Exhibit 10.12
THIRD AMENDMENT TO
LEASE
(Calabasas Commerce
Center)
THIS THIRD AMENDMENT TO LEASE
(“ Third Amendment ”) is made and entered into
as of the 23rd day of May, 2003, by and between ARDEN REALTY
FINANCE III, L.L.C., a Delaware limited liability company (“
Landlord ”) and DIGITAL INSIGHT CORPORATION, a
Delaware corporation (“ Tenant ”).
R E C I T A
L S :
A. Arden Realty Limited Partnership,
a Maryland limited partnership (“ Original Landlord
”) and Tenant entered into that certain Standard Office Lease
dated as of August 4, 1997 (the “ Original Lease
”), as amended by that certain First Amendment to Lease dated
as of August 21, 2001 by and between Landlord, as
successor-in-interest to Original Landlord, and Tenant (“
First Amendment ”), and by that certain Second
Amendment to Lease dated as of February 26, 2002 by and between
Landlord and Tenant (“ Second Amendment ”),
whereby Landlord leased to Tenant and Tenant leased from Landlord
certain office space located in that certain building located and
addressed at 26025 Mureau Road, Calabasas, California (the “
Building ”). The Original Lease, as amended by the
First Amendment and the Second Amendment, may be referred to herein
as the “ Lease .”
B. By this Third Amendment, Landlord
and Tenant desire to extend the Term of the Lease and to otherwise
modify the Lease as provided herein.
C. Unless otherwise defined herein,
capitalized terms as used herein shall have the same meanings as
given thereto in the Original Lease.
NOW, THEREFORE, in consideration of
the foregoing recitals and the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
A G R E E M
E N T :
1. The Premises . Landlord
and Tenant hereby agree that pursuant to the Lease, Landlord
currently leases to Tenant and Tenant currently leases from
Landlord that certain office space in the Building containing
46,321 rentable square feet located on the first (1
st
) floor and the
Mezzanine Level of the Building (the “ Premises
”), as further described in the Lease.
2. Term .
2.1 Extended Term . The Term
for Tenant’s lease of the Premises shall be extended such
that the Lease shall terminate on May 31, 2011 (“ New
Termination Date ”), subject to early termination as
provided in Section 2.2 below and subject to extension as provided
in Section 11 below. The period from June 1, 2003 through the New
Termination Date specified above, shall be referred to herein as
the “ Extended Term .”
2.2 Termination Option .
Provided Tenant fully and completely satisfies each of the
conditions set forth in this Section 2.2, Tenant shall have the
option (“ Termination Option ”) to terminate the
Lease (as amended by this Third Amendment) effective as of May 31,
2008 (“ Termination Date ”) only. In order to
exercise the Termination Option, Tenant must fully and completely
satisfy each and every one of the following conditions: (a) Tenant
must give Landlord written notice (“ Termination
Notice ”) of its exercise of the Termination Option,
which Termination Notice must be delivered to Landlord on or before
August 31, 2007, (b) at the time of the Termination Notice, Tenant
shall not be in default under the Lease (as amended by this Third
Amendment) after notice and expiration of applicable cure periods,
and (c) Tenant shall pay to Landlord a termination fee (“
Termination Fee ”) in the amount of Eight Hundred
Fifty-Five Thousand Dollars ($855,000.00). However, if as of the
date of the Termination Notice, Landlord has paid to Tenant the
Proposition 13 Purchase Price pursuant to Section 4.4
below, then the Termination Fee shall be
increased by that portion of the Proposition 13 Purchase Price
applicable to the period after the Termination Date. Fifty percent
(50%) of the Termination Fee must be paid by Tenant to Landlord
concurrently with Tenant’s delivery of the Termination Notice
(as a further condition to Tenant’s exercise of the
Termination Option), and the remaining fifty percent (50%) of the
Termination Fee shall be paid by Tenant to Landlord within three
(3) months after the date of delivery of the Termination Notice.
Tenant’s delivery of the Termination Fee to Landlord shall
not relieve Tenant of its obligation to make all other payments to
Landlord due under the Lease (as amended by this Third Amendment)
through the Termination Date. Notwithstanding anything contained in
this Section 2.2 to the contrary, in the event Tenant fails to
deliver the remaining fifty percent (50%) of the Termination Fee to
Landlord within three (3) months after the date of delivery of the
Termination Notice, Landlord shall have the option to either (i)
deem the Termination Notice rescinded, in which case the Lease (as
amended by this Third Amendment) shall continue in full force and
effect for the remainder of the Extended Term and Landlord shall
forthwith refund to Tenant the initial fifty percent (50%) of the
Termination Fee previously paid by Tenant less any out-of-pocket
expenses Landlord may have incurred in marketing and attempting to
lease the Premises to a successor tenant(s) after Landlord’s
receipt of Tenant’s Termination Notice ( e.g. ,
advertising costs, costs of printing marketing materials and
attorneys fees and space planning costs incurred in connection with
potential transactions with a successor tenant(s)), or (ii) deem
the Lease (as amended by this Third Amendment) terminated as of the
Termination Date and pursue any remedies Landlord may have against
Tenant for failure to pay such portion of the Termination
Fee.
3. Monthly Basic Rental .
Notwithstanding anything to the contrary in the Lease, during the
Extended Term, Tenant shall pay, in accordance with the provisions
of this Section 3, monthly Basic Rental for the Premises as
follows:
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Period
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Monthly Basic Rental
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Monthly Basic Rental Per
Rentable Square
Foot
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06/01/03-05/31/04
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$
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26,402.97
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$
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.57
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06/01/04-05/31/06
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$
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52,805.94
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$
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1.14
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06/01/06-11/30/08
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$
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57,438.04
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$
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1.24
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12/01/08-05/31/11
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$
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62,070.14
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$
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1.34
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4. Tax Costs .
4.1 Reassessment .
Notwithstanding anything to the contrary contained in the Lease, in
the event that during the Extended Term, any sale, refinancing, or
“change in ownership” (as defined in California Revenue
and Taxation Code Section 60, et seq.) of the Real Property is
consummated, and as a result thereof, and to the extent that in
connection therewith, the Real Property is reassessed (the “
Reassessment ”) for real estate tax purposes by the
appropriate governmental authority pursuant to the terms of
Proposition 13, then the following provisions shall apply to such
Reassessment of the Real Property.
4.2 Tax Increase . For
purposes of this Section 4, the term “ Tax Increase
” shall mean that portion of the Tax Costs, after taking into
account the Reassessment, which is attributable solely to the
Reassessment. Accordingly, the term Tax Increase shall not include
any portion of the Tax Costs which (i) is attributable to the
initial assessment of the value of the Real Property, the Base,
Shell and Core of the Building or the tenant improvements located
in the Building, (ii) is attributable to assessments which were
pending immediately prior to the Reassessment which assessments
were conducted during, and included in, such Reassessment or (iii)
is attributable to the annual inflationary increase of real estate
taxes permitted to be assessed annually under Proposition
13.
4.3 Protection . During the
period from June 1, 2003 through May 31, 2008, any Tax Increase
shall be excluded from Tax Costs. During the period from June 1,
2008 through May 31, 2009, seventy five percent (75%) of any Tax
Increase shall be excluded from Tax Costs. During the period from
June 1, 2009 through May 31, 2010, fifty percent (50%) of any Tax
Increase shall be excluded from Tax Costs. During the period from
June 1, 2010 through the New Termination Date, twenty five percent
(25%) of any Tax Increase shall be excluded from Tax
Costs.
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4.4 Landlord’s Purchase of
Protection . The amount of Tax Costs which Tenant is not
obligated to pay or will not be obligated to pay during the
Extended Term in connection with a particular Reassessment pursuant
to the terms of Section 4.3 above, shall be sometimes referred to
hereafter as a “ Proposition 13 Protection Amount
.” If the occurrence of a Reassessment is reasonably
foreseeable by Landlord and the Proposition 13 Protection Amount
attributable to such Reassessment can be reasonably quantified or
estimated for each Lease Year commencing with the Lease Year in
which the Reassessment will occur, the terms of this Section 4.4
shall apply to each such Reassessment. Upon notice to Tenant,
Landlord shall have the right to purchase the Proposition 13
Protection Amount relating to the applicable Reassessment (the
“ Applicable Reassessment ”), at any time during
the Extended Term, by paying to Tenant an amount equal to the
Proposition 13 Purchase Price, as that term is defined below,
provided that the right of any successor of Landlord to exercise
its right of repurchase hereunder shall not apply to any
Reassessment which results from the event pursuant to which such
successor of Landlord became the Landlord under the Lease. As used
herein, “ Proposition 13 Purchase Price ” shall
mean the present value of the Proposition 13 Protection Amount
remaining during the Extended Term, as of the date of payment of
the Proposition 13 Purchase Price by Landlord. Such present value
shall be calculated (i) by using the portion of the Proposition 13
Protection Amount attributable to each remaining Lease Year (as
though the portion of such Proposition 13 Protection Amount
benefited Tenant at the end of each Lease Year), as the amounts to
be discounted, and (ii) by using discount rates for each amount to
be discounted equal to (A) the prime interest rate, as reported in
the Wall Street Journal as of the date of Landlord’s exercise
of its right to purchase, as set forth in this Section 4.4, plus
(B) two percent (2%) per annum. Upon such payment of the
Proposition 13 Purchase Price, the provisions of Section 4.3 above
shall not apply to any Tax Increase attributable to the Applicable
Reassessment. Since Landlord is estimating the Proposition 13
Purchase Price because a Reassessment has not yet occurred, then
when such Reassessment occurs, if Landlord has underestimated the
Proposition 13 Purchase Price, then upon notice by Landlord to
Tenant, Tenant’s Basic Rental next due shall be credited with
the amount of such underestimation, and if Landlord overestimates
the Proposition 13 Purchase Price, then upon notice by Landlord to
Tenant, Tenant’s Basic Rental next due shall be increased by
the amount of the overestimation.
5. Improvements to the
Premises . Landlord shall, at Landlord’s sole cost and
expense and using materials reasonably considered by Landlord to be
commercially appropriate only, perform the following work
(collectively, “ Landlord’s Work ”): (i)
within sixty (60) days following the full execution and delivery of
this Third Amendment, contract for repairs to the roof of the
Building with an unaffiliated, qualified contractor to mitigate the
current leaks in such roof, which obligation to mitigate shall
continue throughout the duration of the Extended Term, (ii) in a
commercially reasonable manner, re-pave and re-stripe the Building
parking facility and repair all damaged bumpers in such parking
facility on or before September 30, 2004, and (iii) in a
commercially reasonable manner, repaint all painted exterior
surfaces of the Building on or before September 30, 2004. Tenant
hereby acknowledges that Landlord will be performing such
improvement work during the existing Lease Term and/or the Extended
Term, and Landlord’s performance of such work shall not be
deemed a constructive eviction of Tenant, nor shall Tenant be
entitled to any abatement of rent in connection therewith. However,
if Tenant provides written notice to Landlord that Landlord has
failed to complete Landlord’s Work in a commercially
reasonable manner or has failed to complete such work within the
time periods specified in this Section 5 above, and if Landlord
still fails to use good faith efforts to perform such item(s) of
Landlord’s Work so noted in Tenant’s notice within
thirty (30) days after Landlord’s receipt of such notice,
then Tenant may proceed to perform such work upon delivery of an
additional ten (10) business days notice to Landlord specifying
that Tenant is taking such action, and if such action was required
under the terms of this Section 5 to be taken by Landlord and was
not taken by Landlord within such ten (10) business day period,
then Tenant shall be entitled to prompt reimbursement by Landlord
of Tenant’s actual and reasonable costs in taking such
action. In the event Tenant takes such action, and such work will
affect the Building systems or the structural integrity of the
Building (including the roof), Tenant shall use only those
contractors used by Landlord in the Building for work on such
Building systems or structure unless such contractors are unwilling
or unable to perform, or timely perform, such work, in which event
Tenant may utilize the services of any other qualified contractor
which normally and regularly performs similar work in first-class
office buildings and who is reasonably approved by Landlord in
writing. Except as specifically set forth in this Section 5 and
Section 6 below, Tenant hereby agrees to accept the Premises in its
“as-is” condition. Tenant also acknowledges that
Landlord has made no representation or warranty regarding the
condition of the Premises.
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6. Refurbishment of the
Premises . Notwithstanding anything to the contrary contained
herein, Tenant shall be entitled to renovate the then-existing
tenant improvements in the Premises in accordance with this Section
6. In connection therewith, Tenant shall be entitled to a one-time
tenant refurbishment allowance (the “ Refurbishment
Allowance ”) in the amount of Fifteen Dollars ($15.00)
per rentable square foot of the Premises for the costs relating to
the design and construction of renovations to the then-existing
tenant improvements in the Premises that are to be permanently
affixed to the Premises (the “ Refurbished
Improvements ”). In no event shall Landlord be obligated
to make disbursements under this Section 6 in a total amount which
exceeds the Refurbishment Allowance, and in no event shall Tenant
be entitled to any credit for any unused portion of the
Refurbishment Allowance (except for the Rent Credit and the Lindero
Allowance as provided in Section 6.2.3 below) not applied by Tenant
by December 31, 2004.
6.1 Refurbishment Allowance
Items . The Refurbishment Allowance shall be disbursed by
Landlord for costs incurred to design and construct the Refurbished
Improvements (collectively the “ Refurbishment Allowance
Items ”), including without limitation, payment of the
fees of the architect and engineer(s) retained by Tenant (if any),
in connection with the preparation of the plans and specifications
prepared for the Refurbished Improvements (“ Refurbishment
Drawings ”). In addition, the Refurbishment Allowance
Items may include architectural fees, permit fees, costs of
installation of cabling and internal relocation fees (collectively
“ Soft Costs ”); provided, however, that such
Soft Costs shall not exceed Five and 00/100 Dollars ($5.00) per
rentable square foot of the Premises.
6.2 Disbursement of Refurbishment
Allowance . During the construction of the Refurbished
Improvements, Landlord shall make monthly disbursements of the
Refurbishment Allowance for Refurbishment Allowance Items as
follows:
6.2.1 Monthly Disbursements .
On or before the first day of each calendar month during the
construction of the Refurbished Improvements, Tenant shall deliver
to Landlord: (i) a request for payment of Tenant’s general
contractor (“ Contractor ”) and such Contractor
(if Tenant elects to retain a general contractor, provided that
Tenant must retain a general contractor if Landlord reasonably
determines that one is necessary given the scope of the job) shall
be subject to Landlord’s prior written approval, which
approval shall not be unreasonably withheld, delayed or
conditioned, and which request shall be approved by Tenant, in a
form to be provided by Landlord; (ii) invoices from all
subcontractors, laborers, materialmen and suppliers (together with
the Contractor (if applicable) “ Tenant’s Agents
”), for labor rendered and materials delivered to the
Premises; and (iii) executed conditional mechanics’ lien
releases from all of Tenant’s Agents which shall comply with
the appropriate provisions, as reasonably determined by Landlord,
of the California Civil Code. In addition, Tenant shall deliver to
Landlord a copy of Tenant’s construction contract with the
Contractor or a schedule of values for the construction job
indicating a breakdown by trade. Within thirty (30) days after
Landlord’s receipt of all the information listed in this
Section 6.2.1 above, Landlord shall deliver a check payable jointly
to Tenant and Tenant’s Agents in payment of the lesser of:
(A) the amounts so requested by Tenant, as set forth in this
Section 6.2.1 above, less a ten percent (10%) retention (the
aggregate amount of such retentions to be known as the “
Final Retention ”), and (B) the balance of any
remaining available portion of the Refurbishment Allowance (not
including the Final Retention), provided that Landlord, in its
exercise of its commercially reasonable judgment, does not dispute
any request for payment based on non-compliance of any work with
the Refurbishment Drawings or due to any substandard work.
Landlord’s payment of such amounts shall not be deemed
Landlord’s approval or acceptance of the work furnished or
materials supplied as set forth in Tenant’s payment request.
Notwithstanding the foregoing, if the applicable construction
contract does not provide for a Final Retention, then Landlord
shall not withhold a retention from the amount of such payments to
Tenant and subsection 6.2.1(A) above shall not apply.
6.2.2 Final Retention .
Subject to the provisions of this Tenant Work Letter, a check for
the Final Retention (if applicable as described in the last
sentence of Section 6.2.1 above) payable to Tenant (or, at
Tenant’s option, jointly to Tenant and Tenant’s Agents)
shall be delivered by Landlord to Tenant following the completion
of the construction of the Refurbished Improvements, provided that
(i) Tenant delivers to Landlord properly executed
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unconditional mechanics’ lien releases in
compliance with both California Civil Code Section 3262(d)(2) and
either Section 3262(d)(3) or Section 3262(d)(4), (ii) Landlord has
determined that no substandard w