shall be amortized on a straight-line basis,
over the ten (10) year useful life of such roof, determined as of the date the
roof replacement commences, and the unamortized portion of such costs shall
hereafter be called the "Unamortized Roof Costs"; and (iii) only those Excess
Roof Replacement Costs that exceed the Unamortized Roof Costs (if any) shall be
includable in Common Area Maintenance Costs in the manner set forth above in
this PARAGRAPH 17.A.
B. TENANT'S OBLIGATIONS. Tenant shall at all times and at its
sole cost and expense clean, keep and maintain in good order, condition and
repair (and replace, if necessary) every part of the Premises which is not
within Landlord's obligation pursuant to PARAGRAPH 17.A. Tenant's repair and
maintenance obligations shall include without limitation all plumbing and
electrical facilities situated within the Premises, fixtures, interior walls and
ceiling, floors, windows, window frames, doors, entrances, plate glass,
showcases, skylights, all lighting fixtures, lamps, fans and any exhaust
equipment and systems, all mechanical systems (but not the HVAC system), any
automatic fire extinguisher equipment within the Premises, all security systems
and alarms, all electrical motors and all other appliances and equipment of
every kind and nature located in, upon or about the Premises. Tenant shall also
be responsible for all pest control within the Premises.
C. CONDITIONS APPLICABLE TO REPAIRS. All repairs, replacements
and reconstruction made by or on behalf of Tenant or any person claiming through
or under Tenant shall be made and performed (i) at Tenant's sole cost and
expense, in a good and workmanlike manner and at such time and in such manner as
Landlord may reasonably designate, (ii) by contractors approved
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in advance by Landlord, (iii) so that the repairs, replacements or
reconstruction shall be at least equal in quality, value and utility to the
original work or installation, (iv) in accordance with such reasonable
requirements as Landlord may impose with respect to insurance and bonds to be
obtained by Tenant in connection with the proposed work (provided that Tenant
shall not be required to post a bond if the total cost of any such repair,
replacement or reconstruction work is equal to or less than Twenty-Five Thousand
Dollars ($25,000.00)), and (v) in accordance with any rules and regulations for
the Building as may be adopted by Landlord from time to time and in accordance
with all applicable laws and regulations of governmental authorities having
jurisdiction over the Premises.
D. LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's
obligations under PARAGRAPH 17.B, Landlord may in its sole discretion give
Tenant notice of such work as is reasonably required to fulfill such
obligations. If Tenant fails to commence the work within thirty (30) days after
receipt of such notice and diligently prosecute the work to completion, then
Landlord shall have the right (but not the obligation) to do such acts or expend
such funds at the expense of Tenant as are reasonably required to perform such
work. Any amount so expended by Landlord shall be paid by Tenant to Landlord
promptly after demand with interest at the Interest Rate. Landlord shall have no
liability to Tenant for any damage to, or interference with Tenant's use of, the
Premises, or inconvenience to Tenant as a result of performing any such work.
E. COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Tenant shall, at
its sole cost and expense, comply with, including the making by Tenant of any
Alteration to the Premises, all present and future regulations, rules, laws,
ordinances, and requirements of all governmental authorities (including, without
limitation state, municipal, county and federal governments and their
departments, bureaus, boards and officials) applicable to the Premises.
Notwithstanding the foregoing or anything to the contrary contained in this
Lease, Tenant shall not be responsible for compliance with any regulations,
rules, laws, ordinances, or requirements of all governmental authorities where
such compliance is not related specifically to Tenant's use and occupancy of the
Premises. For example, if any governmental authority should require the Building
or the Premises to be structurally strengthened against earthquake, or should
require the removal of asbestos from the Premises and such measures are
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imposed as a general requirement applicable to all tenants rather than as a
condition to Tenant's specific use or occupancy of the Premises, such work shall
be performed by and at the sole cost of Landlord, subject to contribution by
Tenant to the extent included in Common Area Maintenance Costs.
18. LIENS.
Tenant shall keep the Building and the Premises free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by or on behalf of Tenant, and free from any liens arising out of any
effort by Tenant to reduce or contest Impositions, or Tenant's exercise of its
rights under Paragraph 39 below, and Tenant hereby agrees to indemnify, defend,
protect and hold Landlord and Landlord's Agents harmless from and against any
and all loss, claim, damage, liability, cost and expense, including attorneys'
fees and costs, in connection with or arising out of any such lien or claim of
lien. Tenant shall cause any such lien imposed to be released of record by
payment or posting of a proper bond acceptable to Landlord within ten (10) days
after written request by Landlord. Tenant shall give Landlord written notice of
Tenant's intention to perform work on the Premises which might result in any
claim of lien at least ten (10) days prior to the commencement of such work to
enable Landlord to post and record a Notice of Nonresponsibility or any such
other notice(s) as Landlord may deem appropriate. If Tenant fails to so remove
any such lien within the prescribed ten 10-day period, then Landlord may do so
at Tenant's expense and Tenant shall reimburse Landlord for such amounts upon
demand. Such reimbursement shall include all costs incurred by Landlord
including Landlord's reasonable attorneys' fees with interest thereon at the
Interest Rate.
19. LANDLORD'S RIGHT TO ENTER THE PREMISES.
Tenant shall permit Landlord and Landlord's Agents to enter
the Premises at all reasonable times with reasonable notice, except for
emergencies in which case no notice shall be required, to inspect the same, to
post Notices of Nonresponsibility and similar notices, and real estate "For
Sale" signs, to show the Premises to interested parties such as prospective
lenders and purchasers, to make necessary repairs, to discharge Landlord's
obligations under this Lease, to discharge Tenant's obligations under this Lease
when Tenant has failed to do so within a reasonable time after written notice
from
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Landlord, and to place upon the Building ordinary "For Lease" signs and to show
the Premises to prospective tenants (provided that so long as Tenant is not in
default under any term or condition of this Lease after notice from Landlord and
the expiration of any applicable cure period granted by this Lease, Landlord
shall only be permitted to show the Premises to prospective tenants during the
last twelve (12) months of the Term).
20. SIGNS.
Subject to Tenant obtaining all necessary approvals from the
City of Redwood City and subject to Landlord's review and approval of plans and
specifications for any proposed signage, which approval may be withheld only in
Landlord's commercially reasonable judgment, Tenant shall have the exclusive
right to install identification signage with its name and logo near the north
entry on the exterior of the Building in the location depicted on EXHIBIT B-1 so
long as such signage complies with Landlord's project sign program. Tenant shall
have no right to maintain any Tenant identification sign in any other location
in, on or about the Building or the Premises and shall not display or erect any
other Tenant identification sign, display or other advertising material that is
visible from the exterior of the Building. Any changes to the size, design,
color or other physical aspects of Tenant's identification sign(s) shall be
subject to the Landlord's prior written approval, which shall not be
unreasonably withheld, and any appropriate municipal or other governmental
approvals. The cost of Tenant's sign(s) and their installation, maintenance and
removal shall be Tenant's sole cost and expense. If Tenant fails to maintain its
sign(s), or, if Tenant fails to remove its sign(s) upon termination of this
Lease, Landlord may do so at Tenant's expense and the amounts expended by
Landlord in doing so shall be immediately payable by Tenant to Landlord as
Additional Rent.
21. INSURANCE.
A. INDEMNIFICATION. Tenant shall indemnify, defend, protect
and hold Landlord harmless of and from any and all loss, liens, liability,
claims, causes of action, damage, injury, cost or expense arising out of or in
connection with, or related to (i) the negligent making of Alterations, or (ii)
injury to or death of persons or damage to property occurring or resulting
directly or indirectly from: (A) the use or occupancy of, or the
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conduct of business in, the Premises; (B) any other occurrence or condition in
or on the Premises; and (C) acts or omissions of Tenant, its officers,
directors, agents, employees, invitees or licensees in or about any portion of
the Project. Tenant's indemnity obligation includes reasonable attorneys' fees
and costs, investigation costs and all other reasonable costs and expenses
incurred by Landlord. If Landlord reasonably disapproves the legal counsel
proposed by Tenant for the defense of any claim indemnified against hereunder,
Landlord shall have the right to appoint its own legal counsel, the reasonable
fees, costs and expenses of which shall be included as part of Tenant's
indemnity obligation hereunder. The indemnification contained in this PARAGRAPH
21.A shall extend to the officers, directors, shareholders, partners, employees,
agents and representatives of Landlord. The obligations assumed by Tenant herein
shall survive this Lease. Notwithstanding the foregoing, Landlord shall have the
right, in its sole discretion, but without being required to do so, to defend,
adjust, settle or compromise any claim, obligation, debt, demand, suit or
judgment against Landlord arising out of or in connection with the matters
covered by the foregoing indemnity and, in such event, Tenant shall reimburse
Landlord for all reasonable charges and expenses incurred by Landlord in
connection therewith, including reasonable attorneys' fees; provided, however,
that Landlord shall not undertake any unilateral action or settlement so long as
Tenant or an insurance company, at its or their sole expense, is contesting in
good faith, diligently and with continuity such claim, action, obligation,
demand or suit, and so long as such claim, action, obligation, demand or suit
does not have or threaten to have a material adverse impact on Landlord's
assets, reputation or business affairs.
Notwithstanding anything to the contrary in this PARAGRAPH
21.A:
(i) Tenant shall not be required to indemnify, defend
or hold Landlord harmless from or against loss, liens, liability, claims, causes
of action, damage, injury, cost or expense to the extent arising out of: (a) the
breach by Landlord or Landlord's Agents of any covenant, representation or
warranty under this Lease, or (b) any negligence or willful misconduct of
Landlord or Landlord's Agents.
(ii) Landlord shall indemnify, defend, protect and
hold Tenant harmless of and from any and all loss, liens,
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liability, claims, causes of action, damage, injury, cost or expense arising out
of or in connection with, or related to the acts or omissions of Landlord or
Landlord's Agents, except to the extent arising out of: (a) the breach by Tenant
or Tenant's officers, directors, agents, employees, invitees, licensees or
contractors of any covenant, representation or warranty under this Lease, or (b)
any negligence or willful misconduct of Tenant or Tenant's officers, directors,
agents, employees, invitees, licensees or contractors. Landlord's
indemnification shall extend to the officers, directors, shareholders, partners,
employees, agents and representatives of Tenant.
B. TENANT'S INSURANCE. Tenant agrees to maintain in full force
and effect at all times during the Term, at its sole cost and expense, for the
protection of Tenant and Landlord, as their interests may appear, policies of
insurance issued by a responsible carrier or carriers acceptable to Landlord
which afford the following coverages:
(i) Commercial general liability insurance in an
amount not less than Three Million Dollars ($3,000,000) combined single limit
for both bodily injury and property damage, with a limit of not less than One
Million Dollars ($1,000,000) per occurrence and not less than Two Million
Dollars ($2,000,000) in excess liability coverage, which includes blanket
contractual liability broad form property damage, personal injury, completed
operations, and products liability, which policy shall name Landlord and
Landlord's Agents as additional insureds and shall contain a provision that "the
insurance provided Landlord hereunder shall be primary and non-contributing with
any other insurance available to Landlord with respect to any damage, loss,
liability or expense covered by Tenant's indemnity obligations under PARAGRAPH
21.A of the Lease."
(ii) Causes of loss-special form property insurance
(including, without limitation, vandalism, malicious mischief, inflation
endorsement, and sprinkler leakage endorsement) on Tenant's Personal Property
located on or in the Premises. Such insurance shall be in the full amount of the
replacement cost, as the same may from time to time increase as a result of
inflation or otherwise. As long as this Lease is in effect, the proceeds of such
policy shall be used for the repair and replacement of such items so insured.
Landlord shall have no interest in the insurance proceeds on Tenant's Personal
Property. Notwithstanding the foregoing, Tenant shall have the right, at
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its election, to self-insure with respect to any loss or damage to Tenant's
Personal Property.
(iii) Boiler and machinery insurance, including steam
pipes, pressure pipes, condensation return pipes and other pressure vessels and
HVAC equipment, including miscellaneous electrical apparatus, in an amount
satisfactory to Landlord.
(iv) Workers compensation insurance in the manner and
to the extent required by applicable law and with limits of liability not less
than the minimum required under applicable law, covering all employees of Tenant
having any duties or responsibilities in or about the Premises.
Any policy required to be maintained by Tenant under this Lease may be
maintained under a so-called "blanket policy" insuring other parties and/or
other locations, so long as the amount of insurance and type of coverage
required to be provided hereunder is not thereby diminished, changed or
adversely affected.
C. BUILDING INSURANCE. During the Term Landlord shall maintain
causes of loss-special form property insurance (including inflation endorsement,
sprinkler leakage endorsement, and, at Landlord's option, earthquake and flood
coverage; provided, however, that Landlord shall not be entitled to pass through
to Tenant the cost of earthquake insurance unless such insurance is obtained at
commercially reasonable rates) on the Building, excluding coverage of all
Tenant's Personal Property located on or in the Premises, but including the
Tenant Improvements; such insurance shall be for the full replacement value of
the Building, if such full replacement coverage is available from insurers, and
at commercially reasonable rates, reasonably acceptable to Landlord. Such
insurance shall also include insurance against loss of rents, including, at
Landlord's option, coverage for earthquake and flood, in an amount equal to the
Monthly Rent and Additional Rent, and any other sums payable under the Lease,
for a period of at least twelve (12) months commencing on the date of loss. Such
insurance shall name Landlord and Landlord's Agents as named insureds and
include a lender's loss payable endorsement in favor of Landlord's lender (Form
438 BFU Endorsement). Tenant shall reimburse Landlord monthly, as Additional
Rent, for Tenant's Building Share of one-twelfth (12th) of the annual cost of
such insurance on the first day of each calendar month of the Term, prorated for
any partial month, or on such other periodic basis as Landlord shall
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elect. If the insurance premiums are increased after the Commencement Date for
any reason, including without limitation due to an increase in the value of the
Building or its replacement cost, Tenant shall pay Tenant's Building Share of
such increase within ten (10) days of notice of such increase; provided,
however, that if any increase in such insurance premiums is due to any action or
failure to act of Tenant, including without limitation Tenant's use of the
Premises or any improvements installed by Tenant at the Premises, Tenant shall
pay the entire amount of such increase within ten (10) days of notice of such
increase. Landlord may, in its sole discretion, maintain the insurance coverage
described in this PARAGRAPH 21.C as part of an umbrella insurance policy
covering other properties owned by Landlord.
D. INCREASED COVERAGE. Upon demand, Tenant shall provide
Landlord, at Tenant's expense, with such increased amount of existing insurance,
and such other insurance as Landlord or Landlord's lender may reasonably
require, consistent with prudent industry practice, to afford Landlord and
Landlord's lender adequate protection.
E. FAILURE TO MAINTAIN. If Tenant fails to maintain any
insurance coverage that Tenant is required to maintain under this PARAGRAPH 21,
and Landlord incurs any liability to its insurance carrier arising out of
Tenant's failure to so maintain such insurance coverage, then any and all loss
or damage Landlord shall sustain by reason thereof, including attorneys' fees
and costs, shall be borne by Tenant and shall be immediately paid by Tenant upon
its receipt of a bill therefor and evidence of such loss. Nothing contained in
this PARAGRAPH 21.E shall be deemed to limit or affect any other remedies or
rights available to Landlord under this Lease that arise from Tenant's failure
to so maintain such insurance coverage.
F. INSURANCE REQUIREMENTS. All insurance shall be in a form
satisfactory to Landlord and shall be carried in companies that have a general
policy holder's rating of not less than "A" and a financial rating of not less
than Class "X" in the most current edition of BEST'S INSURANCE REPORTS; and
shall provide that such policies shall not be subject to material alteration or
cancellation except after at least thirty (30) days' prior written notice to
Landlord. The policy or policies, or duly executed certificates for them,
together with satisfactory evidence of payment of the premiums thereon shall be
deposited
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with Landlord prior to the Commencement Date, and upon renewal of such policies,
not less than thirty (30) days prior to the expiration of the term of such
coverage. If Tenant fails to procure and maintain the insurance it is required
to maintain under this PARAGRAPH 21, Landlord may, but shall not be required to,
order such insurance at Tenant's expense and Tenant shall reimburse Landlord
therefor. Such reimbursement shall include all costs incurred by Landlord in
obtaining such insurance including Landlord's reasonable attorneys' fees, with
interest thereon at the Interest Rate.
G. WAIVER AND RELEASE. Except to the extent due to the
negligence or willful misconduct of Landlord, Landlord shall not be liable to
Tenant or Tenant's employees, agents, contractors, licenses or invitees for, and
Tenant waives as against and releases Landlord and Landlord's Agents from, all
claims for loss or damage to any property or injury, illness or death of any
person in, upon or about the Premises and/or any other portion of the Project,
arising at any time and from any cause whatsoever (including without limitation
any claim caused in whole or in part by the act, omission, or neglect of other
tenants, contractors, licensees, invitees or other occupants of the Project or
their agents or employees; and any claim arising from any construction
activities taking place in, upon or about the Premises and/or any other portion
of the Project). Landlord and Landlord's Agents shall not be liable for any
latent defect in the Premises.
22. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery
against the other on account of loss or damage occasioned by such waiving party
to its property or the property of others under its control, to the extent that
such loss or damage would be covered by any causes of loss-special form policy
of insurance or its equivalent required to be or actually carried under
PARAGRAPH 21. Tenant and Landlord shall, upon obtaining policies of insurance
required hereunder, give notice to the insurance carrier that the foregoing
mutual waiver of subrogation is contained in this Lease and Tenant and Landlord
shall cause each insurance policy obtained by such party to provide that the
insurance company waives all right of recovery by way of subrogation against
either Landlord or Tenant in connection with any damage covered by such policy.
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23. DAMAGE OR DESTRUCTION.
A. LANDLORD'S OBLIGATION TO REBUILD. If all or any part of the
Premises or the Building is damaged or destroyed, Landlord shall promptly and
diligently repair the same unless it has the right to terminate this Lease as
provided herein and it elects to so terminate.
B. RIGHT TO TERMINATE. Landlord shall have the right to
terminate this Lease in the event any of the following events occur:
(i) insurance proceeds from the insurance Landlord is
required to carry pursuant to PARAGRAPH 21.C, or that Landlord actually carries,
are not available to pay one hundred percent (100%) of the cost of such repair,
excluding any applicable deductibles, for which Tenant shall be responsible;
provided, however, that if Tenant pays to Landlord, in immediately available
funds, within thirty (30) days after such casualty, any shortfall in such
insurance proceeds, as reasonably determined by Landlord, then Landlord shall
have no right to terminate the Lease pursuant to this item (i); provided
further, that if insurance proceeds are not available to pay one hundred percent
(100%) of the cost of such repair due solely to the fact that Landlord has
failed to carry the insurance described in PARAGRAPH 21.C, then Landlord shall
not have the right to terminate this Lease pursuant to this PARAGRAPH 23.B(I).
Notwithstanding anything to the contrary set forth above, if (a) all or any part
of the Premises or the Building is damaged or destroyed by a casualty event that
is covered by the insurance Landlord is required to carry pursuant to PARAGRAPH
21.C, or that Landlord actually carries, (b) proceeds from such insurance are
not available to pay one hundred percent (100%) of the cost of such repair,
excluding any applicable deductibles, (c) Landlord terminates the Lease pursuant
to its rights under this PARAGRAPH 23.B(I), (d) Landlord eventually receives
proceeds from such insurance due to such casualty event, and (e) a subsequent
tenant of the Premises that occupies the Premises prior to the tenth (10th)
anniversary of the Commencement Date elects to utilize the Tenant Improvements,
then Landlord shall pay to Tenant an amount equal to the present value of the
lesser of (x) the cost savings enjoyed by Landlord during the
originally-scheduled ten (10) year term of this Lease due to the use of the
Tenant Improvement by such subsequent tenant (with the amount of such savings to
be reasonably determined by Landlord), and (y) the unamortized
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Tenant Improvement Costs (as defined in EXHIBIT B) for the initial Tenant
Improvements, as of the date such subsequent tenant opens for business in the
Premises, with the Tenant Improvement Costs being amortized on a straight-line
basis over a period of ten (10) years, commencing on the Commencement Date, and
ending as of the date that is the mid-way point between the date this Lease is
terminated and the date on which such subsequent tenant opens for business in
the Premises;
(ii) either the Premises or the Building cannot, with
reasonable diligence, be fully repaired by Landlord within three hundred sixty
(360) days after the date of the damage or destruction; or
(iii) either the Premises or the Building cannot be
safely repaired because of the presence of hazardous factors, including, but not
limited to, earthquake faults, radiation, Hazardous Materials and other similar
dangers.
If Landlord elects to terminate this Lease, Landlord may give
Tenant written notice of its election to terminate within thirty (30) days after
such damage or destruction, and this Lease shall terminate fifteen (15) days
after the date Tenant receives such notice and both Landlord and Tenant shall be
released of all further liability under this Lease (except to the extent any
provision of this Lease expressly survives termination). If Landlord elects not
to terminate the Lease, subject to Tenant's termination right set forth below,
Landlord shall promptly commence the process of obtaining necessary permits and
approvals and repair of the Premises or Building as soon as practicable, and
this Lease will continue in full force and affect. All insurance proceeds from
insurance under PARAGRAPH 21, excluding proceeds for Tenant's Personal Property,
shall be disbursed and paid to Landlord. Tenant shall be required to pay to
Landlord an amount equal to that portion of any deductibles payable in
connection with any insured casualties that is allocable to the Premises, unless
the casualty was caused by the sole negligence or willful misconduct of
Landlord.
Tenant shall have the right to terminate this Lease if the
Premises cannot, with reasonable diligence, be fully repaired within two hundred
seventy (270) days from the date of damage or destruction. The determination of
the estimated repair periods in this PARAGRAPH 23 shall be made by an
independent, licensed contractor or engineer within thirty (30) days after such
damage
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or destruction. Landlord shall deliver written notice of the repair period to
Tenant after such determination has been made and Tenant shall exercise its
right to terminate this Lease, if at all, within ten (10) days of receipt of
such notice from Landlord. Upon such termination both Landlord and Tenant shall
be released of all further liability under this Lease (except to the extent any
provision of this Lease expressly survives termination).
C. LIMITED OBLIGATION TO REPAIR. Landlord's obligation, should
it elect or be obligated to repair or rebuild, shall be limited to the basic
portion of the Building in which the Premises are situated and the Tenant
Improvements, and shall not include any Alterations made by Tenant.
D. ABATEMENT OF RENT. Rent shall be temporarily abated
proportionately, during any period when, by reason of such damage or
destruction, Tenant's use of the Premises is impaired. Such abatement of Rent
shall be proportional to the extent of such impairment (with the extent of such
impairment to be reasonably determined by Landlord), and shall commence upon
such damage or destruction and end upon substantial completion by Landlord of
the repair or reconstruction which Landlord is obligated or undertakes to
perform. Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the Premises, damage to Tenant's Personal
Property or any inconvenience occasioned by such damage, repair or restoration.
Tenant hereby waives the provisions of Section 1932, Subdivision 2, and Section
1933, Subdivision 4, of the California Civil Code, and the provisions of any
similar law hereinafter enacted.
E. DAMAGE NEAR END OF TERM. Anything herein to the contrary
notwithstanding, if the Premises is destroyed or materially damaged during the
last twelve (12) months of the Term (unless Tenant has properly exercised the
Option to Extend), then either Landlord or Tenant may, at its option, cancel and
terminate this Lease as of the date of the occurrence of such damage, by
delivery of written notice to the other party and, in such event, upon such
termination both Landlord and Tenant shall be released of all further liability
under this Lease (except to the extent any provision of this Lease expressly
survives termination). If neither Landlord nor Tenant elects to terminate this
Lease, the repair of such damage shall be governed by PARAGRAPHS 23.A and 23.B.
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24. CONDEMNATION.
If title to all of the Premises is taken for any public or
quasi-public use under any statute or by right of eminent domain, or so much
thereof is so taken so that reconstruction of the Premises will not, in
Landlord's sole discretion, result in the Premises being reasonably suitable for
Tenant's continued occupancy for the uses and purposes permitted by this Lease,
this Lease shall terminate as of the date that possession of the Premises or
part thereof is taken, and upon such termination both Landlord and Tenant shall
be released of all further liability under this Lease (except to the extent any
provision of this Lease expressly survives termination). A sale by Landlord to
any authority having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be deemed a
taking under the power of eminent domain for all purposes of this PARAGRAPH 24.
If any part of the Premises is taken and the remaining part is
reasonably suitable for Tenant's continued occupancy for the purposes and uses
permitted by this Lease, this Lease shall, as to the part so taken, terminate as
of the date that possession of such part of the Premises is taken, and upon such
termination both Landlord and Tenant shall be released of all further liability
under this Lease with respect to that portion of the Premises that is taken
(except to the extent any provision of this Lease expressly survives
termination). The Rent and other sums payable hereunder shall be reduced in the
same proportion that Tenant's use and occupancy of the Premises is reduced. If
any portion of the Common Area is taken, Tenant's Rent shall be reduced only if
such taking materially interferes with Tenant's use of the Common Area and then
only to the extent that the fair market rental value of the Premises is
diminished by such partial taking. If the parties disagree as to the amount of
Rent reduction, the matter shall be resolved by arbitration and such arbitration
shall comply with and be governed by the California Arbitration Act, Sections
1280 through 1294.2 of the California Code of Civil Procedure. Each party hereby
waives the provisions of Section 1265.130 of the California Code of Civil
Procedure allowing either party to petition the Superior Court to terminate this
Lease in the event of a partial taking of the Premises.
All compensation or damages awarded or paid for any taking
hereunder shall belong to and be the property of Landlord, whether such
compensation or damages are awarded or paid as
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compensation for diminution in value of the leasehold, the fee or otherwise,
except that Tenant shall be entitled to any award allowed to Tenant for the
taking of Tenant's Personal Property, for the interruption of Tenant's business,
for its moving costs, or for the loss of its good will, and for that portion of
the unamortized cost of any tenant improvements to the Premises paid for by
Tenant, including but not limited to the initial Tenant Improvements, that is
allocable to the remainder of the Term as of the date of such taking. Except for
the foregoing allocation, no award for any partial or entire taking of the
Premises shall be apportioned between Landlord and Tenant, and Tenant assigns to
Landlord its interest in the balance of any award which may be made for the
taking or condemnation of the Premises, together with any and all rights of
Tenant arising in or to the same or any part thereof.
25. ASSIGNMENT AND SUBLETTING.
A. LANDLORD'S CONSENT. Subject to the provisions of PARAGRAPH
25.G below, Tenant shall not enter into a Sublet without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Any attempted
or purported Sublet without Landlord's prior written consent shall be void and
confer no rights upon any third person and, at Landlord's election, shall
terminate this Lease. Each Subtenant shall agree in writing, for the benefit of
Landlord, to assume, to be bound by, and to perform the terms, conditions and
covenants of this Lease to be performed by Tenant, as such terms, conditions and
covenants apply to the Sublet premises. Notwithstanding anything contained
herein, Tenant shall not be released from liability for the performance of each
term, condition and covenant of this Lease by reason of Landlord's consent to a
Sublet unless Landlord specifically grants such release in writing.
B. TENANT'S NOTICE. If Tenant desires at any time to Sublet
all or any portion of the Premises, Tenant shall first notify Landlord in
writing of its desire to do so.
C. INFORMATION TO BE FURNISHED. If Tenant desires at any time
to Sublet all or any portion of the Premises, then Tenant shall submit in
writing to Landlord: (i) the name of the proposed Subtenant; (ii) the nature of
the proposed Subtenant's business to be carried on in the Premises; (iii) the
terms and provisions of the proposed Sublet and a copy of the proposed form of
Sublet agreement containing a description of the subject
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premises; and (iv) such financial information, including financial statements,
as Landlord may reasonably request concerning the proposed Subtenant.
D. LANDLORD'S ALTERNATIVES. At any time within ten (10) days
after Landlord's receipt of the information specified in PARAGRAPH 25.C.,
Landlord may, by written notice to Tenant, elect: (i) to consent to the Sublet
by Tenant; or (ii) to refuse its consent to the Sublet. If Landlord consents to
the Sublet, Tenant may thereafter enter into a valid Sublet of the Premises or
applicable portion thereof, upon the terms and conditions and with the proposed
Subtenant set forth in the information furnished by Tenant to Landlord, subject,
however, at Landlord's election, to the condition that fifty percent (50%) of
any excess of the Subrent (the "Excess Subrent") over the Rent required to be
paid by Tenant under this Lease (or, if only a portion of the Premises is
Sublet, the pro rata share of the Rent attributable to the portion of the
Premises being Sublet) less (v) reasonable attorneys' fees, (w) leasing
commissions (which shall not include the cost of any trade fixtures, equipment
or personal property), (x) that portion of the unamortized Tenant Improvement
Costs (as defined in EXHIBIT B) for the initial Tenant Improvements allocable to
the portion of the Premises being Sublet (for the purposes of this clause (x),
the Tenant Improvement Costs shall be amortized over a period of ten (10) years,
at a per annum interest rate equal to the reference rate, or succeeding similar
index, announced from time to time by the Bank of America's main San Francisco
office, plus one percent (1%),(y) the cost of any tenant improvements (other
than the initial Tenant Improvements) paid for by Tenant and installed in the
portion of the Premises being Sublet for the specific purpose of carrying out
such Sublet, and (z) other reasonable subletting costs paid by Tenant on the
Sublet, shall be paid to Landlord.
E. PRORATION. If a portion of the Premises is Sublet, the pro
rata share of the Rent attributable to such partial area of the Premises shall
be determined by Landlord by dividing the Rent payable by Tenant hereunder by
the total square footage of the Premises and multiplying the resulting quotient
(the per square foot rent) by the number of square feet of the Premises which
are Sublet.
F. PARAMETERS OF LANDLORD'S CONSENT. Except as otherwise
provided herein, Landlord shall have the right to base its consent to any Sublet
hereunder upon such factors and
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considerations as Landlord reasonably deems relevant or material to the proposed
Sublet and the best interests of the Project's operations. Without limiting the
generality of the foregoing, Tenant acknowledges that it shall be reasonable for
Landlord to withhold its consent to any Sublet hereunder if Tenant has not
demonstrated that: (i) the proposed Subtenant is financially responsible, with
sufficient net worth and net current assets, properly and successfully to
operate its business in the Premises and meet the financial and other
obligations of this Lease; (ii) the proposed Subtenant possesses sound and good
business judgment, reputation and experience, and proven management skills in
the operation of a business or businesses substantially similar to the uses
permitted in the Premises under PARAGRAPH 11.A; and (iii) the use of the
Premises proposed by such Subtenant conforms to the permitted uses specified
under PARAGRAPH 11.A, and involves either no Hazardous Use or only such
Hazardous Use as shall be acceptable to Landlord in its sole discretion.
G. PERMITTED TRANSFERS. Notwithstanding the provisions of
PARAGRAPH 25.A above, Tenant shall have the right to enter into a Sublet, and
Landlord shall not withhold its consent thereto (provided that all of the
conditions set forth in clauses (A), (B) and (C) below shall be met), if such
Sublet is one of the following "Permitted Transfers": (i) a Sublet to the
surviving entity of a merger or consolidation involving the corporate entity
constituting the Tenant under this Lease; or (ii) a Sublet to any subsidiary or
Affiliate of the Tenant originally named in this Lease. However, the foregoing
Permitted Transfers shall be exempt from the requirement of Landlord's consent
only if all of the following conditions shall be met: (A) there shall be no
change in the use or operation of the Premises; (B) Tenant shall have provided
to Landlord all information to allow Landlord to determine, and Landlord shall
have determined, that the proposed transfer is a Permitted Transfer which is
exempt from the requirement of Landlord's consent; and (C) as of the effective
date of such Sublet, the proposed Subtenant has a net worth and net current
assets equal to or greater than those of the original Tenant under this Lease as
of the date of this Lease. No Sublet of the type described in this PARAGRAPH
25.G, nor any other transfer of all or any portion of Tenant's interest in the
Lease or the Premises, shall release Tenant of its obligations under this Lease.
In addition, any sale or transfer of the capital stock of Tenant shall be deemed
a Permitted Transfer if (1) such sale or transfer occurs in connection with
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any bona fide financing or capitalization for the benefit of Tenant, or (2)
Tenant becomes a publicly traded corporation, or (3) such sale or transfer is
made to any publicly traded corporation. Notwithstanding the provisions of
PARAGRAPH 25.D, Landlord shall not be entitled to any Excess Subrent in
connection with any Permitted Transfer.
In addition, Tenant shall have the right to sublease to one or
more subtenants one entire floor of the Premises with Landlord's prior written
consent, which shall not be unreasonably withheld, and without payment of any
Excess Subrent to Landlord as provided in PARAGRAPH 25.D in connection with such
sublease, provided (w) there shall be no change in the use or operation of the
Premises, (x) Tenant is not in default of its obligations hereunder, which
default is continuing after notice and the expiration of any applicable grace
period, at the time of entering into any such sublease, (y) Tenant is in
possession of the remainder of the Premises and remains primarily liable for all
of its obligations hereunder, and (z) no such sublease shall have a term that
expires beyond the thirty-sixth (36th) month following the Commencement Date.
Landlord acknowledges that the foregoing right is a material inducement for
Tenant to enter into this Lease. Tenant acknowledges that this grammatical
paragraph shall not apply to any assignment or attempted assignment of all or
any portion of its interest in this Lease, nor to any sublease of all or any
portion of the Premises by Tenant for a term that expires beyond the
thirty-sixth (36th) month following the Commencement Date. The rights described
in this grammatical paragraph are personal to the Tenant originally named in
this Lease, and shall not be exercised by any assignee or successor of such
Tenant.
26. DEFAULT.
A. TENANT'S DEFAULT. A default under this Lease by Tenant
shall exist if any of the following occurs:
(i) If Tenant fails to pay, within five (5) days
after written notice from Landlord, any Rent or any other sum required to be
paid hereunder when due, including, without limitation, any Tenant Improvement
Costs payable by Tenant under EXHIBIT B; or
(ii) If Tenant fails to perform any term, covenant or
condition of this Lease except those requiring the
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payment of money, and Tenant fails to cure such breach within thirty (30) days
after written notice from Landlord where such breach could reasonably be cured
within such 30-day period; provided, however, that where such failure could not
reasonably be cured within the 30-day period, that Tenant shall not be in
default if it commences such performance within the 30-day period and diligently
thereafter prosecutes the same to completion; or
(iii) If Tenant assigns its assets for the benefit of
its creditors; or
(iv) If the sequestration or attachment of or
execution on any material part of Tenant's Personal Property essential to the
conduct of Tenant's business occurs, and Tenant fails to obtain a return or
release of such Tenant's Personal Property within thirty (30) days thereafter,
or prior to sale pursuant to such sequestration, attachment or levy, whichever
is earlier; or
(v) If Tenant abandons the Premises; or
(vi) If a court makes or enters any decree or order
other than under the bankruptcy laws of the United States adjudging Tenant to be
insolvent; or approving as properly filed a petition seeking reorganization of
Tenant; or directing the winding up or liquidation of Tenant and such decree or
order shall have continued for a period of sixty (60) days.
(vii) If, at any time that Landlord or its Affiliate
is also the owner of the premises leased by Tenant under that certain Lease
between Martin/Campus Associates No. 2, L.P. and Tenant dated February 5, 1997,
as amended by that certain First Amendment to Lease dated December 3, 1997 (the
"575-595 Broadway Lease"), Tenant is in default under the 575-595 Broadway Lease
beyond any applicable notice and cure period.
B. REMEDIES. Upon a default, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by law or
otherwise provided in this Lease, to which Landlord may resort cumulatively or
in the alternative:
(i) Landlord may continue this Lease in full force
and effect, and this Lease shall continue in full force and effect as long as
Landlord does not terminate this Lease, and Landlord shall have the right to
collect Rent when due. Without
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limiting the foregoing, Landlord has the remedy set forth in Section 1951.4 of
the California Civil Code.
(ii) Landlord may terminate Tenant's right to
possession of the Premises at any time by giving written notice to that effect,
and relet the Premises or any part thereof. Tenant shall be liable immediately
to Landlord for all costs Landlord incurs in reletting the Premises or any part
thereof, including, without limitation, broker's commissions, expenses of
cleaning and redecorating the Premises required by the reletting and like costs.
Reletting may be for a period shorter or longer than the remaining Term of this
Lease. No act by Landlord other than giving written notice of termination to
Tenant shall terminate this Lease. Neither acts of maintenance, nor efforts to
relet the Premises, nor the appointment of a receiver on Landlord's initiative
to protect Landlord's interest under this Lease shall not constitute a
termination of Tenant's right to possession. On termination, Landlord has the
right to remove all Tenant's Personal Property and store the same at Tenant's
sole cost and expense and to recover from Tenant as damages:
(a) The worth at the time of award of the
unpaid Rent and other sums due and payable which had been earned at the time of
termination; plus
(b) The worth at the time of award of the
amount by which the unpaid Rent and other sums due and payable which would have
been payable after termination until the time of award exceeds the amount of
such Rent loss that Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of award of the
amount by which the unpaid rent and other sums due and payable for the balance
of the Term after the time of award exceeds the amount of such Rent loss that
Tenant proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate
Landlord for all the 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, including, without limitation, any
costs or expenses incurred by Landlord: (i) in retaking possession of the
Premises; (ii) in maintaining, repairing, preserving, restoring, replacing,
cleaning, altering or rehabilitating the Premises or
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any portion thereof, including such acts for reletting to a new tenant or
tenants; (iii) for leasing commissions; or (iv) for any other costs necessary or
appropriate to relet the Premises; plus
(e) At Landlord's election, such other
amounts in addition to or in lieu of the foregoing as may be permitted from time
to time by the laws of the State of California.
The "worth at the time of award" of the amounts referred to in
PARAGRAPHS 26.B.(II)(A) and 26.B.(II)(B) is computed by allowing interest at the
Interest Rate on the unpaid rent and other sums due and payable from the
termination date through the date of award. The "worth at the time of award" of
the amount referred to in PARAGRAPH 26.B.(II)(C) is computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%). Tenant waives redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or
under any other present or future law, in the event Tenant is evicted or
Landlord takes possession of the Premises by reason of any default of Tenant
hereunder.
(iii) Landlord may, with or without terminating this
Lease, re-enter the Premises and remove all persons and property from the
Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. No reentry or taking
possession of the Premises by Landlord pursuant to this PARAGRAPH 26.B.(III)
shall be construed as an election to terminate this Lease unless a written
notice of such intention is given to Tenant.
C. LANDLORD'S DEFAULT. Landlord shall not be deemed to be in
default in the performance of any obligation required to be performed by it
hereunder unless and until it has failed to perform such obligation within
thirty (30) days after receipt of written notice by Tenant to Landlord
specifying the nature of such default; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
its performance, then Landlord shall not be deemed to be in default if it shall
commence such performance within such 30-day period and thereafter diligently
prosecute the same to completion.
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27. SUBORDINATION.
A. SUBORDINATION. This Lease is or may become subject and
subordinate to underlying leases, mortgages, deeds of trust, easements, and
CC&Rs (collectively, "ENCUMBRANCES") which may now or hereafter affect the
Premises, and to all renewals, amendments, modifications, consolidations,
replacements and extensions thereof; provided, however, if the holder or holders
of any such Encumbrance (collectively, "HOLDER") shall require that this Lease
be prior and superior thereto, within fifteen (15) days of written request of
Landlord to Tenant, Tenant shall execute, have acknowledged and deliver any and
all documents or instruments, in the form presented to Tenant, which Landlord or
Holder deems reasonably necessary or desirable for such purposes. Subject to
PARAGRAPH 27.C below, Landlord shall have the right to cause this Lease to be
and become and remain subject and subordinate to any and all Encumbrances which
are now or may hereafter be executed covering the Premises or any renewals,
modifications, consolidations, replacements or extensions thereof, for the full
amount of all advances made or to be made thereunder and without regard to the
time or character of such advances, together with interest thereon and subject
to all the terms and provisions thereof; provided only, that in the event of
termination of any such lease or upon the foreclosure of any such mortgage or
deed of trust, so long as Tenant is not in default, Holder agrees to recognize
Tenant's rights under this Lease as long as Tenant shall pay the Rent and
observe and perform all the provisions of this Lease to be observed and
performed by Tenant. Within fifteen (15) days after Landlord's written request,
Tenant shall execute any and all documents reasonably required by Landlord or
the Holder to make this Lease subordinate to any lien of the Encumbrance
(including, without limitation, subordination to all CC&Rs), including without
limitation a Subordination, Non- Disturbance and Attornment Agreement in the
form attached hereto as EXHIBIT E ("SNDA"). Subject to PARAGRAPH 27.C below, if
Tenant fails to do so, such failure shall constitute a default under this Lease,
and it shall be deemed that this Lease is subordinated to such Encumbrance.
B. ATTORNMENT. Notwithstanding anything to the contrary set
forth in this PARAGRAPH 27, Tenant hereby attorns and agrees to attorn to any
entity purchasing or otherwise acquiring the Premises at any sale or other
proceeding or pursuant to the exercise of any other rights, powers or remedies
under such Encumbrance.
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C. NON-DISTURBANCE. Notwithstanding anything to the contrary
in this Lease, if an Encumbrance, other than any CC&R's, is created after the
execution of this Lease, as a condition to the subordination of this Lease
thereto under PARAGRAPH 27.A above, Landlord shall obtain from the Holder of
such Encumbrance, other than CC&R's, a SNDA in a commercially reasonable form or
in a form reasonably acceptable to Tenant. Without in any way limiting the type
or form of SNDA that may be required by such Holder, Tenant hereby agrees that a
SNDA in the form attached to this Lease as EXHIBIT E shall be reasonable. Only
upon Landlord's delivery of a SNDA in the form of EXHIBIT E or in a commercially
reasonable form or in a form reasonably acceptable to Tenant, shall this Lease
be automatically subject and subordinate to such Encumbrance, other than CC&R's.
Within fifteen (15) business days after full execution of this Lease, Landlord
shall use reasonable efforts to provide Tenant with a SNDA in the form attached
to this Lease as EXHIBIT E from each Holder of any Encumbrance in effect as of
the date of this Lease, confirming that the existence of the "automatic
subordination" language contained in PARAGRAPH 27.A above shall not (without the
occurrence of some other act or event that constitutes a default by Tenant under
the Lease constitute a default by Tenant under this Lease). If Landlord fails to
deliver the required SNDA(s) within the 15-day period, then, as Tenant's sole
and exclusive remedy, Tenant shall have the right to terminate this Lease by
giving Landlord a written notice of termination within five (5) business days
after expiration of such 15-day period, upon which Landlord shall promptly
return to Tenant any Rent paid in advance and the Security Deposit. If Tenant
does not exercise such termination right within such 5-business day period, then
Tenant shall have no further right to terminate this Lease pursuant to this
PARAGRAPH 27.C and Tenant shall have no other rights or remedies with respect to
Landlord's failure to deliver such SNDA(s).
28. NOTICES.
Any notice or demand required or desired to be given under
this Lease shall be in writing and shall be personally served or in lieu of
personal service may be given by certified mail, facsimile, or overnight courier
service. All notices or demands under this Lease shall be deemed given,
received, made or communicated on the date personal delivery is effected; or, if
sent by certified mail, on the delivery date or attempted delivery date shown on
the return receipt; or, if sent by
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facsimile, on the date sent by the sender; or, if sent by overnight courier
service, on the delivery date or attempted delivery date shown on such service's
records. At the date of execution of this Lease, the addresses of Landlord and
Tenant are as set forth in PARAGRAPH 1. After the Commencement Date, the address
of Tenant shall be the address of the Premises. Either party may change its
address by giving notice of same in accordance with this PARAGRAPH 28.
29. ATTORNEYS' FEES.
If either party brings any action or legal proceeding for
damages for an alleged breach of any provision of this Lease, to recover Rent,
or other sums due, to terminate the tenancy of the Premises or to enforce,
protect or establish any term, condition or covenant of this Lease or right of
either party, the prevailing party shall be entitled to recover as a part of
such action or proceedings, or in a separate action brought for that purpose,
reasonable attorneys' fees and costs, including without limitation any and all
costs and expenses arising from (i) collection efforts, (ii) any appellate
proceedings, and (iii) any bankruptcy, insolvency or arbitration proceedings.
30. ESTOPPEL CERTIFICATES.
A. TENANT ESTOPPEL. Tenant shall within fifteen (15) days
following written request by Landlord:
(i) Execute and deliver to Landlord any documents, including
estoppel certificates, in the form prepared by Landlord (a) certifying that this
Lease is unmodified and in full force and effect or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect and the date to which the Rent and other charges are
paid in advance, if any, and (b) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord, or, if there are
uncured defaults on the part of the Landlord, stating the nature of such uncured
defaults, (c) evidencing the status of the Lease as may be required either by a
lender making a loan to Landlord to be secured by deed of trust or mortgage
covering the Premises or a purchaser of the Premises from Landlord, and (d) such
other matters as may be reasonably requested by Landlord. Tenant's failure to
deliver an estoppel certificate within fifteen (15) days after delivery of
Landlord's written request therefor shall be conclusive upon Tenant (a) that
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this Lease is in full force and effect, without modification except as may be
represented by Landlord, (b) that there are now no uncured defaults in
Landlord's performance, and (c) that no Rent has been paid in advance. If Tenant
fails to so deliver a requested estoppel certificate within the prescribed time
it shall be conclusively presumed that this Lease is unmodified and in full
force and effect except as represented by Landlord.
(ii) Deliver to Landlord the current financial statements of
Tenant, and financial statements of the two (2) years prior to the current
financial statements year, with an opinion of a certified public accountant,
including a balance sheet and profit and loss statement for the most recent
prior year, all prepared in accordance with generally accepted accounting
principles consistently applied.
B. LANDLORD ESTOPPEL. Landlord shall, within fifteen (15) days
following written request by Tenant, execute and deliver to Tenant an estoppel
certificate, in the form prepared by Tenant,(a) certifying that this Lease is
unmodified and in full force and effect or, if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect and the date to which the Rent and other charges are paid in
advance, if any, and (b) acknowledging that there are not, to Landlord's
knowledge, any uncured defaults on the part of Tenant, or, if there are uncured
defaults on the part of the Tenant, stating the nature of such uncured defaults,
and (c) such other matters as may be reasonably requested by Tenant. Landlord's
failure to deliver an estoppel certificate within fifteen (15) days after
delivery of Tenant's written request therefor shall be conclusive upon Landlord
(a) that this Lease is in full force and effect, without modification except as
may be represented by Tenant,(b) that there are now no uncured defaults in
Tenant's performance, and (c) that no Rent has been paid in advance. If Landlord
fails to so deliver a requested estoppel certificate within the prescribed time
it shall be conclusively presumed that this Lease is unmodified and in full
force and effect except as represented by Tenant.
31. TRANSFER OF THE PREMISES BY LANDLORD.
In the event of any conveyance of the Premises and assignment
by Landlord of this Lease, Landlord shall be and is hereby entirely released
from all liability under any and all of its covenants and obligations contained
in or derived from this
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Lease occurring after the date of such conveyance and assignment, and Tenant
agrees to attorn to such transferee provided such transferee assumes Landlord's
obligations under this Lease.
32. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.
If Tenant shall at any time fail to make any payment or
perform any other act on its part to be made or performed under this Lease, and
such failure shall continue after the expiration of any applicable grace or cure
periods provided in this Lease, Landlord may, but shall not be obligated to (and
without waiving or releasing Tenant from any obligation of Tenant under this
Lease), make such payment or perform such other act to the extent Landlord may
deem desirable, and in connection therewith, pay expenses and employ counsel.
All sums so paid by Landlord and all penalties, interest, expenses and costs in
connection therewith shall be due and payable by Tenant on the next day after
any such payment by Landlord, together with interest thereon at the Interest
Rate from such date to the date of payment by Tenant to Landlord, plus
collection costs and attorneys' fees. Landlord shall have the same rights and
remedies for the nonpayment thereof as in the case of default in the payment of
Rent.
33. TENANT'S REMEDY.
Landlord shall never be personally liable under this Lease,
and Tenant shall look solely to the net cash flow received by Landlord from its
ownership of the Building, for recovery of any damages for breach of this Lease
by Landlord or on any judgment in connection therewith. None of the persons or
entities comprising or representing Landlord (whether partners, shareholders,
officers, directors, trustees, employees, beneficiaries, agents or otherwise)
shall ever be personally liable under this Lease or for any such damages or
judgment, and Tenant shall have no right to effect any levy of execution against
any assets of such persons or entities on account of any such liability or
judgment. Any lien obtained by Tenant to enforce any such judgment, and any levy
of execution thereon, shall be subject and subordinate to all Encumbrances as
specified in PARAGRAPH 27 above.
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34. MORTGAGEE PROTECTION.
If Landlord defaults under this Lease, Tenant shall give
written notice of such default to any beneficiary of a deed of trust or
mortgagee of a mortgage covering the Premises, and offer such beneficiary or
mortgagee a reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure.
35. BROKERS.
Landlord and Tenant acknowledge and agree that they have
utilized the services of real estate brokers (with Cornish and Carey Commercial
representing Tenant, and BT Commercial representing Landlord) with respect to
the transactions between Landlord and Tenant that are represented by this Lease.
Tenant warrants and represents that it has had no dealings with any other real
estate broker or agent in connection with the negotiation of this Lease, and
that it knows of no other real estate broker or agent who is or might be
entitled to a commission in connection with this Lease.
36. ACCEPTANCE.
This Lease shall only become effective and binding upon full
execution hereof by Landlord and delivery of a signed copy to Tenant. This Lease
shall not be recorded. Upon execution of this Lease, the parties shall execute
and acknowledge a Memorandum of Lease in the form attached hereto as EXHIBIT F,
which may be recorded by either Landlord or Tenant at such party's sole expense.
Upon the expiration or earlier termination of this Lease, Tenant shall upon
Landlord's request execute and acknowledge any and all documents that in
Landlord's discretion may be required in order to terminate the Memorandum of
Lease or otherwise remove the lien of the Memorandum of Lease from the Building.
37. PARKING.
Tenant shall have the non-exclusive right, in common with any
other tenants or occupants of the Project, to use up to 3.33 unassigned parking
spaces per each one thousand (1,000) square feet of Rentable Area in the
Premises, upon terms and conditions, as may from time to time be reasonably
established by
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Landlord. Should parking charges or surcharges of any kind be imposed on the
parking facilities by a governmental agency, Tenant shall reimburse Landlord for
such charges and/or surcharges or, if possible, shall pay such charges and/or
surcharges directly to the governmental agency and, in such event, Tenant shall
provide Landlord with proof that such charges and/or surcharges have been paid
by Tenant.
38. GENERAL.
A. CAPTIONS. The captions and headings used in this Lease are
for the purpose of convenience only and shall not be construed to limit or
extend the meaning of any part of this Lease.
B. EXECUTED COPY. Any fully executed copy of this Lease shall
be deemed an original for all purposes.
C. TIME. Time is of the essence for the performance of each
term, condition and covenant of this Lease.
D. SEPARABILITY. If one or more of the provisions contained
herein, except for the payment of Rent, is for any reason held invalid, illegal
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Lease, but this
Lease shall be construed as if such invalid, illegal or unenforceable provision
had not been contained herein.
E. CHOICE OF LAW. This Lease shall be construed and enforced
in accordance with the laws of the State of California. The language in all
parts of this Lease shall in all cases be construed as a whole according to its
fair meaning and not strictly for or against either Landlord or Tenant.
F. GENDER; SINGULAR, PLURAL. When the context of this Lease
requires, the neuter gender includes the masculine, the feminine, a partnership
or corporation or joint venture, and the singular includes the plural.
G. BINDING EFFECT. The covenants and agreement contained in
this Lease shall be binding on the parties hereto and on their respective
successors and assigns to the extent this Lease is assignable.
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H. WAIVER. The waiver by Landlord of any breach of any term,
condition or covenant, of this Lease shall not be deemed to be a waiver of such
provision or any subsequent breach of the same or any other term, condition or
covenant of this Lease. The subsequent acceptance of Rent hereunder by Landlord
shall not be deemed to be a waiver of any preceding breach at the time of
acceptance of such payment. No covenant, term or condition of this Lease shall
be deemed to have been waived by Landlord unless such waiver is in writing and
signed by Landlord. The waiver by Tenant of any breach of any term, condition or
covenant, of this Lease shall not be deemed to be a waiver of such provision or
any subsequent breach of the same or any other term, condition or covenant of
this Lease. No covenant, term or condition of this Lease shall be deemed to have
been waived by Tenant unless such waiver is in writing and signed by Tenant.
I. ENTIRE AGREEMENT. This Lease is the entire agreement
between the parties, and there are no agreements or representations between the
parties except as expressed herein. Except as otherwise provided herein, no
subsequent change or addition to this Lease shall be binding unless in writing
and signed by the parties hereto.
J. AUTHORITY. If Tenant is a corporation or a partnership,
each individual executing this Lease on behalf of said corporation or
partnership, as the case may be, represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said entity in
accordance with its corporate bylaws, statement of partnership or certificate of
limited partnership, as the case may be. Landlord, at its option, may require a
copy of such written authorization to enter into this Lease.
K. EXHIBITS. All exhibits, amendments, riders and addenda
attached hereto are hereby incorporated herein and made a part hereof.
L. LEASE SUMMARY. The Lease Summary attached to this Lease is
intended to provide general information only. In the event of any inconsistency
between the Lease Summary and the specific provisions of this Lease, the
specific provisions of this Lease shall prevail.
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39. EQUIPMENT LEASING/LANDLORD'S LIEN.
Notwithstanding anything herein to the contrary, Landlord
waives any and all rights, title and interest Landlord now has, or hereafter may
have, whether statutory or otherwise, to Tenant's inventory, equipment,
furnishings, trade fixtures, books and records, and personal property paid for
by Tenant located at the Premises (singly and/or collectively, the
"COLLATERAL"). Landlord acknowledges that Landlord has no lien, right, claim,
interest or title in or to the Collateral. Landlord further agrees that Tenant
shall have the right, at its discretion, to mortgage, pledge, hypothecate or
grant a security interest in the Collateral as security for its obligations
under any equipment lease or other financing arrangement related to the conduct
of Tenant's business at the Premises. Landlord further agrees to execute and
deliver within three (3) business days any UCC filing statement or other
documentation required to be executed by Landlord in connection with any such
lease or financing arrangement, including but not limited to a Landlord's Waiver
and Consent form.
40. RIGHT OF EARLY ENTRY.
Tenant shall have the right to enter the Premises prior to the
commencement of the Term to take reasonable preparatory measures for its
occupancy of the Premises including, without limitation, the installation of its
trade fixtures, furnishings, and telephone, telecommunications and computer
equipment, so long as Tenant does not materially interfere with the construction
of the Improvements by Landlord and Landlord's contractor. Such entry shall be
subject to all of the terms and conditions of this Lease, except that Tenant
shall not be required to pay any Rent on account thereof. Tenant shall
indemnify, defend, protect, and hold harmless Landlord from and against any and
all losses, costs, damages, liability, claims and expenses arising from any such
entry onto the Premises by Tenant.
THIS LEASE is effective as of the date the last signatory
necessary to execute the Lease shall have executed this Lease.
[SIGNATURES FOLLOW ON NEXT PAGE]
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TENANT:
BROADVISION, INC.,
a Delaware corporation
By: /s/ Signature Illegible
------------------------------
Its: CEO
------------------------------
Date: 2/1/99
------------------------------
By:
------------------------------
Its:
------------------------------
Date:
------------------------------
LANDLORD:
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P.,
a California limited partnership
Its General Partner
By: TMG Redwood LLC,
a California limited liability
company
Its General Partner
By: The Martin Group
of Companies, Inc.,
a California corporation
Its General Partner
By:/s/ Cathy Illegible
---------------------------------
Its: Vice President
---------------------------------
Date: 2/10/99
-------------------------------
By:
---------------------------------
Its:
---------------------------------
Date:
-------------------------------
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EXHIBIT A-1
FLOOR PLAN OF PREMISES
<PAGE>
EXHIBIT A-2
FLOOR PLAN OF PREMISES
<PAGE>
EXHIBIT B
WORK LETTER AGREEMENT
THIS WORK LETTER ("Agreement") is made and entered into by and
between Landlord and Tenant as of the date of the Lease. This Agreement shall be
deemed a part of the Lease to which it is attached. Capitalized terms which are
used herein and defined in the Lease shall have the meanings given in the Lease.
1. GENERAL.
1.1. CAPITAL IMPROVEMENTS. Prior to the Commencement Date, at
Landlord's sole cost and expense, Landlord shall do the following (collectively,
the "CAPITAL IMPROVEMENTS"):
o Remove all existing interior improvements in the
Premises with the exception of two (2) existing
elevators, but including all existing restrooms.
o Remove all existing HVAC equipment currently located
on roof.
o Remove all existing fire sprinkler improvements back
to the fire riser except the main line which
penetrates the steel beams. Landlord covenants that
the fire riser shall be in working condition. Any
repairs to the main line shall be a Tenant
Improvement Cost. Tenant shall pay for fire
monitoring equipment and connection costs.
o Provide 150 tons of new HVAC equipment to be located
on the roof of the Building. As part of the Capital
Improvements, the supply and return ducting shall be
run from the HVAC equipment onto each floor of the
Premises. All other ducting, distribution, and
controls shall be part of the Tenant Improvements.
o Provide 2000 amp, 480 volt electrical service to the
Building. The Capital Improvements will include a
transformer to be located on a pad on the exterior of
the Building with the PG&E pull section into the main
electric room. All conduit, wiring devices and
controls downstream of the main
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panel and any walls or ceiling needed for the
electric room shall be part of the Tenant
Improvements. Electrical conduit and wiring to the
main HVAC equipment will be a Capital Improvement.
o Remove the existing roof and replace it with a
three-ply built-up roof with a mineral-surfaced cap
sheet.
o Perform any exterior ADA and exterior code-related
work required by the City of Redwood City in
connection with the initial construction of the
Premises per the site plan as shown in EXHIBIT B-2
attached hereto.
o Remove all interior friable and non-friable asbestos
within the Building and basement areas (excluding
transite panels on curtain wall of the Building).
o Remove the security screen around the perimeter of
the Building and change the existing vision glass as
shown on EXHIBIT B-1. Repaint the exterior of the
Building.
o Provide two (2), four-inch (4") empty telephone
conduits from an area on the street designated by the
utility company to the electric room in the Building.
o Modify the area adjacent to the Building in
substantial conformity with the site plan as shown in
EXHIBIT B-2.
o On the north elevation of the Building, construct a
new canopy at the Building's main entry and install
slate on the existing sheer wall element as shown on
the attached EXHIBIT B-1. Any and all Tenant signage
shall be a part of the Tenant Improvements.
o Any insulation required for Title 24 compliance shall
be part of the Tenant Improvements.
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o Install one hydraulic passenger elevator 2,500 pound
capacity (may be holeless or not holeless) in the
approximate location as shown on the floor plans
attached hereto as EXHIBIT A, in accordance with all
applicable laws, including but not limited to the ADA
(as defined in the Lease).
o Landlord intends to abandon in place the electrical
and mechanical equipment currently housed in the
basement of the Building.
o Tenant will be permitted to install a back-up
generator on the exterior of the Building in a
mutually agreed-upon location. All of the costs
associated with the generator, including screening
will be part of the Tenant Improvements.
o Leave the slab, walls and roof deck in good, clean
condition.
Notwithstanding Landlord's agreement to construct the Capital Improvements at
its sole cost, Landlord and Tenant agree to share equally the cost of any
necessary filling in or leveling of the interior concrete floor deck provided
that the cost thereof does not exceed Fifty Thousand and 00/100 Dollars
($50,000.00). If the cost does exceed Fifty Thousand and 00/100 Dollars
($50,000.00), Landlord shall pay such excess cost. Tenant shall pay its
proportionate share of such costs within thirty (30) days after receipt of
Landlord's statement therefor. Landlord shall exercise commercially reasonable
judgment pursuant to industry building standards in determining the amount of
leveling to be done in the Premises.
Except for its obligation to perform the Capital Improvements and the Tenant
Improvements as set forth in this Lease and the Work Letter, Landlord shall have
no obligation whatsoever to do any work or perform any improvements whatsoever
to any portion of the Premises or the Building; provided, however, that the
Tenant Improvements shall be performed at the sole cost and expense of Tenant.
Landlord shall cause Contractor (as defined below) to perform all initial
leasehold improvements, in accordance with the approved Final Plans and as
otherwise may be required to comply with applicable law (collectively, the
"TENANT IMPROVEMENTS"). The parties acknowledge and agree that the Capital
Improvements and the Tenant Improvements constitute all
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of the work required to enable Tenant to occupy, and operate its business in,
the Premises. If Landlord materially alters the current landscape, parking and
lighting plans for the Project before the Commencement Date, then Landlord shall
consult with Tenant regarding such modification, but Tenant shall have no
approval rights regarding such modification. Landlord shall (i) cause, through
Contractor, the Capital Improvements to be performed in a good and workmanlike
manner using new materials and in accordance with all applicable legal
requirements, and (ii) use its best efforts to cause, through Contractor, the
Improvements to be performed in accordance with the schedule attached hereto as
EXHIBIT B-3 (the "Schedule"); provided, however, that Landlord's obligation to
use reasonable efforts to cause the Tenant Improvements to be performed in
accordance with the Schedule shall be subject to and dependent upon Tenant's
compliance with the Schedule and the terms of this Agreement and to Force
Majeure Delays as defined in PARAGRAPH 4.B of the Lease. Landlord, at its sole
cost, shall obtain all permits, licenses and authorizations required in
connection with the Capital Improvements. All Landlord design work for the shell
condition shall be designed and submitted to the City of Redwood City for permit
prior to Tenant submitting its plans for the Tenant Improvements to the City for
permit.
1.2. TENANT IMPROVEMENT COSTS. The cost of performing the
Tenant Improvements, including without limitation the costs described in
PARAGRAPH 6 below (collectively, the "TENANT IMPROVEMENT COSTS") shall be paid
by Tenant in the manner set forth in PARAGRAPH 5 below.
2. APPROVAL OF PLANS FOR TENANT IMPROVEMENTS.
2.1. ARCHITECT. Tenant has selected HPC Architecture
("ARCHITECT") for the design and preparation of plans for the Tenant
Improvements. Tenant shall retain Architect's administrative services throughout
the performance of the Tenant Improvements.
2.2. SUBMITTAL OF PLANS.
2.2.1. PRELIMINARY PLANS. Tenant shall cause
Architect to prepare preliminary plans (the "PRELIMINARY PLANS") for the Tenant
Improvements to be performed at the Premises. Tenant shall cause Architect to
deliver the Preliminary Plans to Landlord in accordance with the Schedule
attached as EXHIBIT B-3.
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Within five (5) days after Landlord's receipt of the Preliminary Plans, Landlord
shall either approve or disapprove the Preliminary Plans, which approval shall
not be unreasonably withheld. Failure of Landlord to approve or disapprove the
Preliminary Plans within such five-day period shall be deemed to constitute
Landlord's approval of the Preliminary Plans. If Landlord disapproves the
Preliminary Plans, then Landlord shall state in reasonable detail the changes
which Landlord requires to be made thereto. Tenant shall submit to Landlord
revised Preliminary Plans within five (5) days after Tenant's receipt of
Landlord's disapproval notice. Following Landlord's receipt of the revised
Preliminary Plans from Tenant, Landlord shall have the right to review and
approve the revised Preliminary Plans pursuant to this PARAGRAPH 2.2.1. Landlord
shall give Tenant written notice of its approval or disapproval of the revised
Preliminary Plans within five (5) days after the date of Landlord's receipt
thereof. Failure of Landlord to approve or disapprove the Preliminary Plans
within such five-day period shall be deemed to constitute Landlord's approval of
the revised Preliminary Plans. If Landlord disapproves the revised Preliminary
Plans, then Landlord and Tenant shall continue to follow the procedures set
forth in this PARAGRAPH 2.2.1 until Landlord and Tenant approve the Preliminary
Plans in accordance with this PARAGRAPH 2.2.1.
2.2.2. PRELIMINARY BUDGET. Landlord intends to retain
Devcon Construction ("CONTRACTOR") as the general contractor for the
construction of the Tenant Improvements, Air Systems for the mechanical
design-build work and Frank Electric for the electrical design-build work.
Within the time period provided in the Schedule attached as EXHIBIT B-3,
Contractor shall prepare a preliminary budget for the Tenant Improvements based
upon the approved Preliminary Plans, which Contractor shall submit to Tenant for
its review and approval. Within the time period provided in the Schedule
attached as EXHIBIT B-3, Tenant and Landlord shall review and approve or
disapprove the Preliminary Plans and the preliminary budget.
2.2.3. FINAL PLANS. Within the time period provided
in the Schedule attached as EXHIBIT B-3, Tenant shall cause Architect to
commence preparing complete plans, specifications and working drawings which
incorporate and are consistent with the approved Preliminary Plans and
preliminary budget, and which show in detail the intended design, construction
and finishing of all portions of the Tenant
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Improvements described in the Preliminary Plans (collectively, the "FINAL
PLANS"). Tenant shall cause Architect to deliver the Final Plans to Landlord,
for Landlord's review and approval within the time period provided in the
Schedule attached as EXHIBIT B-3. Within five (5) days after Landlord's receipt
of the Final Plans, Landlord shall either approve or disapprove the Final Plans,
which approval shall not be unreasonably withheld. Landlord's failure to approve
or disapprove the Final Plans within such five-day period shall be deemed to
constitute Landlord's approval of the Final Plans. If Landlord disapproves the
Final Plans, then Landlord shall state in reasonable detail the changes which
Landlord requires to be made thereto. Tenant shall submit to Landlord revised
Final Plans within five (5) days after Tenant's receipt of Landlord's
disapproval notice. Following Landlord's receipt of the revised Final Plans from
Tenant, Landlord shall have the right to review and approve the revised Final
Plans pursuant to this PARAGRAPH 2.2.3. Landlord shall give Tenant written
notice of its approval or disapproval of the revised Final Plans within five (5)
days after the date of Landlord's receipt thereof. Landlord's failure to approve
or disapprove the Final Plans within such five-day period shall be deemed to
constitute Landlord's approval of the revised Final Plans. If Landlord
disapproves the revised Final Plans, then Landlord and Tenant shall continue to
follow the procedures set forth in this PARAGRAPH 2.2.3 until Landlord and
Tenant reasonably approve such Final Plans in accordance with this PARAGRAPH
2.2.3.
3. CONSTRUCTION BUDGET. Upon approval by Landlord and Tenant of the
Final Plans, Landlord shall instruct Contractor to obtain competitive bids for
the Tenant Improvements from at least three (3) qualified subcontractors for
each of the major subtrades (excluding the mechanical, electrical and fire
sprinkler trades, which shall be on a design/build basis, unless Landlord elects
to competitively bid these trades) and to submit the same to Tenant for its
review and approval. Upon selection of the subcontractors and approval of the
bids, Contractor shall prepare a cost estimate for the Tenant Improvements
described in such Final Plans, based upon the bids submitted by the
subcontractors selected. Within the time period provided in the Schedule
attached as EXHIBIT B-3, Contractor shall submit such cost estimate to Tenant
for its review and approval. Tenant may approve or reject such cost estimate in
its reasonable sole discretion. If Tenant rejects such cost estimate, Tenant
shall resolicit bids based on such Final Plans, in accordance with the
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procedures specified above. Following any resolicitation of bids by Tenant
pursuant to this PARAGRAPH 3, Tenant shall again follow the procedures set forth
in this PARAGRAPH 3 with respect to the submission and reasonable approval of
the cost estimate from Contractor; provided, however, that Tenant shall only be
permitted to resolicit bids once following Tenant's rejection of the cost
estimate and Tenant shall select from the bids received in the second
solicitation of bids.
4. LANDLORD TO CONSTRUCT. Landlord shall cause Contractor to construct
the Tenant Improvements in a good and workmanlike manner, in accordance with the
approved Final Plans and in compliance with all applicable laws. Architect shall
be responsible for obtaining all necessary building permits and approvals and
other authorizations from governmental agencies required in connection with the
Tenant Improvements. The cost of all such permits and approvals, including
inspection and other building fees required to obtain the permits for the Tenant
Improvements, shall be included as part of the Tenant Improvement Costs. Tenant
shall have the benefit of any warranties provided by Contractor, the
subcontractors and suppliers in connection with the Tenant Improvements.
5. PAYMENT FOR TENANT IMPROVEMENTS. The Tenant Improvement Costs shall
be paid solely by Tenant as follows:
5.1. TENANT IMPROVEMENT ALLOWANCE. Landlord shall provide
funds, to be used for the payment of Tenant Improvement Costs, in an amount not
to exceed Ten and 00/100 Dollars per square foot of Rentable Area (the "Tenant
Improvement Allowance"). Tenant shall pay all of the Tenant Improvement Costs in
excess of the Tenant Improvement Allowance (the "Excess Costs") in accordance
with PARAGRAPH 5.2.
5.2. SET-ASIDE FUNDS. Within five (5) days after Tenant has
approved the cost estimate for the Tenant Improvements pursuant to PARAGRAPH 3
above, Tenant shall deposit into a separate account with any financial
institution designated by Landlord, subject to restrictions in favor of such
financial institution, an amount (the "SET-ASIDE FUNDS") equal to the Excess
Costs, based on the assumption that the cost of the Tenant Improvements shall
equal the Tenant Improvement Allowance and the Excess Cost estimate. Landlord
shall instruct such financial institution to hold the Set-Aside Funds in a
separate interest-bearing account with interest to accrue for Tenant's account,
and
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shall utilize the Set-Aside Funds to pay for the Tenant Improvement Costs in the
manner set forth in this PARAGRAPH 5.
5.3. PAYMENT. As and when any Excess Costs become due and
payable, and so long as Landlord has delivered to Tenant copies of unconditional
lien releases from Contractor and the major subcontractors covering the work for
which such Tenant Improvement Costs are payable, Landlord shall request such
financial institution to utilize the remaining Set-Aside Funds to pay any amount
of Excess Costs; provided, however, that if at any time there are insufficient
Set-Aside Funds to pay any amount of the Excess Costs, Tenant shall pay any and
all such Excess Costs to Landlord within ten (10) days after the date of
Tenant's receipt of Landlord's written request therefor; and provided further,
that Landlord shall use reasonable efforts to provide for commercially
reasonable holdbacks with respect to the payment of the Tenant Improvement
Costs. Any failure by Tenant to pay any Excess Costs as and when required under
this Agreement shall constitute a default by Tenant under the Lease.
5.4. PENALTIES. To the extent that any contractor or
subcontractor working on the Tenant Improvements imposes upon Landlord any
penalty or late charge due to Tenant's failure to pay to Landlord any amount due
under this PARAGRAPH 5.4 as and when such amount is due, Tenant shall be solely
responsible for paying such penalty or late charge.
6. TENANT IMPROVEMENT COSTS. The Tenant Improvement Costs shall include
all reasonable costs incurred in connection with the Tenant Improvements (but
not the Capital Improvements), as determined by Landlord in its reasonable
discretion, including the following:
(a) All costs of space plans and other architectural and
engineering plans and specifications for the Tenant Improvements, including
engineering costs associated with completion of the State of California energy
utilization calculations under Title 24 legislation required in connection with
the Tenant Improvements and the base Building mechanical;
(b) All costs of obtaining building permits and other
necessary authorizations from the City of Redwood City;
8
<PAGE>
(c) All costs of interior design and finish schedule plans and
specifications, including as-built drawings by Architect;
(d) All direct and indirect costs of procuring, constructing
and installing the Tenant Improvements in the Premises, including, but not
limited to, the construction fee of four and one-half percent (4 1/2%) payable
to the Contractor for overhead and profit, and the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by Contractor in connection with construction of the Tenant
Improvements;
(e) All fees payable to Architect and Landlord's engineering
firm if they are required by Tenant to redesign any portion of the Tenant
Improvements following Tenant's approval of the Final Plans;
(f) Sewer connection fees (if any);
(g) All direct and indirect construction costs associated with
complying with Title 24 legislation and ADA compliance for all interior
improvements;
(h) All direct and indirect construction costs associated with
complying with Title 24 legislation and ADA compliance resulting from changes to
the exits from the Building; and
(i) A construction management fee payable to Landlord equal to
Forty Thousand and 00/100 Dollars ($40,000.00).
In no event shall the Tenant Improvement Costs include any costs of procuring,
constructing or installing in the Premises any of Tenant's Personal Property,
trade fixtures, equipment, inventory, computer network, communications system,
promotional materials, signage or related expenses.
7. CHANGE REQUESTS. No revisions to the approved Final Plans shall be
made by either Landlord or Tenant unless approved in writing by both parties.
Landlord agrees to make all changes (i) required by any public agency to conform
with governmental regulations, or (ii) requested in writing by Tenant and
approved in writing by Landlord, which approval shall not be unreasonably
withheld. Any costs related to such changes shall be added to
9
<PAGE>
the Tenant Improvement Costs and shall be paid for in accordance with PARAGRAPH
5. The billing for such additional costs shall be accompanied by evidence of the
amounts billed as is customarily used in the business. Costs related to changes
shall include, without limitation, any architectural, structural engineering, or
design fees, and the Contractor's price for effecting the change. Any change
order which may extend the date of substantial completion of the Tenant
Improvements may be disapproved by Landlord unless Tenant agrees that for all
purposes under this Lease, the Tenant Improvements shall be deemed to have been
substantially completed on that date on which such Tenant Improvements would
have been substantially completed without giving effect to the change order in
question.
[SIGNATURES FOLLOW ON NEXT PAGE]
10
<PAGE>
TENANT:
BROADVISION, INC.,
a Delaware corporation
By: /s/ Signature Illegible
------------------------------
Its: CEO
------------------------------
Date: 2/1/99
------------------------------
By:
------------------------------
Its:
------------------------------
Date:
------------------------------
LANDLORD:
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P.,
a California limited partnership
Its General Partner
By: TMG Redwood LLC,
a California limited liability
company
Its General Partner
By: The Martin Group
of Companies, Inc.,
a California corporation
Its General Partner
By:/s/ Cathy Illegible
---------------------------------
Its: Vice President
---------------------------------
Date: 2/10/99
-------------------------------
By:
---------------------------------
Its:
---------------------------------
Date:
-------------------------------
11
<PAGE>
EXHIBIT B-1
[ELEVATION PLAN DEPICTING VISION GLASS AND NEW CANOPY]
12
<PAGE>
EXHIBIT B-2
[SITE PLAN DEPICTING SECURITY SCREEN, VISION GLASS
AND MODIFICATIONS TO AREAS ADJACENT TO BUILDING]
13
<PAGE>
EXHIBIT B-3
SCHEDULE
<TABLE>
<CAPTION>
ACTION BY ISSUE DURATION
(DAYS ARE WORK-DAYS)
<S> <C> <C> <C> <C>
Tenant Client Programming In Progress
Landlord Deliver clean base sheets in electronic Completed
form
Tenant Design and Architectural CD's 40 Days starting after
____________, 1999
Tenant Complete Mechanical, Electrical, Concurrent with CD Design and
Plumbing and Fire for ti's Architectural
Tenant Package ti plans and submit to City 5 Days
Landlord Plans go out for final bid 0 Days
Landlord Bid results presented 0 Days
Tenant Construction Budget Approved by 9 Days (from presentation of Bid
Tenant Results)
Tenant Set aside account for ti's funded 0 Days (from Construction Budget
Approval)
Tenant City Permit Cycle for ti's 30 Days (from submittal to City)
Tenant Respond to Interior Comments 5 Days (from City comments)
Landlord Respond to Shell Comments 5 Days (from City comments)
Tenant Re-submit for final approval for ti's 1 Day
Landlord Shell Weather tight, new roof, elevator By April 1, 1999
in progress, shafts open, ready for ti
construction commencement
Landlord Start Interior Construction By April 5, 1999
Landlord Construction of Interiors 14 Weeks
Landlord Punch List Items, Lease 2 Weeks
Commencement
</TABLE>
14
<PAGE>
EXHIBIT C
SITE PLAN FOR PROJECT
15
<PAGE>
EXHIBIT D
COMMENCEMENT DATE MEMORANDUM
LANDLORD: Martin/Campus Associates No. 4, L.P.
TENANT: Broadvision, Inc.
LEASE DATE: January ___, 1999
PREMISES: 405 Broadway, Redwood City, California
Pursuant to PARAGRAPH 4.A. of the above referenced Lease, the commencement date
is hereby established for 405 Broadway, Redwood City, CA 94063. The Commencement
Date as defined in PARAGRAPH 4.A shall be __________________, 1999.
TENANT:
BROADVISION, INC.,
a Delaware corporation
By: __________________________
Its: __________________________
Date: __________________________
By: __________________________
Its: __________________________
Date: __________________________
[SIGNATURES FOLLOW ON NEXT PAGE]
1
<PAGE>
LANDLORD:
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P.,
a California limited partnership
Its General Partner
By: TMG Redwood LLC,
a California limited liability
company
Its General Partner
By: The Martin Group
of Companies, Inc.,
a California corporation
Its General Partner
By:
---------------------------------
Its:
---------------------------------
Date:
-------------------------------
By:
---------------------------------
Its:
---------------------------------
Date:
-------------------------------
2
<PAGE>
Exhibit E
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Fremont Investment & Loan
175 N. Riverview Drive
Anaheim, California 92808
Attention: Commercial Real Estate
Loan No.: 950113100
- --------------------------------------------------------------------------------
NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS NONDISTURBANCE AND ATTORNMENT AGREEMENT (the "Agreement") is made
as of _____________________, by and among MARTIN/CAMPUS ASSOCIATES NO.4, L.P., a
Delaware limited partnership ("Landlord"), whose address is 100 Bush Street,
26th Floor, San Francisco, California 94104, ____________________ ("Tenant"),
whose address is __________________________and FREMONT INVESTMENT & LOAN, a
California Industrial loan association ("Lender"), whose address is 175 N.
Riverview Drive, Anaheim, California 92808, Attn: Commercial Real Estate
Department, Loan No. 950113100, with respect to the following Recitals:
RECITALS
--------
A. Landlord is the owner of the real property described on Exhibit A
attached hereto, together with the improvements now or hereafter located thereon
(collectively, the "Project").
B. Landlord and Lender are the parties to that certain Loan and
Security Agreement of even date herewith (the "Loan Agreement"), pursuant to the
terms of which Lender has agreed to make a loan of up to Sixteen Million Five
Hundred Thousand Dollars ($16,500,000) (the "Loan") to Landlord. The Loan is
evidenced by that certain Secured Promissory Note of even date herewith, in the
original principal amount of the Loan, executed by Landlord in favor of Lender
(the "Note"). The Note is secured, inter alia, by that certain Deed of Trust and
Fixture Filing of even date herewith executed by Landlord, as trustor, to the
trustee named therein, in favor of Lender, as beneficiary (the "Deed of Trust")
encumbering the Project, recorded concurrently herewith in the Official Records
of San Mateo County, California (the "Official Records"), and by that certain
Assignment of Rents and Leases of even date herewith executed by Landlord in
favor of Lender (the "Assignment of Rents") encumbering the Project, recorded
concurrently herewith in the Official Records. The Loan Agreement, the Note, the
Deed of Trust, the Assignment of Rents and all other documents securing, or
executed in connection with, the Loan, together with all renewals,
substitutions, extensions, modifications or replacements thereof, are
collectively referred to herein as the "Loan Documents."
C. Tenant and Landlord are the current parties to that certain lease
dated between Tenant and _______________________ between Tenant and
Martin/Campus (as amended, the "Lease"), pursuant to which Landlord is leasing
to Tenant a portion of the Project more particularly described in the lease (the
"Leased Premises").
<PAGE>
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Loan Disbursements.
Tenant agrees and acknowledges that in making disbursements of the
Loan, Lender is under no obligation or duty to, nor has Lender represented that
it will, see to the application of the Loan proceeds by the person or persons to
whom Lender disburses the Loan proceeds, and any application or use of the Loan
proceeds for purposes other than those provided for in the Loan Documents shall
not defeat in whole or in part the agreements set forth herein.
2. Nondisturbance and Attornment.
If the interest of Landlord under the Lease is transferred by reason of
any foreclosure of the Deed of Trust or by deed in lieu or in aid thereof,
Purchaser (as hereinafter defined) shall be bound to Tenant, and Tenant shall be
bound to Purchaser, under all of the terms, covenants and conditions of the
Lease (except as provided in Section 5 hereof) for the balance of the term
thereof, with the same force and effect as if Purchaser were the original
landlord under the Lease. Tenant does hereby attorn to Purchaser as the landlord
under the Lease, which attornment shall be effective and self-operative
(notwithstanding whether Tenant is then in default under the Lease) without the
execution of any further instruments upon Purchaser's succeeding to the interest
of the landlord under the Lease; provided, however, that nothing set forth
herein shall (i) give or be construed to have given Tenant the right to assert
that the foregoing nondisturbance and attornment agreements are not effective in
the event Tenant is in default under the Lease, whether or not any applicable
notice and cure periods specifically provided for under the Lease with respect
to Tenant's default have expired, and/or (ii) waive or be deemed a waiver by
Purchaser of its rights under the Lease upon Tenant's default thereunder beyond
any applicable notice and cure periods, regardless of when such default
occurred. Without limiting the generality of this Section 2, within fifteen (15)
calendar days after the request of Landlord, Lender or any Purchaser, Tenant
shall execute and deliver such documents as are reasonably requested by such
party to reflect such attornment. Within twenty (20) calendar days after the
request of any Purchaser or Tenant, such parties shall enter into a new lease of
the Leased Premises for the balance of the then remaining term of the Lease and
upon the same terms and conditions as are then contained in the Lease. As used
herein, "Purchaser" shall mean a transferee (including, without limitation,
Lender and its affiliates and subsidiaries) which acquires the interest of
Landlord in the Leased Premises through a foreclosure of the Deed of Trust or a
deed in lieu or in aid thereof, and its successors and assigns.
3. Tenant Agreements.
Tenant agrees that:
A. Pursuant to Section 34 of the Lease, Tenant shall send a copy of any
notice of a default by Landlord under the Lease to Lender at the same time such
notice is sent to Landlord; and
B. without Lender's prior written consent, Tenant shall not (i) pay any
rent (however denominated) or other charges under the Lease more than one (1)
month in advance or (ii) cancel, terminate or surrender the Lease, except at the
normal expiration of the Lease term or as expressly provided in the Lease or
pursuant to applicable law. Any amendment or modification to the Lease entered
into without Lender's prior written consent to the extent such consent is
required under the Loan Documents shall not be binding upon Lender or any
Purchaser; and
C. Upon the occurence of any event of default by Landlord under the
Loan Documents and the expiration of any applicable cure periods expressly
provided for under the Loan Documents, Lender, at all
2
<PAGE>
times, independent of Landlord, shall have the standing and right to enforce, by
injunction or otherwise, all or any provisions in the Lease as though Lender
originally was a party thereto.
4. Assignment of Rents.
Tenant agrees to recognize the assignment from Landlord to Lender of
the Lease and the amounts payable thereunder pursuant to the Assignment of Rents
and, in the event of any default by Landlord under the Loan Documents and the
expiration of any applicable cure period expressly set forth therein, Tenant
shall pay to Lender, as such assignee, the rents and other amounts which are or
become due under the Lease from and after the date on which Lender gives Tenant
notice that such rent and other amounts are to be paid to Lender pursuant to the
Assignment of Rents. In complying with the provisions of this Section 4. Tenant
shall be entitled to rely solely upon the notices given by Lender pursuant to
the Assignment of Rents and Landlord hereby indemnifies and agrees to defend and
hold Tenant harmless from and against any and all expenses, loss, claims, damage
or liability arising out of Tenant's compliance with such notice or performance
of the obligations under the Lease by the Tenant made in good faith in reliance
on and pursuant to such notice. Tenant shall be entitled to full credit under
the Lease for any rents paid to Lender in accordance with the provisions hereof.
Any dispute between Lender (or any other Purchaser) and Landlord as to the
existence or nature of a default by Landlord under the terms of the Loan
Documents or with respect to the foreclosure of the Deed of Trust, shall be
dealt with and adjusted solely between Lender (or such other Purchaser) and
Landlord, and Tenant shall not be made a party thereto (unless joinder is
required by law).
5. Lender's Obligations.
Nothing in this Agreement and no action taken by Lender to enforce any
provision in the Lease shall be deemed or construed to constitute an agreement
by Lender to perform or assume any covenant of Landlord as landlord under the
Lease unless and until Lender obtains title to the Leased Premises by
foreclosure of the Deed of Trust or a deed in lieu or in aid thereof. Without
limiting any of Tenant's rights against Landlord under the Lease, in the event
Lender acquires title to the Leased Premises, Lender shall:
A. be liable only for any damages or other relief attributable to any
act or omission during Lender's period of ownership of the Leased Premises,
regardless of whether such acts or omissions commenced prior to such period of
ownership. For example, if the Lease provides that the failure of the Landlord
to repair a hole in the roof entitles the Tenant to offset rent for the number
of days that the roof is not repaired, and if the hole in the roof occurred 60
days prior to Lender's acquisition of the title and was not repaired for another
30 days thereafter, Tenant would only be entitled to offset against its rental
obligations owed to Lender 30 days rental and would retain a claim against
Landlord for 60 days rental;
B. only be responsible for representations, warranties and covenants of
Landlord to the extent that such representations, warranties and covenants apply
to the Project and relate to the operation of the Project during Lender's period
of ownership of the Leased Premises;
C. be liable only for any security deposit actually delivered to
Lender; and
D. have its obligations and liabilities limited to the then interest,
if any, of Lender in the Project, without consideration of any mortgage liens
placed on the Project by Lender. Tenant shall lock exclusively to such interest
of Lender, if any, in the Project (including any insurance proceeds thereof and
the proceeds of the sale thereof) for the payment and discharge of any
obligations imposed upon Lender hereunder or under the Lease and Tenant releases
Lender from any other liability hereunder and under the Lease.
3
<PAGE>
Nothing contained in this Section shall be deemed to limit or affect Tenant's
claims against Landlord for any breaches or the Landlord's obligations under the
Lease, or for any breaches of Landlord's representations, warranties and
covenants under the Lease, or for return of any security deposit under the
Lease, and no transfer of the Project to Lender shall release Landlord from any
of its Lease obligations, notwithstanding anything to the contrary in the Lease.
6. Estoppel Certificate.
Pursuant to Section 30 of the Lease, Tenant agrees, from time to time,
within fifteen (15) days after Lender's request, to execute and deliver to
Lender or Lender's designee, any estoppel certificate reasonably requested by
Lender, stating that the Lease is in full force and effect, the date to which
rent has been paid, that Landlord is not in default under the Lease (or
specifying in detail the nature of Landlord's default), and such other matters
relating to the Lease as may be reasonably requested by Lender.
7. No Merger.
The parties agree that, without Lender's prior written consent,
Landlord's estate in and to the Project and the leasehold estate created by the
Lease shall not merge but shall remain separate and distinct, notwithstanding
the union of such estates in Landlord, Tenant or any third party by purchase,
assignment or otherwise.
8. Entire Agreement.
This Agreement shall be the whole and only agreement with regard to the
matters set forth herein, and shall supersede and cancel any prior agreements
with respect thereto, including, without limitation, any provisions contained in
the Lease relating thereto.
9. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and the same
instrument. Signature and acknowledgment pages may be detached from the
counterparts and attached to a single copy of this Agreement to physically form
one document, which may be recorded.
10. Modification, Successors and Assigns.
This Agreement may only be modified in writing signed by all of the
parties hereto or their respective successors in interest. This Agreement,
including without limitation, the provisions of Section 5, shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors and assigns.
11. Attorney's Fees.
If any lawsuit or other proceeding is commenced which arises out of, or
which relates to this Agreement, including any alleged tort action, the
prevailing party shall be entitled to recover from each other party such sums as
the court or other party presiding over such action or proceeding may adjudge to
be reasonable attorneys' fees and costs in the action or proceeding. In addition
to costs and expenses otherwise allowed by law. Any such attorneys' fees and
costs incurred by any party in enforcing a judgment in its favor under this
Agreement shall be recoverable separately from and in addition to any other
amount included in such judgment and shall survive and not be merged into any
such judgment.
4
<PAGE>
The obligation to pay such attorneys' fees and costs is intended to be severable
from the other provisions of this Agreement.
12. Governing Law.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
13. Notices.
Any notice, or other document or demand required or permitted under
this Agreement shall be in writing addressed to the appropriate address set
forth above and shall be deemed delivered on the earliest of (a) actual receipt,
(b) the next business day after the date when sent by recognized overnight
courier, or (c) the second business day after the date when sent by registered
or certified mail, postage prepaid. Any party may, from time to time, change the
address at which such written notices or other documents or demands are to be
sent, by giving the other parties written notice of such change in the manner
hereinabove provided.
5
<PAGE>
EXHIBIT F
MEMORANDUM OF LEASE
RECORDING REQUESTED BY, AND:
WHEN RECORDED, RETURN TO:
- -----------------------------
- -----------------------------
- -----------------------------
- -----------------------------
- -----------------------------
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE("Memorandum"), dated as of the ____
day of __________, 1999, is made and entered into by and between MARTIN/CAMPUS
ASSOCIATES NO.4 , L.P., a Delaware limited partnership ("Landlord"), and
BROADVISION, INC., a Delaware corporation ("Tenant").
RECITALS
This Memorandum is entered into on the basis of the following
facts, understandings and intentions of the parties:
A. Landlord and Tenant have entered into that certain Lease
Agreement dated as of January __, 1999 (collectively, together with any and all
amendments and supplements thereto, hereinafter referred to as the "Lease").
Pursuant to the terms, covenants and conditions of the Lease, Tenant has leased
from Landlord a portion of that certain real property (the "Real Property") and
all improvements thereon, as more particularly described in EXHIBITS A-1 AND A-2
hereto. That portion of the Real Property being leased by Tenant is hereafter
called the "Premises", and is more particularly described in EXHIBIT B hereto. A
copy of the Lease is being held by Tenant at its office at the Premises.
1
<PAGE>
B. Landlord and Tenant desire to enter into this Memorandum
which is to be recorded in order that third parties may have notice of the
estate of Tenant in the Premises.
NOW THEREFORE, in consideration of the mutual covenants and
promises of the parties, the parties hereto agree as follows:
1. LEASE OF PREMISES. Landlord leases the Premises to Tenant
and Tenant hires the Premises from Landlord, on the terms, covenants and
conditions set forth in the Lease, for the Term, defined in the Lease.
2. TERM. The term of the Lease shall commence on the Lease
Commencement Date, as defined in the Lease, and shall terminate on December 4,
2007, subject to extension by Tenant for one (1) period of five (5) years,
pursuant to PARAGRAPH 4 of the Lease (collectively, the "Term").
3. COVENANTS RUN WITH THE LAND. All of the provisions,
agreements, rights, powers, covenants, conditions and obligations contained in
the Lease shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees, and all other
persons acquiring the Premises, or any portion thereof, or any interest therein,
whether by operation of law or in any manner whatsoever, unless and until
modified as provided in the Lease. All of the provisions of the Lease, for the
Term of the Lease, including any permitted hold-over period, shall be covenants
running with the land pursuant to applicable law. It is expressly acknowledged
that each covenant to do or refrain from doing some act on the Premises is for
the benefit of the Premises and is a burden upon the Premises, runs with the
Premises, and shall benefit or be binding upon each successive owner during its
ownership of the Premises, or any portion thereof, and each person having an
interest therein derived in any manner through any owner thereof, or any portion
thereof.
4. LEASE TO CONTROL. All of the terms, conditions, provisions
and covenants of the Lease are incorporated in this Memorandum by reference as
though written out at length herein and both the Lease and this Memorandum shall
be deemed to constitute a single instrument or document. If any inconsistency
shall exist between the Lease and this Memorandum, the Lease shall control. This
Memorandum and the Lease, and the covenants
2
<PAGE>
and agreements herein and therein contained, shall bind and inure to the benefit
of the parties hereto, their heirs, successors, executors, administrators and
assigns.
5. SIGNATURE PAGE. For convenience, the signatures of the
parties to this Memorandum may be executed on separate pages, which when
attached to this Memorandum shall constitute this as one complete Memorandum.
IN WITNESS WHEREOF, the parties hereto have executed this
Memorandum as of the day and year first above written.
"TENANT"
BROADVISION, INC.,
a Delaware corporation
By: __________________________
Its: __________________________
By: __________________________
Its: __________________________
[SIGNATURES CONTINUE ON NEXT PAGE]
3
<PAGE>
"Landlord"
MARTIN/CAMPUS ASSOCIATES NO. 4, L.P.,
a Delaware limited partnership
By: Martin/Redwood Associates, L.P.,
a California limited partnership
Its General Partner
By: TMG Redwood LLC,
a California limited liability
company
Its General Partner
By: The Martin Group
of Companies, Inc.,
a California corporation
Its General Partner
By:
---------------------------------
Its:
---------------------------------
Date:
-------------------------------
By:
---------------------------------
Its:
---------------------------------
Date:
-------------------------------
attach notaries
4
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
BROADVISION INC.'S FINANCIAL STATEMENTS FOR THE THREE MONTHS ENDED MARCH
31, 1999 AS REPORTED IN ITS FORM 10-Q FOR THE PERIOD THEN ENDED AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. EPS PRIMARY REPRESENTS BASIC NET INCOME
(LOSS) PER SHARE. THE COMPANY HAS NOT FILED A RESTATED FINANCIAL DATA
SCHEDULE RELATING TO THE THREE MONTHS ENDED MARCH 31, 1998 BECAUSE AMOUNTS
PREVIOUSLY REPORTED FOR EPS-PRIMARY AND EPS- DILUTED DO NOT DIFFER FROM THE
AMOUNTS THAT WOULD BE REPORTED UNDER CURRENT GUIDELINES FOR BASIC AND
DILUTED EARNINGS PER SHARE, RESPECTIVELY.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 66,932
<SECURITIES> 0
<RECEIVABLES> 17,202
<ALLOWANCES> (938)
<INVENTORY> 0
<CURRENT-ASSETS> 87,226
<PP&E> 14,494
<DEPRECIATION> (6,261)
<TOTAL-ASSETS> 120,173
<CURRENT-LIABILITIES> 18,224
<BONDS> 0
0
0
<COMMON> 105,150
<OTHER-SE> (6,709)
<TOTAL-LIABILITY-AND-EQUITY> 120,173
<SALES> 12,783
<TOTAL-REVENUES> 18,464
<CGS> 747
<TOTAL-COSTS> 4,069
<OTHER-EXPENSES> 11,836
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 516
<INCOME-PRETAX> 3,075
<INCOME-TAX> 0
<INCOME-CONTINUING> 3,075
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,937
<EPS-PRIMARY> 0.12
<EPS-DILUTED> 0.11
</TABLE>
