\nEP Commencement $ 9,891.00 $2,922.00 $12,813.00
\nDate to August 31, 2001
\n——————————- —————————- —————————- —————————-
\n9\/1\/01 – 8\/31\/02 $10,286.00 $3,039,00 $13,325.00
\n——————————- —————————- —————————- —————————-
\n9\/1\/02 – 8\/31\/03 $10,698.00 $3,161.00 $13,859.00
\n——————————- —————————- —————————- —————————-<\/p>\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Notwithstanding the foregoing, the Base Rent for the following months
\nof occupancy shall be abated: (A) For the Original Premises, the second, third
\nand fourth months following the Commencement date (as defined in the Lease for
\nthe Original Premises) shall be free of Base Rent; and (B) For the Expansion
\nPremises, the first month following the EP Commencement Date shall be free of
\nBase Rent. The initial monthly Base Rent for any extended or option term shall
\nbe determined in accordance with Addendum 1 to the Lease for both the Premises
\nand Expansion Premises.<\/p>\n
4. ADVANCE BASE RENT: Concurrently with Tenant’s execution of
\nthis Amendment, Tenant Landlord the amount of $2,922.00, which shall represent
\nTenant’s first monthly installment of Base Rent payable for the Expansion
\nPremises.<\/p>\n
5. CONDITION OF THE EXPANSION PREMISES: Subject to the provisions
\nof Section 2 above, on the EP Commencement Date Landlord shall deliver to Tenant
\npossession of the Expansion Premises in its then existing condition and state of
\nrepair, “AS IS”, and Landlord shall not be obligated to provide or pay for any
\nimprovement, remodeling or refurbishment work or services related to the
\nimprovement, remodeling or refurbishment of the Expansion Premises except as
\notherwise set forth in EXHIBIT B hereto. The Tenant Improvements (defined in
\nEXHIBIT B) shall be installed in accordance with the terms, conditions, criteria
\nand provisions set forth in EXHIBIT B. Any Tenant Improvements to be constructed
\nhereunder shall be in compliance with the requirements of the Americans with
\nDisabilities Act, a federal law codified at 42 U.S.C. 12101 et seq., including,
\nbut not limited to Title III thereof, all regulations and guidelines related
\nthereto and all requirements of Title 24 of the State of California, and all
\ncosts incurred for purposes of compliance therewith shall be a part of and
\nincluded in the costs of the Tenant Improvements. By taking possession of the
\nExpansion Premises, Tenant shall be deemed to have accepted the Expansion
\nPremises in good condition and state of repair. Tenant expressly acknowledges
\nand agrees that neither Landlord nor any of Landlord’s agents, representatives
\nor employees has made any representations as to the suitability, fitness or
\ncondition of the Expansion Premises for the conduct of Tenant’s business or for
\nany other purpose, including without limitation, any storage incidental thereto,
\nor for any other purpose. Any exception to the foregoing provisions must be made
\nby express written agreement signed by both parties. Tenant acknowledges that no
\nrepresentations or warranties of any kind, express or implied, respecting the
\ncondition of the Expansion Premises, Building, or Park or have been made by
\nLandlord or any agent of Landlord to Tenant, except as expressly set forth
\nherein.<\/p>\n
6. SECURITY DEPOSIT: Concurrently with Tenant’s execution of this
\nAmendment, Tenant shall deposit with Landlord the sum of $2,922.00 (the “EP
\nSecurity Deposit”). The EP Security Deposit shall be added to the Security
\nDeposit presently being held by Landlord under the Lease in the amount of
\n$9,891.00 (the “Original Security Deposit”). The aggregate amount of the EP
\nSecurity Deposit and the Original Security Deposit is 12,813.00. From and after
\nthe EP Commencement Date, the term “Security Deposit” shall mean and refer to
\nthe aggregate of the EP Security Deposit and the Original Security Deposit in
\nthe amount of 12,813.00. The EP Security Deposit shall be subject to, and the
\nuse and application thereof governed by, Section 41 of the Lease.<\/p>\n
7. TENANT’S SHARE OF OPERATING EXPENSES: As of the EP
\nCommencement Date, the Lease shall be modified to provide that Tenant’s Share of
\nOperating Expenses (as defined in the Basic Lease Information and Section 6.1 of
\nthe Lease) shall be increased to 14.9% of Building 10240 and 8.0% of the Park.<\/p>\n
2<\/p>\n
8. TENANT’S SHARE OF TAX EXPENSES: As of the EP Commencement
\nDate, the Lease shall be modified to provide that Tenant’s Share of Tax Expenses
\n(as defined in the Basic Lease Information and Section 6.2 of the Lease) shall
\nbe increased to 8.0% of the Park.<\/p>\n
9. TENANT’S SHARE OF UTILITY EXPENSES: As of the EP Commencement
\nDate, the Lease shall be modified to provide that Tenant’s Share of Utility
\nExpenses (as defined in the Basic Lease Information and Section 7 of the Lease)
\nshall be increased to 14.9% of Building 10240 and 8.0% of the Park.<\/p>\n
10. TENANT’S SHARE OF COMMON AREA UTILITY COSTS: As of the EP
\nCommencement Date, the Lease shall be modified to provide that Tenant’s Share of
\nCommon Area Utility Costs (as defined in the Basic Lease Information and Section
\n7 of the Lease) shall be increased to 8.0% of the Park.<\/p>\n
11. UNRESERVED PARKING SPACES: As of the EP Commencement Date, the
\nLease shall be modified to provide that Tenant’s Unreserved Parking Spaces (as
\ndefined in the Basic Lease Information) shall be increased to thirty-seven (37).<\/p>\n
12. INSURANCE: Tenant shall deliver to Landlord, upon execution of
\nthis Amendment, a certificate of insurance evidencing that the Expansion
\nPremises are included within and covered by Tenant’s insurance policies required
\nto be carried by Tenant pursuant to the Lease.<\/p>\n
13. BROKERS: Tenant warrants that it has had no dealings with any
\nreal estate broker or agent in connection with the negotiation of this Amendment
\nwhose commission shall be payable by Landlord, except for CB Richard Ellis
\n(“Tenant’s Broker”). If Tenant has dealt with any person, real estate broker or
\nagent with respect to this Amendment, other than Tenant’s Broker, Tenant shall
\nbe solely responsible for the payment of any fee due to said person or firm, and
\nTenant shall indemnify, defend and hold Landlord free and harmless against any
\nclaims, judgments, damages, costs, expenses, and liabilities with respect
\nthereto, including attorneys’ fees and costs.<\/p>\n
14. LETTER OF CREDIT: As of the EP Commencement Date, Tenant shall
\nincrease the amount of the Letter of Credit (as defined in Section 4 of the
\nLease) by $14,567.00. The amount “$9,860.00” is hereby deleted from the last
\nsentence of the Lease and replaced with the amount of “12,773.00”. in addition
\nto the provisions of Section 5(E) of Exhibit B of the Lease, the amount of the
\nLetter of Credit shall be increased by Tenant by an amount equal to the Excess
\nTenant Improvement Costs as described in Section 5(E) of Exhibit B to this
\nAmendment.<\/p>\n
15. EFFECT OF AMENDMENT: Except as modified herein, the terms and
\nconditions of the Lease shall remain unmodified and continue in full force and
\neffect. in the event of any conflict between the terms and conditions of the
\nLease and this Amendment, the terms and conditions of this Amendment shall
\nprevail.<\/p>\n
16. DEFINITIONS: Unless otherwise defined in this Amendment, all
\nterms not defined in this Amendment shall have the meanings assigned to such
\nterms in the Lease.<\/p>\n
17. AUTHORITY: Subject to the assignment and subletting provisions
\nof the Lease, this Amendment shall be binding upon and inure to the benefit of
\nthe parties hereto, their respective heirs, legal representatives, successors
\nand assigns. Each party hereto and the persons signing below warrant that the
\nperson signing below on such party’s behalf is authorized to do so and to bind
\nsuch party to the terms of this Amendment.<\/p>\n
18. INCORPORATION: The terms and provisions of the Lease are
\nhereby incorporated in this Amendment.<\/p>\n
3<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
\ndate and year first above written.<\/p>\n
Tenant: Landlord:
\nWEBSENSE, INC. Legacy-RECP Sorrento OPCO, LLC
\na Delaware Corp. a Delaware limited liability company
\nBy: By: Legacy Partners Commercial, Inc.
\n ——————————— As Agent and Manager of Landlord
\nIts:
\n ———————————
\nDate: By:
\n ——————————- ———————————
\n Its:
\n ——————————–
\nBy: Date:
\n ——————————— ——————————-
\nIts:
\n ———————————
\nDate:
\n ——————————–<\/p>\n
4<\/p>\n
EXHIBIT “A”<\/p>\n
[DRAWINGS]<\/p>\n
5<\/p>\n
EXHIBIT B TO LEASE AGREEMENT
\n TENANT IMPROVEMENTS<\/p>\n
This exhibit, entitled “Tenant Improvements”, is and shall constitute
\nEXHIBIT B to that certain First Amendment to Lease Agreement dated June 2, 2000
\n(the “Lease”), by and between Lincoln-RECP Sorrento OPCO, LLC, a Delaware
\nlimited liability company (“Landlord”), and WEBSENSE, INC., a Delaware
\ncorporation (“Tenant”), for the leasing of certain Expansion Premises located at
\n10240 Sorrento Valley Road, Suite 125, San Diego, California (the “Expansion
\nPremises”). The terms, conditions and provisions of this EXHIBIT B are hereby
\nincorporated into and are made a part of the Lease. Any capitalized terms used
\nherein and not otherwise defined herein shall have the meaning ascribed to such
\nterms as set forth in the Lease:<\/p>\n
1. TENANT TO CONSTRUCT TENANT IMPROVEMENTS. Subject to the
\nprovisions below, Tenant shall be solely responsible for the planning,
\nconstruction and completion of the Interior tenant Improvements (“Tenant
\nImprovements”) to the Expansion Premises in accordance with the terms and
\nconditions of this EXHIBIT B. The Tenant Improvements shall not include any of
\nTenant’s personal property, trade fixtures, furnishings, equipment or similar
\nitems.<\/p>\n
2. TENANT IMPROVEMENT PLANS.<\/p>\n
A. PRELIMINARY PLANS AND SPECIFICATIONS. Promptly after
\nexecution of the Lease, Tenant shall retain a licensed and Insured architect
\n(“Architect”) to prepare preliminary working architectural and engineering plans
\nand specifications (“Preliminary Plans and Specifications”) for the Tenant
\nImprovements. Tenant shall deliver the Preliminary Plans and Specifications to
\nLandlord. The Preliminary Plans and Specifications shall be in sufficient detail
\nto show locations, types and requirements for all heat loads, people loads,
\nfloor loads, power and plumbing, regular and special HVAC needs, telephone
\ncommunications, telephone and electrical outlets, lighting, lighting fixtures
\nand related power, and electrical and telephone switches. Landlord shall
\nreasonably approve or disapprove the Preliminary Plans and Specifications within
\nfive (5) days after Landlord receives the Preliminary Plans and Specifications
\nand, if disapproved, Landlord shall return the Preliminary Plans and
\nSpecifications to Tenant, who shall make all necessary revisions within ten (10)
\ndays after Tenant’s receipt thereof. This procedure shall be repeated until
\nLandlord approves the Preliminary Plans and Specifications. The approved
\nPreliminary Plans and Specifications, as modified, shall be deemed the “Final
\nPreliminary Plans and Specifications”.<\/p>\n
B. FINAL PLANS AND SPECIFICATIONS. After the Final
\nPreliminary Plans and Specifications are approved by Landlord and are deemed to
\nbe the Final Preliminary Plans and Specifications, Tenant shall cause the
\nArchitect to prepare in twenty (20) days following Landlord’s approval of the
\nFinal Preliminary Plans and Specifications the final working architectural and
\nengineering plans, specifications and drawings, (“Final Plans and
\nSpecifications”) for the Tenant Improvements. Tenant shall then deliver the
\nFinal Plans and Specifications to Landlord. Landlord shall reasonably approve or
\ndisapprove the Final Plans and Specifications within five (5) days after
\nLandlord receives the Final Plans and Specifications and, if disapproved,
\nLandlord shall return the Final Plans and Specifications to Tenant who shall
\nmake all necessary revisions within ten (10) days after Tenant’s receipt
\nthereof. This procedure shall be repeated until Landlord approves, in writing,
\nthe Final Plans and Specifications. The approved Final Plans and Specifications,
\nas modified, shall be deemed the “Construction Documents”.<\/p>\n
C. MISCELLANEOUS. All deliveries of the Preliminary
\nPlans and Specifications, the Final Preliminary Plans and Specifications, the
\nFinal Plans and Specifications, and the Construction Documents shall be
\ndelivered by messenger service, by personal hand delivery or by overnight parcel
\nservice. While Landlord has the right to approve the Preliminary Plans and
\nSpecifications, the Final Preliminary Plans and Specifications, the Final Plans
\nand Specifications, and the Construction Documents, Landlord’s Interest in doing
\nso is to protect the Expansion Premises, the Building and Landlord’s Interest.
\nAccordingly, Tenant shall not rely upon Landlord’s approvals and Landlord shall
\nnot be the guarantor of, nor responsible for, the adequacy and correctness or
\naccuracy of the Preliminary Plans and Specifications, the Final Preliminary
\nPlans and Specifications, the Final Plans and Specifications, and the
\nConstruction Documents, or the compliance thereof with applicable laws, and
\nLandlord shall incur no liability of any kind by reason of granting such
\napprovals.<\/p>\n
6<\/p>\n
D. BUILDING STANDARD WORK. The Construction Documents
\nshall provide that the Tenant Improvements to be constructed in accordance
\ntherewith must be at least equal, in quality, to Landlord’s building standard
\nmaterials, quantities and procedures then in use by Landlord (“Building
\nStandards”) at the Building, and shall consist of improvements which are generic
\nin nature.<\/p>\n
E. CONSTRUCTION AGREEMENTS. Tenant hereby covenants and
\nagrees that a provision shall be included in each and every agreement made with
\nthe Architect and the Contractor with respect to the Tenant Improvements
\nspecifying that Landlord shall be a third party beneficiary thereof, including
\nwithout limitation, a third party beneficiary of all covenants, representations,
\nindemnities and warranties made by the Architect and\/or Contractor.<\/p>\n
3. PERMITS. Tenant at its sole cost and expense (subject to the
\nprovisions of Paragraph 5 below) shall obtain all governmental approvals of the
\nConstruction Documents to the full extent necessary for the issuance of a
\nbuilding permit for the Tenant Improvements based upon such Construction
\nDocuments. Tenant at its sole cost and expense shall also cause to be obtained
\nall other necessary approvals and permits from all governmental agencies having
\njurisdiction or authority for the construction and installation of the Tenant
\nImprovements in accordance with the approved Construction Documents. Tenant at
\nits sole cost and expense (subject to the provisions of Paragraph 5 below) shall
\nundertake all steps necessary to insure that the construction of the Tenant
\nImprovements is accomplished in strict compliance with all statutes, laws,
\nordinances, codes, rules, and regulations applicable to the construction of the
\nTenant Improvements and the requirements and standards of any insurance
\nunderwriting board, inspection bureau or insurance carrier insuring the
\nExpansion Premises and\/or the Building.<\/p>\n
4. CONSTRUCTION.<\/p>\n
A. Tenant shall be solely responsible for the
\nconstruction, installation and completion of the Tenant Improvements in
\naccordance with the Construction Documents approved by Landlord and is solely
\nresponsible for the payment of all amounts when payable in connection therewith
\nwithout any cost or expense to Landlord, except for Landlord’s obligation to
\ncontribute the Tenant Improvement Allowance in accordance with the provisions of
\nParagraph 5 below. Tenant shall diligently proceed with the construction,
\ninstallation and completion of the Tenant Improvements in accordance with the
\nConstruction Documents and the completion schedule reasonably approved by
\nLandlord. No material changes shall be made to the Construction Documents and
\nthe completion schedule approved by Landlord without Landlord’s prior written
\nconsent, which consent shall not be unreasonably withheld or delayed.<\/p>\n
B. Tenant at its sole cost and expense (subject to the
\nprovisions of Paragraph 5 below) shall employ a licensed, insured and bonded
\ngeneral contractor (“Contractor”) to construct the Tenant Improvements in
\naccordance with the Construction Documents. The construction contracts between
\nTenant and the Contractor and between the Contractor and subcontractors shall be
\nsubject to Landlord’s prior written approval, which approval shall not be
\nunreasonably withheld or delayed. Proof that the Contractor is licensed in
\nCalifornia, is bonded as required under California law, and has the insurance
\nspecified in EXHIBIT B-1, attached hereto and incorporated herein by this
\nreference, shall be provided to Landlord at the time that Tenant requests
\napproval of the Contractor from Landlord. Tenant shall comply with or cause the
\nContractor to comply with all other terms and provisions of EXHIBIT B-1.<\/p>\n
C. Prior to the commencement of the construction and
\ninstallation of the Tenant Improvements, Tenant shall provide the following to
\nLandlord, all of which shall be to Landlord’s reasonable satisfaction:<\/p>\n
(i) An estimated budget and cost breakdown for
\nthe Tenant Improvements.<\/p>\n
(ii) Estimated completion schedule for the Tenant
\nImprovements.<\/p>\n
(iii) Copies of all required approvals and permits
\nfrom governmental agencies having jurisdiction or authority for the construction
\nand installation of the Tenant Improvements; provided, however, if prior to
\ncommencement of the construction and installation of Tenant Improvements Tenant
\nhas not received the electrical, plumbing or mechanical permits, Tenant shall
\nonly be required to provide Landlord with evidence that Tenant has made<\/p>\n
7<\/p>\n
application thereof, and, upon receipt by Tenant of such permits, Tenant shall
\npromptly provide Landlord with copies thereof.<\/p>\n
(iv) Evidence of Tenant’s procurement of
\ninsurance required to be obtained pursuant to the provisions of Paragraphs 4.B
\nand 4.G.<\/p>\n
D. Landlord shall at all reasonable times have a right
\nto inspect the Tenant Improvements (provided Landlord does not materially
\ninterfere with the work being performed by the Contractor or its subcontractors)
\nand Tenant shall immediately cease work upon written notice from Landlord if the
\nTenant Improvements are not in compliance with the Construction Documents
\napproved by Landlord. If Landlord shall give notice of faulty construction or
\nany other deviation from the Construction Documents, Tenant shall cause the
\nContractor to make corrections promptly. However, neither the privilege herein
\ngranted to Landlord to make such inspections, nor the making of such inspections
\nby Landlord, shall operate as a waiver of any rights of Landlord to require good
\nand workmanlike construction and improvements constructed in accordance with the
\nConstruction Documents.<\/p>\n
E. Subject to Landlord complying with its obligations in
\nParagraph 5 below, Tenant shall pay and discharge promptly and fully all claims
\nfor labor done and materials and services furnished in connection with the
\nTenant Improvements. The Tenant Improvements shall not be commenced until five
\n(5) business days after Landlord has received notice from Tenant stating the
\ndate the construction of the Tenant Improvements is to commence so that Landlord
\ncan post and record any appropriate Notice of Non-responsibility.<\/p>\n
F. Tenant acknowledges and agrees that the agreements
\nand covenants of Tenant in Sections 10 and 9 of the Lease shall be fully
\napplicable to Tenant’s construction of the Tenant Improvements.<\/p>\n
G. Tenant shall maintain, and cause to be maintained,
\nduring the construction of the Tenant Improvements, at its sole cost and
\nexpense, insurance of the types and in the amounts specified in EXHIBIT B-1 and
\nin Section 12 of the Lease, together with builders’ risk insurance for the
\namount of the completed value of the Tenant Improvements on an all-risk
\nnon-reporting form covering all improvements under construction, including
\nbuilding materials, and other insurance in amounts and against such risks as the
\nLandlord shall reasonably require in connection with the Tenant Improvements.<\/p>\n
H. No materials, equipment or fixtures shall be
\ndelivered to or installed upon the Expansion Premises pursuant to any agreement
\nby which another party has a security interest or rights to remove or repossess
\nsuch items, without the prior written consent of Landlord, which consent shall
\nnot be unreasonably withheld.<\/p>\n
I. Landlord reserves the right to establish reasonable
\nrules and regulations for the use of the Building during the course of
\nconstruction of the Tenant Improvements, including, but not limited to,
\nconstruction parking, storage of materials, hours of work, use of elevators, and
\nclean-up of construction related debris.<\/p>\n
J. Upon completion of the Tenant Improvements, Tenant
\nshall deliver to Landlord the following, all of which shall be to Landlord’s
\nreasonable satisfaction:<\/p>\n
(i) Any certificates required for occupancy,
\nincluding a permanent and complete Certificate of Occupancy issued by the City
\nof San Diego.<\/p>\n
(ii) A Certificate of Completion signed by the
\nArchitect who prepared the Construction Documents, reasonably approved by
\nLandlord.<\/p>\n
(iii) A cost breakdown itemizing all expenses for
\nthe Tenant Improvements, together with invoices and receipts for the same or
\nother evidence of payment.<\/p>\n
(iv) Final and unconditional mechanic’s lien
\nwaivers for all the Tenant Improvements.<\/p>\n
(v) A Notice of Completion for execution by
\nLandlord, which certificate once executed by Landlord shall be recorded by
\nTenant in the official records of the<\/p>\n
8<\/p>\n
County of San Diego, and Tenant shall then deliver to Landlord a true and
\ncorrect copy of the recorded Notice of Completion.<\/p>\n
(vi) A true and complete copy of all as-built
\nplans and drawings for the Tenant Improvements.<\/p>\n
5. TENANT IMPROVEMENT ALLOWANCE.<\/p>\n
A. Subject to Tenant’s compliance with the provisions of
\nthis EXHIBIT B, Landlord shall provide to Tenant an allowance in the amount of
\nSeventeen Thousand Seven Hundred Twelve dollars ($17,712.00) (the “Tenant
\nImprovement Allowance”) to construct and install only the Tenant Improvements.
\nThe Tenant Improvement Allowance shall be used to design, prepare, plan, obtain
\nthe approval of, construct and Install the Tenant Improvements and for no other
\npurpose. However, the cost to demise the security panel closet within the
\nExpansion Premises shall be paid by Landlord in its entirety, and said cost
\nshall not be deducted from the Tenant Improvement Allowance. Except as otherwise
\nexpressly provided herein, Landlord shall have no obligation to contribute the
\nTenant Improvement Allowance unless and until the Construction Documents have
\nbeen approved by Landlord and Tenant has complied with all requirements set
\nforth in Paragraph 4.C. of this EXHIBIT B. in addition to the foregoing,
\nLandlord shall have no obligation to disburse all or any portion of the Tenant
\nImprovement Allowance to Tenant unless Tenant makes a progress payment request
\npursuant to the terms and conditions of Section 5.B. below prior to that date
\nwhich is six (6) months after the Lease Commencement Date (as such term is
\ndefined in the Basic Lease Information and Section 2 of the Lease). The costs to
\nbe paid out of the Tenant Improvement Allowance shall include all reasonable
\ncosts and expenses associated with the design, preparation, approval, planning,
\nconstruction and installation of the Tenant Improvements (the “Tenant
\nImprovement Costs”), including all of the following:<\/p>\n
(i) All costs of the Preliminary Plans and
\nSpecifications, the Final Plans and Specifications, and the Construction
\nDocuments, and engineering costs associated with completion of the State of
\nCalifornia energy utilization calculations under Title 24 legislation: <\/p>\n
(ii) All costs of obtaining building permits and
\nother necessary authorizations from local governmental authorities;<\/p>\n
(iii) All costs of Interior design and finish
\nschedule plans and specifications including as-built drawings, if applicable;<\/p>\n
(iv) All direct and indirect costs of procuring,
\nconstructing and installing the Tenant Improvements in the Expansion Premises,
\nIncluding, but not limited to, the construction fee for overhead and profit and
\nthe cost of all on-site supervisory and administrative staff, office, equipment
\nand temporary services rendered by the Contractor in connection with the
\nconstruction of the Tenant Improvements; provided, however, that the
\nconstruction fee for overhead and profit, the cost of all on-site supervisory
\nand administrative staff, office, equipment and temporary services shall not
\nexceed amounts which are reasonable and customary for such items in the local
\nconstruction industry;<\/p>\n
(v) All fees payable to the Architect and any
\nengineer if they are required to redesign any portion of the Tenant Improvements
\nfollowing Tenant’s and Landlord’s approval of the Construction Documents;<\/p>\n
(vi) Utility connection fees;<\/p>\n
(vii) Inspection fees and filing fees payable to
\nlocal governmental authorities, if any;<\/p>\n
(viii) All costs of all permanently affixed
\nequipment and non-trade fixtures provided for in the Construction Documents,
\nincluding the cost of Installation; and,<\/p>\n
(ix) A construction management fee payable to
\nLandlord in the amount of three percent (3%) of the aggregate of the principal
\namount of the Amortized Excess TI Costs (defined below) and the Tenant
\nImprovement Allowance (the “CM Fee”).<\/p>\n
9<\/p>\n
The Tenant Improvement Allowance shall be the maximum contribution by Landlord
\nfor the Tenant Improvement Costs, and the disbursement of the Tenant Improvement
\nAllowance is subject to the terms contained herein below.<\/p>\n
B. Except for payment of the CM Fee, and subject to
\nSection 5.A. above, Landlord will make payments to Tenant from the Tenant
\nImprovement Allowance to reimburse Tenant for Tenant Improvement Costs paid or
\nincurred by Tenant. Payment of the CM Fee shall be the first payment from the
\nTenant Improvement Allowance and shall be made by means of a deduction or credit
\nagainst the Tenant Improvement Allowance. All other payments of the Tenant
\nImprovement Allowance shall be by progress payments not more frequently than
\nonce per month and only after satisfaction of the following conditions
\nprecedent: (a) receipt by Landlord of conditional mechanics’ lien releases for
\nthe work completed and to be paid by said progress payment, conditioned only on
\nthe payment of the sums set forth in the mechanics’ lien release, executed by
\nthe Contractor and all subcontractors, labor suppliers and materialmen; (b)
\nreceipt by Landlord of unconditional mechanics’ lien releases from the
\nContractor and all subcontractors, labor suppliers and materialmen for all work
\nother than that being paid by the current progress payment previously completed
\nby the Contractor, subcontractors, labor suppliers and materialmen and for which
\nTenant has received funds from the Tenant Improvement Allowance to pay for such
\nwork; (c) receipt by Landlord of any and all documentation reasonably required
\nby Landlord detailing the work that has been completed and the materials and
\nsupplies used as of the date of Tenant’s request for the progress payment,
\nincluding, without limitation, invoices, bills, or statements for the work
\ncompleted and the materials and supplies used; and (d) completion by Landlord or
\nLandlord’s agents of any inspections of the work completed and materials and
\nsupplies used as deemed reasonably necessary by Landlord. Except for the CM Fee
\npayment (credit), Tenant Improvement Allowance progress payments shall be paid
\nto Tenant within fourteen (14) days from the satisfaction of the conditions set
\nforth in the immediately preceding sentence. The preceding notwithstanding, all
\nTenant Improvement Costs paid or incurred by Tenant prior to Landlord’s approval
\nof the Construction Documents in connection with the design and planning of the
\nTenant Improvements by Architect shall be paid from the Tenant Improvement
\nAllowance, without any retention, within fourteen (14) days following Landlord’s
\nreceipt of invoices, bills or statements from Architect evidencing such costs.
\nNotwithstanding the foregoing to the contrary, Landlord shall be entitled to
\nwithhold and retain five percent (5%) of the Tenant Improvement Allowance or of
\nany Tenant Improvement Allowance progress payment until the lien-free expiration
\nof the time for filing of any mechanics’ liens claimed or which might be filed
\non account of any work ordered by Tenant or the Contractor or any subcontractor
\nin connection with the construction and installation of the Tenant Improvements.<\/p>\n
C. Landlord shall not be obligated to pay any Tenant
\nImprovement Allowance progress payment or the Tenant Improvement Allowance
\nretention if on the date Tenant is entitled to receive the Tenant Improvement
\nAllowance progress payment or the Tenant Improvement Allowance retention Tenant
\nis in default of this Lease. Such payments shall resume upon Tenant curing any
\nsuch default within the time periods which may be provided for in the Lease.<\/p>\n
D. Should the total cost of constructing the Tenant
\nImprovements be less than the Tenant Improvement Allowance, the Tenant
\nImprovement Allowance shall be automatically reduced to the amount equal to said
\nactual cost.<\/p>\n
E. The term “Excess Tenant Improvement Costs” as used
\nherein shall mean and refer to the aggregate of the amount by which the actual
\nTenant Improvement Costs exceed the Tenant Improvement Allowance. A portion of
\nthe Excess Tenant Improvement Costs up to a maximum amount of Six Thousand Six
\nHundred Forty-two dollars ($6,642.00) shall be paid by Landlord in the same
\nmanner as the Tenant Improvement Allowance and such Excess Tenant Improvement
\nCosts will then be amortized over the initial term of the Lease at the rate of
\neleven percent (11%) per annum and such amortized amount (including interest
\ncharges) shall be paid by Tenant to Landlord with, and as part of, the Base Rent
\nfor the Expansion Premises in accordance with the provisions and requirements of
\nSection 3 of the Lease (the “Amortized Excess Costs”). Notwithstanding any
\nprovision to the contrary, however, Tenant shall pay to Landlord such amortized
\namount during the entire initial term of the Lease, regardless if Base Rent is
\nor is not abated. Within two (2) weeks after the Tenant Improvements have been
\nsubstantially completed and the actual Tenant Improvement Costs are known, the
\nparties shall execute and deliver a written amendment to the Lease, in the form
\nacceptable to the parties,<\/p>\n
10<\/p>\n
wherein there shall be specified, INTER ALIA, the amount of the Base Rent
\npayable by Tenant during the initial term of the Lease after taking into account
\nthe amount of the Amortized Excess Costs. Tenant shall promptly pay any and all
\nExcess Tenant Improvement Costs in excess of the principal amount of the
\nAmortized Excess Costs.<\/p>\n
6. TERMINATION. If the Lease is terminated prior to the date on
\nwhich the Tenant Improvements are completed, for any reason due to the default
\nof Tenant hereunder, in addition to any other remedies available to Landlord
\nunder the Lease, Tenant shall pay to Landlord as Additional Rent under the
\nLease, within five (5) days of receipt of a statement therefor, any and all
\ncosts incurred by Landlord and not reimbursed or otherwise paid by Tenant
\nthrough the date of termination in connection with the Tenant Improvements to
\nthe extent planned, installed and\/or constructed as of such date of termination,
\nIncluding, but not limited to, any costs related to the removal of all or any
\nportion of the Tenant Improvements and restoration costs related thereto.
\nSubject to the provisions of Section 10.2 of the Lease, upon the expiration or
\nearlier termination of the Lease, Tenant shall not be required to remove the
\nTenant Improvements it being the intention of the parties that the Tenant
\nImprovements are to be considered incorporated Into the Building.<\/p>\n
7. LEASE PROVISIONS; CONFLICT. The terms and provisions of the
\nLease, insofar as they are applicable, in whole or in part, to this EXHIBIT B,
\nare hereby incorporated herein by reference, and specifically including all of
\nthe provisions of Section 29 of the Lease. In the event of any conflict between
\nthe terms of the Lease and this EXHIBIT B, the terms of this EXHIBIT B shall
\nprevail. Any amounts payable by Tenant to Landlord hereunder shall be deemed to
\nbe Additional Rent under the Lease and, upon any default in the payment of same,
\nLandlord shall have all rights and remedies available to it as provided for in
\nthe Lease.<\/p>\n
11<\/p>\n
EXHIBIT B-1
\n CONSTRUCTION INSURANCE REQUIREMENTS<\/p>\n
Before commencing work, the contractor shall procure and maintain at
\nits sole cost and expense until completion and final acceptance of the work, at
\nleast the following minimum levels of insurance.<\/p>\n
A. Workers’ Compensation in statutory amounts and Employers
\nLiability Insurance in the minimum amounts of each accident for bodily injury by
\naccident and $100,000 each employee for bodily injury by disease with a $500,000
\npolicy limit, covering each and every worker used in connection with the
\ncontract work.<\/p>\n
B. Comprehensive General Liability Insurance on an occurrence
\nbasis including, but not limited to, protection for Expansion
\nPremises\/Operations Liability, Broad Form Contractual Liability, Owner’s and
\nContractor’s Protective, and Products\/Completed Operations Liability*, in the
\nfollowing minimum limits of liability.<\/p>\n
Bodily Injury, Property Damage, and<\/p>\n
Personal Injury Liability $2,000,000\/each occurrence
\n $3,000,000\/aggregate<\/p>\n
* Products\/Completed Operations Liability Insurance is
\nto be provided for a period of at least one (1) year after completion of work.<\/p>\n
Coverage should include protection for Explosion, Collapse and
\n Underground Damage.<\/p>\n
C. Comprehensive Automobile Liability Insurance with the
\nfollowing minimum limits of liability.<\/p>\n
Bodily Injury and Property $1,000,000\/each occurrence
\n Damage Liability $2,000,000\/aggregate<\/p>\n
This insurance will apply to all owned, non-owned or hired
\nautomobiles to be used by the Contractor in the completion of the work.<\/p>\n
D. Umbrella Liability Insurance in a minimum amount of five
\nmillion dollars ($5,000,000), providing excess coverage on a following-form
\nbasis over the Employer’s Liability limit in Paragraph A and the liability
\ncoverages outlined in Paragraphs B and C.<\/p>\n
E. Equipment and Installation coverages in the broadest form
\navailable covering Contractor’s tools and equipment and material not accepted by
\nTenant. Tenant will provide Builders Risk Insurance on all accepted and
\ninstalled materials.<\/p>\n
All policies of insurance, duplicates thereof or certificates
\nevidencing coverage shall be delivered to Landlord prior to commencement of any
\nwork and shall name Landlord, and its partners and lenders as additional
\ninsureds as their interests may appear. All insurance policies shall (1) be
\nissued by a company or companies licensed to be business in the state of
\nCalifornia, (2) provide that no cancellation, non-renewal or material
\nmodification shall be effective without thirty (30) days prior written notice
\nprovided to Landlord, (3) provide no deductible greater than $15,000 per
\noccurrence, (4) contain a waiver to subrogation clause in favor of Landlord, and
\nits partners and lenders, and (5) comply with the requirements of Sections 12.2,
\n12.3 and 12.4 of the Lease to the extent such requirements are applicable.<\/p>\n
12<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9305],"corporate_contracts_industries":[],"corporate_contracts_types":[9583,9579],"class_list":["post-41839","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-websense-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\/41839","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=41839"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41839"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41839"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41839"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}