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THIRD AMENDMENT TO LEASE

Office Lease Agreement

THIRD AMENDMENT TO LEASE | Document Parties: ARDEN REALTY FINANCE III, L.L.C | DIGITAL INSIGHT CORPORATION You are currently viewing:
This Office Lease Agreement involves

ARDEN REALTY FINANCE III, L.L.C | DIGITAL INSIGHT CORPORATION

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Title: THIRD AMENDMENT TO LEASE
Date: 3/10/2004
Industry: Computer Services    

THIRD AMENDMENT TO LEASE, Parties: arden realty finance iii  l.l.c , digital insight corporation
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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:

 

 

 

 

 

 

 

 

Period


 

  

Monthly Basic Rental


 

  

Monthly Basic Rental Per

Rentable Square Foot


 

06/01/03-05/31/04

  

$

26,402.97

  

$

.57

06/01/04-05/31/06

  

$

52,805.94

  

$

1.14

06/01/06-11/30/08

  

$

57,438.04

  

$

1.24

12/01/08-05/31/11

  

$

62,070.14

  

$

1.34

 

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


 
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