{"id":41724,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/350-holger-way-san-jose-ca-lease-corporate-technology-centr4.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"350-holger-way-san-jose-ca-lease-corporate-technology-centr4","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/350-holger-way-san-jose-ca-lease-corporate-technology-centr4.html","title":{"rendered":"350 Holger Way (San Jose, CA) Lease &#8211; Corporate Technology Centre Associates LLC and Redback Networks Inc."},"content":{"rendered":"<pre>                            FIRST AMENDMENT TO LEASE\n\n\n        This FIRST AMENDMENT TO LEASE (this 'Amendment') is dated as of this\n_____ day of November, 1999 by and between CORPORATE TECHNOLOGY CENTRE\nASSOCIATES LLC, a California limited liability company ('Landlord'), and REDBACK\nNETWORKS INC., a Delaware corporation ('Tenant').\n\n                                    RECITALS\n\n        A. Landlord and Tenant entered into a Lease dated October 27, 1999 (the\n'Lease'), for premises (the 'Leased Premises') with a street address of 350\nHolger Way, San Jose, California, and more particularly described in the Lease;\n\n        B. Pursuant to Paragraph 2.5 of the Lease, Tenant has decided to\nconstruct the Improvement Work in the Leased Premises using Tenant's own\ncontractor.\n\n        C. Landlord and Tenant now desire to amend the Lease on the terms and\nconditions set forth herein. Capitalized terms used in this Amendment and not\notherwise defined shall have the meanings assigned to them in the Lease.\n\n                                    AGREEMENT\n\n        NOW THEREFORE, for good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree\nas follows:\n\n        1. LEASE COMMENCEMENT DATE. The term 'Intended Lease Commencement Date'\nset forth in Article 1 of the Lease is hereby deleted and replaced with 'Lease\nCommencement Date.'\n\n        2. DELIVERY OF PREMISES. Paragraphs 2.3, 2.4 and 2.5 are hereby deleted\nin their entirety and replaced with the following:\n\n               2.3 LEASE COMMENCEMENT DATE AND LEASE TERM. The term of this\nLease shall begin, and the Lease Commencement Date shall be deemed to have\noccurred, on March 1, 2000 (the 'Lease Commencement Date'). The term of this\nLease shall in all events end on the Lease Expiration Date (as set forth in\nArticle 1). The Lease Term shall be that period of time commencing on the Lease\nCommencement Date and ending on the Lease Expiration Date (the 'Lease Term').\n\n               2.4 DELIVERY OF POSSESSION. Landlord shall deliver the Leased\nPremises to Tenant with the Base Building (as defined below) substantially\ncomplete on the Effective Date of this Lease. If Landlord is unable to so\ndeliver possession of the Base Building to Tenant in the agreed condition on the\ndates specified, Landlord shall not be in default under this Lease, nor shall\nthis Lease be void, voidable or cancelable by Tenant until the lapse of sixty\n(60) days after the Effective Date of this Lease (the 'delivery grace period').\nIf Landlord is unable to deliver possession of the Base Building in the agreed\ncondition to Tenant within the described delivery grace period (including any\nextension thereof by reason of Force Majeure or the actions or inactions of\nTenant), then Tenant's sole remedy shall be to terminate this Lease, and in no\nevent shall Landlord be liable in damages to Tenant for such delay. Tenant may\nnot terminate this Lease at any time after the date Landlord notifies Tenant\nthat the Base Building has been put into the agreed condition and are available\nfor delivery to Tenant, unless Landlord's notice is not given in good faith. In\nthe event that Tenant is delayed in commencing the Improvement Work due solely\nto Landlord's failure to deliver the Base Building 'substantially complete,'\nthen the Lease Commencement Date shall be extended by one (1) day for each day\nthat Tenant is so delayed.\n\n               2.5 PERFORMANCE OF IMPROVEMENT WORK. Landlord has performed the\nwork described as 'Base Building' set forth in the Work Letter attached hereto\nand made a part of this Lease, subject to normal punchlist items specified by\nTenant to Landlord in writing within ten (10) days of Landlord's delivery of the\nBase Building. Tenant shall, pursuant to the Work Letter, perform the work\ndescribed as 'Improvement Work' as set forth in the Work Letter. During Tenant's\nconstruction of the Improvement Work, Tenant shall comply with all of the terms\nand conditions of this Lease (including, without limitation, all insurance\nrequirements), provided that no Base Monthly Rent or Additional Rent shall be\ndue prior to the Lease Commencement Date.\n\n        3. WORK LETTER. The Work Letter is hereby amended as follows:\n\n               3.1 CONSTRUCTION OF IMPROVEMENT WORK. The first sentence of\nparagraph 1 of the Work Letter is hereby deleted and replaced with the\nfollowing: 'Tenant shall, through Tenant's general contractor, Permian Builders\n(the 'Contractor'), furnish and install within the Leased Premises,\nsubstantially in accordance with the plans and specifications to be approved by\nLandlord and Tenant pursuant to paragraphs 3 and 4 below, certain items of\ngeneral construction (the 'Improvement Work').'\n\n               3.2 BASE BUILDING. The second sentence of paragraph 2 of the Work\nLetter is deleted and replaced with the following: 'Landlord hereby agrees to\nconstruct the Base Building in accordance with the Base Building Plans and all\napplicable Laws and the cost thereof shall not be deducted from the Tenant\nImprovement Allowance.'\n\n               3.3 APPROVAL OF WORKING DRAWINGS. Subparagraphs 5(c) and 5(d) are\nhereby deleted.\n\n\n\n               3.4 CHANGES, TENANT'S WORK; COMPLETION AND TENANT DELAYS.\nParagraphs 7, 8 and 9 are hereby deleted.\n\n               3.5 CONSTRUCTION OF IMPROVEMENT WORK. The following provisions\nare hereby added to the Work Letter:\n\n                      (a) After final approval of the Working Drawings by\nLandlord, Tenant shall proceed promptly to commence performance of the\nImprovement Work. Tenant's contractors shall be acceptable to and approved in\nwriting by Landlord, which approval shall not be unreasonably withheld or\ndelayed, and shall, at Landlord's option, be subject to administrative\nsupervision by Landlord in their use of the Building. Contractor has been\napproved as Tenant's general contractor. Tenant shall furnish to Landlord a copy\nof the executed contract between Tenant and Contractor covering all of Tenant's\nobligations under this Work Letter. Landlord shall have no liability to\nContractor or any subcontractors for the Improvement Work. Tenant shall use\ncommercially reasonable efforts to cause the Improvement Work to be performed in\nas efficient a manner as is commercially reasonable. Tenant shall repair, or\nreimburse Landlord on demand for the cost of repairing, any damage to the\nBuilding caused by Tenant or its contractors during performance of the\nImprovement Work. Tenant's contractors shall conduct their work and employ labor\nin such manner as to maintain harmonious labor relations. Contractor shall\nobtain a builder's risk policy of insurance in an amount and form and issued by\na carrier reasonably satisfactory to Landlord, and Tenant's general contractor\nand subcontractors shall carry worker's compensation insurance for their\nemployees as required by law. The builder's risk policy of insurance shall name\nLandlord as an additional insured and shall not be cancelable without at least\nthirty (30) days' prior written notice to Landlord.\n\n                      (b) Any material changes in the Improvement Work from the\nfinal Working Drawings approved by Landlord shall be subject to Landlord's prior\nwritten approval, which shall not be unreasonably withheld. Any material\ndeviation in construction from the design specifications and criteria set forth\nherein or from the Working Drawings as approved by Landlord shall constitute a\ndefault for which Landlord may, within ten (10) days after giving written notice\nto Tenant, elect to exercise the remedies available in the event of default\nunder the provisions of this Lease, unless such default is cured within such ten\n(10) day period, or, if the cure reasonably requires more than ten (10) days,\nunless such default is cured as soon as reasonably practicable but in no event\nlater than thirty (30) days after Landlord's notice to Tenant. Only new\nmaterials shall be used in the construction of the Improvement Work, except with\nthe written consent of Landlord.\n\n                      (c) During the construction of the Improvement Work,\nTenant shall provide and pay for temporary connections for all utilities brought\nto the Building. Tenant shall be entitled to use the 100-amp electric panel that\nis currently installed in the Building provided that Tenant pays for the\nelectric usage. Tenant is responsible for trash removal which shall be done\ncontinually at Tenant's sole cost and expense. No trash, or other debris, or\nother waste may be deposited at any time outside the Building. If so, Landlord\nmay remove it at Tenant's expense, which expense shall equal the cost of removal\nplus twenty-five percent (25%) of such costs as a management fee.\n\n                      (d) Storage of Tenant's contractors' construction\nmaterials, tools and equipment shall be confined within the Building, and in no\nevent shall any materials or debris be stored outside of the Building.\n\n                      (e) Tenant acknowledges that it has engaged its architects\nand shall be solely responsible for the actions and omissions of its architects\nand for any loss, liability, claim, cost, damage or expense suffered by Landlord\nor any other entity or person as a result of the acts or omissions of its\narchitects or for delays caused by its architects. Landlord's approval of any of\nTenant's architects or engineers and of any documents prepared by any of them\nshall not be for the benefit of Tenant or any third party, and Landlord shall\nhave no duty to Tenant or to any third parties for the actions or omissions of\nTenant's architects or engineers. Tenant shall indemnify and hold harmless\nLandlord against any and all losses, costs, damages, claims and liabilities\narising from the actions or omissions of Tenant's architects and engineers.\n\n                      (f) Landlord shall have the right to post in a conspicuous\nlocation on the Building or the Leased Premises, as well as record with the\nCounty of Santa Clara, a Notice of Nonresponsibility.\n\n                      (g) Without limiting the generality of the foregoing, any\nwork to be performed outside of the Building shall be coordinated with Landlord,\nand shall be subject to reasonable scheduling requirements of Landlord.\n\n                      (h) Tenant shall, upon completion of its work, submit to\nLandlord two (2) complete sets of plans (one (1) reproducible) and\nspecifications plus one diskette or CD containing a full set of CAD files of the\nplans and specifications covering all of the Improvement Work, including\narchitectural, mechanical, electrical, and plumbing, and telecommunications as\nbuilt.\n\n                      (i) Not later than the 25th day of each month Tenant shall\nsubmit applications for payment (from the Tenant Improvement Allowance) to\nLandlord in a form reasonably acceptable to Landlord, certified as correct by an\nofficer of Tenant and by Tenant's architect, for payment of that portion of the\ncost of the Improvement Work allocable to labor, materials and equipment\nincorporated in the Building during the period from the first day of the same\nmonth projected through the last day of the month. Each application for payment\nshall set forth such information and shall be accompanied by such supporting\ndocumentation as shall be reasonably requested by Landlord, including the\nfollowing:\n\n\n\n\n               1.     Invoices and canceled checks.\n\n               2.     Fully executed conditional lien releases in the form\n                      prescribed by law from the Contractor and all\n                      subcontractors and suppliers furnishing labor or materials\n                      during such period and fully executed unconditional lien\n                      releases from all such entities covering the prior payment\n                      period.\n\n               3.     Contractor's worksheets showing percentages of completion.\n\n               4.     Contractor's certification as follows:\n\n        'There are no known mechanics' or materialmen's liens outstanding at the\n        date of this application for payment, all due and payable bills with\n        respect to the Building have been paid to date or shall be paid from the\n        proceeds of this application for payment, and there is no known basis\n        for the filing of any mechanics' or materialmen's liens against the\n        Building or the Property, and, to the best of our knowledge, waivers\n        from all subcontractors are valid and constitute an effective waiver of\n        lien under applicable law to the extent of payments that have been made\n        or shall be made concurrently herewith.'\n\n                      (j) Tenant shall submit with each application for payment\nall documents necessary to effect and perfect the transfer of title to the\nmaterials or equipment for which application for payment is made.\n\n                      (k) On or before the 15th day of the month following\nsubmission of the application for payment, Landlord shall pay a share of such\npayment determined by multiplying the amount of such payment by a fraction, the\nnumerator of which is the the amount of the Tenant Improvement Allowance, and\nthe denominator of which is the sum of (i) estimated construction cost of all\nImprovement Work, and (ii) the estimated cost of all professional services, fees\nand permits in connection therewith. Tenant shall pay the balance of such\npayment, provided that at such time as Landlord has paid the entire Improvement\nAllowance on account of such Improvement Work, all billings shall be paid\nentirely by Tenant. If upon completion of the Improvement Work and payment in\nfull to the Contractor, the architect and engineer, and payment in full of all\nfees and permits, the portion of the cost of the Improvement Work, architects'\nand engineers' fees, permits and fees theretofore paid by Landlord is less than\nthe Improvement Allowance, Landlord shall reimburse Tenant for costs expended by\nTenant for Improvement Work up to the amount by which the Improvement Allowance\nexceeds the portion of such cost theretofore paid by Landlord. Landlord shall\nhave no obligation to advance the Improvement Allowance to the extent it exceeds\nthe total cost of the Improvement Work. In no event shall Landlord have any\nresponsibility for the cost of the Improvement Work in excess of the Tenant\nImprovement Allowance. Landlord shall have no obligation to make any payments to\nContractor's material suppliers or subcontractors or to determine whether\namounts due them from Contractor in connection with the Improvement Work have,\nin fact, been paid.\n\n                      (l) Upon the completion of the Improvement Work, Tenant\nshall:\n\n                             (i) Submit to Landlord a detailed breakdown of\nTenant's final and total construction costs, together with receipted evidence\nshowing payment thereof, satisfactory to Landlord.\n\n                             (ii) Submit to Landlord all evidence reasonably\navailable from governmental authorities showing compliance with any and all\nother laws, orders and regulations of any and all governmental authorities\nhaving jurisdiction over the Building, including, without limitation,\nauthorization for physical occupancy of the Building.\n\n                             (iii) Submit to Landlord the as-built plans and\nspecifications referred to above.\n\n                      (m) Tenant hereby assigns to Landlord on a NON-EXCLUSIVE\nbasis any and all rights Tenant may have against Tenant's architects and\ncontractors relating to the Improvement Work, without in any way obligating\nLandlord to pursue or prosecute such rights.\n\n        4. RATIFICATION. The Lease, as amended by this Amendment, is hereby\nratified by Landlord and Tenant and Landlord and Tenant hereby agree that the\nLease, as so amended, shall continue in full force and effect.\n\n        5. MISCELLANEOUS.\n\n               (a) VOLUNTARY AGREEMENT. The parties have read this Amendment and\non the advice of counsel they have freely and voluntarily entered into this\nAmendment.\n\n               (b) ATTORNEY'S FEES. If either party commences an action against\nthe other party arising out of or in connection with this Amendment, the\nprevailing party shall be entitled to recover from the losing party reasonable\nattorney's fees and costs of suit.\n\n\n\n               (c) SUCCESSORS. This Amendment shall be binding on and inure to\nthe benefit of the parties and their successors.\n\n               (d) COUNTERPARTS. This Amendment may be signed in two or more\ncounterparts. When at least one such counterpart has been signed by each party,\nthis Amendment shall be deemed to have been fully executed, each counterpart\nshall be deemed to be an original, and all counterparts shall be deemed to be\none and the same agreement.\n\n        IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as\nof the date first written above.\n\n                                   LANDLORD:\n\n                                   CORPORATE TECHNOLOGY CENTRE ASSOCIATES LLC,\n                                   a California limited liability company\n\n                                   By:    Corporate Technology Centre\n                                          Partners LLC\n                                          a California limited liability\n                                          company\n                                          Its Manager\n\n                                          By:    Menlo Equities LLC\n                                                 a California limited\n                                                 liability company\n                                                 Its Managing Member\n\n                                                 By:   Menlo Equities, Inc.\n                                                       Its Managing Member\n\nDated:                                                 By:\n      --------------------------                           ---------------------\n                                                            Henry D. Bullock\n                                                            President\n\n\n                                   TENANT:\n\n                                   REDBACK NETWORKS INC.,\n                                   a Delaware corporation\n\n\nDated:                             By:\n      --------------------------      ------------------------------------------\n                                   Title:\n                                         ---------------------------------------\n\n\nDated:                             By:\n      --------------------------      ------------------------------------------\n                                   Title:\n                                         ---------------------------------------\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8660],"corporate_contracts_industries":[],"corporate_contracts_types":[9583,9579],"class_list":["post-41724","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-redback-networks-inc","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41724","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41724"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41724"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41724"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41724"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}