1
EXHIBIT 10.01
FIFTH AMENDMENT TO LEASE
THIS Fifth Amendment to Lease ("AGREEMENT") is made and entered into as
of June 24, 1999 by and between COLORADO PLACE PARTNERS, LLC, a Delaware limited
liability company ("LANDLORD") and SYMANTEC CORPORATION, a Delaware corporation
("TENANT").
1.0 RECITALS.
1.1 LEASE. Landlord and Tenant are parties to that certain Office Lease
dated April 10, 1991 (the "ORIGINAL LEASE") as amended by an Amendment to Lease
and Agreement Re Additional Space dated January 24, 1992 (the "FIRST
AMENDMENT"), a Second Amendment to Lease dated April 11, 1995 (the "SECOND
AMENDMENT"), a Third Amendment to Lease dated September 1, 1997 (the "THIRD
AMENDMENT") and a Fourth Amendment to Lease dated October 2, 1998 (the "FOURTH
AMENDMENT") (collectively, the "LEASE") for premises located in an office
project in Santa Monica, California, all as more particularly described therein.
All terms defined in the Original Lease shall have the same meanings when used
in this Agreement, unless a different meaning is clearly expressed herein.
1.2 CURRENT LEASE PROVISIONS. The Term of the Lease is scheduled to
expire on October 31, 2000. The Premises under the Lease currently consist of
4,848 square feet of Rentable Area (the "EXPIRING PREMISES") located on the
third (3rd) floor of Building "F" at the Project (2500 Broadway), and 107,695
square feet of Rentable Area consisting of 31,276 square feet of Rentable Area
located on the third (3rd) floor of Building "B" at the Project (2525 Colorado
Avenue); 23,999 square feet of Rentable Area located on the first (1st) floor of
Building "F"; and 52,420 square feet of Rentable Area located on the second
(2nd) floor of Building "F." The Expiring Premises are currently subleased by
Tenant to Metro-Goldwyn-Mayer Studios Inc. for a term through October 31, 2000.
The Term of the Lease for the Expiring Premises shall not be extended under this
Agreement.
1.3 AMENDMENT. The parties hereto desire to amend the Lease to extend
the Term of the Lease for all of the Premises other than the Expiring Premises,
and to otherwise modify and amend the Lease as set forth hereinbelow.
2.0 EXTENSION.
- 1 -
2
The Term of the Lease (for other than the Expiring Premises) is hereby
extended for a period of seven (7) years (the "EXTENSION TERM"), commencing on
November 1, 2000 and expiring on October 31, 2007, unless sooner terminated
pursuant to the Lease, or extended pursuant to Article 8 below. All of the terms
and conditions of the Lease shall apply during the Extension Term, except as set
forth herein. Prior to the commencement of the Extension Term, all of the terms
and conditions of the Lease shall remain in full force and effect, except as
amended hereby.
3.0 PREMISES IMPROVEMENTS.
3.1 IMPROVEMENTS. Tenant shall be entitled to improve, remodel,
refurbish. repair and restore the Tenant Work in the Premises, and all such work
shall be considered Tenant Alterations and shall be subject to the provisions of
Article 9 of the Original Lease, except that Tenant shall not be obligated to
pay the fee to Landlord specified in Paragraph 9.1 (b) of the Original Lease for
Landlord's review and inspection of Tenant Alterations.
3.2 TENANT IMPROVEMENT ALLOWANCE. Tenant shall be paid or credited by
Landlord with an allowance (the "TENANT IMPROVEMENT ALLOWANCE") of One Million
Two Hundred Ninety-Two Thousand Three Hundred Forty Dollars ($1,292,340) in
accordance with the Allowance Schedule (defined below), which reflects Twelve
Dollars ($12.00) per square foot of Rentable Area. The Tenant Improvement
Allowance may be used for (a) the purchase, installation and construction of
Tenant Work which constitutes permanent improvements to the Premises, including,
without limitation, carpeting, (b) built-in furniture, trade fixtures and
equipment, including telephone, computer and data communications equipment, all
of which will be surrendered to Landlord with the Premises upon expiration of
the Lease, and (c) space planning, design and engineering fees, permits,
consultant fees related to the Tenant Work (collectively, the "TENANT
IMPROVEMENT COSTS"). Subject to the Allowance Schedule and Tenant's right to
apply unused portions of the Tenant Improvement Allowance against Basic Rent as
set forth below, portions of the Tenant Improvement Allowance shall be advanced
to Tenant periodically on a monthly basis after commencement of the Tenant Work
by Tenant and after Tenant has delivered to Landlord copies of the original
invoices for Tenant's work or labor performed and materials or supplies
furnished, and, to the extent used for Tenant Work, a certificate from Tenant's
architect or engineer certifying that the work and materials have been furnished
as indicated in such statement and that such work and materials have been
substantially completed in accordance with the plans approved by Landlord in
accordance with Article 9 of the Original Lease. Subject to the Allowance
Schedule, such advances shall be made by Landlord on or before the 25th day of
each month with respect to complete payment requests made by Tenant on or before
the 25th day of the prior month. Tenant shall obtain such verification, reports
and lien releases from contractors, subcontractors and materialmen and shall
satisfy such other standard construction loan disbursement conditions as may be
required by Landlord. Tenant shall be responsible for any payment required in
excess of the amount of the Tenant
- 2 -
3
Improvement Allowance that Landlord is then required to fund in accordance with
the Allowance Schedule, and Landlord shall not be required to pay more than the
Tenant Improvement Allowance toward all costs, expenses and charges related to
Tenant's tenant improvement expenses. Ten percent of the Tenant Improvement
Allowance may be withheld by Landlord until Tenant provides unconditional lien
releases with respect to all work already performed on the Tenant Work.
Notwithstanding anything to the contrary contained herein, Landlord shall not be
obligated to pay or credit the Tenant Improvement Allowance except in accordance
with the following schedule (the "ALLOWANCE SCHEDULE"):
November 1, 2001 $258,468
November 1, 2002 $258,468
November 1, 2003 $258,468
November 1, 2004 $258,468
November 1, 2005 $258,468
With respect to any portion of the Tenant Improvement Allowance not used by
Tenant in accordance with the Allowance Schedule and the other provisions of
this Section 3.2, Tenant shall be entitled to credit such portion of the Tenant
Improvement Allowance then available under the Allowance Schedule and not used
by Tenant against the next installment(s) of Basic Rent falling due under the
Lease as amended hereby. Tenant shall give Landlord notice of Tenant's use of
any such credit concurrently with, or prior to, Tenant's payment of the Basic
Rent against which such credit is then being applied.
3.3 SERVICES. Landlord, at Landlord's cost, and subject to the
requirements of existing tenants in the Project, shall provide to Tenant and its
contractors, in connection with any Tenant Alterations and subject to the
Project's rules and regulations with respect thereto, the non-exclusive use of
Landlord's personnel and material freight elevators, loading docks and related
facilities as may be reasonably required to enable Tenant and its contractors to
perform the Tenant Alterations during Normal Working Hours (collectively, the
"SERVICES"). During construction and installation of Tenant Alterations, Tenant
shall not be charged for the non-exclusive use of the Services during Normal
Working Hours, except that the cost of such use shall be included in Operating
Expenses for the Project. Any Services utilized by Tenant after Normal Working
Hours, or which are required by Tenant and used by Tenant on an exclusive basis,
shall be paid for by Tenant at the current quoted rates for Landlord's provision
of such Services.
4.0 RENT.
4.1 EXTENSION TERM.
- 3 -
4
(a) Subject to Section 4.2 below, Commencing on November 1, 2000 and
continuing through October 31, 2005, Tenant shall pay Basic Rent in the amount
of Three Million Fifteen Thousand Four Hundred Fifty Six Dollars ($3,015,456)
annually (which is approximately equal to $28.00 per square foot of Rentable
Area), payable in advance in equal monthly installments of Two Hundred Fifty-One
Thousand Two Hundred Eighty-Eight Dollars ($251,288).
(b) Subject to Section 4.2 below, Commencing on November 1, 2005 and
continuing through the expiration of the Extension Term on October 31, 2007,
Tenant shall pay Basic Rent in the amount of Three Million Two Hundred
Eighty-Four Thousand Seven Hundred Dollars ($3,284,700) annually (which is
approximately equal to $30.50 per square foot of Rentable Area), payable in
advance in equal monthly installments of Two Hundred Seventy-Three Thousand
Seven Hundred Twenty-Five Dollars ($273,725).
4.2 RENT ABATEMENT. Notwithstanding the foregoing, provided Tenant is
not in default hereunder or under the Lease, Tenant shall not be obligated to
pay Basic Rent and the first $107,246 of Additional Rent pursuant to Paragraphs
5.1(a), 5.2(a) and 5.3(a) of the Original Lease for the following months of the
Extension Term: November 2000, December 2000, January 2001, November 2005, and
December 2005, and Tenant shall not be obligated to pay the first $345,427 of
the sum of the Basic Rent and Additional Rent pursuant to Paragraphs 5.1(a),
5.2(a) and 5.3(a) of the Original Lease for the month of November 2006;
provided, however, Tenant shall be obligated on the commencement of the
Extension Term, and for all periods thereafter, to pay all other Additional Rent
payable under the Lease as amended hereby.
4.3 SECURITY DEPOSIT. No security deposit shall be required from Tenant
with respect to the Lease during the Renewal Term. Landlord and Tenant
acknowledge that Tenant previously has deposited the sum of Eighty-Eight
Thousand Nine Hundred One Dollars ($88,901) as security (the "SECURITY DEPOSIT")
pursuant to Section 4.6 of the First Amendment, Section 4.6 of the Second
Amendment and Section 3.3 of the Third Amendment (the "SECURITY DEPOSIT
PROVISIONS"). Such amount shall be credited by Landlord against the Basic Rent
payable by Tenant for the month of February 2001; thereafter, Landlord and
Tenant shall have no further rights or obligations with respect to the Security
Deposit, and the Security Deposit Provisions shall thereupon be deemed deleted
and without any further force or effect.
5.0 ADDITIONAL RENT. Subject to Section 4.2 above and the provisions of this
Article 5, Tenant shall continue to pay all Additional Rent set forth in the
Lease during the Extension Term.
5.1 PROP 13. If, during the Extension Term, there are two (2) transfers
of the Project or an interest therein, each of which causes an increase in the
Real Property Taxes allocable to the Premises under the Lease due to a
reassessment of the Project or such interest therein under
- 4 -
5
Article XIIIA of the Constitution of the State of California (a "PROP 13
INCREASE"), then, in the event of a third or subsequent Prop 13 Increase during
the Extension Term, the Real Property Taxes allocable to the Premises under the
Lease shall be reduced by the amount of the increase in the Real Property Taxes
attributable to such third or subsequent Prop 13 Increase. In addition, if the
second Prop 13 Increase occurs prior to November 1, 2003, the Real Property
Taxes allocable to the Premises under the Lease shall be reduced by one-half (_)
of the amount of the increase in Real Property Taxes attributable to such second
Prop 13 Increase. Any reduction under this Section 5.1 and Paragraph 13.3(c)
below shall be referred to as a "PROP 13 REDUCTION." There shall be no Prop 13
Reduction with respect to the first or second Prop 13 Increase during the
Extension Term, if any, subject to the foregoing provisions regarding a second
Prop 13 Increase occurring prior to November 1, 2003. Notwithstanding any Prop
13 Reduction, Tenant shall pay the Real Property Taxes allocable to the Premises
and increases thereof that would have occurred "but for" any Prop 13 Increase
for which Tenant is entitled to a Prop 13 Reduction. In addition, if Tenant
becomes entitled to a Prop 13 Reduction and if at any time there occurs a
reassessment of the Project because of a systemic change in the method or timing
of assessments, including, without limitation, the enactment into law of a
method by which the Project would be reassessed on an annual or other periodic
basis (a "SYSTEMIC REASSESSMENT"), and such reassessment causes the assessed
value of the Project to be greater than the assessed value of the Project
immediately prior to the occurrence of such reassessment, the Prop 13 Reduction
shall be terminated, prorated to the effective date of such reassessment.
Similarly, if Tenant becomes entitled to a Prop 13 Reduction and subsequently
there occurs a Systemic Reassessment which results in, or but for the higher
assessed value which gave rise to the Prop 13 Reduction would have resulted in,
an assessed value of the Project or portion thereof which results in Real
Property Taxes payable by Tenant greater than Real Property Taxes that would
have been payable by Tenant absent the Prop 13 Increase, but less than the
assessed value which gave rise to the Prop 13 Reduction, the Prop 13 Reduction
shall be reduced, prorated to the effective date of the Systemic Reassessment
(or the date on which such reassessment would have been effective) to an amount
equal to the amount by which the Real Property Taxes payable by Tenant absent
the Prop 13 Reduction exceeds the Real Property Taxes that would have been
payable but for the higher assessed value which gave rise to the Prop 13
Reduction.
5.2 AFTER HOURS HVAC. Landlord's provision of HVAC services during other
than Normal Working Hours ("AFTER HOURS HVAC"), for which Landlord is entitled
to impose a reasonable direct charge under Section 8.3 of the Original Lease,
shall be subject to the following terms and conditions:
(a) Landlord shall provide the After Hours HVAC in the event Tenant
gives Landlord advance notice of its need for such service no later than 3:00
p.m. on Monday through Friday (except holidays referred to above) that Tenant
requires the services, and no later than 3:00 p.m. on the last business day
preceding the weekend or holiday that Tenant requires the service; provided
further, however, if Tenant requests such service after 3:00 p.m. as set forth
- 5 -
6
above, Landlord shall nonetheless use its commercially reasonable efforts to
provide such service as requested.
(b) Landlord will provide the After Hours HVAC at the "ACTUAL COST,"
which is defined as the actual costs incurred by Landlord (including Landlord's
reasonable estimated related administrative cost for the cost of services not
already included in Operating Expenses and if applicable, depreciation related
to increased utilization of HVAC related equipment) in providing the After Hours
HVAC. The foregoing direct charges shall be payable by Tenant as Additional Rent
on the next rent payment date at least fifteen (15) days following submission of
a reasonably detailed invoice therefor by Landlord. Currently, charges for After
Hours HVAC in Building "F" are Seventy-Five Dollars ($75.00) per hour, full
floor, and Forty-Five Dollars ($45.00) per hour, partial floor; and in Building
"B," are Eighty Dollars ($80.00) per hour, full floor, and Forty Dollars
($40.00) per hour, partial floor.
(c) During the Extension Term and provided Tenant is not in default
under the Lease, Tenant shall be entitled to a monthly credit against charges
for After Hours HVAC in the amount of Four Thousand One Hundred Sixty Seven
Dollars ($4,167) per month. Such credit (the "HVAC CREDIT") may be used at
Tenant's discretion for its use of After Hours HVAC, and any amount of the HVAC
Credit not applied to charges accrued as of December 31 of any year during the
Extension Term may be carried forward and applied to After Hours HVAC charges
incurred prior to December 31 of the following year, provided that any HVAC
Credit accrued prior to December 31 of a particular year may not be carried
forward and applied to any charges incurred after December 31 of the year
following said particular year. The credits hereunder may not be applied against
any amount other than charges for After Hours HVAC.
6.0 IDENTITY
Tenant shall be entitled, subject to the availability of signage
entitlements under the Development Agreement (defined in Section 2.2 of the
Original Lease) and subject to obtaining approvals from Metro-Goldwyn-Mayer
Studios Inc. (or the successor to its lease for premises at the Project), the
City of Santa Monica and any other required governmental approvals, to
non-exclusive monument signage displaying Tenant's name in its logo type at the
Project in a location mutually agreed upon by Landlord and Tenant. The location,
size, materials, coloring and lighting of such signage and the monument shall be
subject to Landlord's approval and shall be consistent and compatible with the
Project's design, signage and graphics programs and all applicable rules and
regulations of the governmental agencies having jurisdiction. The identification
and signage rights of this Article 6 are personal and specific to Tenant and are
not transferrable by sublease, assignment, operation of law or otherwise. The
design, installation, maintenance, repair, restoration and removal (including
restoration of the monument upon which the same was located, or removal of the
monument itself if so elected by Landlord, upon expiration of the Lease or any
earlier termination of Tenant's signage rights hereunder) of Tenant's signage
shall be at Tenant's sole cost and expense. All of the foregoing identity and
- 6 -
7
signage rights in this Article 6 shall apply only while Tenant pays Basic Rent
(in accordance with the Lease) for and personally occupies at least one hundred
thousand (100,000) square feet of Rentable Area in the Project (the "OCCUPANCY
THRESHOLD"). Such rights shall be null and void at such time as Tenant fails to
pay Basic Rent (in accordance with this Lease) for and personally occupy at
least one hundred thousand (100,000) square feet of Rentable Area in the Project
and upon such failure, Landlord shall be entitled to immediately remove Tenant's
signage. Tenant shall pay to Landlord any costs incurred by Landlord in
connection with the design, installation, maintenance, repair, restoration and
removal of Tenant's signage within thirty (30) days after demand therefor.
7.0 PARKING
Effective on November 1, 1999, Section 7.1 of the Original Lease is
hereby amended to read in its entirety as follows:
7.1 TENANT'S PARKING RIGHTS. Tenant shall be provided with and shall
rent for the entire Term of this Lease, three and two-tenths (3.2)
monthly parking passes for the parking of automobiles in the Parking
Garage for each 1,000 square feet of Rentable Area in the Premises.
Tenant shall pay as Additional Rent the monthly parking pass rent for
such passes equal to the prevailing parking rate posted in the Parking
Garage from time to time during the Term hereof, which rate shall be
determined by Landlord based upon the prevailing market rates for
similar parking rights in first class office projects in the Santa
Monica/West Los Angeles area; provided that the rent for parking passes
hereunder shall be One Hundred Fourteen and 55/100 Dollars ($114.55) per
pass, per month (exclusive of taxes) for the period from July 1, 1999
through October 31, 2000, and shall not increase thereafter by more than
five percent (5%) annually, on a cumulative basis. To the extent
available, Tenant shall have the right to validate parking for Tenant's
invitees upon reasonable, nondiscriminatory terms and conditions and
subject to reasonable, nondiscriminatory rules and regulations
established from time to time by Landlord or Landlord's operator or
licensee; provided that Tenant shall offer validated parking for a
minimum of three (3) hours to all regular business visitors and
customers at the Premises.
8.0 RENEWAL TERM.
8.1 PRIOR RIGHT. Tenant's right to renew the Term of the Lease as set
forth in Section 3.5 of the Original Lease is hereby without any force or
effect, and in lieu thereof Tenant shall have the right to renew as set forth in
Section 8.2 below.
8.2 RENEWAL TERM.
- 7 -
8
(a) Provided Tenant is not in default under the Lease (after any
applicable notice and lapse of applicable cure periods) as of the date of
exercise or the commencement of the renewal term ("RENEWAL TERM COMMENCEMENT
DATE"), Tenant shall have the option to renew the Term of the Lease ("RENEWAL
OPTION") for the entire Premises for one period of five (5) years commencing on
November 1, 2007 and expiring on October 31, 2012 ("RENEWAL Term"), exercisable
by giving written notice thereof ("RENEWAL NOTICE") to Landlord of its exercise
of the Renewal Option not later than February 1, 2007. (Landlord shall make a
good faith effort to notify Tenant of the last day for Tenant's exercise of the
Renewal Option at least thirty (30) days prior to such date, but failure by
Landlord to provide such notice shall not constitute a default by Landlord under
the Lease.)
(b) The Basic Rent payable hereunder for the Premises during the
Renewal Term shall be adjusted to the Fair Market Rental Rate (as defined in
Section 35.1 of the Original Lease, provided that such rate shall be determined
based on leases for space within the Project of comparable size to the Premises
and which are entered into within the eighteen (18) month period prior to the
date such rate is determined hereunder with tenants having similar
creditworthiness as Tenant, if and to the extent such comparable transactions
are available for comparison). Landlord shall notify Tenant of Landlord's
determination of the Fair Market Rental Rate not later than May 1, 2007, and
such determination shall be subject to Tenant's appraisal rights set forth in
Section 35.1 of the Original Lease, provided that references therein to the
definition of the Fair Market Rental Rate set forth in Section 35.2 of the
Original Lease shall mean said Section 35.2 as modified by the provisions of
this Paragraph.
(c) During the Renewal Term, Tenant shall pay Additional Rent in
accordance with the provisions of Article 5 of the Original Lease, as amended.
(d) The Renewal Option set forth in this Section 8.2 is personal to
Tenant and may not be assigned, transferred or conveyed to any party, except in
connection with an assignment of the Lease in its entirety to an Affiliate or
Successor of Tenant (as defined in Section 15.1 of the Original Lease), and may
be exercised only if Tenant or an Affiliate or Successor of Tenant is in
possession of the entire Premises without Sublease or Assignment to any other
Person.
9.0 NON-DISTURBANCE.
Landlord shall use good faith efforts to obtain for Tenant's benefit a
non-disturbance agreement with respect to this Agreement from the existing
holder of the first trust deed Underlying Mortgage affecting the Project, which
agreement shall be consistent with the provisions of Article 19 of the Original
Lease; provided that failure to obtain such agreement shall not constitute
default by Landlord hereunder or under the Lease. Notwithstanding the
- 8 -
9
foregoing, Landlord agrees to provide to Tenant within ninety (90) days from
Tenant's execution of this Agreement, a non-disturbance agreement
("NON-DISTURBANCE AGREEMENT") from any holder of an existing Underlying Mortgage
whose encumbrance or lien affecting the Land, Project and/or Building is
superior to the leasehold estate created hereby. The final form of any such
Non-Disturbance Agreement shall be in a commercially reasonable form reasonably
agreed upon by Landlord and Tenant and provided by the holder of each Underlying
Mortgage who is required to provide a Non-Disturbance Agreement. If Landlord
fails to deliver such Non-Disturbance Agreement to Tenant within ninety (90)
days after execution of this Agreement, Tenant may terminate the Lease as
amended hereby by written notice to Landlord within sixty (60) days after
expiration of said ninety (90) day period, and neither party shall have any
further rights, duties or obligations to each other under the Lease.
10.0 BROKER.
Tenant warrants that it has not had any contact or dealings with any
person or real estate broker other than The Seeley Company ("BROKER") which
would give rise to the payment of any fee or brokerage commission in connection
with this Agreement, and Tenant shall indemnify, defend, protect and hold
harmless Landlord from and against any liability with respect to any fee or
brokerage commission (except one owing to Broker) arising out of any act or
omission of Tenant. Landlord covenants and agrees to pay all real estate
commissions due in connection with this Agreement to Broker in accordance with
the commission agreement executed by Landlord.]
11.0 RIGHT OF FIRST OFFER.
Effective upon execution and delivery hereof, Article 34 of the Lease is
deleted and the following is hereby substituted in its place:
34. RIGHT OF FIRST OFFER.
34.1 PROPOSAL TO LEASE. Subject to Section 34.2, and provided Tenant
is not in default hereunder, whenever any Rentable Area located on any floor on
which the Premises are located is available for lease to others (the "AVAILABLE
Space"), Tenant shall have a right of first offer as set forth herein. Provided
Tenant has given Landlord notice of Tenant's interest in leasing Available Space
(which notice shall contain the approximate amount of Rentable Area in which
Tenant is interested) Landlord shall not, within ninety (90) days after receipt
of such notice, enter into or commit to enter into any lease of Available Space
without first proposing to Tenant a rent and other lease terms for such space.
In no event shall the Basic Rent for the Available Space per square foot of
Rentable Area be less than the Basic Rent per square foot of Rentable Area
payable by Tenant for the Premises initially leased hereunder, as the same is
adjusted from
- 9 -
10
time to time hereunder. The Basic Rent for Available Space shall be adjusted in
accordance with the provisions of Article 5 of the Lease. If Tenant does not
accept the terms of such proposal within five (5) days after receipt thereof, or
does not execute an appropriate lease amendment reflecting such acceptance
within fifteen (15) days after receipt thereof, Landlord shall be free to lease
such space to any other Person.
34.2 TERMINATION OF RIGHT. Tenant's rights under this Article 34
shall expire on October 31, 2007. Tenant's rights under this Article 34 also
shall expire on the date Tenant fails to continuously pay rent for (in
accordance with this Lease) and personally occupy at least one hundred thousand
(100,000) square feet of Rentable Area in the Project. Available Space shall not
include space for which existing leases are being renewed, space leased to other
tenants which have the right to sublease or from which Landlord has the right to
sublease or accept an assignment back, and space for which Landlord is in active
negotiation with a third party at the time Tenant gives its notice of interest
referred to in Section 34.1 above; nor shall Available Space include space which
is the subject of an option to expand or a right of first offer granted to any
other person or tenant and existing on the date hereof or which is hereafter
granted without violation of Tenant's rights under this Article.
34.3 SAME TERMS AND CONDITIONS. As of the date that Landlord
delivers actual possession to Tenant of any Available Space leased by Tenant,
such Available Space shall become part of the Premises and, except as otherwise
provided in this Article 34, shall be leased upon the same terms and conditions
as the Premises. [The Tenant Improvement Allowance set forth in Article 3 above
shall be computed without regard to any Available Space leased by Tenant.]
34.4 PERSONAL RIGHT. Tenant's right to lease Available Space as set
forth in this Article 34 is personal to Tenant and may not be assigned,
transferred or conveyed to any party, except in connection with an assignment of
the Lease in its entirety to an Affiliate or Successor of Tenant (as defined in
Lease Section 15.1).
12.0 OTHER LEASE PROVISIONS.
12.1 DELETION. Effective on November 1, 2000, the following provisions
of the Original Lease are hereby deleted and shall be without any further force
or effect: Section 3.6 [Tenant Cancellation for Failure to Complete] and Section
4.4 [Rent Credit].
- 10 -
11
12.2 PARTNER LIABILITY. Section 37.14 of the Original Lease is hereby
deleted and the following is hereby substituted in its place:
37.14 PARTNER LIABILITY. Tenant acknowledges that Landlord is a
limited liability company formed under the laws of the State of Delaware whose
manager is MP-Colorado Place Manager I, Inc., a Delaware corporation. Tenant
agrees that, in any action arising out of or relating to the performance of this
Lease, Tenant will proceed only against Landlord or its successors and assigns
and not against any member or manager of Landlord (or in any entity to which
Landlord may assign this Lease), or any of such members' or manager's directors,
officers, employees, agents, shareholders, partners, members, managers or
affiliates. Notwithstanding anything in this Lease or any law to the contrary,
the liability of Landlord hereunder (including any successor landlord hereunder)
and any recourse by Tenant against Landlord shall be limited solely to the
interest of Landlord in the Project, and neither Landlord, nor any of its
constituent members or managers, nor any of their respective affiliates,
partners, members, managers, directors, officers, employees, agents or
shareholders shall have any personal liability therefor, and Tenant, for itself
and all persons claiming by, through or under Tenant, expressly waives and
releases Landlord and such related persons and entities from any and all
personal liability. The provisions of this Section 37.14 are enforceable by both
Landlord and any member or manager of Landlord, and shall survive the expiration
or termination of this Lease.
13.0 SEGREGATION OF BUILDINGS.
13.1 PARCEL RECONFIGURATION. Landlord and Tenant acknowledge that the
Project contains six (6) separate buildings (collectively, the "PROJECT
BUILDINGS," and individually, a "PROJECT BUILDING") located on the Land and that
the Premises are located in Building "B" and Building "F" as described in
Section 1.2 above. The Land consists of the parcels described in Exhibit "A" to
the Original Lease ("ORIGINAL PARCELS"). Landlord shall have the right to divide
the Land into parcels other than as included in the Original Parcels, by
subdivision, lot line adjustment or other means, and to configure such parcels
(collectively, the "RECONFIGURED PARCELS," and individually, a "RECONFIGURED
PARCEL") and the Project Buildings so that one or more Project Buildings are
situated on a separate parcel or parcels.
13.2 OWNERSHIP. Landlord shall be entitled to transfer, assign or
convey one or more of the Reconfigured Parcels and/or Project Buildings, or any
interest therein, to any Person separately from the remaining Reconfigured
Parcels and Project Buildings (herein, a "SEPARATE TRANSFER"). Any such Person
to whom a Reconfigured Parcels and/or Project Building, or any interest therein,
is so transferred shall be referred to as a "NEW OWNER." For purposes hereof,
"New Owner" also shall include Landlord with respect to any Reconfigured Parcels
and/or
- 11 -
12
Project Buildings, or any interest therein, transferred to, or retained by,
Landlord. Any Separate Transfer shall be subject to the provisions of Article 18
of the Original Lease. The Reconfigured Parcels may be made subject to an
agreement or agreements ("NEW CCRS") providing for reciprocal rights of access,
use and enjoyment of the Project, its common area, including, without
limitation, the Parking Garage, and for the allocation of all or a portion of
the Operating Expenses, Real Property Taxes and Capital Improvement Amortization
for the Project among the Reconfigured Parcels and Project Buildings in an
equitable manner as determined by Landlord and/or the New Owners, provided that
any New CCRs shall not operate to increase the amount of Project Expenses
payable by Tenant under the Lease nor shall any New CCRs have a material,
adverse effect on Tenant's rights under the Lease. Tenant agrees that the Lease
shall be subject and subordinate to the New CCRs, and agrees to execute any
document reasonably required to evidence such subordination or which may be
required to facilitate any Separate Transfer permitted hereunder.
13.3 SEGREGATION OF LEASES. If, as a result of any Separate Transfer,
Building "B" and Building "F" are located on different Reconfigured Parcels
which are owned by different New Owners, or if portions of the Premises are
located in more than one Project Building which are owned by different New
Owners, the Lease, upon the election of any such New Owner, shall be considered
separate leases by Tenant with each of the New Owners with respect to the
portion of the Premises contained in the Project Building or Project Buildings
held by each such New Owner. Each New Owner under each such Separate Lease with
Tenant (herein, collectively, the "SEPARATE LEASES," and individually, a
"SEPARATE LEASE") shall be deemed to have assumed and agreed to observe and
perform any and all obligations of Landlord under the Lease with respect to the
portion of the Premises located within the Project Buildings owned by such New
Owner, and Tenant shall be deemed to have accepted each such New Owner as its
landlord under the applicable Separate Lease and shall be bound to perform all
of Tenant's obligations thereunder with respect to the portion of the Premises
located in the Project Buildings which are owned by such New Owner. Upon request
by Landlord or any New Owner, Tenant and each New Owner shall execute and
deliver a new lease and other documentation reasonably required to evidence and
confirm the terms and provisions of any Separate Lease, consistent with the
terms hereof. Landlord shall reimburse Tenant for any out-of-pocket costs and
expenses incurred by Tenant for the review, execution and delivery of any such
documentation. All rights and obligations of Landlord and Tenant under the Lease
shall be allocated to any Separate Lease pro rata based upon the amount of
Rentable Area contained in the Project Building(s) which are the subject of each
Separate Lease, to the extent such rights and obligations are based upon the
amount of Rentable Area contained in the entire Premises under the Lease. Each
Separate Lease otherwise shall incorporate all the terms and provisions of the
Lease, and the following specific provisions shall apply to the allocation of
rights and obligations among any Separate Leases.
(a) DEFINITIONS. References to the "Premises" in the Lease, as
incorporated into any Separate Lease, shall mean the portion of the Premises
located in the Project Building(s)
- 12 -
13
which are the subject of the applicable Separate Lease. References to the
"Building" in the Lease, as incorporated into any Separate Lease, shall mean the
Project Building(s) which are the subject of the applicable Separate Lease.
References to the "Land" in the Lease, as incorporated into any Separate Lease,
shall mean the Reconfigured Parcel(s) owned by the New Owner which is the
landlord under the applicable Separate Lease. References to "Landlord" in the
Lease, as incorporated into any Separate Lease, shall mean the New Owner with
respect to the Project Buildings which are the subject of the applicable
Separate Lease.
(b) BASIC RENT. The right to receive and the obligation to pay Basic
Rent and the Basic Rent and Additional Rent abatement set forth in Section 4.4
of the Second Amendment shall be divided among the Separate Leases pro rata
based upon the amount of Rentable Area subject to each Separate Lease.
(c) PROJECT EXPENSES. The allocation of Operating Expenses, Real
Property Taxes and Capital Improvement Amortization shall be made separately
under each Separate Lease based upon the amount thereof incurred with respect to
the Reconfigured Parcel(s) and Project Building(s) located thereon, subject to
the New CCRs. There shall be no material increase in the aggregate obligations
of Tenant as a result of such separate allocation. The provisions of Section 5.1
above shall be applied, and availability of any Prop 13 Reduction shall be
determined, separately with respect to the Project Building(s) under each
Separate Lease. For such purposes, any Prop 13 Increase occurring prior to or
concurrent with any Separate Transfer shall be considered a Prop 13 Increase
only with respect to the portions of the Premises within a Project Building
affected by such Prop 13 Increase. Notwithstanding any provision to the contrary
contained in Section 5.1 above, if a Prop 13 Increase occurs solely due to the
creation of the Reconfigured Parcels and such creation of the Reconfigured
Parcels does not occur concurrently with a transfer of the Project, a portion
thereof, or an interest therein which would otherwise cause a Prop 13 Increase,
such as, for example, a sale or other transfer of a portion of the Project or an
interest therein to a third party, then (i) the Real Property Taxes allocable to
the Premises under the Lease shall be reduced by the amount of the increase in
Real Property Taxes attributable to such Prop 13 Increase occurring solely due
to the creation of the Reconfigured Parcels, and (ii) any such Prop 13 Increase
occurring solely due to the creation of the Reconfigured Parcels shall not be
considered a first, second, third or any subsequent Prop 13 Increase referred to
in Section 5.1, but the Prop 13 Reduction therefor shall otherwise be subject to
the provisions of Section 5.1.
(d) ALLOWANCE. The right to receive and the obligation to pay the
Tenant Improvement Allowance and the amounts set forth on the Allowance Schedule
shall be divided among the Separate Leases pro rata based upon the amount of
Rentable Area subject to each Separate Lease.
- 13 -
14
(e) HVAC CREDIT. The amount, the right to receive and the obligation
to pay the HVAC Credit shall be divided among the Separate Leases pro rata based
upon the amount of Rentable Area subject to each Separate Lease.
(f) PARKING. The number of parking passes, the right to receive and
the obligation to pay parking pass rent shall be divided among the Separate
Leases pro rata based upon the amount of Rentable Area subject to each Separate
Lease. Parking rights shall be subject to the New CCRs.
(g) RENEWAL. The Renewal Option shall continue to be exercisable
only with respect to the entire Premises. Exercise thereof as to the Premises in
any Project Building shall constitute exercise thereof with respect to all
Premises in the Project. Determination of the Fair Market Rental Rate for the
Renewal Term, however, shall be made separately by each New Owner as landlord
under each Separate Lease, but in each case with reference to the size of the
entire Premises in the Project subject to the Renewal Option. Tenant and each
New Owner shall have the appraisal rights set forth in Section 35.1 of the
Original Lease separately with respect to the portion of the Premises under each
Separate Lease.
(h) RIGHT OF FIRST OFFER. The provisions of Article 11 above
regarding Tenant's right of first offer shall apply separately to each Separate
Lease and the portion of the Premises which is subject to each such Separate
Lease.
(i) DAMAGE AND CONDEMNATION. The provisions of Articles 13 and 14 of
the Original Lease shall apply separately to the portion of the Premises under
each Separate Lease, and the rights to terminate thereunder shall be determined
and exercised separately with respect to the portion of the Premises under each
Separate Lease, subject, however, to the following.
In the event a New Owner under a Separate Lease ("TERMINATING
OWNER") elects to terminate such Separate Lease (the "OWNER TERMINATED LEASE")
pursuant to any of the provisions of Articles 13 and 14 of the Original Lease,
Tenant shall have the option to terminate its Separate Lease with each other New
Owner (individually and collectively, a "NON-TERMINATING OWNER"), such option to
be elected by Tenant by written notice given to the Non-Terminating Owner (the
"TENANT'S TERMINATION NOTICE") within thirty (30) days after receipt of the
notice of termination from the Terminating Owner, subject to the following.
Before any such election to terminate any Separate Lease with a Non-Terminating
Owner is effective, the Non-Terminating Owner shall have the right (but not the
obligation) to render Tenant's Termination Notice ineffective by electing, by
written notice given to Tenant within thirty (30) days after receipt of Tenant's
Termination Notice, to provide space in the Project ("REPLACEMENT SPACE") within
one hundred twenty (120) days after the Non-Terminating Owner makes such
election, at the same rental rate as set forth in the Owner Terminated Lease.
Any such Replacement Space shall be reasonably equivalent to the premises under
the Owner Terminated Lease in size and
- 14 -
15
quality and utility of improvement. If the Non-Terminating Owner does not elect
to provide Replacement Space, Tenant's Termination Notice shall be effective to
terminate the Separate Lease with the Non-Terminating Owner on the date which is
sixty (60) days after the Tenant's Termination Notice was given.
(j) 3,000 SQUARE FOOT SUBLEASE. Tenant shall have the right to a
"3,000 Square Foot Sublease" (as defined in Paragraph 15.1(a) of the Original
Lease) with respect to each of its Premises located in Building "B" and Building
"F".
(k) SUBORDINATION. The provisions of Article 19 of the Original
Lease, regarding subordination and Underlying Mortgages, shall apply separately
to the Reconfigured Parcel(s) and Project Building(s) owned separately by a New
Owner, provided, however, each such New Owner shall have up to ninety (90) days
after creation of the Reconfigured Parcels to obtain for Tenant's benefit a
non-disturbance agreement from the holder of the first trust deed Underlying
Mortgage affecting the Reconfigured Parcel(s) and Project Building(s) owned by
such New Owner.
(l) HOLDOVER. The provisions of Article 23 of the Original Lease
regarding holdover shall apply separately to each Separate Lease and the portion
of the Premises which is subject to each such Separate Lease.
(m) DEFAULT BY TENANT. The provisions of Article 24 of the Original
Lease regarding default by Tenant and Landlord's remedies shall apply separately
to each Separate Lease and the rights and obligations of Tenant and the New
Owner which is the landlord thereunder; provided that, at the election of any
New Owner with respect to such New Owner's Separate Lease, any default by Tenant
under any other Separate Lease shall constitute a default by Tenant under the
Separate Lease with such New Owner.
(n) LANDLORD DEFAULT; NOTICE; RIGHT TO CURE DEFAULT. In the event
of a default by a New Owner under a Separate Lease ("DEFAULTING OWNER"),
Tenant's rights and remedies shall apply separately to each Separate Lease and
the Defaulting Owner as landlord thereunder; provided that, at the election of
Tenant, any default by a Defaulting Owner under its Separate Lease shall
constitute a default by each other New Owner under its respective Separate Lease
(individually and collectively, a "NON-DEFAULTING OWNER"), subject to the
following. Before (i) a Non-Defaulting Owner shall be liable to Tenant for any
default by a Defaulting Owner, (ii) the Separate Lease of any Non-Defaulting
Owner is terminated, (iii) Tenant exercises any right to abate rent or offset
against rent thereunder or (iv) any of the Non-Defaulting Owner's rights
thereunder or in connection therewith are forfeited or adversely affected
because of any default by a Defaulting Owner, Tenant shall give express written
notice of such default to the Non-Defaulting Owner specifying the nature of such
default, and thereupon the Non-Defaulting Owner shall have the right (but not
the obligation) to cure such default, and Tenant
- 15 -
16
shall not exercise any rights with respect to the Separate Lease of a
Non-Defaulting Owner due to such default, including, without limitation,
terminating such Separate Lease and abating the rent payable thereunder by
reason of such default unless and until it has afforded the Non-Defaulting Owner
thirty (30) days after the expiration of such time as the Defaulting Owner was
permitted to cure such default and a reasonable period of time in addition
thereto if the circumstances are such that said default cannot reasonably be
cured within said thirty (30) day period and the Non-Defaulting Owner has
commenced and is diligently pursuing such cure. The aforesaid thirty (30) day
period shall not commence if there is a valid dispute as to whether a default by
the Defaulting Owner has occurred, until it is determined (by judicial process
if elected by Tenant or the Defaulting Owner) that such a default has, in fact,
occurred, and the Non-Defaulting Owner has received notice of such
determination.
(o) IDENTITY. Tenant shall be entitled to the rights set forth
Article 6 above for only one (1) monument at the Project, and the rights and
obligations thereunder shall be included in the Separate Lease for the
Reconfigured Parcel upon which the monument is located. The Occupancy Threshold
shall, however, continue to be determined with respect to the aggregate amount
of Rentable Area occupied by Tenant under all Separate Leases in the Project.
(p) PARTNER LIABILITY. The provisions of Section 37.14 of the
Original Lease, as modified by Section 12.2 above, shall apply with respect to
each Separate Lease and each New Owner as landlord thereunder.
14.0 MISCELLANEOUS.
14.1 LEASE RATIFIED; PRIOR AGREEMENTS. Except as specifically amended or
modified herein, each and every term, covenant, and condition of the Lease as
amended is hereby ratified and shall remain in full force and effect. Effective
on commencement of the Extension Term, all other agreements and understandings
between Landlord and Tenant regarding Tenant's lease and occupancy of the
Premises shall be deemed merged into the Lease as amended hereby, and shall
otherwise be without any further force or effect.
14.2 BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, their legal representatives, successors
and permitted assigns.
14.3 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the law of the State of California.
- 16 -
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LANDLORD:
COLORADO PLACE PARTNERS, LLC
a Delaware limited liability company
By: MP-COLORADO PLACE MANAGER I, INC.
a Delaware corporation
Manager
By: /S/ Robert F. Maguire, III
-------------------------------
Name: Robert F. Maguire, III
------------------------
Title: Managing Partner
-------------------------
Date Signed: 08-09-99
-------------------
TENANT:
SYMANTEC CORPORATION
a Delaware corporation
By: /S/ Derek Witte
----------------------------------
Name: Derek Witte
--------------------------
Title: VP, Worldwide Operations
--------------------------
Date Signed: 7/27/99
--------------------
- 17 -