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Exhibit
10.7
SIXTH AMENDMENT TO
OFFICE LEASE
THIS SIXTH AMENDMENT TO
OFFICE LEASE (this “Amendment”) is made and
effective as of December 22, 2006 (the “Effective
Date”) by and between MAGUIRE PROPERTIES-SAN DIEGO TECH
CENTER, LLC, a Delaware limited liability company
(“Landlord”), and KINTERA, INC., a Delaware
corporation (“Tenant”).
RECITALS
A. Landlord is the owner of
that certain improved real property located at 9605 Scranton Road
Drive, San Diego, California (referred to herein alternatively as
“Building 1” or the
“Building”). Building 1 is a part of that
certain project, with all common areas and appurtenant parking
facilities, commonly known as the “San Diego Tech
Center” (the “Project”).
B. San Diego Tech Center,
LLC, a Delaware limited liability company (
“SDTC” ), predecessor-in-interest to Calwest
(defined below), as landlord, and Tenant, as tenant, entered into
that certain Office Building Lease dated as of August 7, 2000
(the “Original Lease” ), as amended by
(i) that certain First Amendment to Lease dated
November 1, 2000 (the “First Amendment”) by
and between Calwest Industrial Properties, LLC
(“Calwest”), successor-in-interest to SDTC and
predecessor-in-interest to Landlord, as landlord, and Tenant, as
tenant, (ii) that certain Second Amendment to Lease dated
June 24, 2002 (the “Second Amendment”) by
and between Calwest, as landlord, and Tenant, as tenant,
(iii) that certain Third Amendment to Lease dated
February 13, 2004 (the “Third Amendment”)
by and between Calwest, as landlord, and Tenant, as tenant,
(iv) that certain Fourth Amendment to Lease dated
April 1, 2005 (the “Fourth Amendment”) by
and between Calwest, as landlord, and Tenant, as tenant, and
(v) that certain Fifth Amendment to Lease dated
December 1, 2006 (the “Fifth Amendment”) by
and between Landlord, as landlord, and Tenant, as tenant. The
Original Lease as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment and the Fifth
Amendment are collectively referred to herein as the
“Lease” .
C. Pursuant to the Lease,
Tenant has certain rights to use and occupy (i) that certain
premises consisting of all of the second (2nd) Floor of the
Building consisting of approximately 20,543 rentable square feet
(approximately 18,345 usable square feet) (the “Second
Floor Premises”), as more particularly described in the
Fifth Amendment and (ii) that certain premises consisting of a
portion of the third floor of the Building commonly known as Suite
310 and consisting of approximately 7,350 rentable square feet
(approximately 6,608 usable square feet) (the “Suite 310
Premises”), as more particularly described in the Fifth
Amendment. The Second Floor Premises and the Suite 310 Premises may
from time to time be referred to herein collectively, as the
“Existing Premises”.
D. Landlord and Tenant hereby
desire by this Amendment to (i) add to the Existing Premises
as of the First Increment Sixth Floor Premises Commencement Date,
that certain space in the Building consisting of approximately
3,552 rentable square feet (the “First Increment Sixth
Floor Premises”) as more particularly shown on Exhibit
“A”, attached hereto, (ii) additionally add to
the Premises as of the Second Increment Sixth Floor Premises
Commencement Date, that certain space in the Building consisting of
approximately 6,218 rentable square feet (the “Second
Increment Sixth Floor Premises”) as more particularly
shown on Exhibit “A” , attached hereto and
(iii) further amend the Lease upon and subject to each of the
terms, conditions, and provisions set forth herein. The First
Increment Sixth Floor Premises and the Second Increment Sixth Floor
Premises consists of approximate 9,770 rentable square feet
(approximately 8,821 usable square feet) in the
aggregate.
F. All capitalized terms used
herein without definition are defined as set forth in the
Lease.
NOW, THEREFORE, in
consideration of the Recitals set forth above, the agreements set
forth below and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby agree as follows:
1. Amendment
.
1.1 Amendments to Fifth
Amendment .
(a) Amendment of
Substantial Completion Date and New Rent Commencement
Date . The parties hereto agree that for purposes of the
Fifth Amendment and the Work Letter (defined in Section 1.6,
below), and for purposes of this Amendment, (a) the
“Substantial Completion Date” shall be the date
on which Substantial Completion (as defined in the Work Letter
(defined in Section 1.6, below)) of both the Fifth Amendment
Tenant Improvements (as defined in the Work Letter) and the Sixth
Floor Tenant Improvements (defined in Section 1.6, below)
(collectively, the “Fifth and Sixth Amendment Tenant
Improvements”), occurs or is deemed to occur as provided
in Section 1.2(a) of the Fifth Amendment and (b) that the
New Rent Commencement Date (as defined in the Fifth Amendment)
shall be the date that is five (5) days, including a weekend,
after the earlier to occur of (i) the Substantial Completion
Date (as defined above) and the Outside Start Date (as defined in
the Fifth Amendment).
(b) Deletion of
Section 1.1; Continued Use of Sixth Floor Premises .
The parties hereto acknowledge and agree that Section 1.1 of
the Fifth Amendment is hereafter null and void and shall be of no
further force or effect. For the avoidance of doubt, the parties
hereto agree that, notwithstanding anything to the contrary in the
Fifth Amendment, Tenant shall have the right to continue to use and
occupy the Sixth Floor Premises in accordance with this Amendment,
before, during after the construction of the Fifth and Sixth
Amendment Tenant Improvements.
1
1.2 Addition of Sixth
Floor Premises .
(a) First Increment
Sixth Floor Premises .
(i) Commencing on
First Increment Sixth Floor Premises Commencement Date (defined
below), the First Increment Sixth Floor Premises shall be added to
the Premises, and following the First Increment Sixth Floor
Premises Commencement Date, all references in the Lease to
“Premises” shall include the First Increment Sixth
Floor Premises. The “First Increment Sixth Floor Premises
Commencement Date” means the New Rent Commencement Date
(as defined in Section 1.1, above).
(ii) The term of
Tenant’s lease of the First Increment Sixth Floor Premises
(the “First Increment Sixth Floor Premises
Term”) shall commence on the First Increment Sixth Floor
Premises Commencement Date and shall expire on the Extended Term
Expiration Date (as defined in the Fifth Amendment).
(iii) Following the
First Increment Sixth Floor Premises Commencement Date, all
references in the Lease to the “Premises” shall mean
and refer to the Existing Premises and the First Increment Sixth
Floor Premises, collectively, and the “Premises” shall
consist of a total of approximately 31,445 rentable square feet in
the aggregate.
(b) Second Increment
Sixth Floor Premises .
(i) Commencing on
Second Increment Sixth Floor Premises Commencement Date (defined
below), the Second Increment Sixth Floor Premises shall be added to
the Premises, and following the Second Increment Sixth Floor
Premises Commencement Date, all references in the Lease to
“Premises” shall include the Second Increment Sixth
Floor Premises. The “Second Increment Sixth Floor Premises
Commencement Date” means the earlier to occur of
(A) July 1, 2008, or (B) the date that is six
(6) months after the first day upon which 275 or more persons
employed by Tenant (or any subtenant or other transferee of Tenant)
occupy or use the Premises. For purposes of determining when the
Second Increment Sixth Floor Premises Commencement Date shall
occur, Tenant shall (A) deliver to Landlord on or before the
first (1 st ) day of each calendar month after the New Rent
Commencement Date (and prior to the day that is six months after
the date on which 275 or more persons employed by Tenant (or any
subtenant or other transferee of Tenant) first begin occupying or
using the Premises), a written notice certified by an officer of
Tenant setting forth the number of persons employed by Tenant (or
any subtenant or other transferee of Tenant that are at such time
using or occupying the Premises and (B) shall notify Landlord
promptly following the first day on which 275 or more persons
employed by Tenant (or any subtenant or other transferee of Tenant)
begin occupying or using the Premises. Landlord agrees that
information provided by Tenant to Landlord under this
Section 1.2(b)(i) shall be subject to Section 2 below
treated as confidential and shall not be disclosed by Landlord
other than as permitted under Section 2, below.
(ii) The term of
Tenant’s lease of the Second Increment Sixth Floor Premises
(the “Second Increment Sixth Floor Premises
Term”) shall commence on the Second Increment Sixth Floor
Premises Commencement Date and shall expire on the Extended Term
Expiration Date.
(iii) Following the
Second Increment Sixth Floor Premises Commencement Date, all
references in the Lease to the “Premises” shall mean
and refer to the Existing Premises and the Sixth Floor Premises
(defined below), collectively, and the “Premises” shall
consist of a total of approximately 37,663 rentable square feet in
the aggregate. The “Sixth Floor Premises” means,
collectively, the First Increment Sixth Floor Premises and the
Second Increment Sixth Floor Premises.
1.3 Early Occupancy of
Second Increment Sixth Floor Premises . Landlord hereby
agrees that, Landlord shall also permit Tenant to occupy and use
the Second Increment Sixth Floor Premises during the period (the
“Second Increment Sixth Floor Beneficial Occupancy
Period” ) after the New Rent Commencement Date and prior
to the Second Increment Sixth Floor Premises Commencement Date.
During the Sixth Floor Beneficial Occupancy Period, each and every
term of the Lease (as amended hereby) shall apply to Tenant’s
use and occupancy of the Second Increment Sixth Floor Premises;
provided, however that the parties hereto acknowledge and agree
that, notwithstanding Tenant’s use and occupancy of the
Second Increment Sixth Floor Premises prior to the Second Increment
Sixth Floor Premises Commencement Date, Tenant shall have no
obligation to pay Rent or Additional Charges with respect to the
Second Increment Sixth Floor Premises during the Second Increment
Sixth Floor Premises Beneficial Occupancy Period.
1.4 Rent
.
(a) Prior to
Substantial Completion . During the portion of the Term
commencing on the Effective Date and continuing through and
including the New Rent Commencement
2
Date (including any portion
of the Extended Term (as defined in the Fifth Amendment) prior to
the New Rent Commencement Date), Tenant shall continue to pay Rent
to Landlord with respect to the Premises in the amounts required
and in the manner required under Section 1.4(a) of the Fifth
Amendment.
(b) First Increment
Sixth Floor Premises . Commencing on the First Increment
Sixth Floor Premises Commencement Date and continuing through the
Extended Term, the Rent payable with respect to the First Increment
Sixth Floor Premises shall be as follows and shall be payable in
accordance with and subject to the procedures set forth in Article
4 of the Original Lease:
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Months
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Rentable Area
of Sixth Floor
Premises (rsf) |
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Monthly
Rent Rate
($/rsf/mo) |
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Monthly
Rent
($/mo) |
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Annual Rent
($/yr) |
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1-12*
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3,552 |
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$ |
2.77 |
** |
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$ |
9,847.80 |
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$ |
118,173.60 |
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13-24
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3,552 |
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$ |
2.86 |
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$ |
10,143.23 |
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$ |
121,718.76 |
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25-36
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3,552 |
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$ |
2.94 |
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$ |
10,447.53 |
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$ |
125,370.36 |
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37-48
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3,552 |
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$ |
3.03 |
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$ |
10,760.96 |
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$ |
129,131.52 |
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49-60
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3,552 |
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$ |
3.12 |
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$ |
11,083.79 |
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$ |
133,005.48 |
| * |
Month 1 commences on the New Rent Commencement Date. In the
event that the New Rent Commencement Date shall occur on a day
other than the first day of any calendar month, months 1 -12 shall
include the partial calendar month during which the New Rent
Commencement Date occurs together with the following twelve
(12) full calendar months (such that, by way of example, if
the New Rent Commencement Date were to occur on March 21,
2007, Months 1-12 would begin on March 21, 2007 and end on
March 31, 2008, and thirteen (13) payments of Monthly
Rent (one of which would be prorated) would be payable with respect
to Months 1 - 12). |
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Monthly Rents set forth above escalate at an annual rate of 3%.
Monthly Rent Rates set forth above also escalate at an annual rate
of 3% but have been rounded to the nearest cent. |
(c) Second Increment
Sixth Floor Premises . Commencing on the Second Increment
Sixth Floor Premises Commencement Date and continuing through the
Extended Term, the Rent payable with respect to the Second
Increment Sixth Floor Premises shall be as follows and shall be
payable in accordance with and subject to the procedures set forth
in Article 4 of the Original Lease:
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Months
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Rentable Area
of Sixth Floor
Premises (rsf) |
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Monthly
Rent Rate
($/rsf/mo) |
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Monthly
Rent ($/mo) |
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Annual Rent
($/yr) |
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1-12*
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6,218 |
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$ |
2.90 |
** |
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$ |
18,032.20 |
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$ |
216,386.40 |
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13-24
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6,218 |
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$ |
2.99 |
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$ |
18,573.17 |
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$ |
222,878.04 |
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25-36
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6,218 |
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$ |
3.08 |
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$ |
19,130.37 |
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$ |
229,564.44 |
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37-48
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6,218 |
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$ |
3.17 |
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$ |
19,704.28 |
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$ |
236,451.36 |
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49-60
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6,218 |
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$ |
3.26 |
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$ |
20,295.41 |
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$ |
243,544.92 |
| * |
Month 1 commences on the New Rent Commencement Date, and the
parties agree that the Second Increment Commencement will not occur
until after Month 1 and that Tenant shall have no obligation to pay
Rent with respect to the Second Increment Sixth Floor Premises
until the Second Increment Sixth Floor Premises Commencement Date
shall occur. |
| ** |
Monthly Rents set forth above escalate at an annual rate of 3%.
Monthly Rent Rates set forth above also escalate at an annual rate
of 3% but have been rounded to the nearest cent. |
1.5 Additional
Charges . During the Term (as extended by the Extended
Term), Tenant shall continue to pay to Landlord as Additional
Charges, Tenant’s Building Share of Excess Building Expenses
and Tenant’s Project Share of Excess Project Expenses, all in
accordance with the provisions of the Lease (including, without
limitation, all of the provisions of Section 1.5 of the Fifth
Amendment) as amended hereby.
(a) The parties hereto
agree that, as provided in Section 1.5(b) of the Fifth
Amendment, during the portion of the Term commencing on the
Effective Date and continuing through and including the day
immediately preceding the New Rent Commencement Date (including any
portion of the Extended Term prior to the New Rent Commencement
Date), calculation of Tenant’s Building Share of Excess
Building Expenses and Tenant’s Project Share of Excess
Project Expenses shall be based on the Tenant’s Building
Share and Tenant’s Project Share, respectively, as set forth
in the Lease (prior to the Fifth Amendment and prior to this
Amendment), notwithstanding that Tenant may be occupying premises
within the Building and Project that does not compute to
Tenant’s Building Share or Tenant’s Project Share (as
set forth in the Lease, prior to the Fifth Amendment and this
Amendment).
(b) The parties hereto
acknowledge and agree that, commencing on the First Increment Sixth
Floor Premises Commencement Date (notwithstanding anything in the
Fifth
3
Amendment to the contrary),
(i) the Tenant’s Building Share (as set forth in
Section 5.1(e) of the Original Lease) shall mean 19.76%
(31,445 rsf/159,165 rsf) and (ii) the Tenant’s Project
Share (as set forth in Section 5.1(f) of the Original Lease)
shall mean 4.86% (31,445 rsf/647,229 rsf).
(c) The parties hereto
acknowledge and agree that, commencing on the Second Increment
Sixth Floor Premises Commencement Date (notwithstanding anything in
the Fifth Amendment to the contrary), (i) the Tenant’s
Building Share (as set forth in Section 5.1(e) of the Original
Lease) shall mean 23.66% (37,663 rsf/159,165 rsf) and (ii) the
Tenant’s Project Share (as set forth in Section 5.1(f)
of the Original Lease) shall mean 5.82% (37,663 rsf/647,229
rsf).
(d) For the avoidance
of doubt, the parties hereto agree that Section 1.5(e) of the
Fifth Amendment shall apply to the entire Premises (i.e, the
Existing Premises together with the Sixth Floor Premises (and any
further expansions of the Premises that may occur after the date
hereof)).
1.6 Landlord’s
Construction of the Sixth Floor Tenant Improvements; Condition of
the Premises; Coordination of Construction .
(a) Landlord’s
sole construction obligation in connection with this Amendment is
as set forth in this Amendment (and in the Work Letter as modified
hereby). The parties hereto agree that: (i) the construction
of its initial tenant improvements, if any, in the Sixth Floor
Premises (the “Sixth Floor Tenant Improvements”)
shall be governed by in the Work Letter attached as Exhibit
“B” to the Fifth Amendment (the “Work
Letter” ); (ii) for purposes of the Work Letter,
from and after the date hereof all references in the Work Letter to
the Fifth Amendment Tenant Improvements shall be deemed to be
references to the Fifth and Sixth Amendment Tenant Improvements;
(iii) all references in Sections 3.4(a), 3.4(b), 5.1 and
Exhibit B-l of the Work Letter to the Suite 310 Premises shall be
deemed to also be references to the Sixth Floor Premises and
(iv) except as specifically provided otherwise in this
Amendment (or in the Work Letter as amended hereby), Landlord shall
have no obligation, (A) to make any improvements, alterations
or other modifications to the Sixth Floor Premises, or (B) to
provide Tenant any allowance, rent credit or abatement in
connection with Tenant’s entering into this
Amendment.
(b) In connection with
Tenant’s lease of the Sixth Floor Premises, Landlord shall
provide to Tenant an improvement allowance in an amount of
$320,898.50. Accordingly, the Allowance Amount (as defined in the
Work Letter) is hereby increased from $432,341.50 to
$753,240.00.
(c) Landlord agrees
that Landlord shall cause the Sixth Floor Tenant Improvements to be
constructed either prior to or concurrently with the
Landlord’s construction of the Second Floor Tenant
Improvements (as defined in Section 1.6(b) of the Fifth
Amendment) and after Landlord’s construction of the Suite 310
Tenant Improvements (as defined in Section 1.6(b) of the Fifth
Amendment).
(d) Intentionally
Omitted.
(e) Intentionally
Omitted.
(f) The
parties
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