Exhibit 10.28
LAKE MARRIOTT BUSINESS
PARK
LAKE MARRIOTT BUILDINGS 5, 6
& 7
SINGLE TENANT
BUILDINGS
3001, 3003 AND 3101 TASMAN
DRIVE
SANTA CLARA,
CALIFORNIA
OFFICE LEASE
AGREEMENT
BETWEEN
CA-LAKE MARRIOTT BUSINESS PARK
LIMITED PARTNERSHIP
(“LANDLORD”)
AND
SILICON VALLEY BANK, a California
banking corporation
(“TENANT”)
OFFICE LEASE
AGREEMENT
THIS OFFICE LEASE
AGREEMENT (the “
Lease ”) is made and entered into as of the 15th day
of September, 2004, by and between CA-LAKE MARRIOTT BUSINESS
PARK LIMITED PARTNERSHIP, a Delaware limited partnership
(“ Landlord ”) and SILICON VALLEY BANK, a
California banking corporation (“ Tenant
”). The following exhibits and attachments are
incorporated into and made a part of the Lease: Exhibit A
(Outline and Location of Premises), Exhibit B (Expenses and
Taxes), Exhibit C (Work Letter, if required), Exhibit
D (Commencement Letter), Exhibit E (Building Rules and
Regulations), Exhibit F (Additional Provisions), Exhibit
G (Parking Agreement); Exhibits H and H-1 (Asbestos
Notifications for Building 5 and Building 7); Exhibit I
(Form of Letter of Credit) and Exhibit J (Holding company
Test-Fit Plan #3).
1.
Basic Lease
Information.
1.01
“ Building 5 ”
shall mean the building located at 3101 Tasman Drive, Santa Clara,
California, commonly known as Lake Marriott Building 5, in the
project commonly known as Lake Marriott Business Park.
“ Building 6 ” shall mean the building located
at 3003 Tasman Drive, Santa Clara, California, commonly known as
Lake Marriott Building 6, in the project commonly known as Lake
Marriott Business Park. “ Building 7 ”
shall mean the building located at 3001 Tasman Drive, Santa Clara,
California, commonly known as Lake Marriott Building 7, in the
project commonly known as Lake Marriott Business Park.
“ Rentable Square Footage of the Building ” is
deemed to be 213,625 square feet. For purposes of this
Lease, “Building” and “Buildings” shall
each mean, collectively, Building 5, Building 6 and Building
7. In addition, Building 6 and Building 7 are sometimes
collectively referred to herein as the “ Initial
Premises ”.
1.02
“ Premises ”
shall mean the area shown on Exhibit A to this Lease.
The Premises is comprised of the Buildings. All corridors and
restroom facilities located on any full floor shall be considered
part of the Premises. The “ Rentable Square Footage of the
Premises ” is deemed to be 213,625 square feet.
Building 5 is comprised of approximately 56,448 rentable square
feet. Building 6 is comprised of approximately 100,729
rentable square feet. Building 7 is comprised of
approximately 56,448 rentable square feet. Landlord and
Tenant stipulate and agree that the Rentable Square Footage of the
Building and the Rentable Square Footage of the Premises are
correct.
1.03
“ Base Rent
”:
With respect to the Initial Premises
(collectively comprising approximately 157,177 rentable square
feet):
|
Period
|
|
Annual Rate
Per Square Foot
|
|
Monthly
Base Rent
|
|
|
8/1/2004 –
9/30/2005
|
|
$
|
11.22
|
|
$
|
146,960.50
|
|
|
10/1/2005 –
9/30/2006
|
|
$
|
11.56
|
|
$
|
151,361.45
|
|
|
10/1/2006 –
9/30/2007
|
|
$
|
11.90
|
|
$
|
155,867.19
|
|
|
10/1/2007 –
9/30/2008
|
|
$
|
12.26
|
|
$
|
160,582.50
|
|
|
10/1/2008 –
9/30/2009
|
|
$
|
12.63
|
|
$
|
165,428.79
|
|
|
10/1/2009 –
9/30/2010
|
|
$
|
13.01
|
|
$
|
170,406.06
|
|
|
10/1/2010 –
9/30/2011
|
|
$
|
13.39
|
|
$
|
175,383.34
|
|
|
10/1/2011 –
9/30/2012
|
|
$
|
13.80
|
|
$
|
180,753.55
|
|
|
10/1/2012 –
9/30/2013
|
|
$
|
14.21
|
|
$
|
186,123.76
|
|
|
10/1/2013 –
9/30/2014
|
|
$
|
14.64
|
|
$
|
191,755.94
|
|
Notwithstanding anything in this
Lease to the contrary, Tenant shall be entitled to an abatement of
Base Rent with respect to the Initial Premises only, as originally
described in this Lease, in the amount of $146,960.50 per month for
two (2) full calendar months of the Term, commencing with the first
full calendar month of the Term. The maximum total amount of
Base Rent abated with respect to the Initial Premises in accordance
with the foregoing shall equal $293,921.00 (the “ Initial
Premises Abated Base Rent ”). Only Base Rent with
respect to the Initial Premises shall be abated pursuant to this
Section, as more particularly described herein, and all Additional
Rent and other costs and charges specified in this Lease shall
remain as due and payable pursuant to the provisions of this
Lease.
1
With respect to Building 5
only:
|
Period
|
|
Annual Rate
Per Square Foot
|
|
Monthly
Base Rent
|
|
|
Building 5 Rent Commencement Date –
9/30/2005
|
|
$
|
11.22
|
|
$
|
52,778.88
|
|
|
10/1/2005 – 9/30/2006
|
|
$
|
11.56
|
|
$
|
54,359.42
|
|
|
10/1/2006 – 9/30/2007
|
|
$
|
11.90
|
|
$
|
55,977.60
|
|
|
10/1/2007 – 9/30/2008
|
|
$
|
12.26
|
|
$
|
57,671.04
|
|
|
10/1/2008 – 9/30/2009
|
|
$
|
12.63
|
|
$
|
59,411.52
|
|
|
10/1/2009 – 9/30/2010
|
|
$
|
13.01
|
|
$
|
61,199.04
|
|
|
10/1/2010 – 9/30/2011
|
|
$
|
13.39
|
|
$
|
62,986.56
|
|
|
10/1/2011 – 9/30/2012
|
|
$
|
13.80
|
|
$
|
64,915.20
|
|
|
10/1/2012 – 9/30/2013
|
|
$
|
14.21
|
|
$
|
66,843.84
|
|
|
10/1/2013 – 9/30/2014
|
|
$
|
14.64
|
|
$
|
68,866.56
|
|
1.04
“ Tenant’s Pro Rata
Share ”: For Building 5: 100% ; For Building
6: 100% ; For Building 7: 100% ; For the
Property: 53.22% .
“ Tenant’s
Monthly Expense and Tax Payment ” means Tenant’s
Pro Rata Share of the monthly estimated Expenses and monthly
estimated Taxes (as more fully described in, and subject to
adjustment as described in, Exhibit B attached hereto) and
is as follows: For the period commencing upon the Commencement Date
through and including the day preceding the Building 5 Rent
Commencement Date: $56,273.00, and commencing upon the
Building 5 Rent Commencement Date: $75,973.00. The first
monthly installment of Tenant’s Monthly Expense and Tax
Payment shall be due and payable upon execution and delivery of
this Lease by Tenant.
1.05
Intentionally Omitted
.
1.06
“ Term ”: A
period of 122 months from the Commencement Date. Subject to
Section 3, the Term shall commence with respect to the Initial
Premises only retroactively on August 1, 2004 (the “
Commencement Date ”) and, unless terminated early in
accordance with this Lease, the Term with respect to the entire
Premises shall end on September 30, 2014 (the “
Termination Date ”). The Term shall commence with
respect to Building 5 on the date Landlord delivers possession of
Building 5 to Tenant (the “ Building 5 Commencement
Date ”); provided, however, that Tenant’s
obligation to pay Base Rent and Tenant’s Pro Rata Share of
Expenses and Taxes with respect to only Building 5 shall commence
on the date which is six (6) months following the Building 5
Commencement Date (the “ Building 5 Rent Commencement
Date ”).
1.07
Allowance: $6,346,775.00 as
more fully described in the Work Letter attached hereto as
Exhibit C .
1.08
“ Security Deposit
”: As of the date of this Lease, there is no Security
Deposit.
1.09
“ Guarantor(s)
”: As of the date of this Lease, there is no
Guarantor.
1.10
“ Broker(s)
”: CRESA Partners and Cornish & Carey.
1.11
“ Permitted Use
”: General office, administrative, retail banking and
training.
1.12
“ Notice Address(es)
”:
|
Landlord:
|
|
Tenant:
|
|
CA-Lake Marriott Business Park Limited
Partnership
c/o Equity Office
1740 Technology Drive, Suite 150
San Jose, California 95110
Attention: Lake Marriott Property Manager
|
|
The Premises
|
A copy of any notices to Landlord
shall be sent to Equity Office, One Market, Spear Street Tower,
Suite 600, San Francisco, California 94105, Attention: San
Jose Regional Counsel.
2
1.13
“ Business Day(s)
” are Monday through Friday of each week, exclusive of New
Year’s Day, Presidents Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day (“
Holidays ”). Landlord may designate additional
Holidays that are commonly recognized by other office buildings in
the area where the Building is located. “ Building
Service Hours ” are 7:00 a.m. to 7:00 p.m. on Business
Days.
1.14
“ Initial Alterations
” means the work that Tenant shall perform in the Premises
pursuant to a separate agreement (the “ Work Letter
”), if any, attached to this Lease as Exhibit C
.
1.15
“ Property ”
means the Buildings and the parcel(s) of land on which they are
located and, at Landlord’s discretion, the parking facilities
and other improvements, if any, serving the Building and the
parcel(s) of land on which they are located.
1.16
“ Letter of Credit
”: $260,622.00 , as more fully described
in Section 2 of Exhibit I .
2.
Lease Grant.
The Premises are hereby leased to
Tenant from Landlord, together with the right to use any portions
of the Property that are designated by Landlord for the common use
of tenants and others (the “ Common Areas
”).
3.
Adjustment of Commencement Date;
Possession.
3.01 At Landlord’s
request, with respect to each of the Initial Premises and Building
5, Landlord and Tenant shall enter into a commencement letter
agreement in the form attached as Exhibit D
.
3.02 The Premises are accepted by
Tenant in “as is” condition and configuration without
any representations or warranties by Landlord. By taking possession
of the Premises, Tenant agrees that the Premises are in good order
and satisfactory condition. Tenant hereby acknowledges and
agrees that Tenant is currently in possession of Building 6 and
Building 7 pursuant to the terms of that certain lease dated March
8, 1995 by and between Tenant and Landlord’s
predecessor-in-interest, WRC Properties, Inc. (the “ Prior
Lease ”). Landlord shall make commercially
reasonable efforts to deliver possession of Building 5 to Tenant on
or before November 1, 2004. Landlord shall not be liable for
a failure to deliver possession of Building 5 or any other space
due to the holdover or unlawful possession of such space by another
party, however Landlord shall use reasonably diligent efforts to
obtain possession of the space.
Notwithstanding the foregoing, if Landlord has
not delivered possession of Building 5 on or before January 1, 2005
(the “ Required Delivery Date ”), Tenant, as its
sole remedy, may terminate this Lease by giving Landlord written
notice of termination on or before the earlier to occur of:
(i) 5 Business Days after the Required Delivery Date; and (ii) the
date Landlord delivers possession of Building 5 to Tenant. In
such event, this Lease shall be deemed null and void and of no
further force and effect and the parties hereto shall have no
further responsibilities or obligations to each other.
Landlord and Tenant acknowledge and agree that the Required
Delivery Date shall be postponed by the number of days
Landlord’s delivery of possession of Building 5 is delayed
due to events of Force Majeure.
4.
Rent.
4.01 Tenant shall pay
Landlord, without any setoff or deduction, unless expressly set
forth in this Lease, all Base Rent and Additional Rent due for the
Term (collectively referred to as “ Rent ”).
“ Additional Rent ” means all sums (exclusive of
Base Rent) that Tenant is required to pay Landlord under this
Lease. Tenant shall pay and be liable for all rental, sales and use
taxes (but excluding income taxes), if any, imposed upon or
measured by Rent. Base Rent and recurring monthly charges of
Additional Rent shall be due and payable in advance on the first
day of each calendar month without notice or demand, provided that
the installment of Base Rent for the first full calendar month of
the Term when such Base Rent is due under this Lease for the
Initial Premises and Building 5 collectively, and the first monthly
installment of Additional Rent for Expenses and Taxes when such
Additional Rent is due under this Lease for the Initial Premises
and Building 5 collectively, shall be payable upon the execution of
this Lease by Tenant. All other items of Rent shall be due
and payable by Tenant on or before 30 days after billing by
Landlord. Rent shall be made payable to the entity, and sent
to the address, Landlord designates and shall be made by good and
sufficient check or by other means acceptable to Landlord.
Tenant shall pay Landlord an administration fee equal to 5% of all
past due Rent, provided that Tenant shall be entitled to a grace
period of 5 days following written notice of delinquency from
Landlord for the first 2 late payments of Rent in a calendar year.
In addition, past due Rent shall accrue interest at 8% per annum.
Landlord’s acceptance of less than the correct amount of Rent
shall be considered a payment on account of the earliest Rent due.
Rent for any partial month during the Term shall be prorated. No
endorsement or statement on a check or letter accompanying payment
shall be
3
considered an accord and satisfaction.
Tenant’s covenant to pay Rent is independent of every other
covenant in this Lease.
4.02 Tenant shall pay
Tenant’s Pro Rata Share of Taxes and Expenses in accordance
with Exhibit B of this Lease.
5.
Compliance with Laws;
Use.
The Premises shall be used for the
Permitted Use and for no other use whatsoever. Tenant shall comply
with all statutes, codes, ordinances, orders, rules and regulations
of any municipal or governmental entity whether in effect now or
later, including the Americans with Disabilities Act (“
Law(s) ”), regarding the operation of Tenant’s
business and the use, condition, configuration and occupancy of the
Premises. In addition, Tenant shall, at its sole cost and expense,
promptly comply with any Laws that relate to the “Base
Building” (defined below), but only to the extent such
obligations are triggered by Tenant’s use of the Premises
(but subject to the terms and conditions of the Work Letter), other
than for general office use, or Alterations or improvements in the
Premises performed or requested by Tenant. “ Base
Building ” shall include the structural portions of the
Building, the public restrooms and the Building mechanical,
electrical and plumbing systems and equipment located in the
internal core of the Building on the floor or floors on which the
Premises are located. Tenant shall promptly provide Landlord with
copies of any notices it receives regarding an alleged violation of
Law. Tenant shall comply with the rules and regulations of
the Building attached as Exhibit E and such other reasonable
rules and regulations adopted by Landlord from time to time,
including rules and regulations for the performance of Alterations
(defined in Section 9). As of the date hereof, Landlord has not
received notice from any governmental agencies that the Building is
in violation of any Environmental Laws (as defined below with
respect to Hazardous Materials (as defined below). As
used in this Lease, “ Hazardous Materials ”
shall mean any material or substance that is now or hereafter
prohibited or regulated by any statute, law, rule, regulation or
ordinance or that is now or hereafter designated by any
governmental authority to be radioactive, toxic, hazardous or
otherwise a danger to health, reproduction or the environment
including but not limited to (i) oil and petroleum products, (ii)
radioactive materials, (iii) asbestos and asbestos-containing
materials, (iv) polychlorinated biphenyls and (v) substances
defined as “hazardous substances”, “hazardous
materials”, or “toxic substances” in the
Comprehensive Environmental Response Compensation and Liability Act
of 1980, as amended, 42 U.S.C. §§9601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. §§1801
et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
§§6901, et seq.; the Toxic Substances Control Act, 15
U.S.C. §§2601, et seq.; the Clean Water Act, 33 U.S.C.
§§1251 et seq.; the California Hazardous Waste Control
Act, Health and Safety Code §§25330, et seq.; the
California Safe Drinking Water and Toxic Enforcement Act, Health
and Safety Code §§25249.5, et seq.; California Health and
Safety Code §§25280, et seq. (Underground Storage
of Hazardous Substances); the California Hazardous Waste Management
Act, Health and Safety Code §§25170, et seq.
(Hazardous Materials Release Response Plans and Inventory); the
California Porter-Cologne Water Quality Control Act, Water Code
§§13000, et seq.; all as amended. As used in this
Lease, “ Environmental Laws ” shall mean all
local, state, or federal laws, statutes, ordinances, rules and
regulations now or hereafter enacted, issued or promulgated by any
governmental authority which relate to any Hazardous Material or
the use, manufacture, handling, treatment, transportation,
production, disposal, discharge, distribution, release, recycling,
emission, sale, or storage of, or the exposure of any person to, a
Hazardous Material. Landlord has disclosed to Tenant the
asbestos notification letters attached to this Lease as Exhibits
H and H-1 hereto.
6.
Security Deposit.
The Security Deposit, if any, shall
be delivered to Landlord upon the execution of this Lease by Tenant
and held by Landlord without liability for interest (unless
required by Law) as security for the performance of Tenant’s
obligations. The Security Deposit is not an advance payment
of Rent or a measure of damages. Landlord may use all or a
portion of the Security Deposit to satisfy past due Rent or to cure
any Default (defined in Section 18) by Tenant. If Landlord
uses any portion of the Security Deposit, Tenant shall, within 5
days after demand, restore the Security Deposit to its original
amount. Landlord shall return any unapplied portion of the Security
Deposit to Tenant within 45 days after the later to occur of: (a)
determination of the final Rent due from Tenant; or (b) the later
to occur of the Termination Date or the date Tenant surrenders the
Premises to Landlord in compliance with Section 25. Landlord may
assign the Security Deposit to a successor or transferee and,
following the assignment, Landlord shall have no further liability
for the return of the Security Deposit. Landlord shall not be
required to keep the Security Deposit separate from its other
accounts. Tenant hereby waives the provisions of Section
1950.7 of the California Civil Code, or any similar or successor
Laws now or hereinafter in effect.
7.
Building Services.
7.01
Services to the Building and
Premises shall be provided as follows:
(1)
If Tenant is leasing 100% of the
rentable area in the Building or if Tenant’s Pro
4
Rata Share, as defined in Section
1.04 above, is 100% (in either event, for purposes of this Lease,
Tenant shall be deemed the “ Sole Tenant of the
Building ”), Landlord agrees to furnish Tenant with
elevator service in the Building during the Term of this Lease and
to provide heat and air conditioning to the Premises, and Tenant,
at its cost, shall provide the following services: (a) Water
service for use in the lavatories on each floor on which the
Premises are located; (b) Maintenance and repair of the Buildings
as described in Section 9.01; (c) Janitor service; (d) Electricity
to the Premises for Tenant’s use, in accordance with and
subject to the terms and conditions this Lease; (e) gas for boilers
of the Building and water heaters, if any; (f) pest control
service; (g) refuse collection; and (h) such other services as
Tenant desires and which Landlord reasonably determines are
necessary or appropriate for the Building.
If Tenant was required to provide
the above services (other than elevator service or heating,
ventilating and air conditioning) at any time during the Term, and,
thereafter, by mutual agreement between Landlord and Tenant, or by
operation of law or otherwise, Tenant is not the Sole Tenant of the
Building or is otherwise not required to provide the above
services, then, at Landlord’s request and, at
Landlord’s option, as a condition to Landlord providing the
services described in Section 7.01(2) below, Tenant shall transfer
to Landlord any utility accounts and/or service contracts
(including, without limitation, any maintenance service agreements
entered into by Tenant, as described in Section 9.01. below or
otherwise) relating to all or any of the services to be provided by
Landlord described in Section 7.01(2) below, and Tenant shall
otherwise cooperate with Landlord in transferring control of, and
responsibility for, such services from Tenant to Landlord.
Tenant shall remain liable for all sums incurred in connection with
such accounts or service contracts relating to the period prior to
the date such accounts and service contracts are transferred to,
and assumed by, Landlord.
(2)
If Tenant is not the Sole Tenant of
the Building (as defined in Section 7.01(1) above), Landlord agrees
to furnish Tenant with elevator service in the Building during the
Term of this Lease, and, subject to the terms of the second
paragraph of Section 7.01(1) above, Landlord also agrees to provide
the following services: (a) Water service for use in the lavatories
on each floor on which the Premises are located; (b) Heat and air
conditioning in season during Building Service Hours, at such
temperatures and in such amounts as are standard for comparable
buildings or as required by governmental authority., provided that,
Tenant, upon such advance notice as is reasonably required by
Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours and Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined
by Landlord from time to time; (c) Maintenance and repair of the
Property as described in Section 9.02; (d) Janitor service on
Business Days, provided if Tenant’s use, floor covering or
other improvements require special services in excess of the
standard services for the Building, Tenant shall pay the additional
cost attributable to the special services; (e) Electricity to the
Premises for general office use, in accordance with and subject to
the terms and conditions in Article X; (f) gas for boilers of the
Building and water heaters serving the Building generally, if any;
(g) pest control service for the Common Areas of the Building; (h)
refuse collection for the Building; and (i) such other services as
Landlord reasonably determines are necessary or appropriate for the
Building or the Property. Further, Tenant shall have access
to the Building for Tenant and its employees 24 hours per day/7
days per week, subject to the terms of this Lease and such security
or monitoring systems as Landlord may reasonably impose, including,
without limitation, sign-in procedures and/or presentation of
identification cards.
7.02 Electricity used by
Tenant in the Premises shall be paid for by Tenant by separate
charge billed by the applicable utility company and payable
directly by Tenant. Without the consent of Landlord, Tenant’s
use of electrical service shall not exceed, either in voltage,
rated capacity, use beyond overall load, that which Landlord
reasonably deems to be standard for the Building. Landlord shall
have the right to measure electrical usage by commonly accepted
methods.
7.03 Landlord’s failure
to furnish, or any interruption, diminishment or termination of
services required to be provided by Landlord pursuant to this Lease
which is due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations,
utility interruptions or the occurrence of an event of Force
Majeure (defined in Section 26.03) (collectively a “
Service Failure ”) shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to
an abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement. However, if the Premises, or a
material portion of the Premises, are made untenantable for a
period in excess of 3 consecutive Business Days as a result of a
Service Failure that is reasonably within the control of Landlord
to correct (other than a Service Failure in connection with
Tenant’s failure to perform Tenant’s obligations under
this Lease, in which event Tenant shall not be entitled to any
abatement or other
5
remedy), then Tenant, as its sole remedy, shall
be entitled to receive an abatement of Rent payable hereunder
during the period beginning on the 4 th consecutive
Business Day of the Service Failure and ending on the day the
service has been restored. If the entire Premises have not
been rendered untenantable by the Service Failure, the amount of
abatement shall be equitably prorated.
8.
Leasehold
Improvements.
All improvements in and to the
Premises, including any Alterations (collectively, “
Leasehold Improvements ”) shall remain upon the
Premises at the end of the Term without compensation to
Tenant. Landlord, however, by written notice to Tenant at
least 30 days prior to the Termination Date, may require Tenant, at
its expense, to remove (a) any Cable (defined in Section 9.01)
installed by or for the benefit of Tenant, and (b) any Alterations
that, in Landlord’s reasonable judgment, are of a nature that
would require removal and repair costs that are materially in
excess of the removal and repair costs associated with standard
office improvements (collectively referred to as “
Required Removables ”). Following
Landlord’s receipt of final, approved plans for the Initial
Alterations (as defined in Exhibit C attached to this Lease)
which plans are sufficient to obtain all required permits for the
construction of the Initial Alterations, Tenant may request in
writing and Landlord shall respond within 30 days following
Landlord’s receipt of such written request, which items of
the Initial Alterations, if any, shall be deemed Required
Removables. Notwithstanding the foregoing, Tenant shall not
be required to remove at the expiration or earlier termination of
this Lease that portion of the Initial Alterations to Building 5
only which portion is constructed substantially in accordance with
Exhibit J to this Lease (“Holding company Test-Fit
Plan #3” prepared by RMW Architects) as reasonably and
mutually determined by Landlord and Tenant. Required
Removables shall include, without limitation, internal stairways,
raised floors, personal baths and showers, vaults, rolling file
systems and structural alterations and modifications. The
designated Required Removables shall be removed by Tenant before
the Termination Date. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant
fails to perform its obligations in a timely manner, Landlord may
perform such work at Tenant’s expense. Tenant, at the time it
requests approval for a proposed Alteration, may request in writing
that Landlord advise Tenant whether the Alteration or any portion
of the Alteration is a Required Removable. Within 10 days
after receipt of Tenant’s request, Landlord shall advise
Tenant in writing as to which portions of the Alteration are
Required Removables.
9.
Repairs and
Alterations.
9.01 Tenant shall periodically
inspect the Premises to identify any conditions that are dangerous
or in need of maintenance or repair. Tenant shall promptly
provide Landlord with notice of any such conditions. Tenant shall,
at its sole cost and expense, perform all maintenance and repairs
to the Premises that are not Landlord’s express
responsibility under this Lease, and keep the Premises in good
condition and repair, reasonable wear and tear excepted.
Tenant’s repair and maintenance obligations include, without
limitation, repairs to: (a) floor covering; (b) interior
partitions; (c) doors; (d) the interior side of demising walls; (e)
electronic, phone and data cabling and related equipment that is
installed by or for the exclusive benefit of Tenant (collectively,
“ Cable ”); (f) supplemental air conditioning
units, kitchens, including hot water heaters, plumbing, and similar
facilities exclusively serving Tenant; and (g) Alterations. In
addition and notwithstanding anything to the contrary contain in
Section IX.B below, if Tenant is the Sole Tenant of the Building
(as defined in Section 7.01(1)), Tenant’s repair obligations
shall also include, without limitation, the following: (a)
electrical and plumbing systems serving the Building in general
(including any equipment related thereto and located upon the roof
of the Building); (b) the interior Common Areas of the Building
(Landlord shall maintain the exterior Common Areas of the Building
in accordance with its obligations as provided in Section 9.02
below); and (c) exterior windows of the Building. To the
extent Landlord is not reimbursed by insurance proceeds, Tenant
shall reimburse Landlord for the cost of repairing damage to the
Building caused by the acts of Tenant, Tenant Related Parties and
their respective contractors and vendors. If Tenant fails to make
any repairs to the Premises for more than 30 days after notice from
Landlord (although notice shall not be required in an emergency),
Landlord may make the repairs, and Tenant shall pay the reasonable
cost of the repairs, together with an administrative charge in an
amount equal to 3% of the cost of the repairs.
If Tenant is the Sole Tenant of the
Building (as defined in Section 7.01(1) above) Tenant, at
Tenant’s own expense, shall procure and maintain in full
force and effect, a maintenance/service contract(s) (the “
Service Contract ”), in a form and with a maintenance
contractor approved by Landlord, providing for the service,
maintenance and repair of all plumbing and electrical systems and
equipment serving the Building. The service contract(s) must
include all services suggested by the equipment manufacturer within
the operation/maintenance manual relating to such equipment and
systems and must become effective and a copy thereof delivered to
Landlord: (x) within thirty (30) days after the Commencement Date
for the Initial Premises, and (y) within thirty (30) days after the
Building 5 Commencement Date for Building 5, each with respect to
items (i) and (ii) above, or within 30 days after requested by
Landlord with respect to item (iii) above. Tenant shall
follow all reasonable recommendations of said contractor for the
maintenance and repair of the equipment and systems covered by the
Service Contract. The Service Contract shall provide that the
contractor shall perform regularly scheduled inspections,
preventative maintenance and service on the covered equipment
and
6
systems, and that having made such inspections,
said contractor shall furnish a complete report of any defective
conditions found to be existing with respect to such equipment,
together with any recommendations for maintenance, repair and/or
replacement thereof. Said report shall be furnished to Tenant
with a copy to Landlord. Landlord may, upon notice to Tenant,
enter into such a service contract on behalf of Tenant or perform
the work and in either case charge Tenant the cost thereof along
with a reasonable amount for Landlord’s overhead.
9.02 Except to the extent the same
is a Tenant obligation when Tenant is the Sole Tenant of the
Building as such obligations are described in Section 9.01 above,
Landlord shall keep and maintain in good repair and working order
and perform maintenance upon the: (a) structural elements of the
Building (including foundations); (b) electrical and plumbing
systems serving the Building in general and mechanical (including
HVAC), and fire/life safety systems serving the Building in general
and serving the Premises; (c) Common Areas; (d) roof of the
Building; (e) exterior windows of the Building; and (f) elevators
serving the Building. Landlord shall promptly make repairs for
which Landlord is responsible. Tenant hereby waives any and
all rights under and benefits of subsection 1 of Section 1932, and
Sections 1941 and 1942 of the California Civil Code, or any similar
or successor Laws now or hereinafter in effect.
9.03 Tenant shall not make
alterations, repairs, additions or improvements (collectively
referred to as “ Alterations ”) without first
obtaining the written consent of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed. However,
Landlord’s consent shall not be required for any Alteration
that satisfies all of the following criteria (a “ Cosmetic
Alteration ”): (a) is of a cosmetic nature such as
painting, wallpapering, hanging pictures and installing carpeting;
(b) is not visible from the exterior of the Premises or Building;
(c) will not affect the Base Building; and (d) does not require
work to be performed inside the walls or above the ceiling of the
Premises. Cosmetic Alterations shall be subject to all the
other provisions of this Section 9.03. Prior to
starting work, Tenant shall furnish Landlord with plans and
specifications; names of contractors reasonably acceptable to
Landlord (provided that Landlord may designate specific contractors
with respect to Base Building); required permits and approvals;
evidence of contractor’s and subcontractor’s insurance
in amounts reasonably required by Landlord and naming Landlord as
an additional insured; and any security for performance in amounts
reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its approval.
Alterations shall be constructed in a good and workmanlike manner
using materials of a quality reasonably approved by Landlord.
Tenant shall reimburse Landlord for any sums paid by Landlord for
third party examination of Tenant’s plans for non-Cosmetic
Alterations. In addition, Tenant shall pay Landlord a fee for
Landlord’s oversight and coordination of any non-Cosmetic
Alterations equal to 3% of the cost of the Alterations. Upon
completion, Tenant shall furnish “as-built” plans for
non-Cosmetic Alterations, completion affidavits and full and final
waivers of lien. Landlord’s approval of an Alteration shall
not be deemed a representation by Landlord that the Alteration
complies with Law.
10.
Entry by Landlord.
Landlord may enter the Premises to
inspect, show or clean the Premises or to perform or facilitate the
performance of repairs, alterations or additions to the Premises or
any portion of the Building. Except in emergencies or to
provide Building services, Landlord shall provide Tenant with
reasonable prior verbal notice of entry and shall use reasonable
efforts to minimize any interference with Tenant’s use of the
Premises. If reasonably necessary, Landlord may temporarily
close all or a portion of the Premises to perform repairs,
alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be
completed on weekends and after Building Service Hours. Entry
by Landlord shall not constitute a constructive eviction or entitle
Tenant to an abatement or reduction of Rent.
11.
Assignment and
Subletting.
11.01 Except in connection
with a Permitted Transfer (defined in Section 11.04), Tenant shall
not assign, sublease, transfer or encumber any interest in this
Lease or allow any third party to use any portion of the Premises
(collectively or individually, a “ Transfer ”)
without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed if Landlord
does not exercise its recapture rights under Section 11.02.
If the entity which controls the voting shares/rights of Tenant
changes at any time, such change of ownership or control shall
constitute a Transfer unless Tenant is an entity whose outstanding
stock is listed on a recognized securities exchange or if at least
80% of its voting stock is owned by another entity, the voting
stock of which is so listed. Tenant hereby waives the
provisions of Section 1995.310 of the California Civil Code, or any
similar or successor Laws, now or hereinafter in effect, and all
other remedies, including, without limitation, any right at law or
equity to terminate this Lease, on its own behalf and, to the
extent permitted under all applicable Laws, on behalf of the
proposed transferee. Any attempted Transfer in violation of
this Section is voidable by Landlord. In no event shall any
Transfer, including a Permitted Transfer, release or relieve Tenant
from any obligation under this Lease.
7
Notwithstanding anything to the
contrary contained herein, Landlord’s consent shall not be
required with respect to a sublease or a series of subleases to a
management company or management companies of venture or investment
funds: (i) which funds are syndicated or sponsored by Tenant or any
of its Affiliates, and (ii) which in the aggregate at any one time,
all such subleases to such management company(ies) collectively
cover no more than the lesser of: (X) 5% of the total amount
of the Premises (as the same may be modified from time to time) and
(Y) 10,000 rentable square feet of the Premises, and (iii) which
subleases pertain to this Lease only and to no other properties or
leased space; and (iv) which subleases are necessary to comply with
applicable regulations and/or Laws respecting Tenant’s
business operations (a “ Management Company Sublease
”). Any such Management Company Sublease shall provide
that (1) the portion of the Premises covered by the Management
Company Sublease shall be used for the Permitted Use hereunder and
for no other purpose; (2) Tenant notifies Landlord, in writing, of
the identity of the sublease under any such Management Company
Sublease no less than 15 days prior to the effective date of the
subject Management Company Sublease; (3) Tenant provides to
Landlord a copy of the subject final, executed Management Company
Sublease; (4) the Management Company Sublease shall expressly
provide by its terms that the Management Company Sublease is
subject and subordinate to this Lease, the subtenant under any such
Management Company Sublease shall indemnify Landlord in the same
manner that Tenant indemnifies Landlord under the terms and
conditions of this Lease, and such subtenant(s) shall carry in
place during the entire term of the Management Company Sublease
(and provide to Landlord a certificate of insurance evidencing the
same) all insurance required of Tenant but with respect to portion
of the Premises covered by the subject Management Company
Sublease. The term of any Management Company Sublease shall
expire prior to the termination date of this Lease.
11.02 Tenant shall provide
Landlord with financial statements for the proposed transferee, a
fully executed copy of the proposed assignment, sublease or other
Transfer documentation and such other information as Landlord may
reasonably request. Within 15 Business Days after receipt of the
required information and documentation, Landlord shall either: (a)
consent to the Transfer by execution of a consent agreement in a
form reasonably designated by Landlord; (b) reasonably refuse to
consent to the Transfer in writing; or (c) in the event of an
assignment of this Lease or subletting of more than: (i) 80% of the
Rentable Area of the Premises located in Building 5 for more than
80% of the remaining Term (excluding unexercised options) (the
“ Building 5 Recapture Right ”), and/or (ii) 80%
of the Rentable Area of the Premises located in Building 6 for more
than 80% of the remaining Term (excluding unexercised options) (the
“ Building 6 Recapture Right ” and together with
the Building 5 Recapture Right, collectively, the “
Recapture Right ”), recapture the portion of the
Premises that Tenant is proposing to Transfer. If Landlord
exercises its Recapture Right, this Lease shall automatically be
amended to delete the applicable portion of the Premises effective
on the proposed effective date of the Transfer. Tenant shall
pay Landlord a review fee of $1,500.00 for Landlord’s review
of any requested Transfer. The review fee shall not apply to
any Permitted Transfers.
11.03 Tenant shall pay
Landlord 50% of all rent and other consideration which Tenant
receives as a result of a Transfer that is in excess of the Rent
payable to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for
Landlord’s share of the excess within 30 days after
Tenant’s receipt of the excess. Tenant may deduct from
the excess, on a straight-line basis, all reasonable and customary
expenses directly incurred by Tenant attributable to the Transfer,
including, without limitation, reasonable brokers’
commissions and attorneys’ fees, and the cost of tenant
improvements made specifically for the subject Transfer. If
Tenant is in Default, Landlord may require that all sublease
payments be made directly to Landlord, in which case Tenant shall
receive a credit against Rent in the amount of Tenant’s share
of payments received by Landlord.
11.04 Tenant may assign this Lease
to a successor to Tenant by purchase, merger, consolidation or
reorganization (an “ Ownership Change ”) or
assign this Lease or sublet all or a portion of the Premises to an
Affiliate without the consent of Landlord, provided that all of the
following conditions are satisfied (a “ Permitted
Transfer ”): (a) Tenant is not then in Default or
with the passage of time would be in Default; (b) in the event of
an Ownership Change, Tenant’s successor shall own
substantially all of the assets of Tenant and have a net worth
which is at least equal to Tenant’s net worth as of the day
prior to the proposed Ownership Change; (c) Tenant’s
successor shall use the Premises for the permitted use expressly
described in this Lease; and (d) Tenant shall give Landlord written
notice at least 15 Business Days prior to the effective date of the
Permitted Transfer (provided that, if prohibited by confidentiality
in connection with a proposed purchase, merger, consolidation or
reorganization, then Tenant shall give Landlord written notice
within 10 days after the effective date of the proposed purchase,
merger, consolidation or reorganization). Tenant’s notice to
Landlord shall include information and documentation evidencing the
Permitted Transfer and showing that each of the above conditions
has been satisfied. If requested by Landlord, Tenant’s
successor shall sign a commercially reasonable form of assumption
agreement. “ Affiliate ” shall mean an entity
controlled by, controlling or under common control with
Tenant.
8
12.
Liens.
Tenant shall not permit
mechanics’ or other liens to be placed upon the Property,
Premises or Tenant’s leasehold interest in connection with
any work or service done or purportedly done by or for the benefit
of Tenant or its transferees. Tenant shall give Landlord
notice at least 15 days prior to the commencement of any work in
the Premises to afford Landlord the opportunity, where applicable,
to post and record notices of non-responsibility. Tenant, within 10
days of notice from Landlord, shall fully discharge any lien by
settlement, by bonding or by insuring over the lien in the manner
prescribed by the applicable lien Law. If Tenant fails to do
so, Landlord may bond, insure over or otherwise discharge the
lien. Tenant shall reimburse Landlord for any amount paid by
Landlord, including, without limitation, reasonable
attorneys’ fees.
13.
Indemnity and Waiver of
Claims.
Tenant hereby waives all claims
against and releases Landlord and its trustees, members,
principals, beneficiaries, partners, officers, directors,
employees, Mortgagees (defined in Section 23) and agents (the
“ Landlord Related Parties ”) from all claims
for any injury to or death of persons, damage to property or
business loss in any manner related to (a) Force Majeure, (b) acts
of third parties, (c) the bursting or leaking of any tank, water
closet, drain or other pipe, (d) the inadequacy or failure of any
security services, personnel or equipment, or (e) any matter not
within the reasonable control of Landlord. Except to the extent
caused by the negligence or willful misconduct of Landlord or any
Landlord Related Parties or Landlord’s breach of this Lease,
Tenant shall indemnify, defend and hold Landlord and Landlord
Related Parties harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges
and expenses, including, without limitation, reasonable
attorneys’ fees and other professional fees (if and to the
extent permitted by Law) (collectively referred to as “
Losses ”), which may be imposed upon, incurred by or
asserted against Landlord or any of the Landlord Related Parties by
any third party and arising out of or in connection with any damage
or injury occurring in the Premises or any acts or omissions
(including violations of Law) of Tenant, the Tenant Related Parties
or any of Tenant’s transferees, contractors or
licensees. Except to the extent caused by the negligence or
willful misconduct of Tenant or any Tenant Related Parties or
Tenant’s breach of this Lease, Landlord shall indemnify,
defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
(“ Tenant Related Parties ”) harmless against
and from all Losses which may be imposed upon, incurred by or
asserted against Tenant or any of the Tenant Related Parties by any
third party and arising out of or in connection with the acts or
omissions (including violations of Law) of Landlord or the Landlord
Related Parties.
14.
Insurance.
Tenant shall maintain the following
insurance (“ Tenant’s Insurance ”):
(a) Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence basis, a
minimum combined single limit of $2,000,000.00; (b)
Property/Business Interruption Insurance written on an All
Risk or Special Perils form, with coverage for broad form water
damage including earthquake sprinkler leakage, at replacement cost
value and with a replacement cost endorsement covering all of
Tenant’s business and trade fixtures, equipment, movable
partitions, furniture, merchandise and other personal property
within the Premises (“ Tenant’s Property
”) and any Leasehold Improvements performed by or for the
benefit of Tenant; (c) Workers’ Compensation Insurance in
amounts required by Law; and (d) Employers Liability Coverage of at
least $1,000,000.00 per occurrence. Any company writing
Tenant’s Insurance shall have an A.M. Best rating of not less
than A-VIII. All Commercial General Liability Insurance
policies shall name as additional insureds Landlord (or its
successors and assignees), the managing agent for the Building (or
any successor), EOP Operating Limited Partnership, Equity Office
Properties Trust and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and
agents, and other designees of Landlord and its successors as the
interest of such designees shall appear. All policies of
Tenant’s Insurance shall contain endorsements that the
insurer(s) shall give Landlord and its designees at least 30
days’ advance written notice of any cancellation,
termination, material change or lapse of insurance. Tenant shall
provide Landlord with a certificate of insurance evidencing
Tenant’s Insurance: (x) with respect to the Initial Premises,
prior to the earlier to occur of the Commencement Date or the date
Tenant is provided with possession of the Premises, and (y) with
respect to Building 5, prior to the Building 5 Commencement Date,
and, respecting each of clause (x) and clause (y), thereafter as
necessary to assure that Landlord always has current certificates
evidencing Tenant’s Insurance.
Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost
value as reasonably estimated by Landlord. Landlord shall
maintain Commercial General Liability insurance applicable to the
Property, Building and Common Areas providing, on an occurrence
basis, a minimum combined single limit of at least
$2,000,000.00.
9
15.
Subrogation.
Landlord and Tenant hereby waive and
shall cause their respective insurance carriers to waive any and
all rights of recovery, claims, actions or causes of action against
the other for any loss or damage with respect to Tenant’s
Property, Leasehold Improvements, the Building, the Premises, or
any contents thereof, including rights, claims, actions and causes
of action based on negligence, which loss or damage is (or would
have been, had the insurance required by this Lease been carried)
covered by insurance.
16.
Casualty Damage.
16.01 If all or any portion of
the Premises becomes untenantable by fire or other casualty to the
Premises (collectively a “ Casualty ”),
Landlord, with reasonable promptness, shall cause a general
contractor selected by Landlord to provide Landlord and Tenant with
a written estimate of the amount of time required using standard
working methods to Substantially Complete the repair and
restoration of the Premises and any Common Areas necessary to
provide access to the Premises (“ Completion Estimate
”). If the Completion Estimate indicates that the
Premises located within a Building or any Common Areas necessary to
provide access to the Premises located within such Building cannot
be made tenantable within 300 days from the date of the Casualty,
then either party shall have the right to terminate this Lease with
respect to the Building in which the Casualty occurred upon written
notice to the other within 10 Business Days after receipt of the
Completion Estimate. Tenant, however, shall not have the
right to terminate this Lease if the Casualty was caused by the
negligence or intentional misconduct of Tenant or any Tenant
Related Parties. In addition, Landlord, by notice to Tenant within
90 days after the date of the Casualty, shall have the right to
terminate this Lease with respect to the Building in which the
Casualty occurred if: (1) the Premises have been materially
damaged and there is less than 2 years of the Term remaining on the
date of the Casualty; (2) any Mortgagee requires that the insurance
proceeds be applied to the payment of the mortgage debt; or (3) a
material uninsured loss to the Building occurs. In addition
to Landlord’s right to terminate as provided herein, Tenant
shall have the right to terminate this Lease with respect to the
Building I which the Casualty occurred if: (a) a substantial
portion of the Premises in the subject Building has been damaged by
Casualty and such damage cannot reasonably be repaired (as
reasonably determined by Landlord) within 60 days after
Landlord’s receipt of all required permits to restore the
subject portion of the Premises; (b) there is less than 1 year of
the Term remaining on the date of such Casualty; (c) the Casualty
was not caused by the negligence or willful misconduct of Tenant or
its agents, employees or contractors; and (d) Tenant provides
Landlord with written notice of its intent to terminate within 30
days after the date of the Casualty.
16.02 If this Lease is not
terminated (with respect to either all or a portion of the Premises
as provided in Section 16.01 above), Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment
or other matters beyond Landlord’s reasonable control,
restore the Premises and Common Areas. Such restoration shall be to
substantially the same condition that existed prior to the
Casualty, except for modifications required by Law or any other
modifications to the Common Areas deemed desirable by Landlord.
Upon notice from Landlord, Tenant shall assign to Landlord (or to
any party designated by Landlord) all property insurance proceeds
payable to Tenant under Tenant’s Insurance with respect to
any Leasehold Improvements performed by or for the benefit of
Tenant; provided if the estimated cost to repair such Leasehold
Improvements exceeds the amount of insurance proceeds received by
Landlord from Tenant’s insurance carrier, the excess cost of
such repairs shall be paid by Tenant to Landlord prior to
Landlord’s commencement of repairs (the “ Excess
Casualty Costs ”). Within 15 days of demand, Tenant
shall also pay Landlord for any additional excess costs that are
determined during the performance of the repairs. If the estimated
Excess Casualty Costs exceed the actual cost to repair such
Leasehold Improvements (and Tenant has paid to Landlord funds
covering all such Excess Casualty Costs), Landlord shall reimburse
to Tenant any such overpayment. Landlord shall not be liable
for any inconvenience to Tenant, or injury to Tenant’s
business resulting in any way from the Casualty or the repair
thereof. Provided that Tenant is not in Default, during any
period of time that all or a material portion of the Premises is
rendered untenantable as a result of a Casualty, the Rent shall
abate for the portion of the Premises that is untenantable and not
used by Tenant. The terms of this Article 16 shall not diminish the
parties rights and/or obligations provided in Article 13 of this
Lease.
16.03 The provisions of this
Lease, including this Section 16, constitute an express agreement
between Landlord and Tenant with respect to any and all damage to,
or destruction of, all or any part of the Premises or the Property,
and any Laws, including, without limitation, Sections 1932(2) and
1933(4) of the California Civil Code, with respect to any rights or
obligations concerning damage or destruction in the absence of an
express agreement between the parties, and any similar or successor
Laws now or hereinafter in effect, shall have no application to
this Lease or any damage or destruction to all or any part of the
Premises or the Property.
17.
Condemnation.
If more than 50% of a Building is
taken or condemned for any public or quasi-public use under Law, by
eminent domain or private purchase in lieu thereof (a “
Taking ”), then either party may terminate
this
10
Lease with respect to the Premises located in
the subject Building only. Landlord shall also have the right
to terminate this Lease if there is a Taking of 50% or more of any
Building or 50% or more of any building on the Property which
Taking would have a material adverse effect on Landlord’s
ability to profitably operate the remainder of the Property.
The terminating party shall provide written notice of termination
to the other party within 45 days after it first receives notice of
the Taking. The termination shall be effective on the date
the physical taking occurs. If this Lease is not terminated,
Base Rent and Tenant’s Pro Rata Share shall be appropriately
adjusted to account for any reduction in the square footage of the
Building or Premises. All compensation awarded for a Taking shall
be the property of Landlord. The right to receive
compensation or proceeds are expressly waived by Tenant, however,
Tenant may file a separate claim for Tenant’s Property and
Tenant’s reasonable relocation expenses, provided the filing
of the claim does not diminish the amount of Landlord’s
award. If only a part of the Premises is subject to a Taking
and this Lease is not terminated, Landlord, with reasonable
diligence, will restore the remaining portion of the Premises as
nearly as practicable to the condition immediately prior to the
Taking. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of the California Code
of Civil Procedure, or any similar or successor Laws.
18.
Events of Default.
Each of the following occurrences
shall be a “ Default ”: (a) Tenant’s
failure to pay any portion of Rent when due, if the failure
continues for 3 Business Days after written notice to Tenant
(“ Monetary Default ”); (b) Tenant’s
failure (other than a Monetary Default) to comply with any term,
provision, condition or covenant of this Lease, if the failure is
not cured within 20 days after written notice to Tenant provided,
however, if Tenant’s failure to comply cannot reasonably be
cured within 20 days, Tenant shall be allowed additional time (not
to exceed 60 days) as is reasonably necessary to cure the failure
so long as Tenant begins the cure within 20 days and diligently
pursues the cure to completion; (c) Tenant or any Guarantor becomes
insolvent, makes a transfer in fraud of creditors, makes an
assignment for the benefit of creditors, admits in writing its
inability to pay its debts when due or forfeits or loses its right
to conduct business; (d) the leasehold estate is taken by process
or operation of Law; or (e) in the case of any ground floor or
retail Tenant, Tenant does not take possession of or abandons or
vacates all or any portion of the Premises. If Landlord provides
Tenant with notice of Tenant’s failure to comply with any
specific provision of this Lease on 3 separate occasions during any
12 month period, Tenant’s subsequent violation of such
provision shall, at Landlord’s option, be an incurable
Default by Tenant. All notices sent under this Section shall be in
satisfaction of, and not in addition to, notice required by
Law.
19.
Remedies.
19.01 Upon the occurrence of
any Default under this Lease, whether enumerated in Section 18 or
not, Landlord shall have the option to pursue any one or more of
the following remedies without any notice (except as expressly
prescribed herein) or demand whatsoever (and without limiting the
generality of the foregoing, Tenant hereby specifically waives
notice and demand for payment of Rent or other obligations, except
for those notices specifically required pursuant to the terms of
Section 18 or this Section 19, and waives any and all other notices
or demand requirements imposed by applicable law):
(a)
Terminate this Lease and
Tenant’s right to possession of the Premises and recover from
Tenant an award of damages equal to the sum of the
following:
(i)
The Worth at the Time of Award of
the unpaid Rent which had been earned at the time of
termination;
(ii)
The Worth at the Time of Award of
the amount by which the unpaid Rent which would have been earned
after termination until the time of award exceeds the amount of
such Rent loss that Tenant affirmatively proves could have been
reasonably avoided;
(iii)
The Worth at the Time of Award of
the amount by which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of such Rent loss that
Tenant affirmatively proves could be reasonably avoided;
(iv)
Any other amount necessary to
compensate Landlord for all the detriment either proximately caused
by Tenant’s failure to perform Tenant’s obligations
under this Lease or which in the ordinary course of things would be
likely to result therefrom; and
(v)
All such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to
time under applicable law.
The “ Worth at the Time of
Award ” of the amounts referred to in parts (i) and (ii)
above, shall be computed by allowing interest at the lesser of a
per annum rate equal to: (A) the greatest per annum rate of
interest permitted from time to time under applicable law,
or
11
(B) the Prime Rate plus 5%.
For purposes hereof, the “ Prime Rate ” shall be
the per annum interest rate publicly announced as its prime or base
rate by a federally insured bank selected by Landlord in the State
of California. The “ Worth at the Time of Award
” of the amount referred to in part (iii), above, shall be
computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus
1%;
(b)
Employ the remedy described in
California Civil Code § 1951.4 (Landlord may continue this
Lease in effect after Tenant’s breach and abandonment and
recover Rent as it becomes due, if Tenant has the right to sublet
or assign, subject only to reasonable limitations); or
(c)
Notwithstanding Landlord’s
exercise of the remedy described in California Civil Code §
1951.4 in respect of an event or events of default, at such time
thereafter as Landlord may elect in writing, to terminate this
Lease and Tenant’s right to possession of the Premises and
recover an award of damages as provided above in Paragraph
19.01(a).
19.02 The subsequent
acceptance of Rent hereunder by Landlord shall not be deemed to be
a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay
the particular Rent so accepted, regardless of Landlord’s
knowledge of such preceding breach at the time of acceptance of
such Rent. No waiver by Landlord of any breach hereof shall
be effective unless such waiver is in writing and signed by
Landlord.
19.03 TENANT HEREBY WAIVES ANY
AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF
CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL
PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW
FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM PROVIDING THAT
TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS
LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT’S
BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION
ARISING OUT OF OR RELATING TO THIS LEASE.
19.04 No right or remedy
herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right
or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief, or to a
decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease, or to any other remedy
allowed to Landlord at law or in equity. Forbearance by
Landlord to enforce one or more of the remedies herein provided
upon an event of default shall not be deemed or construed to
constitute a waiver of such default.
19.05 If Tenant is in Default
of any of its non-monetary obligations under the Lease, Landlord
shall have the right to perform such obligations. Tenant
shall reimburse Landlord for the cost of such performance upon
demand together with an administrative charge equal to 10% of the
cost of the work performed by Landlord.
19.06 This Section 19 shall be
enforceable to the maximum extent such enforcement is not
prohibited by applicable law, and the unenforceability of any
portion thereof shall not thereby render unenforceable any other
portion.
20.
Limitation of
Liability.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF
ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE
INTEREST OF LANDLORD IN THE PROPERTY, OR (B) THE EQUITY INTEREST
LANDLORD WOULD HAVE IN THE PROPERTY IF THE PROPERTY WERE ENCUMBERED
BY THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 50% OF THE VALUE OF THE
PROPERTY. TENANT SHALL LOOK SOLELY TO LANDLORD’S
INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD
NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY
JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY
LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT,
DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED
DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE
MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED
IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE
ALLEGED DEFAULT. FOR PURPOSES HEREOF, “INTEREST OF LANDLORD
IN THE PROPERTY” SHALL INCLUDE RENTS DUE FROM TENANTS,
INSURANCE PROCEEDS, PROCEEDS FROM CONDEMNATION OR EMINENT DOMAIN
PROCEEDINGS (PRIOR TO THE DISTRIBUTION OF SAME TO ANY PARTNER OR
SHAREHOLDER OF LANDLORD OR ANY OTHER
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THIRD PARTY), AND PROCEEDS FROM THE SALE OF THE
PROPERTY; PROVIDED, HOWEVER, THAT WITH RESPECT TO PROCEEDS FROM THE
SALE OF THE PROPERTY, LANDLORD’S LIABILITY SHALL EXTEND ONLY
TO ADJUDICATED CLAIMS WHICH ARISE DURING LANDLORD’S PERIOD OF
OWNERSHIP AND DURING THE TERM OF THIS LEASE BUT ONLY AFTER LANDLORD
FIRST APPLIES ANY SUCH SALE PROCEEDS TO ANY OUTSTANDING MORTGAGES
AND/OR ANY OTHER ENCUMBRANCES EXISTING UPON OR OTHERWISE AFFECTING
THE PROPERTY (INCLUDING ANY GROUND LEASE PAYMENTS) AND ANY TAX
LIABILITY RESPECTING THE PROPERTY.
21.
Intentionally
Omitted.
22.
Holding Over.
If Tenant fails to surrender all or
any part of the Premises at the termination of this Lease,
occupancy of the Premises after termination shall be that of a
tenancy at sufferance. Tenant’s occupancy shall be
subject to all the terms and provisions of this Lease, and Tenant
shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the sum of the
Base Rent and Additional Rent due for the period immediately
preceding the holdover but only with respect to the Building or
Buildings in which the holdover occurs. No holdover by Tenant
or payment by Tenant after the termination of this Lease shall be
construed to extend the Term or prevent Landlord from immediate
recovery of possession of the Premises by summary proceedings or
otherwise. If Landlord is unable to deliver possession of the
Premises to a new tenant or to perform improvements for a new
tenant as a result of Tenant’s holdover and Tenant fails to
vacate the Premises within 15 days after notice from Landlord,
Tenant shall be liable for all damages that Landlord suffers from
the holdover.
23.
Subordination to Mortgages;
Estoppel Certificate.
Tenant accepts this Lease subject
and subordinate to any mortgage(s), deed(s) of trust, ground
lease(s) or other lien(s) now or subsequently arising upon the
Premises, the Building or the Property, and to renewals,
modifications, refinancings and extensions thereof (collectively
referred to as a “ Mortgage ”). The party having
the benefit of a Mortgage shall be referred to as a “
Mortgagee ”. This clause shall be self-operative, but
upon request from a Mortgagee, Tenant shall execute a commercially
reasonable subordination agreement in favor of the Mortgagee. As an
alternative, a Mortgagee shall have the right at any time to
subordinate its Mortgage to this Lease. Notwithstanding the
foregoing in this Article to the contrary, as a condition precedent
to the future subordination of this Lease to a future Mortgage,
Landlord shall be required to provide Tenant with a
non-disturbance, subordination, and attornment agreement in favor
of Tenant from any Mortgagee who comes into existence after the
Commencement Date. Such non-disturbance, subordination, and
attornment agreement in favor of Tenant shall provide that, so long
as Tenant is paying the Rent due under the Lease and is not
otherwise in default under the Lease beyond any applicable cure
period, its right to possession and the other terms of the Lease
shall remain in full force and effect. Such non-disturbance,
subordination, and attornment agreement may include other
commercially reasonable provisions in favor of the Mortgagee,
including, without limitation, additional time on behalf of the
Mortgagee to cure defaults of the Landlord and provide that (a)
neither Mortgagee nor any successor-in-interest shall be bound by
(i) any payment of the Base Rent, Additional Rent, or other sum due
under this Lease for more than 1 month in advance or (ii) any
amendment or modification of the Lease made without the express
written consent of Mortgagee or any successor-in-interest; (b)
neither Mortgagee nor any successor-in-interest will be liable for
(i) any act or omission or warranties of any prior landlord
(including Landlord), (ii) the breach of any warranties or
obligations relating to construction of improvements on the
Property or any tenant finish work performed or to have been
performed by any prior landlord (including Landlord), or (iii) the
return of any security deposit, except to the extent such deposits
have been received by Mortgagee; and (c) neither Mortgagee nor any
successor-in-interest shall be subject to any offsets or defenses
which Tenant might have against any prior landlord (including
Landlord).
Upon request, Tenant, without charge, shall
attorn to any successor to Landlord’s interest in this
Lease. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver a
commercially reasonable estoppel certificate to those parties as
are reasonably requested by the other (including a Mortgagee or
prospective purchaser). Without limitation, such estoppel
certificate may include a certification as to the status of this
Lease, the existence of any defaults and the amount of Rent that is
due and payable.
24.
Notice.
All demands, approvals, consents or
notices (collectively referred to as a “ notice
”) shall be in writing and delivered by hand or sent by
registered or certified mail with return receipt requested or sent
by overnight or same day courier service at the party’s
respective Notice Address(es) set forth in Section 1. Each
notice shall be deemed to have been received on the earlier to
occur of actual delivery or the date on which delivery is refused,
or, if Tenant has vacated the Premises or any other Notice Address
of Tenant without providing a new Notice Address, 3 days after
notice is deposited in the U.S. mail or with
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a courier service in the manner described
above. Either party may, at any time, change its Notice
Address (other than to a post office box address) by giving the
other party written notice of the new address.
25.
Surrender of
Premises.
At the termination of this Lease or
Tenant’s right of possession, Tenant shall remove
Tenant’s Property from the Premises, and quit and surrender
the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear and damage which Landlord is
obligated to repair hereunder excepted. If Tenant fails to remove
any of Tenant’s Property within 5 Business Days after
termination of this Lease or Tenant’s right to possession,
Landlord, at Tenant’s sole cost and expense, shall be
entitled (but not obligated) to remove and store Tenant’s
Property. Landlord shall not be responsible for the value,
preservation or safekeeping of Tenant’s Property.
Tenant shall pay Landlord, upon demand, the expenses and storage
charges incurred. If Tenant fails to remove Tenant’s Property
from the Premises or storage, within 30 days after notice, Landlord
may deem all or any part of Tenant’s Property to be abandoned
and title to Tenant’s Property shall vest in
Landlord.
26.
Miscellaneous.
26.01 This Lease shall be
interpreted and enforced in accordance with the Laws of the State
of California and Landlord and Tenant hereby irrevocably consent to
the jurisdiction and proper venue of such state or
commonwealth. If any term or provision of this Lease shall to
any extent be void or unenforceable, the remainder of this Lease
shall not be affected. If there is more than one Tenant or if
Tenant is comprised of more than one party or entity, the
obligations imposed upon Tenant shall be joint and several
obligations of all the parties and entities, and requests or
demands from any one person or entity comprising Tenant shall be
deemed to have been made by all such persons or entities.
Notices to any one person or entity shall be deemed to have been
given to all persons and entities. Tenant represents and warrants
to Landlord that each individual executing this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant and that Tenant
is not, and the entities or individuals constituting Tenant or
which may own or control Tenant or which may be owned or controlled
by Tenant are not, among the individuals or entities identified on
any list compiled pursuant to Executive Order 13224 for the purpose
of identifying suspected terrorists.
26.02 If either party
institutes a suit against the other for violation of or to enforce
any covenant, term or condition of this Lease, the prevailing party
shall be entitled to all of its costs and expenses, including,
without limitation, reasonable attorneys’ fees.
Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease. Either
party’s failure to declare a default immediately upon its
occurrence, or delay in taking action for a default, shall not
constitute a waiver of the default, nor shall it constitute an
estoppel.
26.03 Whenever a period of
time is prescribed for the taking of an action by Landlord or
Tenant (other than the payment of the Security Deposit or Rent),
the period of time for the performance of such action shall be
extended by the number of days that the performance is actually
delayed due to strikes, acts of God, shortages of labor or
materials, war, terrorist acts, civil disturbances and other causes
beyond the reasonable control of the performing party (“
Force Majeure ”).
26.04 Landlord shall have the
right to transfer and assign, in whole or in part, all of its
rights and obligations under this Lease and in the Building and
Property. Upon transfer Landlord shall be released from any
obligations thereafter accruing hereunder and Tenant agrees to look
solely to the successor in interest of Landlord for the performance
of such obligations, provided that, any successor pursuant to a
voluntary, third party transfer (but not as part of an involuntary
transfer resulting from a foreclosure or deed in lieu thereof)
shall have assumed Landlord’s obligations under this
Lease.
26.05 Landlord has delivered a
copy of this Lease to Tenant for Tenant’s review only and the
delivery of it does not constitute an offer to Tenant or an option.
Tenant represents that it has dealt directly with and only with the
Broker in connection with this Lease. Tenant shall indemnify
and hold Landlord and the Landlord Related Parties harmless from
all claims of any other brokers claiming to have represented Tenant
in connection with this Lease. Landlord shall indemnify and hold
Tenant and the Tenant Related Parties harmless from all claims of
any brokers claiming to have represented Landlord in connection
with this Lease. Equity Office Properties Management Corp.
(“ EOPMC ”) is an affiliate of Landlord and
represents only the Landlord in this transaction. Any
assistance rendered by any agent or employee of EOPMC in connection
with this Lease or any subsequent amendment or modification hereto
has been or will be made as an accommodation to Tenant solely in
furtherance of consummating the transaction on behalf of Landlord,
and not as agent for Tenant.
26.06 Time is of the essence with
respect to Tenant’s exercise of any expansion, renewal or
extension rights granted to Tenant. The expiration of the Term,
whether by lapse of time, termination or otherwise, shall not
relieve either party of any obligations which accrued prior to or
which may continue to accrue after the expiration or termination of
this Lease.
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26.07 Tenant may peacefully
have, hold and enjoy the Premises, subject to the terms of this
Lease, provided Tenant pays the Rent and fully performs all of its
covenants and agreements. This covenant shall be binding upon
Landlord and its successors only during its or their respective
periods of ownership of the Building.
26.08 This Lease does not
grant any rights to light or air over or about the Building.
Landlord excepts and reserves exclusively to itself any and all
rights not specifically granted to Tenant under this Lease. This
Lease constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings related to the
Premises, including all lease proposals, letters of intent and
other documents. Neither party is relying upon any warranty,
statement or representation not contained in this Lease. This
Lease may be modified only by a written agreement signed by an
authorized representative of Landlord and Tenant.
15
Landlord and Tenant have executed
this Lease as of the day and year first above written.
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LANDLORD:
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CA-LAKE MARRIOTT BUSINESS PARK LIMITED
PARTNERSHIP, a Delaware limited partnership
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By:
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EOM GP, L.L.C., a Delaware limited liability
company, its
general partner
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By:
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Equity Office Management, L.L.C., a Delaware
limited liability company, its non-member manager
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By:
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/s/ JOHN W. PTERSON
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Name: John W. Peterson
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Title: Regional Senior Vice
President
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TENANT:
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SILICON VALLEY BANK, a California banking
corporation
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By:
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/s/ JACK JENKINS-STARK
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Name:
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J
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