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EXHIBIT 10.28
LEASE #1
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OFFICE BUILDING LEASE
1. PARTIES. This Lease, dated, for reference purposes only SEPTEMBER 11,
1989, is made by and between Lincoln Property Company N.C., Inc. as manager and
agent for the owner (herein called "Landlord") and SYNON, INC., an Illinois
corporation (herein called "Tenant").
2. PREMISES. Landlord does hereby lease to Tenant and Tenant hereby leases
from Landlord that certain office space (hereinafter called "Premises")
consisting of 16,112 usable square feet outlined in red on Exhibit A attached
hereto and 18,048 rentable square feet, including corridors being situated on
the 2ND/3RD floor(s) of that certain building known as 1100 LARKSPUR LANDING
CIRCLE, SUITE 300, LARKSPUR, CALIFORNIA (hereinafter called "Building") which is
one of several buildings in Larkspur Landing Office Park (hereinafter called
"Office Park") *(SEE PAGE 13)
Said Lease is subject to the terms, covenants, and conditions herein set
forth and the Tenant covenants as a material part of the consideration for this
Lease to keep and perform each and all of said terms, covenants, and conditions
by it to be kept and performed and that this Lease is made upon the condition of
said performance.
For the purposes of maintaining an economical and proper distribution of
tenants throughout the Office Park which is acceptable to Landlord, Landlord
shall have the right from time to time during the term of this Lease to relocate
the Premises in the Office Park; provided, however, (i) that the rentable and
usable areas of the new location in the Office Park are of equal size to the
Premises (subject to a variance of up to 10%) and the amount of Basic Rent
(hereinafter defined) payable under this Lease is not increased, (ii) that if
the then prevailing rental for the new location is less than the amount of Basic
Rent being paid for the Premises, the Basic Rent shall be reduced to equal the
then prevailing base rental for the new location, (iii) that Landlord shall pay
the cost of providing improvements to Tenant in the new location comparable to
the improvements Tenant now has in the Premises, and (iv) that Landlord shall
pay the expenses reasonably incurred by Tenant in connection with the relocation
of the Premises, including without limitation the costs of moving, door
lettering, telephone relocation, and reasonable quantities of new stationery.
Landlord shall deliver to Tenant written notice of Landlord's election to
relocate the Premises, specifying the new location and the amount of Basic Rent
payable therefor at least thirty (30) days prior to the date that the relocation
is to be effective. If the relocation of the Premises is not acceptable to
Tenant, Tenant, for a period of ten (10) days after receipt of Landlord's notice
to relocate, shall have the right by delivering written notice to Landlord to
terminate this Lease effective thirty (30) days after the delivery of such
written notice to Landlord.
3. TERM. The term of this Lease shall be for SEVEN years, commencing on the
1ST day of OCTOBER, 1989, and ending on the 30TH day of SEPTEMBER, 1996.
4. POSSESSION. If the Landlord, for any reason whatsoever, cannot deliver
possession of the said Premises to the Tenant at the commencement of the term
hereof, this Lease shall not be void or voidable nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom, nor shall the expiration date
of the above term be in any way extended, but in that event, all rental amounts
shall be abated during the period between the commencement of said term and the
time when Landlord delivers possession.
In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be subject to
all provisions of this Lease. Said early possession shall not advance the
termination date hereinabove provided.
5. BASIC RENT. Tenant agrees to pay to Landlord as rental without prior
notice or demand, for the Premises the sum of: THIRTY-SIX THOUSAND SIX HUNDRED
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THIRTY-EIGHT AND NO/100 - - - - - - ($36,638.00) Dollars (hereinafter called
"Basic Rent", on or before the first day of the first full calendar month of the
terms hereof and a like sum, as adjusted in the manner specified in Article 6
(hereinafter called "Adjusted Basic Rent"), on or before the first day of each
and every successive calendar month thereafter during the terms hereof, except
that the first month's rent shall be paid upon the execution hereof. The Basic
Rent shall be paid until adjusted in the manner specified in Article 6.
Thereafter, the prevailing Adjusted Basic Rent shall be the amount paid. Rental
for any period during the term hereof which is for less than one (1) month shall
be a prorated portion of the monthly installment due under the terms herein,
based upon a thirty (30) day month. Said amount shall be paid to Landlord,
without deduction or offset, in lawful money of the United States of America,
which shall be legal tender at the time of payment at the Office of the
Building, or to such other person or at such other place as Landlord may from
time to time designate in writing.
6. ADJUSTED BASIC RENT. Each year during the term of this Lease other than
the Base Year, the Basic Rent or the prevailing Adjusted Basic Rent, as the case
may be, shall be adjusted for the ensuing twelve (12) months by the use of the
Consumer Price Index (All Urban Consumers component) for the San
Francisco-Oakland Area (1967 = 100) published by the Bureau of Labor Statistics
of the U. S. Department of Labor. The Basic Rent will be increased by the
percentage increase, if any, between the latest index published just prior to
the commencement of the Lease Term and the comparable latest index published
just prior to January of the following year to arrive at the Adjusted Basic
Rent. Each year thereafter, the Adjusted Basic Rent will be increased by the
percentage increase, if any, between the index published just prior to January
of the subsequent year and the comparable latest index published just prior to
January of the preceding year.
In case the U. S. Department of Labor shall discontinue the computation
and publication of said Consumer Price Index or the publication thereof should
be delayed so as to prevent its use hereunder at the times required, there shall
be substituted therefor by Landlord such other index or method of ascertaining
changes in the price level as, in the opinion of Landlord, most closely
resembles the Consumer Price Index and method of arriving at the index figure by
said Bureau.
7. ADDITIONAL RENT. Tenant agrees to pay to Landlord as additional rental
(hereinafter "Additional Rent") a sum equal to Tenant's Proportional Share
(hereinafter defined) of any increase in the Direct Costs (hereinafter defined).
For the purposes of this Article, Tenant's Proportional Share shall be a
sum equal to 23.10%.
For the purposes of this Article, the term "Direct Costs" shall include:
(i) property taxes paid or incurred by Landlord consisting of all real or
personal property taxes (and any tax levied wholly or partly lieu thereof)
imposed against the Building and all related improvements, including the
adjacent walks, parking lots, and the land upon which they are situated, but
shall not include any net income or franchise taxes; (ii) operating costs paid
or incurred by Landlord in maintaining, managing, and operating Building, its
equipment, and the adjacent walks, parking lots, landscaped areas, and the land
upon which they are located, including without limiting the generality of the
foregoing, the costs of services of both independent contractors and employees
(inclusive of employment taxes and fringe benefits) who perform duties connected
with the day to day management, operation, maintenance, and repair of the
Building, and the costs incurred by reason of any changes in any regulations,
rules, requirements, laws, codes, directives, or similar pronouncements of any
Federal, state, county, city, or other governmental or regulatory agency which
require changes in or to the physical construction of or related equipment of or
used in the Building or the adjacent walks, parking lots, landscaped areas,
and/or items used in the operation and maintenance thereof.
For the purposes of this Lease the term "Base Year" shall refer to and
mean the calendar year in which this Lease term commences.
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For the purposes of this Article, the term "Comparison Year" shall refer
to and mean each successive calendar year of the term of this Lease after the
Base Year.
For the purposes of this Article, the Term "Current Year" shall refer to
and mean each successive calendar year as it becomes the current calendar year,
beginning with the first calendar year next following the Base Year.
Each year during the term of this Lease other than the Base Year,
Landlord shall furnish to Tenant a written statement showing in reasonable
detail Landlord's Direct Costs for the applicable Comparison Year and for the
Base Year, and showing the amount, if any, of Additional Rent due from Tenant.
To compute the Additional Rent, if the Direct Costs paid or incurred by
the Landlord for the Comparison Year are in excess of the Direct Costs paid or
incurred by Landlord for the Base Year, then the Tenant shall pay, as Additional
Rent, Tenant's Proportional Share thereof. Upon Tenant's receipt of Landlord's
statement for the first Comparison Year, Tenant shall pay in full the total
amount of Additional Rent for the first Comparison Year, and, in addition, for
the Current Year the amount of such Additional Rent shall be used as an estimate
for the Current Year. The amount of the Additional Rent shall be divided in
twelve (12) equal monthly installments and Tenant shall pay to Landlord,
concurrently with the Basic Rent or the prevailing Adjusted Basic Rent, as the
case may be, which is next due following the receipt of said statement from
Landlord, an amount equal to one (1) such monthly installment multiplied by the
number of months from January in the Current Year in which Landlord's said
statement is submitted to the month of such statement, both months inclusive.
Subsequent installments of Additional Rent shall be payable concurrently with
the Basic Rent or the prevailing Adjusted Basic Rent, as the case may be, for
the balance for that Current Year and shall continue until the statement for the
next Comparison Year is rendered. If the next or any succeeding Comparison Year
results in an increase in Direct Costs over the immediately preceding Comparison
Year, then, upon receipt of said statement from Landlord, Tenant shall pay a
lump sum equal to Tenant's Proportional Share of the Direct Costs less the total
of the monthly installments paid during the immediately preceding Comparison
Year, and the estimated monthly installments of Additional Rent to then be paid
for the Current Year shall be adjusted to reflect such increased Direct Costs.
If the next or any succeeding Comparison Year results in a decrease in Direct
Costs over the immediately preceding Comparison Year, then, upon receipt of said
statement from Landlord, the estimated monthly installments of Additional Rent
to then be paid for Current Year shall be adjusted to reflect such decreased
Direct Costs, and the difference between Tenant's Proportional Share of the
decreased Direct Costs and the total of the monthly installments paid during the
immediately preceding Comparison Year shall be credited to the first (and
succeeding, if applicable) installments of Additional Rent to be paid for the
Current Year.
The Direct Costs for any Calendar Year that the Building is not at least
ninety-five percent (95%) occupied shall be adjusted to reflect a ninety-five
percent (95%) level of occupancy.
If the term of this Lease has expired and/or Tenant has vacated the
Premises, when the final determination is made of Tenant's share of Direct Costs
for the year in which this Lease terminated, Tenant shall immediately pay any
increase due over the estimated amounts paid and, conversely, any overpayment
made in the event said costs decrease shall be immediately rebated by Landlord
to Tenant.
8. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of
TWENTY-SIX THOUSAND NINE HUNDRED FIFTY AND NO/100* - - - - - - - - -($26,950.00)
Dollars. Said sum snail be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants, and conditions of this Lease
to be kept and performed by Tenant during the term hereof. If Tenant defaults
with respect to any provisions of this Lease, including, but not limited to the
provisions relating to the payment of rentals, Landlord may (but shall not be
required to) use, apply or retain all or any part of this security deposit for
the payment of any rental or any other sum in default, or for the payment of any
amount which Landlord may spend or become obligated to spend by reason of
Tenant's default, or to compensate Landlord for any other *Plus $9,688.00 which
has been deposited with Landlord as a Security Deposit pursuant to that certain
Lease dated March 9, 1988, for a total Security Deposit of $36,638.00.
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loss or damage which Landlord may suffer by reason of Tenant's default. If any
portion of said deposit is so used or applied, Tenant shall within five (5) days
after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep this security deposit separate from its general funds, and
Tenant shall not be entitled to interest on such deposit. If Tenant shall fully
and faithfully perform every provision of this Lease to be performed by it, the
security deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last successor to Tenant' s interest hereunder) at the
expiration of the Lease term. In the event of termination of Landlord's interest
in this Lease, Landlord shall transfer said deposit to Landlord's successor in
interest.
9. USE. Tenant shall use the Premises for general office purposes and shall
not use or permit the Premises to be used for any other purpose without the
prior written consent of Landlord.
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of or affect any fire or other insurance upon the Building or any
of its contents, or cause cancellation of any insurance policy covering the
Building or any part thereof or any of its contents. Tenant shall not do or
permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain, or permit any nuisance in, on, or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises.
10. COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance, or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinances, and
governmental rules, regulations, or requirements now in force or which may
hereafter be in force, and with the requirements of any board of fire insurance
underwriters or other similar bodies now or hereafter constituted, relating to,
or affecting the condition, use, or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's improvements or acts.
The judgment of any court of competent jurisdiction or the admission of Tenant
in any action against Tenant, whether Landlord is a party thereto or not, that
Tenant has violated any law, statute, ordinance, or governmental rule,
regulation, or requirement, shall be conclusive of that fact as between the
Landlord and Tenant.
11. CONSTRUCTION. Prior to the commencement of the term hereof, Landlord
shall furnish and install within the Premises the tenant improvements shown on
preliminary plans dated 8/1/89, attached hereto and marked Exhibit B. The costs
to be paid by Tenant for such work are $ * . Tenant agrees that it will pay such
costs at the time the Premises are ready for Tenant's occupancy. *Landlord will
contribute up to the sum of $268,302.00 towards Tenant Improvement cost.
All work not within the normal scope of the construction trades employed
in building construction, such as the furnishing and installing of telephone
equipment and wiring, furniture, furnishings, office equipment, trade fixtures,
carpeting (unless installed by Landlord under the first part of this Article),
special draperies (in addition to Building standard casement draperies for which
no substitution is permitted), and other items of personal property, shall be
furnished and installed by the Tenant at Tenant's expense. Tenant shall adopt a
schedule in conformance with the schedule of Landlord's contractors and conduct
its work in such a manner as to maintain harmonious labor relations and so as
not to unreasonably interfere with or delay the work of the Landlord's
contractors. Tenant's contractors, subcontractors, and labor shall be acceptable
to and approved by Landlord, and shall be subject to the administrative
supervision of the Landlord's general contractor. Contractors or subcontractors
engaged by Tenant shall insure, as far as may be
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reasonably possible, the progress of the work without interruption on account of
strikes, work stoppage or other causes for delay.
Landlord shall give reasonable access and entry to the Premises to
Tenant and its contractors and subcontractors to enable Tenant to adapt the
Premises for Tenant's use.
12. ALTERATIONS AND ADDITIONS. Tenant shall not make or suffer to be made
any alterations, additions, or improvements to or of the Premises or any part
thereof without the written consent of Landlord first had and obtained and any
alterations, additions, or improvements to or of said Premises, including, but
not limited to, wall covering, paneling, and built-in cabinet work, but
excepting movable furniture and trade fixtures, shall on the expiration of the
term become a part of the realty and belong to the Landlord and shall be
surrendered with the Premises. In the event Landlord consents to the making of
any alterations, additions, or improvements to the Premises by Tenant, the same
shall be made by Tenant at Tenant's sole cost and expenses and any contractor or
person selected by Tenant to make the same must first be approved of in writing
by the Landlord. Upon the expiration or sooner termination of the term hereof,
Tenant shall, upon written demand by Landlord given at least thirty (30) days
prior to the end of the term, at Tenant' s sole cost and expense forthwith and
with all due diligence remove any alterations, additions, or improvements made
by Tenant which are designated by Landlord to be removed, and Tenant shall,
forthwith and with all due diligence at its sole cost and expense, repair any
damage to the Premises caused by such removal.
13. REPAIRS. By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good and sanitary order, condition, and
repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises and
every part thereof in good condition and repair, damage thereto from causes
beyond the reasonable control of Tenant and from ordinary wear and tear
excepted. Tenant shall upon the expiration or sooner termination of this Lease
hereof surrender the Premises to the Landlord in good condition, ordinary wear
and tear and damage from causes beyond the reasonable control of Tenant
excepted. Except as specifically provided in an addendum, if any, to this Lease,
Landlord shall have no obligation whatsoever to alter, remodel, improve, repair,
decorate, or paint the Premises or any part thereof and the parties hereto
affirm that Landlord has made no representations to Tenant respecting the
condition of the Premises or the Building except as specifically herein set
forth.
Notwithstanding the provisions of Article 13(a), Landlord shall repair
and maintain the structural portions of the Building, including the basic
plumbing, air conditioning, heating, and electrical systems, installed or
furnished by Landlord, unless the need for such maintenance and repairs are
caused, in part or in whole, by the act, neglect, fault, or omission of any duty
by the Tenant, its agents, servants, employees, or invitees, in which case
Tenant shall pay to Landlord the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to make any such repairs
or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. Except as provided in Article 24,
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising from the making of
any repairs, alterations, or improvements in or to any portion of the Building
or the Premises or in or to fixtures, appurtenances, and equipment therein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute, or ordinance now or hereafter in effect.
14. LIENS. Tenant shall keep the Premises and the Building free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by Tenant. Landlord may require, at Landlord's sole option, that Tenant
shall provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half (1 1/2) times any and all
estimated costs of any improvements, additions, or alterations in the Premises
to insure Landlord against any liability for mechanics' and materialmen's liens
and to insure completion of the work.
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15. ASSIGNMENT AND SUBLETTING. Neither Tenant nor its heirs or assigns shall
either voluntarily or by operation of law, assign, transfer, mortgage, pledge,
hypothecate, or encumber this Least or any interest therein, and shall not
sublet the Premises, or any part thereof, or any right or privilege appurtenant
thereto , or suffer any other person (the employees, agents, servants, and
invitees of Tenant excepted) to occupy or use the said Premises, or any part
thereof, without the prior written consent of Landlord first had and obtained
and any attempt to do so without such consent shall be wholly void and shall
constitute a breach of this Lease.
In the event that Tenant desires to sublet the Premises or any part
thereof, Tenant shall notify Landlord in writing not less than ninety (90) days
in advance of the proposed subletting, designating in such writing the name and
legal composition of the proposed subtenant, the nature of the proposed
subtenant's business to be carried on in the Premises, the terms and provisions
of the proposed sublease, and shall therein or subsequently furnish such
reasonable financial information regarding the proposed subtenant as Landlord
may request. Landlord shall be allowed thirty (30) days after its receipt of
such notice from Tenant in which to give its written notice to Tenant that
Landlord will terminate this Lease as to the Premises, or the part thereof
proposed to be sublet, effective upon the date of such proposed subletting. If
Landlord fails to give such notice to Tenant, then Tenant may sublet the
Premises, or the part thereof designated in said notice to Landlord, only with
the written consent of Landlord first had and obtained, which consent shall not
be unreasonably withheld. For the purposes of this provision, Landlord may, at
its sole option, reasonably withhold its consent to the subletting if the
proposed subtenant is unwilling to execute a document in a form satisfactory to
Landlord in which it agrees to substantially all of the terms and conditions of
this Lease, and/or if the financial condition of the proposed subtenant is not
substantially similar to that of the Tenant as of the date of this Lease.
A consent by Landlord to one assignment, subletting, occupation, or use
by any other person shall not be deemed a consent to any subsequent assignment,
subletting, occupation, or use by another person.
16. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against
and from any and all claims arising from Tenant's use of the Premises for the
conduct of its business or from any activity, work, or other thing done,
permitted, or suffered by the Tenant in or about the Building, and shall further
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, or any officer, agent, employee, guest, or invitee of
Tenant, and from all and against all costs, attorneys' fees, expenses, and
liabilities incurred in or about any such claim or any action or proceeding
brought thereon, and, in any case, action, or proceeding to be brought against
landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon, or about
the Premises, from any cause other than landlord's negligence, and Tenant hereby
waives all claims in respect thereof against Landlord.
Landlord or its agents shall not be liable for any damage to property
entrusted by Tenant to employees of the Building, nor for loss or damage to any
property by theft or otherwise, nor for any injury to or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, or rain which may leak from any part of the Building or from
the pipes, appliances, or plumbing works therein or from the roof, street, or
subsurface, or from any other place resulting from dampness or any other cause
whatsoever, unless caused by or due to the negligence of Landlord, its agents,
servants, or employees. Landlord or its agents shall not be liable for
interference with the light or other incorporeal hereditaments, loss of business
by Tenant, or any latent defect in the Premises or in the Building. Tenant shall
give prompt notice to Landlord in case of fire or accidents in the Premises or
in the Building or of defects therein or in the fixtures or equipment.
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17. SUBROGATION. As long as their respective insurers so permit, Landlord
and Tenant hereby mutually waive their respective rights of recovery against
each other or any loss insured by fire, extended coverage, and other property
insurance policies existing for the benefit of the respective parties. Each
party shall obtain any special endorsements, if required by their insurer to
evidence compliance with the aforementioned waiver.
18. LIABILITY INSURANCE. Tenant shall, at Tenant's sole cost and expense,
obtain and keep in force during the term of this Lease a policy of comprehensive
public liability insurance insuring Landlord and Tenant against any liability
arising out of the ownership, use, occupancy, or maintenance of the Premises and
all areas appurtenant thereto. Such insurance at all times shall be a combined
single aggregate policy in an amount of not less than one million dollars
($1,000,000.00). These limits of said insurance shall not, however, limit the
liability of the Tenant hereunder. Tenant may carry said insurance under a
blanket policy, provided, however, said insurance by Tenant shall have a
protective liability endorsement attached thereto in favor of Landlord. If
Tenant shall fail to procure and maintain said insurance, Landlord may, but
shall not be required to, procure and maintain same, but at the expense of
Tenant. Insurance required hereunder, shall be in companies rated A+, AAA, or
better in "Best's Insurance Guide." Tenant shall deliver to Landlord prior to
occupancy of the Premises copies of policies of liability insurance required
herein or certificates evidencing the existence and amounts of such insurance
with a loss payable clause satisfactory to Landlord. No policy shall be
cancellable or subject to reduction of coverage except after ten (10) days,
prior written notice to Landlord.
19. SERVICES AND UTILITES. Provided that Tenant is not in default hereunder,
Landlord agrees to furnish to the Premises during reasonable hours of generally
recognized business days, to be determined by Landlord at its sole discretion,
and subject to the rules and regulations of the Building, electricity for normal
lighting and fractional horsepower office machines, heat, and air conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises, and janitorial service. Landlord shall also maintain and keep lighted
the common stairs, common entries, and toilet rooms in the Building. Landlord
shall not be liable for, and Tenant shall not be entitled to, any reduction of
rental by reason of Landlord's failure to furnish any of the foregoing when such
failure is caused by accident, breakage, repairs, strikes, lockouts, or other
labor disturbances or labor disputes of any character, or by any other cause,
similar or dissimilar, beyond the reasonable control of Landlord. Landlord shall
not be liable under any circumstances for a loss of or injury to property,
however occurring, through or in connection with or incidental to the failure to
furnish any of the foregoing. Wherever heat generating machines or equipment are
used in the Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord reserves the right to install supplementary
air conditioning units in the Premises and the costs thereof, including the
costs of installation, operation, and maintenance thereof shall be paid by
Tenant to Landlord upon demand by Landlord.
Tenant will not, without the prior written consent of Landlord first had
and obtained, use any apparatus or device in the Premises, including, but
without limitation thereto, electronic data processing machines, punch card
machines, and machines using in excess of 120 volts, which will in any way
increase the amount of electricity usually furnished or supplied for the use of
the Premises as general office space; nor connect with electric current, except
through existing electrical outlets in the Premises, any apparatus or device for
the purpose of using electric current. If Tenant shall require water or electric
current in excess of that usually furnished or supplied for the use of the
Premises as general office space, Tenant shall first procure the written consent
of Landlord, which Landlord may refuse, to the use thereof and Landlord may
cause a water meter or electrical current meter to be installed in the Premises
so as to measure the amount of the water and electric current consumed for any
such use. The cost of any such meters and of installation, maintenance, and
repair thereof shall be paid for by the Tenant and Tenant agrees to pay to
Landlord promptly upon demand thereof by Landlord for all such water and
electric current consumed as shown by said meters, at the rates charged for such
services by the local public utility furnishing the same, plus any additional
expense incurred in keeping account of the water and
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electric current so consumed. If a separate meter is not installed, such excess
cost for such water and electric current will be established by an estimate made
by a utility company or electrical engineer. Tenant shall install a separate
submeter to measure electric current in excess of that usually furnished for the
use of the Premise as general office space. Tenant shall maintain the separate
air conditioning units installed in Tenant's computer room.
20. PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency, any and all taxes levied or assessed and which become payable
during the term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures, and personal property located in the Premises, except that
which has been paid for by Landlord and is the standard of the Building. In the
event any or all of the Tenant's leasehold improvements, equipment, furniture,
fixtures, and personal property shall be assessed and taxed with the Building,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's property.
21. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the rules and regulations that Landlord shall from time to time promulgate.
Landlord reserves the right from time to time to make all reasonable
modifications to said rules. The additions and modifications to those rules
shall be binding upon Tenant upon delivery of a copy of them to Tenant. Landlord
shall not be responsible to Tenant for the nonperformance of any said rules and
regulations by any other tenants or occupants.
22. HOLDING OVER. If Tenant remains in possession of the Premises or any
part thereof after the expiration of the term hereof with the express written
consent of the Landlord, such occupancy shall be a tenancy from month to month
at a rental in the amount of the last monthly installment of Basic Rent or the
prevailing Adjusted Basic Rent, as the case may be, plus the last monthly
installment of Additional Rent and all other charges payable hereunder, and upon
all the terms hereof applicable to a month to month tenancy.
23. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times have
the right to enter the Premises, inspect the same, supply janitorial service and
any other service to be provided by Landlord to Tenant hereunder, to submit said
Premises to inspection by prospective purchasers or tenants, to post notices of
non-responsibility, and to alter, improve, or repair the Premises or the
Building that Landlord may deem necessary or desirable, without abatement or
rent and may for that purpose erect scaffolding and other necessary structures
where reasonably required by the character of the work to be performed, always
providing that the entrance to the Premises shall not be blocked thereby, and
further providing that the business of the Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages or for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon, and about the Premises,
excluding Tenant's vaults, safes, and files, and Landlord shall have the right
to use any and all means which Landlord may deem proper to open said doors in an
emergency in order to obtain entry to the Premises without liability to Tenant
except for any failure to exercise due care for Tenant's property. Any entry to
the Premises obtained by Landlord by any of said means or otherwise shall not
under any circumstances be construed or deemed to be a forceable or unlawful
entry into or a detainer of the Premises, or an eviction of Tenant from the
Premises or any portion thereof.
24. RECONSTRUCTION. In the event the Premises or the Building are damaged by
fire or other perils covered by extended coverage insurance, Landlord agrees to
forthwith repair the same, and this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate reduction of the Basic
Rent or the prevailing Adjusted Basic Rent, as the case may be, while such
repairs are being made, such proportionate reduction to be based upon the extent
to which the making of such repairs shall materially interfere with the business
carried on by the Tenant in the Premises. If the damage is due to the fault or
neglect of Tenant or its employees, there shall be no abatement of rentals.
-8-
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In the event the Premises or the Building or a part thereof are damaged as
a result of any cause other than the perils covered by fire and extended
coverage insurance, then Landlord shall forthwith repair the same, provided the
extent of the destruction be less than ten (10%) per cent of the then full
replacement cost of the Premises or the Building. In the event the destruction
of the Premises or the Building is to an extent greater than ten (10%) per cent
of the full replacement cost, then Landlord shall have the option (i) to repair
or restore such damage with this Lease continuing in full force and effect, but
with the rentals to be proportionately reduced as hereinabove provided in this
Article, or (ii) give notice to Tenant at any time within sixty (60) days after
such damage terminating this Lease as of the date specified in such notice,
which date shall be no less than thirty (30) and no more than sixty (60) days
after the giving of such notice. In the event of giving such notice, this Lease
shall expire and all interest of the Tenant in the Premises shall terminate on
the date so specified in such notice and the rentals, reduced as hereinabove
provided in this Article, shall be paid up to date of said termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damage resulting from any casualty covered under
this Article occurs during the last twelve (12) months of the term of this Lease
or any extension thereof.
Landlord shall not be required to repair any injury or damage by fire or
other cause or to make any repairs or replacements of any panels, decoration,
office fixtures, railings, floor covering, partitions, or any other property
installed in the Premises by Tenant.
Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises, Tenant's
personal property, or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction, or restoration.
25. DEFAULT. In addition to any other act or event elsewhere stated in this
Lease which will cause a default hereunder, the occurrence of any one or more of
the following acts or events shall constitute a default and breach of this Lease
by Tenant:
a. The vacating or abandonment of the Premises by Tenant.
b. The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof by Landlord to Tenant.
c. The failure by Tenant to observe or perform any of the
covenants, conditions, or provisions of this Lease to be observed or performed
by the Tenant, other than described in subparagraph (b) of this Article, where
such failure shall continue for a period of thirty (30) days after written
notice thereof by Landlord to Tenant, provided, however, that if the nature of
Tenant's default is such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant
commences such cure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
d. The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt, or a petition or reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within one hundred twenty
(120) days); or the appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or the attachment, execution, or other judicial seizure of
substantially all or Tenant's assets located at the Premises, or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
26. REMEDIES IN DEFAULT. In the event of any default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand
-9-
11
and without limiting Landlord in the exercise of a right or remedy which
Landlord may have by reason of such default or breach:
a. Terminate Tenant's right to possession of the Premises by any
lawful means in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord stall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises; reasonable attorneys' fees
and costs; any real estate commissions and costs actually paid; the unpaid rent
for the balance of the term of the Lease or for the time the Premises are
vacant, whichever is shorter; that portion of the leasing commission paid by
Landlord and applicable to the unexpired term of this Lease. In the event Tenant
shall have abandoned the Premises, Landlord shall have the option of (i) taking
possession of the Premises and recovering from Tenant the amount specified in
this Article, or (ii) proceeding under the provisions of subparagraph (b) of
this Article.
b. Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
c. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Premises are
located.
27. EMINENT DOMAIN. If more than twenty-five (25%) per cent of the Building
shall be taken or appropriated by any public or quasi-public authority under the
power of eminent domain, either party hereto shall have the right, at its
option, to terminate this Lease, and Landlord shall be entitled to any and all
income, rental, award, or any interest therein whatsoever which may be paid or
made in connection with such public or quasi-public use or purpose, and Tenant
shall have no claim against Landlord for the value of any unexpired term of this
Lease. If either less than or more than twenty-five (25%) per cent of the
Building is taken, and neither party elects to terminate as herein provided, the
Basic Rent or prevailing Adjusted Basic Rent, as the case may be, thereafter to
be paid shall be equitably reduced. If any part of the Building other than the
Premises may be so taken or appropriated, Landlord shall have the right at its
option to terminate this Lease and shall be entitled to the entire award as
above provided.
28. OFFSET STATEMENT. Tenant shall at any time and from time to time upon
not less than ten (10) days' prior written notice from Landlord execute,
acknowledge, and deliver to Landlord a statement in writing (i) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease, as so modified,
is in full force and effect), and the date on which the rentals and other
charges are paid, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of the Landlord hereunder, or
specifying such defaults if any are claimed. Any such statement may be relied
upon by any prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
29. PARKING. Tenant shall have the right to use in common with other tenants
or occupants of the Building the parking facilities of the Building, if any,
subject to the monthly rates, rules and regulations, and any other charges of
Landlord for such parking facilities which may be established or altered by
Landlord at any time or from time to time during the term hereof.
30. AUTHORITY OF TENANT. Tenant and each individual executing this Lease on
behalf of Tenant represents and warrants that he is duly authorized to execute
and deliver this Lease.
-10-
12
31. GENERAL PROVISIONS.
a. Plats and Riders. Clauses, plats and riders, if any, signed by
the Landlord and the Tenant and endorsed on or affixed to this Lease are a part
hereof.
b. Waiver. The waiver by Landlord of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition on any subsequent breach of the same or any other term,
covenant, or condition herein contained. The subsequent acceptance of rentals
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant, or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time of the acceptance of
such rentals.
c. Notices. All notices and demands which may or are to be required
or permitted to be given by either party to the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent by
United States mail, postage prepaid, addressed to the Tenant at the Premises, or
to such other place as Tenant may from time to time designate in a notice to the
Landlord. All notices and demands by the Tenant to the Landlord shall be sent by
United States mail, postage prepaid, addressed to the Landlord at the Office of
the Building, or to such other person or place as the Landlord may from time to
time designate in a notice to the Tenant.
d. Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed upon Tenants shall be joint and several.
e. Marginal Headings. The marginal headings and titles to the
Articles of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
f. Time. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
g. Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
h. Recordation. Neither Landlord nor Tenant shall record this Lease
or a short form memorandum hereof without the prior written consent of the other
party.
i. Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the covenants, conditions, and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all the
provisions of this Lease.
j. Late Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Landlord by terms of any mortgage or trust deed covering the Premises or the
Building. Accordingly, if any amount(s) due from Tenant shall not be received by
Landlord or Landlord's designee within three (3) days after said amount is due,
then Tenant shall pay to Landlord a late charge equal to ten (10%) per cent of
such overdue amount(s). The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will incur by
reason of the late payment by Tenant. Acceptance of such late charges by the
Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder.
k. Prior Agreements. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understandings pertaining to any such matters
shall be effective for any purpose. No provision of this Lease may be amended or
-11-
13
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
l. Inability to Perform. This Lease and the obligations of the
Tenant hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason of strike, labor disputes, civil
disobedience, acts of God, or any other cause or condition beyond the reasonable
control of the Landlord.
m. Attorneys' Fees. In the event of any action or proceeding
brought by either party against the other under this Lease, the prevailing party
shall be entitled to recover all costs and expenses including the fees of its
attorneys in such action or proceeding in such amount as the court may adjudge
reasonable.
n. Sale of Building by Landlord. In the event of any sale of the
Building, Landlord shall be and is hereby entirely freed and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence, or omission
occurring after the consummation of such sale; and the purchaser, at such sale
or any subsequent sale of the Building shall be deemed, without any further
agreement between the parties or their successors in interest or between the
parties and any such purchaser, to have assumed and agreed to carry out any and
all of the covenants and obligations of the Landlord under this Lease.
o. Subordination, Attornment. Upon request of the Landlord, Tenant
will in writing subordinate its rights hereunder to the lien of any first
mortgage or first deed of trust to any bank, insurance company, or other leading
institution, now or hereafter in force against the Building or the underlying
land, and upon any buildings hereafter placed upon the land of which the
Premises are a part, and to all advances made or hereafter to be made upon the
security thereof. In the event any proceedings are brought for foreclosure, or
in the event of the exercise of the power of sale under any mortgage or deed of
trust made by the Landlord covering the Premises, the Tenant shall attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as the
landlord under this Lease. The provisions of this Article to the contrary not
withstanding, and so long as Tenant is not in default hereunder, this Lease
shall remain in full force and effect for the full term hereof.
p. Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
q. Separability. Any provision of this Lease which shall prove to
be invalid, void, or illegal shall in no way affect, impair, or invalidate any
other provision hereof and such other provisions shall remain in full force and
effect.
r. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
s. Choice of Law. This Lease shall be governed by the laws of the
State in which the Premises are located.
t. Signs and Auctions. Tenant shall not place any sign upon the
Premises or Building or conduct any auction thereon without Landlord's prior
written consent.
32. BROKERS. Tenant warrants that it has had no dealings with any real
estate broker or agents in connection with the negotiation of this Lease
excepting only NONE and it knows of no other real estate broker or agent who is
entitled to a commission in connection with this Lease.
-12-
14
The parties hereto have executed this Lease at the place and on the
dates specified immediately adjacent to their respective signatures.
If this Lease has been filled in, it has been prepared for submission to
your attorney for his approval. No representation or recommendation is made by
the real estate broker or its agents or employees as to the legal sufficiency,
legal effect, or tax consequences of this Lease or the transactions relating
thereto.
"LANDLORD"
Address 101 Lincoln Centre Dr., Lincoln Property Company N.C., Inc.
Foster City, CA 94404
Dated 9/28/89 By /s/ Burch Boone
------------------------------- -------------------------------
Burch Boone, Vice President
"TENANT"
1100 LARKSPUR LANDING CIRCLE,
Address SUITE 300 SYNON, INC.,
----------------------------- -------------------------------
LARKSPUR, CA 94939 an Illinois corporation
Date 9/18/89 By /s/ Dennis G. Holligan
-------------------------------- -------------------------------
Dennis G. Holligan
Chief Financial Officer
Date By
-------------------------------- -------------------------------
PREMISES: PLEASE INITIAL
Useable Rentable
Square Feet Square Feet
----------- -----------
Suite 340 4,813 5,391
Suite 315 1,550 1,736
Suite 305 595 666
Suite 325 1,569 1,757
Suite 301 294 329
Corridor (3rd fl.) 112 125
Suite 200 3,808 4,265
Suite 248 326 368
Suite 205 1,515 1,697
Suite 225 1,530 1,714
------ ------
Total 16,112 18,048
====== ======
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15
[EXHIBIT "A" SECOND FLOOR PLAN]
16
[EXHIBIT "A" THIRD FLOOR PLAN]
17
LEASE AMENDMENT AGREEMENT
This Amendment Agreement, made as of this date, May 10, 1991, by and between
LINCOLN PROPERTY COMPANY, N.C., INC., as Manager and Agent for Owner,
hereinafter referred to as Landlord, and SYNON, INC., an Illinois corporation,
hereinafter referred to as Tenant.
WITNESSTH:
WHEREAS, the Tenant leased from Landlord, by Lease dated September 11, 1989,
hereinafter referred to as the Lease, (the term "Lease" includes any amendments
or modifications thereof) 19,656 usable square feet and 22,017 rentable square
feet on the Second and Third Floors of that certain Building known as 1100
Larkspur Landing Circle, Suite 300, Larkspur, California.
WHEREAS, the Tenant leased from Landlord by Lease dated October 29, 1990,
hereinafter referred to as the Month-to-Month Lease, 669 usable square feet and
749 rentable square feet on the Third Floor of that certain Building known as
1100 Larkspur Landing Circle, Suite 353, Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend the Lease dated September
11, 1989, to include the additional space of the Month-to-Month Lease dated
October 29, 1990, and Landlord and Tenant agree that said Month-to-Month Lease
is hereby terminated effective May 31, 1991.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
1. ADDITIONAL SPACE. Landlord hereby leases unto said Tenant and
said Tenant does hire and take from Landlord an additional area
of 669 USABLE SQUARE FEET outlined in red on Exhibit A attached
hereto, and 749 RENTABLE SQUARE FEET on the Third Floor of that
certain Building known as 1100 Larkspur Landing Circle, Suite
353, Larkspur, California, for a total of 20,325 USABLE SQUARE
FEET AND 22,766 RENTABLE SQUARE FEET.
2. TERM FOR SUITE 353. Sixty-four (64) months, COMMENCING JUNE 1,
1991, AND ENDING SEPTEMBER 30, 1996.
3. BASIC RENT. Tenant shall pay to Landlord for this additional
space, ONE THOUSAND SIX HUNDRED TEN AND NO/100 DOLLARS
($1,610.00) per month, making the total monthly Basic Rent for
Tenant FORTY-EIGHT THOUSAND NINE HUNDRED EIGHTY-SEVEN AND 76/100
DOLLARS ($48,987.76) until proper notice signed by the Landlord
directing otherwise.
4. ADDITIONAL RENT. Paragraph 7 of said Lease is hereby amended to
increase Tenant's proportionate share of any increase in the
Direct Costs to 29.14%.
5. SECURITY DEPOSIT. Tenant has deposited with Landlord ONE
THOUSAND SIX HUNDRED AND NO/100 DOLLARS ($1,610.00) pursuant to
that certain Month-to-Month Lease dated October 29, 1990, which
shall be added to the existing Security Deposit of FORTY-FOUR
THOUSAND SIX HUNDRED NINETY-SIX AND N0/100 DOLLARS ($44,696.00)
which has been deposited with Landlord pursuant to that certain
Lease dated September 11, 1989, for A TOTAL SECURITY DEPOSIT OF
FORTY-SIX THOUSAND THREE HUNDRED SIX AND NO/100 DOLLARS
($46,306.00).
18
6. CONSTRUCTION. Landlord to contribute FOUR THOUSAND NINE HUNDRED
FORTY-THREE AND 71/100 DOLLARS ($4,943.71) towards Tenant
Improvement Cost for work which Landlord and Tenant hereby
acknowledge has been completed to Tenant's satisfaction.
All other terms and conditions of this Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY, N.C., INC.,
as Manager and Agent for Owner
BY: /s/ JOHN R. MILLER
------------------------------------------
"LANDLORD"
SYNON,INC.,
an Illinois corporation
BY: /s/ DENNIS G. HOLLIGAN
------------------------------------------
Dennis G. Holligan
Chief Financial Officer
"TENANT"
19
[EXHIBIT "A" THIRD FLOOR PLAN]
20
LEASE AMENDMENT AGREEMENT
This Amendment Agreement, made as of this date, December 26, 1989, by and
between LINCOLN PROPERTY COMPANY, N.C., INC., as Manager and Agent for Owner,
hereinafter referred to as Landlord, and SYNON, INC., an Illinois corporation,
hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Lease dated September 11, 1989,
hereinafter referred to as the Lease, 16,112 USABLE SQUARE FEET AND 18,048
RENTABLE SQUARE FEET on the Second and Third Floors of that certain Building
known as 1100 Larkspur Landing Circle, Suite 300 Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide
additional space.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
1. SUITE 354. Landlord hereby leases unto said Tenant, and said
Tenant does hire and take from said Landlord an additional area
of 1,200 USEABLE SQUARE FEET outlined in red on Exhibit A
attached hereto, and 1,344 RENTABLE SQUARE FEET on the Third
Floor of that certain Building known as 1100 Larkspur Landing
Circle, Suite 354, Larkspur, California for a period of
eighty-one and one half (81 1/2) months COMMENCING DECEMBER 15,
1989 and ending September 30, 1996,
SUITE 203. Landlord hereby leases unto said Tenant, and said
Tenant does hire and take from said Landlord an additional area
of 770 USEABLE SQUARE FEET outlined in red on Exhibit A attached
hereto, and 862 RENTABLE SQUARE FEET on the Second Floor of that
certain Building known as 1100 Larkspur Landing Circle, Suite
203, Larkspur, California for a period of eighty-one (81) months
COMMENCING JANUARY 1, 1990 and ending September 30, 1996.
SUITE 356. Landlord hereby leases unto said Tenant, and said
Tenant does hire and take from said Landlord an additional area
of 1,574 USEABLE SQUARE FEET outlined in red on Exhibit A
attached hereto, and 1,763 RENTABLE SQUARE FEET on the Third
Floor of that certain Building known as 1100 Larkspur Landing
Circle, Suite 356, Larkspur, California for a period of eighty
(80) months COMMENCING FEBRUARY 1, 1990 and ending September 30,
1996.
2. BASIC RENT. Tenant shall pay to Landlord for the above
additional spaces the following monthly Basic Rent commencing on
the following dates:
Suite Basic Rent Rent Commencement
----- ---------- -----------------
Suite 354 $2,729.00 December 15, 1989
Suite 203 $1,750.00 January 1, 1990
Suite 356 $3,579.00 February 1, 1990
The above Basic Rents shall be added to the current Basic Rent
of THIRTY-SIX THOUSAND SIX HUNDRED THIRTY-EIGHT AND NO/100
DOLLARS ($36,638.00) as and when due until proper notice signed
by the Landlord directing otherwise.
21
3. ADDITIONAL RENT. Paragraph 7 of said Lease is hereby amended to
increase Tenant's proportionate share of any increase in the
Direct Costs to 28.18%.
4. SECURITY DEPOSIT. Tenant shall deposit with Landlord the
additional sum of EIGHT THOUSAND FIFTY-EIGHT AND NO/100 DOLLARS
($8,058,00) to be added to the existing Security Deposit of
THIRTY-SIX THOUSAND SIX HUNDRED THIRTY-EIGHT AND NO/100 DOLLARS
which been deposited with Landlord pursuant to that certain
Lease dated September 11, 1989, for a total Security Deposit of
$44,696.00.
5. CONSTRUCTION. Landlord will contribute up to the sum of
$39,690.00 towards tenant improvement costs.
All other terms and conditions of this Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY, N.C., INC.,
as Manager and Agent for Owner
BY: /s/ BURCH BOONE
------------------------------------------
Burch Boone
Vice President
"LANDLORD"
SYNON,INC.,
an Illinois corporation
BY: /s/ DENNIS G. HOLLIGAN
------------------------------------------
Dennis G. Holligan
Chief Financial Officer
"TENANT"
22
[EXHIBIT "A" SECOND FLOOR PLAN]
23
[EXHIBIT "A" THIRD FLOOR PLAN]
24
[EXHIBIT "A" SECOND FLOOR PLAN
25
LEASE AMENDMENT THREE
-
This Lease Amendment Three, made as of this date, April 19, 1996, by and between
LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln Larkspur
Office Three Associates, Ltd., hereinafter referred to as Landlord, and
SYNON,INC., an Illinois corporation, hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Office Lease dated September 11,
1989, hereinafter referred to as the Lease,(the term "Lease" includes any
amendments or modifications thereof) approximately 22,766 rentable square feet
on the third and second floors of that certain Building known as 1100 LARKSPUR
LANDING CIRCLE, Suites 340, 315, 305, 325, 301, 200, 248, 205, 225 354, 203,
356, and 353 Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide an
extended term ("Extended Term One").
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
A. TERM: Paragraph 3, "Term" of said Lease is hereby extended for
an additional term of twelve (12) months, ("Extended Term One"),
commencing October 1, 1996 and ending September 30, 1997.
B. BASIC RENT: Paragraph 5 "Basic Rent" of said Lease is hereby
amended to reduce Tenant's Basic Rent from $55,147.17 to
$51,223.50 per month, effective October 1, 1996.
All other terms and conditions of this Lease remain in full force and effect. If
any inconsistencies in the terms and conditions arise between the Lease and
Lease Amendment Three, the terms and conditions of Lease Amendment Three shall
prevail.
IN WITNESS WHEREOF, the Parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln Larkspur
Office Three Associates Ltd.
By: /s/ D. ALLEN PALMER
----------------------------------------
D. Allen Palmer
Its: Vice President
----------------------------------------
"LANDLORD"
SYNON, INC.
a Illinois corporation
By: /s/ DENNIS G. HOLLIGAN
----------------------------------------
Its: DIRECTOR OF ADMINISTRATION
----------------------------------------
"TENANT"
26
LEASE AMENDMENT FOUR
This Lease Amendment Four, made as of this date, March 28, 1997, by and
between LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln
Larkspur Office Three Associates, Ltd., hereinafter referred to as Landlord, and
SYNON, INC., an Illinois corporation, hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Office Lease dated September 11,
1989, hereinafter referred to as the Lease, (the term "Lease" includes any
amendments or modifications thereof) approximately 22,766 RENTABLE SQUARE FEET
on the third and second floors of that certain Building known as 1100 LARKSPUR
LANDING CIRCLE, Suites 340, 315, 305, 325, 301, 200, 248, 205, 225, 354, 203,
356, and 353 Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide an
extended term ("Extended Term Two").
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
A. TERM: Paragraph 3, "Term" of said Lease is hereby extended for
an additional term of thirty-six (36) months, ("Extended Term
Two"), commencing October 1, 1997 and ending September 30, 2000.
B. ADJUSTED BASIC RENT: Paragraph 6, "Adjusted Basic Rent" of said
Lease is hereby amended to exclude an increase in the Adjusted
Basic Rent for the year of 1997. Therefore, the next Adjustment
to Basic Rent shall be January 1, 1998.
C. ADDITIONAL RENT: Paragraph 7, "Additional Rent" of said Lease is
hereby amended to change the "Base Year" from 1989 to 1997,
effective January 1, 1997
D. TENANT IMPROVEMENT: Landlord shall contribute up to $68,298.00,
(22,766 sf x $3.00) towards Tenant Improvements which shall be
mutually acceptable between Landlord and Tenant.
All other terms and conditions of this Lease remain in full force and effect. If
any inconsistencies in the terms and conditions arise between the Lease and
Lease Amendment Four, the terms and conditions of Lease Amendment Four shall
prevail.
IN WITNESS WHEREOF, the Parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY N.C., INC.,
as Manager and Agent for Lincoln Larkspur Office Three Associates, Ltd.
By: /s/ D. ALLEN PALMER
------------------------------------------
D. Allen Palmer, Vice President
"LANDLORD"
SYNON, INC.,
an Illinois corporation
By: /s/ DENNIS HOLLIGAN
----------------------------------------------
Dennis Holligan,
Director of Administration
"TENANT"
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OFFICE LEASE #2
LANDLORD: LARKSPUR LANDING
TENANT: SYNON, INC.
28
TABLE OF CONTENTS
Page
----
1. Terms and Definitions................................................1
2. Premises and Common Areas Leased.....................................2
3. Term.................................................................3
4. Possession...........................................................3
5. Annual Basic Rent....................................................3
6. Rental Adjustment....................................................3
7. Security Deposit.....................................................5
8. Use..................................................................5
9. Payments and Notices.................................................6
10. Brokers..............................................................6
11. Holding Over.........................................................6
12. Taxes on Tenant's Property...........................................6
13. Condition of Premises................................................7
14. Alterations..........................................................7
15. Repairs..............................................................9
16. Liens................................................................9
17. Entry by Land........................................................9
18. Utilities and Services...............................................9
19. Indemnification.....................................................10
20. Damage to Tenant's Property.........................................10
21. Insurance...........................................................10
22. Damage or Destruction...............................................11
23. Eminent Domain......................................................12
24. Bankruptcy..........................................................12
25. Defaults and Remedies...............................................12
26. Assignment and Subletting...........................................13
27. Quiet Enjoyment.....................................................14
28. Subordination.......................................................14
29. Estoppel Certificate................................................14
30. Building Planning...................................................15
31. Rules and Regulations...............................................15
32. Conflict of Laws ...................................................15
33. Successors and Assigns..............................................15
34. Surrender of Premises...............................................15
35. Professional Fees...................................................15
36. Performance by Tenant...............................................15
37. Mortgagee and Senior Lessor Protection..............................16
38. Definition of Landlord..............................................16
39. Waiver..............................................................16
40. Identification of Tenant............................................16
41. Parking and Transportation..........................................16
42. Office And Communications Services..................................16
43. Terms and Headings .................................................17
44. Examination of Lease................................................17
45. Time................................................................17
46. Prior Agreement: Amendments.........................................17
47. Separability........................................................17
48. Recording......................................................... 17
49. Limitation on Liability.............................................17
50. Riders..............................................................17
51. Signs...............................................................17
52. Modification for Lender.............................................17
53. Accord and Satisfaction.............................................17
54. Financial Statements................................................17
55. Tenant as Corporation...............................................17
56. No Partnership or Joint Venture.....................................17
57. Telecommunications/Intra-Building Network Cable.....................18
EXHIBITS
A. Outline of Floor Plan of Premises..................................A-1
B. Site Plan......................................................... B-1
C. Work Letter Agreement..............................................C-1
D. Sample Form of Notice of Lease Term Dates..........................D-1
E. Sample Form of Tenant Estoppel Certificate.........................E-I
F. Rules and Regulations .............................................F-I
G. Standard for Utilities & Services .................................G-1
H. Hazardous Waste....................................................H-1
29
STANDARD FORM OFFICE LEASE
THIS LEASE is made as of the 16th day of December, 1996, by and between Landlord
and Tenant.
WITNESSETH:
1. Term and Definitions. For the purposes of this Lease, the
following terms shall have the following definitions and meanings:
(a) Landlord: Lincoln Property Company N.C., Inc., as Manager and
Agent for Lincoln Larkspur Office Three Associates,
Ltd.
(b) Landlord's Address: Copy to:
1100 Larkspur Landing Circle, Suite 155
Larkspur, California 94939
(c) Tenant: Synon, Inc., an Illinois corporation
(d) Tenant's Address: (Prior to Commencement Date)
1100 Larkspur Landing Circle, Suite 300
Larkspur, CA 94939
Tenant's Address: (After Commencement Date)
Same as above
(e) Building Address: 1100 Larkspur Landing Circle,
Larkspur, CA 94939
(f) Suite Number: 360
(g) Floor(s) upon which the Premises are located: 3rd
(h) Premises: Those certain premises defined in Subparagraph 2(a)
hereinbelow.
(i) Site: The parcel of real property defined in Subparagraph 2(a)
below.
(j) Approximate Rentable Square Feet: 2,811
(k) Term: Three Lease Years and -0- Months.
(1) Building Standard Work: All the work to be done at Landlord's
expense, (including the "Allowance" as described in Subparagraph
6 of the Work Letter Agreement) in the Premises pursuant to the
provisions of the Work Letter Agreement described in Paragraph 2
below.
(m) Building Nonstandard Work: All the work done in the Premises by
Landlord pursuant to the provisions of the Work Letter Agreement
other than the Building Standard Work.
(n) Aggregate Improvements: The aggregate of the Building Standard
Work and the Building Nonstandard Work.
(o) Estimated Commencement Date: January 1, 1997
(p) Commencement Date: January 1, 1997
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(q) Annual Basic Rent: $75,897.00
Monthly Basic Rent: $6,324.80
(r) Operating Expenses: /*. *Tenant's percentage share of 1997
Operating Expenses
(s) Tenant's Percentage Share: 3.6%*
(t) Security Deposit: $6,044.00** **Currently on hand with
Landlord pursuant to Lease
dated 9/28/90, and which
expired 10/31/96.
(u) Permitted Use: Office Use
(v) Brokers: N/A
(w) Landlord's Construction Representative: N/A
__________ Telephone: ___________________
(x) Tenant's Construction Representative: N/A
__________ Telephone: ___________________
(y) Parking: See Paragraph 41.
(z) Riders: -0- through -0-, inclusive, which Riders are attached to
this Lease and are incorporated herein by this reference.
(aa) Lease Year: A period of twelve (12) consecutive months, the
first such period commencing on the Commencement Date and
consecutive periods beginning on each consecutive anniversary
thereof.
(bb) Exhibits; A through H inclusive, which Exhibits are attached to
this Lease and are incorporated herein by this reference.
2. Premises and Common Areas Leased.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the Premises contained within the suite designated in Paragraph 1,
outlined on the Floor Plan attached hereto and marked Exhibit "A" and
incorporated herein by this reference in the building and parking facilities at
the address designated in Subparagraph 1 (e) above (the "Building"), located on
the parcel of real property (the "Site") outlined on the Site Plan attached
hereto as "Exhibit "B", and incorporated herein by this reference, and improved
or to be improved by Landlord with the Aggregate Improvements described in the
Work Letter Agreement, a copy of which is attached hereto and marked Exhibit "C"
and incorporated herein by this reference. By taking possession of the Premises
Tenant accepts the Aggregate Improvements as completed or as substantially
completed. In the latter case, Landlord shall provide Tenant with a list of
incomplete and/or corrective items, which list shall be approved and
acknowledged by Tenant within ten (10) days of receipt and which items Landlord
shall complete and/or correct promptly thereafter.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth and Tenant
covenants as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by it to be kept
and performed and that this Lease in made upon the condition of such
performance.
(b) Tenant shall have the nonexclusive right to use in common with
other tenants in the Building and subject to the Rules and Regulations referred
to in Paragraph 31 below, the following areas ("Common Areas") appurtenant to
the Premises:
(i) The common entrances, lobbies, restrooms, elevators,
stairways and accessways, loading docks, ramps, drives and
platforms and any passageways and serviceways thereto, and the
common pipes, conduits, wires and appurtenant equipment serving
the Premises;
(ii) Parking areas (subject to the provisions of Paragraph 41
hereinbelow), loading and unloading areas, roadways, sidewalks,
walkways, parkways, driveways and landscaped areas appurtenant
to the Building.
(c) Landlord reserves the right from time to time without
unreasonable interference with Tenant's use.
(i) To install, use, maintain, repair and replace pipes,
ducts, conduits, wires and appurtenant meters and equipment for
service to other parts of the Building above the ceiling
surfaces, below the floor surfaces, within the walls and in the
central core areas, and to relocate any pipes, ducts, conduits,
wires and appurtenant meters and equipment included in the
Premises which are located in the Premises or located elsewhere
outside the Premises, and to expand the Building;
(ii) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of
driveways, entrances, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas and walkways and,
subject to Paragraph 41, parking spaces and parking areas;
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31
(iii) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the
Premises remains available:
(iv) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Building,
or any portion thereof;
(v) To do and perform such other acts and make such other
changes in, to or with respect to the Site, Common Areas and
Building as Landlord may, in the exercise of sound business
judgment. deem to be appropriate.
3. Term. The Term of this Lease shall be for the period designated
in Subparagraph 1(k) commencing on the Commencement Date, and ending on the
expiration of such period, unless the term hereby demised shall be sooner
terminated as hereinafter provided. The Commencement Date and the date upon
which the term of this Lease shall end shall be determined in accordance with
the provisions of Subparagraph 1(p) and said dates will be specified in
Landlord's Notice of Lease Term Dates ("Notice"), in the form of Exhibit "D"
which is attached hereto and is incorporated herein by this reference, and shall
be served upon Tenant as provided in Paragraph 9, after Landlord delivers or
tenders possession of the Premises to Tenant. The Notice shall be binding upon
Tenant unless Tenant objects to the Notice in writing, served upon Landlord as
provided for in Paragraph 9 hereof, within five (5) days of Tenant's receipt of
the Notice.
4. Possession. Tenant agrees that in the event of the inability of
Landlord to deliver possession of the Premises to Tenant on the date above
specified for the commencement of the term of this Lease, this Lease shall not
be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom.
5. Annual Basic Rent.
(a) Tenant agrees to pay Landlord as Annual Basic Rent for
the Premises the Annual Basic Rent designated in Subparagraph 1(q) (subject to
adjustment as hereinafter provided) in twelve (12) equal monthly installments
("Monthly Basic Rent"), each in advance on the first day of each and every
calendar month during said Term, except that the first month's rent shall be
paid upon the execution hereof. In the event the term of this Lease commences or
ends on a day other than the first day of a calendar month. then the rental for
such periods shall be prorated in the proportion that the number of days this
Lease is in effect during such periods bears to thirty (30), and such rental
shall be paid at the commencement of such periods. In addition to said Annual
Basic Rent, Tenant agrees to pay the amount of the rental adjustments as and
when hereinafter provided in this Lease. Said Annual Basic Rent. additional
rent, and rental adjustments shall be paid to Landlord, without any prior demand
therefor and without any deduction or offset whatsoever in lawful money of the
United States of America, which shall be legal tender at the time of payment, at
the address of Landlord designated in Subparagraph 1(b) or to such other person
or at such other place as Landlord may from time to time designate in writing.
Further, all charges to be paid by Tenant hereunder, including, without
limitation, payments for real property taxes, insurance, repairs, and parking
shall be considered additional rent for the purposes of this Lease, and the word
"rent" in this Lease shall include such additional rent unless the context
specifically or clearly implies that only the Annual Basic Rent is referenced.
See Page 19, "ADJUSTED BASIC RENT"
6. Rental Adjustment
(a) For the purposes of this Subparagraph 6(a), the following terms
are defined as follows:
Tenant's Percentage Share. Tenant's Percentage Share shall mean
that portion of the total rentable area of the Building leased by Tenant
as set forth as percentage in Subparagraph 1(s) above.
Operating Expenses Allowance. Operating Expenses Allowance shall
mean that portion of Tenant's Percentage Share of the Operating Expenses
which Landlord has included in the Annual Basic Rent and which amount is
set forth in Subparagraph 1(r) above.
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0perating Expenses. Operating Expenses shall consist of all direct costs
of operation and maintenance of the Building, the Common Areas and the Site as
determined by standard accounting practices, calculated assuming the Building is
fully occupied. including the following costs by way of illustration, but not
limitation: real property taxes and assessments and any taxes or assessments
hereafter imposed in lieu thereof; rent taxes, gross receipt taxes (whether
assessed against Landlord or assessed against Tenant and collected by Landlord,
or both); water and sewer charges; the net cost and expense of insurance for
which Landlord is responsible hereunder or which Landlord or any first mortgagee
with a lien affecting the Premises reasonably deems necessary in connection with
the operation of the Building; utilities; janitorial services; security; labor;
parking expenses, utilities surcharges, or any other costs levied, assessed or
imposed by, or at the direction of, or resulting from statutes or regulations or
interpretations thereof, promulgated by any federal, state, regional, municipal
or local government authority in connection with the use or occupancy of the
Building or the Premises or the parking facilities serving the Building or the
Premises: the cost (amortized over such reasonable period as Landlord shall
determine together with interest at the maximum rate allowed by law on the
unamortized balance) of (a) any capital improvements made to the Building by the
Landlord after the first year of the term of the Lease that reduce other
Operating Expenses, or made to the Building by Landlord after the date of the
Lease that are required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed, or (b) replacement of
any building equipment needed to operate the Building at the same quality levels
as prior to the replacement; costs incurred in the management of the Building,
if any (including supplies. wages and salaries of employees used in the
management, operation and maintenance of the Building, and payroll taxes and
similar governmental charges with respect thereto); on site Building management
office rental; a management fee; air conditioning; waste disposal; heating;
ventilating; elevator maintenance; supplies; materials; equipment; tools; repair
and maintenance of the structural portions of the Building, including the
plumbing, heating. ventilating, air conditioning and electrical systems
installed or furnished by Landlord; and maintenance, costs and upkeep of all
parking and common areas, rental of personal property used in maintenance; costs
and expenses of gardening and landscaping, maintenance of signs (other than
Tenant's signs); personal property taxes levied on or attributable to personal
property used in connection with the entire Building, including the Common
Areas; reasonable audit or verification fees; and costs and expenses of repairs,
resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse
removal, security and similar items, including appropriate reserves. Operating
Expenses shall not include depreciation on the Building or equipment therein.
Landlord's executive salaries, real estate brokers' commissions, interest
expense on Building financing; amortization of cost of tenant improvements in
the Building; ground rent; income and franchise taxes: dividends: and attorney's
fees and expenses which are not related to the operation of the Building.
As used herein, the term "real property taxes" shall included any form
of assessment, license fee, license tax, business license fee, commercial rental
tax, levy, charge, penalty, tax or similar imposition, imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school agricultural, lighting, drainage or other improvement
or special assessment district thereof, as against any legal or equitable
interest of Landlord in the Premises, including, but not limited to, the
following:
(i) any tax on Landlord's "right" to rent or "right" to other income
from the Premises or as against Landlord's business of leasing the
Premises;
(ii) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment. tax, fee, levy or charge
previously included within the definition of real estate tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by
the voters of the State of California in the June, 1978 Election and
that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street,
sidewalk and road maintenance, refuse removal and for other governmental
services formerly provided without charge to property owners or
occupants. It is the intention of Tenant and Landlord that all such new
and increased assessments. taxes, fees, levies and charges be included
within the definition of "real property taxes" for the purposes of this
Lease;
(iii) any assessment, tax, fee, levy or charge allocable to or
measured by the area of the Premises or the rent payable hereunder,
including, without limitation, any gross income tax or excise tax levied
by the State, City or Federal government, or any political subdivision
thereof, with respect to the receipt of such rent, or upon or with
respect to the possession, leasing, operating, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises, or any
portion thereof;
(iv) any assessment, tax, fee, levy or charge upon this transaction
or any document to which Tenant is a party, creating or transferring an
interest or an estate in the Premises;
(v) any assessment, tax, fee, levy or charge by any governmental
agency related to any transportation plan, fund or system instituted
within the geographic area of which the Building is a part; or
(vi) reasonable legal and other professional fees, costs and
disbursements incurred in connection with/proceedings to contest,
determine or reduce real property taxes.
Notwithstanding any provision of this Subparagraph 6(a)
expressed or implied to the contrary "real property taxes" shall not
include Landlord's federal or state income, franchise, inheritance or
estate taxes.
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If Tenant's Percentage Share of the Operating Expenses estimated in the Estimate
Statement exceeds the Operating Expenses Allowance then such excess amount shall
be divided into twelve (12) equal monthly installments and Tenant shall pay to
Landlord, concurrently with The regular monthly rent payment next due following
the receipt of such statement, an amount equal to one (1) monthly installment
multiplied by the number of months from January in the calendar year in which
said statement is submitted to the month of such payment, both months inclusive.
Subsequent installments shall be paid concurrently with the regular monthly rent
payments for the balance of the calendar year and shall continue until the next
calendar year's Estimate Statement is rendered. By the first day of June of each
succeeding calendar year during the term of this Lease, Landlord shall endeavor
to deliver to Tenant a statement ("Actual Statement") wherein Landlord shall
state the actual Operating Expenses for the preceding calendar year. If the
Actual Statement reveals a greater increase in Tenant's Percentage Sham of
Operating Expenses than was estimated by Landlord in the Estimated Statement
delivered as provided herein, then upon receipt of the Actual Statement from
Landlord, Tenant shall pay a lump sum equal to said total increase over the
Operating Expenses Allowance, less the total of the monthly installments of
increases set forth on the Estimate Statement which were paid in the previous
calendar year. If, in any calendar year, Tenant's Percentage Share of Opening
Expenses is less than the preceding calendar year. then upon receipt of
Landlord's Actual Statement, any overpayment made by Tenant on the monthly
installment basis provided above shall be credited toward the next monthly rent
falling due and the monthly installment of Tenant's Percentage Share or
Operating Expenses to be paid pursuant to the then current Estimate Statement
shall be adjusted to reflect such lower expenses for the most recent calendar
year, or if this Lease has been terminated, such excess shall be credited
against any amount which Tenant owes Landlord pursuant to this Lease and, to the
extent all amounts which Tenant owes Landlord pursuant to this Lease have been
paid, Landlord shall promptly pay such excess to Tenant. Any delay or failure by
Landlord in delivering any estimate or statement pursuant to this Paragraph
shall not constitute a waiver of its right to require an increase in rent nor
shall it relieve Tenant of its obligations pursuant to this Paragraph, except
that Tenant "Shall not be obligated to make any payments based on such estimate
or statement until ten (10) days after receipt of such estimate or statement.
(c) Even though the term has expired and Tenant has vacated the
Premises; when the final determination is made of Tenant's Percentage Share of
Operating Expenses for the year in which this Lease terminates, Tenant shall
immediately pay any increase due over the estimated expenses paid and conversely
any overpayment made in the event said expenses decrease shall be immediately
rebated by Landlord to Tenant.
(d) Notwithstanding anything contained in this Paragraph 6, the
rental payable by Tenant shall in no event be less than the rent specified in
Paragraph 5 hereof.
7. Security Deposit. Tenant has deposited with Landlord the
Security Deposit designated in Subparagraph 1(t). Said deposit shall be held by
Landlord assecurity for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provision of this
Lease, including but not limited to the provisions relating to the payment of
rent. Landlord may (but shall not be required to) use, apply or retain all or
any part of this Security Deposit for the payment of any rent or any other sum
in default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant shall,
within ten (10) days after demand therefor, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this Security Deposit separate from its general
funds. and Tenant shall not be entitled to interest on such Security Deposit. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall be returned
to Tenant (or, at Landlord's option, to the last assignee of Tenant's interests
hereunder) at the expiration of the Lease term, provided that Landlord may
retain the Security Deposit until such time as any amount due from Tenant in
accordance with Paragraph 5 and 6 hereof has been determined and paid in full.
Should Landlord sell its interest in the Premises during the term hereof and if
Landlord deposits with the purchaser thereof the then unappropriated funds
deposited by Tenant as aforesaid, thereupon Landlord shall be discharged from
any further liability with respect to such Security Deposit.
8. Use. Tenant shall use the Premises for general office purposes
and purposes incident thereto in compliance with Exhibit H, Hazardous Waste, and
shall not use or permit the Premises to be used for any other purpose without
the prior written consent of Landlord. Tenant shall not use or occupy the
Premises in violation of any recorded covenants; conditions and restrictions
affecting the Site or of any law or of the Certificate of Occupancy issued for
the Building of which the Premises are a part, and shall upon five (5) days'
written notice from Landlord, discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
any recorded covenants, conditions and restrictions affecting the Site or of any
law or of said Certificate of Occupancy. Tenant may not offer shared tenant
services,
5
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such as but not limited to telecommunications, data processing or word
processing, to any unaffiliated tenant in the Building without Landlord's prior
written consent, which consent may be withheld by Landlord at its sole and
absolute discretion. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere. Tenant shall comply with any direction of
any governmental authority having jurisdiction which shall, by reason of the
nature of Tenant's use or occupancy of the Premises, impose any duty upon Tenant
or Landlord with respect to the Premises or with respect to the use or
occupation thereof. Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or any other
insurance policy covering the Building and/or property located therein and shall
comply with all rules, orders, regulations and requirements of the Pacific Fire
Rating Bureau or any other organization performing a similar function. Tenant
shall promptly upon demand reimburse Landlord as additional rent for any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Paragraph S. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in, or upon the Premises and shall keep the
Premises in first class repair and appearance. Tenant shall not place a load
upon the Premises exceeding the average pounds of live load per square foot of
floor area specified for the Building by Landlord's architect, with the
partitions to be considered a part of the live load. Landlord reserves the right
to prescribe the weight and position of all safes, files and heavy equipment
which Tenant desires to place in the Premises so as to distribute properly the
weight thereof. Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building structure or to any
other space in the Building shall be so installed, maintained and used by Tenant
as to eliminate such vibration or noise. Tenant shall be responsible for all
structural engineering required to determine structural load. Tenant shall
fasten all files, bookcases and like furnishings to walls in a manner to prevent
tipping over in the event of earth movements. Landlord shall not be responsible
for any damage or liability for such events.
9. Payments and Notices. Payments will be by check, only, unless
Tenant is in default, as per Paragraph 25. All rents and other sums payable by
Tenant to Landlord hereunder shall be paid to Landlord by check. cashier's
check, or cash, at Landlord's option, at the address designated by Landlord in
Subparagraph 1 (b) above or at such other places as Landlord may hereafter
designate in writing. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery or by mail, and if
given by mail shall be deemed sufficiently given if sent by registered or
certified mail addressed to Tenant at the Building or to Landlord at both of the
addresses designated in Subparagraph 1(b). Either party may by written notice to
the other specify a different address for notice purposes except that Landlord
may in any event use the Premises as Tenant's address for notice purposes. If
more than one person or entity constitutes the "Tenant" under this Lease,
service of any notice upon any one of said persons or entities shall be deemed
as service upon all of said persons or entities.
10. Brokers. The parties recognize that the brokers who negotiated
this Lease are the brokers whose names are stated in Subparagraph 1(v), and
agree that Landlord shall be solely responsible for the payment of brokerage
commissions to said brokers, and that Tenant shall have no responsibility
therefor. As part of the consideration for the granting of this Lease, Tenant
represents and warrants to Landlord that to Tenant's knowledge no other broker,
agent or finder negotiated or was instrumental in negotiating or consummating
this Lease and that Tenant knows of no other real estate broker, agent or finder
who is, or might be, entitled to a commission or compensation in connection with
this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to
disclose herein shall be paid by Tenant. Tenant shall hold Landlord harmless
from all damages and indemnify Landlord for all said damages paid or incurred by
Landlord resulting from any claims that may be asserted against Landlord by any
broker, agent or finder undisclosed by Tenant herein.
11. Holding Over. If Tenant holds over after the expiration or
earlier termination of the term hereof without the express written consent of
Landlord, Tenant shall become a tenant at sufferance only, at a rental rate
equal to (150%) of the Annual Basic Rent which would be applicable to the
Premises upon the date of such expiration (subject to adjustment as provided in
Paragraph 6 hereof and prorated on a daily basis), and otherwise subject to the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent after such expiration or earlier termination
shall not constitute a holdover hereunder of result in a renewal. The foregoing
provisions of this Paragraph 11 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise provided
by law. If Tenant fails to surrender the Premises upon the expiration of this
Lease despite demand to do so by Landlord, Tenant shall indemnify and hold
Landlord harmless from all loss or liability, including without limitation, any
claim made by any succeeding tenant founded on or resulting from such failure to
surrender.
12. Taxes on Tenant's Property.
(a) Tenant shall be liable for and shall pay at least ten (10) days
before delinquency, taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessments, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall upon demand repay to Landlord the taxes levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment; provided that in any such event. at Tenant's sole cost and expense,
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest. any amount so recovered to
belong to Tenant.
(b) If the Aggregate Improvements in the Premises, whether installed
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a
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valuation higher than the valuation at which Aggregate Improvements conforming
to Landlord's "Building Standard" in other space in the Building are assessed,
then the real property taxes and assessment levied against Landlord or the
property by reason of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed by the
provisions of Subparagraph 12(a), above. If the records of the County Assessor
are available and sufficiently detailed to serve as a basis for determining
whether said Aggregate Improvements are assessed at a higher valuation than
Landlord's "Building Standard," such records shall be binding on both Landlord
and Tenant. If the records of the County Assessor are not available or
sufficiently detailed to serve as a basis for making said determination, the
actual cost of construction shall be used.
13. Condition of Premises. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business. The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises and the Building were at
such time in satisfactory condition, however, occupancy and rent commencement
will not interfere with Landlord's obligation to complete Tenant Improvements.
Without limiting the foregoing, Tenant's execution of the Notice attached hereto
as Exhibit "D" shall constitute a specific acknowledgment and acceptance of the
various start-up inconveniences that may be associated with the use of the
Building Common Areas such as certain construction obstacles including
scaffolding, delays in the use of freight elevator service, certain elevators
not being available to Tenant, the passage of work crews using elevators, uneven
air conditioning service, and other typical conditions incident to recently
constructed office buildings. Further, Tenant's execution of said Notice shall
constitute an acknowledgment, in light of the practical impossibility of
ensuring that every floor slab has been installed with absolutely no deflection,
that all wood floor coverings, wood paneling, and similar interior Aggregate
Improvements have been and/or will be designed to accommodate the actual floor
slab deflection unique to each particular area of the Premises to be so
improved.
14. Alterations.
(a) Tenant may, at any time and from time to time during the term of
this Lease, at its sole cost and expense, make alterations, additions,
installations, substitutions, improvements and decorations (hereinafter
collectively called "Changes") in and to the Premises, excluding structural
changes, on the following conditions, and providing such Changes will not result
in a violation of or require a change in the Certificate of Occupancy applicable
to the Premises:
(i) The outside appearance, character or use of the Building
shall not be affected, and no Changes shall weaken or impair the
structural strength or, in the opinion of Landlord, lessen the
value of the Building or create the potential for unusual
expenses to be incurred upon the removal of Changes and the
restoration of the Premises upon the termination of this Lease.
(ii) No part of the Building outside of the Premises shall be
physically affected.
(iii) The proper functioning of any of the mechanical,
electrical, sanitary and other service systems or installations
of the Building ("Service Facilities") shall not be adversely
affected and there shall be no construction which might
interfere with Landlord's free access to the Service Facilities
or interfere with the moving of Landlord's equipment to or from
the enclosures containing the Service Facilities.
(iv) In performing the work involved in making such Changes,
Tenant shall be bound by and observe all of the conditions and
covenants contained in this Paragraph.
(v) All work shall be done at such times and in such manner
as Landlord from time to time may designate.
(vi) Tenant shall not be permitted to install and make part
of the Premises any materials, fixtures or articles which are
subject to liens, conditional sales contracts or chattel
mortgages.
(vii) At the date upon which the term of this Lease shall end,
or the date of any earlier termination of this Lease, Tenant
shall on Landlord's written request restore the Premises to
their condition prior to the making of any Changes permitted by
this Paragraph, reasonable wear and tear excepted.
(b) Before proceeding with any Change (exclusive of changes to items
constituting Tenant's personal property), Tenant shall submit to Landlord plans
and specifications for the work to be done, which shall require Landlord's
written approval. Landlord shall then prepare or cause to be prepared, at
Tenant's expense, mechanical, electrical and plumbing drawings and may confer
with consultants in connection with the preparation of such drawings and may
also submit to such consultant(s) any of the plans prepared by Tenant. If
Landlord or such consultant(s) shall disapprove of any of the Tenant's plans
Tenant shall be advised of the reasons of such disapproval. In any event, Tenant
agrees to pay to Landlord, as additional rent, the cost of such consultation and
review immediately upon receipt of invoices either from Landlord or such
consultant(s). Any Change for which approval has been received shall be
performed strictly in accordance with the approved plans and specifications, and
no amendments or additions to such plans and specifications shall be made
without the prior written consent of Landlord.
(c) If the proposed Change requires approval by or notice to the
lessor of a superior lease or the holder of a mortgage, no Change shall be
proceeded with until such approval has been received, or such notice has been
given, as the case may be, and all applicable conditions and provisions of said
superior lease or mortgage with respect to the proposed Change or alteration
have been met or complied with at Tenant's expense; and Landlord, if it approves
the Change, will request such approval or give such notice, as the case may be.
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(d) After Landlord's written approval has been sent to Tenant and
the approval by or notice to the lessor of a superior lease or the holder of a
superior mortgage has been received or given, as the case may be, Tenant shall
enter into an agreement for the performance of the work to be done pursuant to
this Paragraph with Landlord's contractor. In any event, Tenant agrees to pay to
Landlord, at Landlord's option, in advance of construction based upon Landlord's
cost estimates, or as additional rent, the cost of such construction immediately
upon receipt from Landlord of invoices from time to time during the course of
such construction. All costs and expenses incurred in Changes shall be paid by
Tenant within seven (7) days after each billing by Landlord or any such
contractor or contractors. If Landlord approves the construction of specific
interior improvements in the Premises by contractors or mechanics selected by
Tenant and approved by Landlord, then Tenant's contractors shall obtain on
behalf of Tenant and at Tenant's sole cost and expense, (i) all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion, and (ii) a
completion and lien indemnity bond, or other surety, satisfactory to Landlord,
for the Changes. In the event Tenant shall request any changes in the work to be
performed after the submission of the plans referred to in this Paragraph 14,
such additional changes shall be subject to the same approvals and notices as
the changes initially submitted by Tenant.
(e) Tenant shall pay to Landlord for Landlord's services in the
event Landlord performs as a general contractor in connection with the work
performed pursuant to this Paragraph 14, a fee equal to seven percent (7%) of
the total cost of the changes, and Landlord's reasonable overhead related
thereto.
(f) All Changes and the performance thereof shall at all times
comply with (i) all laws, rules, orders, ordinances, directions, regulations and
requirements of all governmental authorities, agencies, offices, departments,
bureaus and boards having jurisdiction thereof, (ii) all rules, orders,
directions, regulations and requirements of the Pacific Fire Rating Bureau, or
of any similar insurance body or bodies, and (iii) all rules and regulations of
Landlord, and Tenant shall cause Changes to be performed in compliance therewith
and in good and first class workmanlike manner, using materials and equipment at
least equal in quality and class to the original installations of the Building.
Changes shall be performed in such manner as not to interfere with the occupancy
of any other tenant in the Building nor delay or impose any additional expense
upon Landlord in construction, maintenance or operation of the Building, and
shall be performed by Contractors or mechanics approved by Landlord and
submitted to Tenant pursuant to this Paragraph, who shall coordinate their work
in cooperation with any other work being performed with respect to the Building.
Throughout the performance of Changes, Tenant at its expense, shall carry, or
cause to be carried, workmen's compensation insurance in statutory limits, and
general liability insurance for any occurrence in or about the Building, of
which Landlord and its managing agent shall be named as parties insured, in such
limits as Landlord may reasonably prescribe, with insurers reasonably
satisfactory to Landlord all in compliance with Subparagraph 21 (b).
(g) Tenant further covenants and agrees that any mechanic's lien
filed against the Premises or against the Building for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, will be
discharged by Tenant, by bond or otherwise, within ten (10) days after the
filing thereof, at the cost and expense of Tenant. All alterations, decorations,
additions or improvements upon the Premises, made by either party, including
(without limiting the generality of the foregoing) all wallcovering, built-in
cabinet work, panelling and the like, shall, unless Landlord elects otherwise,
become the property of Landlord, and shall remain upon, and be surrendered with
the Premises, as a part thereof, at the end of the term hereof, except that
Landlord may by written notice to Tenant, given at least thirty (30) days prior
to the end of the term, require Tenant to remove all partitions, counters,
railings and the like installed by Tenant, and Tenant shall repair any damage to
the Premises arising from such removal or, at Landlord's option, shall pay to
the Landlord all of Landlord's costs of such removal and repair.
(h) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term provided Tenant is not in default hereunder, and provided further that
Tenant shall repair any damage caused by such removal. If Tenant shall fail to
remove all of its effects from said Premises upon termination of this Lease for
any cause whatsoever, Landlord may, at its option, remove the same in any manner
that Landlord shall choose, and store said effects without liability to Tenant
for loss thereof, and Tenant agrees to pay Landlord upon demand any and all
expenses incurred in such removal, including court costs and attorneys' fees and
storage charges on such effects for any length of time that the same shall be in
Landlord's possession or Landlord may, at its option, without notice, sell said
effects, or any of the same, at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
(i) Subject to Landlord's agreement to minimize any disturbance of
Tenant's use of the Premises, Landlord reserves the right at any time and from
time to time without the same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefor or otherwise affecting
Tenant's obligations under this Lease, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Site or the
Building (including the Premises if required so to do by any law or regulation)
and the fixtures and equipment thereof, as well as in or to the street
entrances, halls, passages and stairways thereof, to change the name by which
the Building is commonly known except as controlled by the signage provision,
Rider #5, between Landlord and Tenant in that Lease dated April 22, 1991, as
Landlord my deem necessary or desirable. Nothing contained in this Paragraph 14
shall be deemed to relieve Tenant of any duty, obligation or liability of Tenant
with respect to making any repair, replacement or improvement or complying with
any law, order or requirement of any government or other authority and nothing
contained in this Paragraph 14, shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
supervision of repair of the Building or any part thereof other than as
otherwise provided in this Lease.
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15. Repairs.
(a) By entry hereunder, Tenant accepts the Premises as being in good
and sanitary order, condition and repair, however, occupancy and rent
commencement will not interfere with Landlord's obligation to complete Tenant
Improvements. Tenant shall, when and if needed or whenever requested by Landlord
to do so, at Tenant's sole cost and expense, maintain and make all repairs to
the Premises and every part thereof, to keep, maintain and preserve the Premises
in first class condition, excepting ordinary wear and tear. Any such maintenance
and repairs shall be performed by Landlord's contractor, or a Landlord's
approved contractor or contractors. All costs and expenses incurred in such
maintenance and repair shall be paid by Tenant within seven (7) days after
billing by Landlord or such contractor or contractors. Tenant shall upon the
expiration or sooner termination of the term hereof surrender the Premises to
Landlord in the same condition as when received, reasonable wear and tear
excepted. Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and the parties hereto affirm
that Landlord has made no representations to Tenant respecting the condition of
the Premises or the Building except as specifically herein set forth.
(b) Anything contained in Subparagraph 15 a above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, unless
such maintenance and repairs are caused in part or in whole by the act, neglect,
fault of or omission of any duty by Tenant, its agents, servants, employees or
invitees, in which case Tenant shall pay to Landlord as additional rent, the
reasonable cost of such maintenance and repairs. Landlord shall not be liable
for any failure to make any such repairs, or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Paragraph 22 hereof there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect. Notwithstanding anything to the contrary contained in Subparagraphs (a)
and (b) of this Paragraph 15, Tenant shall maintain and repair at its sole cost
and expense, and with maintenance contractors approved by Landlord, all non-base
building facilities, including lavatory, shower, toilet, washbasin and kitchen
facilities and heating and air conditioning systems, including all plumbing
connected to said facilities or systems installed by Tenant or on behalf of
Tenant or existing in the Premises at the time of delivery of possession of the
Premises to Tenant by Landlord. The provisions of the immediately preceding
sentence shall not apply to the basic heating and air conditioning system
provided by Landlord to all tenants of the Building.
16. Liens. Tenant shall not permit any mechanic's, materialmen's or
other liens to be filed against the real property of which the Premises form a
part nor against the Tenant's leasehold interest in the Premises. Landlord shall
have the right at all reasonable times to post and keep posted on the Premises
any notices which it deems necessary for protection from such liens. If any such
liens are filed, Landlord may, without waiving its rights and remedies based on
such breach of Tenant and without releasing Tenant from any of its obligations,
cause such liens to be released by any means it shall deem proper, including
payment in satisfaction of the claim giving rise to such lien. Tenant shall pay
to Landlord at once, upon notice by Landlord, any sum paid by Landlord to remove
such liens, together with interest at the maximum rate per annum permitted by
law from the data of such payment by Landlord.
17. Entry by Landlord. Subject to Landlord's agreement to minimize
any disturbance of Tenant's use of the Premises by exercise of the following
rights, Landlord reserves and shall at any and all times have the right to enter
the Premises to inspect the same, to supply janitor service and any other
provided by Landlord to Tenant hereunder, to submit said Premises to prospective
purchasers or, during the last six (6) months of the term of this Lease, to
prospective tenants, to post notices of nonresponsibility, to alter, improve or
repair the Premises or any other portion of the Building, all without being
deemed guilty of any eviction of Tenant and without abatement of rent, and may,
in order to carry out such purposes, erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, provided that the business of Tenant shall be interfered with as
little as is reasonably practicable. Tenant hereby waives any claim for damages
for any injury or inconvenience to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises, and any other loss
occasioned thereby. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in, upon and
about the Premises, excluding Tenant's vaults and safes, and Landlord shall have
the means which Landlord may deem proper to open said doors in an emergency in
order to obtain entry to the Premises, and any entry to the Premises obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction of Tenant from the Premises or any portion
thereof, and any damages caused on account thereof shall be paid by Tenant. It
is understood and agreed that no provision of this Lease shall be construed as
obligating Landlord to perform any repairs, alterations or decorations except as
otherwise expressly agreed herein to be performed by Landlord. Landlord shall
attempt in the exercise of its rights under this Paragraph 17 to minimize any
disturbance of Tenant's use and possession of the Premises and to provide as
much notice to Tenant as may be reasonably possible prior to any such exercise
of Landlord's rights under this Paragraph 17.
18. Utilities and Services. Provided that Tenant is not in default
hereunder, Landlord agrees, during the Lease term, to furnish to the Premises as
part of the Operating Expenses during those hours set forth in the Rules and
Regulations as defined in Paragraph 31 hereof, as may be amended in writing by
Landlord from time to time during the term of this Lease and delivered to
Tenant, reasonable quantities of electric current for normal lighting and
fractional horsepower office machines, water for lavatory and drinking purposes,
heat and air conditioning required in Landlord's judgment for the comfortable
use and occupation of the Premises, janitorial service (including washing of
windows with reasonable frequency as determined by Landlord) and elevator
service by non-attended automatic elevators. Landlord shall not be liable for,
and Tenant shall not be entitled to any abatement or reduction of rent by reason
of Landlord's failure to furnish any of the foregoing when such failure is
caused by accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or for any other causes. If
Tenant requires or utilizes more water or electric power than is considered
reasonable or normal by
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Landlord, Landlord may at its option require Tenant to pay, as additional rent,
the cost, as fairly determined by Landlord, incurred by such extraordinary
usage. In addition, Landlord may install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant thereafter shall pay all charges of the
utility providing service. Tenant specifically undertakes to install and
maintain at Tenant's cost such fire protection equipment including, without
limitation, emergency lighting as required by any governmental authority or
insurer, and if so required, Tenant shall appoint one of Tenant's personnel to
coordinate with the fire protection facilities and personnel of Landlord. Any
incandescent light bulbs used in the Premises shall be paid for the Tenant. Upon
Tenant's request, Landlord's personnel shall install incandescent light bulbs or
other Building Nonstandard bulbs in the Premises. Tenant agrees to pay Landlord
upon demand Landlord's cost for all such incandescent light bulbs installed or
other Building Nonstandard improvements including but not limited to metallic
trim, wood floor covering, glass panels, windows, partitions, kitchens and
executive washrooms in the Premises. Landlord shall not be responsible in any
manner for said maintenance, cleaning and repair.
19. Indemnification. To the fullest extent permitted by law Tenant
hereby agrees to defend, indemnify and hold Landlord harmless against and from
any and all claims arising from Tenant's use of the Premises or the conduct of
its business or from any activity, work, or thing done, permitted or suffered by
Tenant, its agents, contractors, employees or invitees in or about the Premises
or elsewhere, and hereby agrees to further indemnify and hold harmless Landlord
against and from any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease or arising from any act, neglect, fault or omission of Tenant, or
of its agents, employees or invitees, and from and against all costs, attorneys'
fees, expenses and liabilities incurred in or about the Premises for such claim
or any action or proceeding brought thereon. In case any action or proceeding is
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord hereby agrees to defend the same at Tenant's expense by counsel
approved in writing by Landlord. Tenant, as a material part of the consideration
to Landlord, hereby assumes all risk of damage to property or injury to persons
in, upon or about the Premises from any cause whatsoever except that which is
caused by the failure of Landlord to observe any of the terms and conditions of
this Lease and such failure has persisted for an unreasonable period of time
after written notice of such failure, and Tenant hereby waives all its claims in
respect thereof against Landlord.
20. Damage to Tenant's Property. Notwithstanding the provisions of
Paragraph 19 to the contrary, Landlord or its agents shall not be liable for any
damage to property entrusted to employees of the Building, nor for loss of or
damage to any property by theft or otherwise, nor for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steams,
gas, electricity, water or rain which may leak from any part of the Building or
from the pipes, appliances or plumbing works therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
patent or latent cause whatsoever. Landlord or its agents shall not be liable
for interference with the light or other incorporeal hereditaments. Tenant shall
give prompt notice to Landlord in case of fire or accidents in the Premises or
in the Building or of defects therein or in the fixtures or equipment located
therein.
21. Insurance.
(a) During the term hereof, Tenant, at its sole expense, shall
obtain and keep in force the following insurance:
(i) All Risk insurance upon property owned by Tenant and
located in the Building or for which Tenant is legally liable.
Aggregate Improvements (other than "Building Standard Work" as
described in Subparagraph 1(1) hereof), and alterations, in an
amount not less than ninety percent (90%) of the full
replacement cost thereof. All such insurance policies shall name
Tenant and Landlord as named insured thereunder and, at
Landlord's request, shall name Landlord's mortgagees (and, if
applicable, ground or primary lessors) as loss payees
thereunder, all as their respective interests may appear.
Landlord will not be required to carry insurance of any kind on
any "Building Non-Standard Work", as described in Subparagraph
1(m) hereof, on Tenant's furniture or furnishings, or on any of
Tenant's fixtures, equipment, improvements, or appurtenances
under this Lease, and Landlord shall not be obligated to repair
any damage thereto or replace the same.
(ii) Comprehensive general liability insurance coverage,
including personal injury, bodily injury, broad form property
damage, operations hazard, owner's protective coverage,
contractual liability, and products and completed operations
liability, in limits not less than $2,000,000 inclusive. All
such insurance policies shall name Tenant as named insured
thereunder and shall name Landlord and landlord's mortgagees
(and, if applicable, ground or primary lessors) as additional
insured thereunder, all as their respective interests may
appear.
(iii) Workers' Compensation and Employer's Liability
insurance, with a waiver of subrogation endorsement, in form and
amount satisfactory to Landlord.
(iv) [COPY DELETED]
(v) Liquor liability insurance coverage in limits of not
less than Five hundred Thousand Dollars ($5000,000) if at any
time during the term or on any occurrence hereof of any
alcoholic beverages of any nature are served on the Premises.
(vi) Any other form or forms of insurance as Tenant,
Landlord, or Landlord's mortgagees or ground or primary lessors
may reasonably require from time to time in form, in amounts,
and for insurance risks against which a prudent tenant of a
comparable size and in a comparable business would protect
itself.
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(b) All policies shall be issued by insurers that are acceptable to
Landlord and in form satisfactory from time to time to Landlord. Tenant will
deliver certificates of insurance to Landlord as soon as practicable after the
placing of the required insurance, but not later than ten (10) days prior to the
date Tenant takes possession of all or any pan of the Premises. All policies
shall contain an undertaking by the insurers to notify Landlord and Landlord's
mortgagee (and, if applicable, ground or primary lessors) in writing, not less
than thirty (30) days before any material change, reduction in coverage,
cancellation, or other termination thereof. Ten (10) days prior to the
expiration of any insurance policy, Tenant will provide Landlord with a
Certificate of Insurance extending the term of the original policy or a
certified copy of a new policy extending the required coverage.
(c) During the Term, Landlord shall insure the Building and the
Building Standard Work (excluding any property which Tenant is obligated to
insure under Subparagraph 21(a) hereof) against damage with All Risk insurance
and public liability insurance, all in such amounts and with such deductions as
Landlord considers appropriate, Landlord may, but shall not be obligated to,
obtain and carry any other form or forms of insurance as it or Landlord's
mortgagees may determine advisable. Notwithstanding any contribution by Tenant
to the cost of insurance premiums, as provided herein, Tenant acknowledges that
it has no right to receive any proceeds from any insurance policies carried by
Landlord.
(d) Tenant will not keep, use, sell, or offer for sale in, or on,
the Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building and the Building Standard Work.
Tenant shall promptly comply with all reasonable requirements of the insurance
authority or any present or future insurer relating to the Premises.
(e) If any of Landlord's insurance policies shall be cancelled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or sub-tenant of Tenant or by anyone
Tenant permits on the Premises and, if Tenant fails to remedy the condition
giving rise to such cancellation, threatened cancellation, reduction of
coverage, threatened reduction of coverage, increase in premiums, or threatened
increase in premiums, within 48 hours after notice thereof, Landlord may, at its
option, either terminate this Lease or enter upon the Premises and attempt to
remedy such condition, and Tenant shall promptly pay the cost thereof to
Landlord as additional rent. Landlord shall not be liable for any damage or
injury caused to any property of Tenant or of others located on the Premises
resulting from such entry. If Landlord is unable, or elects not, to remedy such
condition, then Landlord shall have all of the remedies provided for in this
Lease in the event of a default by Tenant. Notwithstanding the foregoing
provisions of this Subparagraph 21(e), if Tenant fails to remedy as aforesaid,
Tenant shall be in default of its obligation hereunder and Landlord shall have
no obligation to remedy such default.
(f) All policies covering real or personal property which either
party obtains affecting the Premises shall include a clause or endorsement
denying the insurer any rights of subrogation against the other party to the
extent rights have been waived by the insured before the occurrence of injury or
loss, if same are obtainable without unreasonable cost. Landlord and Tenant
waive any rights of recovery against the other for injury or loss due to hazards
covered by policies of insurance containing such a waiver of subrogation clause
or endorsement, to the extent of the injury or loss covered thereby.
22. Damage or Destruction.
(a) In the event the Building and/or the Building Standard Work or
any insured alterations are damaged by fire or other perils covered by
Landlord's extended coverage insurance to an extent not exceeding twenty-five
percent (25%) of the full insurable value thereof and if the damage thereto is
such that the Building and/or the Building Standard Work and any insured
alterations may be repaired, reconstructed or restored within a period of ninety
(90) days from the date of the happening of such casualty and Landlord will
receive insurance proceeds sufficient to cover the cost of such repairs,
Landlord shall commence and proceed diligently with the work of repair,
reconstruction and restoration and the Lease shall continue in full force and
effect. If such work or repair, reconstruction and restoration is such as to
require a period longer than ninety (90) days or exceeds twenty-five percent
(25%) of the full insurable value thereof, or if said insurance proceeds will
not be sufficient to cover the cost of such repairs, Landlord either may elect
to so repair, reconstruct or restore the Building and/or Building Standard Work
and any insured alterations and the Lease shall continue in full force and
effect or Landlord may elect not to repair, reconstruct or restore the Building
and/or Building Standard Work and any insured alterations and the Lease shall in
such event terminate. Under any of the conditions of this Subparagraph 22(a),
Landlord shall give written notice to Tenant of its intention within thirty (30)
days from the date of such event of damage or destruction. In the event Landlord
elects not to restore said Building and/or Building Standard Work and any
insured alterations, this Lease shall be deemed to have terminated as of the
date of such partial destruction.
(b) Upon any termination of this lease under any of the provisions
of this Paragraph 22, the parties shall be released thereby without further
obligation to the other from the date possession of the Premises is surrendered
to Landlord except for items which have therefore accrued and are then unpaid.
(c) In the event of repair, reconstruction and restoration by
Landlord as herein provided, the rent provided to be paid under this Lease shall
be abated proportionately with the degree to which Tenant's use of the Premises
is impaired during the
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period of such repair, reconstruction or restoration. Tenant shall not be
entitled to any compensation or damages for loss in the use of the whole or any
part of the Premises and/or any inconvenience, annoyance or loss of business
occasioned by such damage, repairs reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under
this Lease except to the extent and upon the conditions expressly stated in this
Paragraph 22. Notwithstanding anything to the contrary contained in this
Paragraph 22, should Landlord be delayed or prevented from repairing or
restoring the damaged Premises within one (1) year after the occurrence of such
damage or destruction by reason of acts of God, war, governmental restrictions,
inability to procure the necessary labor or materials, or other cause beyond the
control of Landlord, Landlord shall be relieved of its obligation to make such
repairs or restoration and Tenant shall be released from its obligations under
this Lease as of the end of said year.
(e) In the event that damage is due to any cause other than fire or
other peril covered by extended coverage insurance, Landlord may elect to
terminate this Lease.
(f) It is hereby understood that if Landlord is obligated to or
elects to repair or restore as herein provided, Landlord shall be obligated to
make repairs or restoration only of those portions of the Building and the
Premises which were originally provided at Landlord's expense or which were
insured by either party and the proceeds of such insurance have been received by
Landlord, and the repair and restoration of items not provided at Landlord's
expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this
Paragraph 22, Landlord shall not have any obligations whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Paragraph 22 occurs during the last twelve (12) months of the
term of this Lease or any extension hereof.
(h) The provisions of California Civil Code 1932, Subsection 2, and
1933, Subsection 4, are hereby waived by Tenant.
23. Eminent Domain.
(a) In case the whole of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be taken
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain, or sold
to prevent such taking, either party shall have the right to terminate this
Lease effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall be
entitled to receive the entire amount of any award without deduction for any
estate or interest of Tenant. In the event the amount of property or the type of
estate taken shall not substantially interfere with the conduct of Tenant's
business, Landlord shall be entitled to the entire amount of the award without
deduction for any estate or interest of Tenant, and landlord at his option may
terminate this Lease. If Landlord does not so elect, Landlord shall promptly
proceed to restore the Premises to substantially their same condition prior to
such partial taking, and a proportionate allowance shall be made to Tenant for
the rent corresponding to the time during which, and to the part of the Premises
of which, Tenant shall be so deprived on account of such taking and restoration.
Nothing contained in this Paragraph shall be deemed to give Landlord any
interest in any award separately made to Tenant for the taking of personal
property and trade fixtures belonging to Tenant or for moving costs incurred by
Tenant in relocating Tenant's business.
(b) In the event of taking of the Premises or my part thereof for
temporary use, (i) this Lease shall be and remain unaffected thereby and rent
shall not abate, and (ii) Tenant shall be entitled to receive for itself such
portion or portions of any award made for such use with respect to the period of
the taking which is within the term, provided that if such taking shall remain
in force at the expiration or earlier termination of this Lease, Tenant shall
then pay to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations under Paragraph 15 with respect to surrender of the Premises and
upon such payment shall be excused from such obligations. For purpose of this
Subparagraph 23(b), a temporary taking shall be defined as a taking for a period
of 270 days or less.
24. Bankruptcy. If Tenant shall file a petition in bankruptcy under
any Chapter of federal bankruptcy law as then in effect, or if Tenant be
adjudicated a bankrupt in involuntary bankruptcy proceedings and such
adjudication shall not have been vacated within thirty (30) days from the date
thereof, or if a receiver or trustee be appointed of Tenant's property and the
order appointing such receiver or trustee not be set aside or vacated within
thirty (30) days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, or if this Lease shall otherwise
by operation of law pass to any person or persons other than Tenant, then and in
any such event Landlord may, if Landlord so elects, with or without notice of
such election and with or without entry or action by Landlord, forthwith
terminate this Lease. Notwithstanding any other provisions of this Lease,
Landlord, in addition to any and all rights and remedies allowed by law or
equity, shall upon such termination be entitled to recover damages in the amount
provided in Subparagraph 25(b) below and neither Tenant nor any person claiming
through or under Tenant or by virtue of any statute or order of any court shall
be entitled to possession of the Premises but shall forthwith quit and surrender
the Premises to Landlord. Nothing herein contained shall limit or prejudice the
right of Landlord to prove and obtain as damages by reason of any such
termination an amount equal to the maximum allowed by any statute or rule of law
in effect at the time when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount be greater, equal to, or less than
the amount of damages recoverable under the provisions of this Paragraph 24.
25. Defaults and Remedies.
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
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(i) The vacation or abandonment of the Premises by Tenant.
Abandonment is herein defined to included, but is not limited,
to, any absence by Tenant from the Premises for five (5) days or
longer while in default of any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by
Tenant hereunder, as and when due.
(iii) The failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be
observed or performed by Tenant, other than as specified in
Subparagraph 25(a)(i) or (ii) above, where such failure shall
continue for a period of ten (10) days after written notice
thereof from Landlord to Tenant; provided, however, that any
such notice shall be in lieu of, and not in addition to, any
notice required under California Code of Civil Procedure 1161;
provided, further, that if the nature of Tenant's default is
such that more than ten (10) days are reasonably required for
its cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within said ten-day period and
thereafter diligently prosecute such cure to completion, which
completion shall occur not later than sixty (60) days from the
date of such notice from Landlord.
(iv) (1)The making by Tenant of any general assignment for
the benefit of creditors; (2) the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to
bankruptcy (unless, in the cast of a petition filed against
Tenant, the same is dismissed within thirty (30 days); (3) the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not
restored to Tenant within thirty (30) days; or (4) the
attachment, execution or other judicial seizure of substantially
all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease where such seizure is not discharged
within thirty (30) days.
(b) In the event of any such default by Tenant, in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant hereunder.
In the event that Landlord shall elect to so terminate this lease then Landlord
may recover from Tenant:
(i) the worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which
the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to
perform his obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom.
As used in Subparagraphs 25(b)(i) and (ii) above the "worth at the time
of award" is computed by allowing interest at the maximum rate permitted by law
per annum. As used in Subparagraph 25(b)(iii) above, the "worth at the time of
award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
(c) In the event of any such default by Tenant, Landlord shall also
have the right. with or without terminating this Lease, to re-enter the Premises
and remove all persons and property from the Premises. Such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant for such period of time as may be required by applicable law
after which time Landlord may dispose of such property in accordance with
applicable law. No re-entry or taking possession of the Premises by Landlord
pursuant to this Subparagraph 25(c) shall be construed as an election to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction.
(d) All rights, options' and remedies of Landlord contained in this
Lease shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Landlord shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or other
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
26. Assignment and Subletting. Tenant shall not voluntarily assign
or encumber its interest in this Lease or in the Premises, or sublease all or
any part of the Premises, or allow any other person or entity to occupy or use
all or any part of the Premises, without first obtaining Landlord's prior
written consent. Any assignment, encumbrance or sublease without Landlord's
prior written consent shall be voidable, at Landlord's election, and shall
constitute a default. For purposes hereof, in the event Tenant is a partnership,
a withdrawal or change of partners, or change of ownership of partners, owning
more than a fifty percent (50%) interest in the partnership, or if Tenant is a
corporation, any transfer of fifty percent (50%) of its stock, shall constitute
a voluntary assignment and shall be subject to these provisions. No consent to
any assignment. encumbrance, or sublease shall constitute a further waiver of
the provisions of this Paragraph. Tenant shall notify Landlord
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in writing of Tenant's intent to assign encumber, or sublease this lease, the
name of the proposed assignee or sublessee information concerning the financial
responsibility of the proposed assignee or sublessee and the terms of the
proposed assignment or subletting, and Landlord shall, within thirty (30) days
of receipt of such written notice, and additional information requested by
Landlord concerning the proposed assignee's or sublessee's financial
responsibility, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or sublease;
(b) Refuse such consent, which refusal shall be on reasonable
grounds;
(c) Elect to terminate this Lease, or in the cast of a partial
sublease, terminate this Lease as to the portion of the Premises
proposed to be sublet.
Without limiting Landlord's grounds for disapproval, Landlord's disapproval
shall be deemed reasonable if it is based on Landlord's analysis of (a) the
proposed assignee's or sublessee's credit. character and business or
professional standing, (b) whether the assignee's or sublessee's use and
occupancy of the Premises will be consistent with Subparagraph 1(u) and
Paragraph 8 of this Lease and whether assignee's proposed intensity of use is
consistent with that shown by Tenant, (c) whether the proposed assignee or
sublessee is a then existing or prospective tenant of the Building, as a
condition for granting its consent to any assignment, encumbrance or sublease.
Landlord may require that the rent payable by such assignee or sublessee is at
the then current published rental rates for the Premises or comparable Premises
in the Building, but not less than the then current Annual Basic Rent under this
Lease and may require that the assignee or sublessee remit directly to Landlord
on a monthly basis, all monies due to Tenant by said assignee or sublessee. In
the event that Landlord shall consent to any assignment or sublease under the
provisions of this Paragraph 26, Tenant shall pay Landlord's processing costs
and attorneys' lees incurred in giving such consent. If for any proposed
assignment or sublease Tenant receives rent or other consideration either
initially or over the term of the assignment or sublease, in excess of the rent
called for hereunder or, in case of the sublease of a portion of the Premises,
in excess of such rent fairly allocable to such portion after appropriate
adjustments to assure that all other payments called for hereunder are taken
into account Tenant shall pay to Landlord as additional rent hereunder all of
the excess of each such payment of rent or other consideration received by
Tenant promptly after its receipt. Landlord's waiver or consent to any
assignment or subletting shall not relieve Tenant from any obligation under this
Lease. Occupancy of all or part of the Premises by parent, subsidiary, or
affiliated companies of Tenant shall not be deemed an assignment or subletting.
If Tenant requests Landlord's consent to any assignment of this Lease or any
subletting of all or a portion of the Premises, Landlord shall have the right,
to be exercised by giving written notice to Tenant within thirty (30) days of
receipt by Landlord of the financial responsibility information required by this
Paragraph 26 to terminate this Lease effective as of the date Tenant proposes to
assign this Lease or sublet all or a portion of the Premises. Landlord's right
to terminate this lease as to all or a portion of the Premises on assignment or
subletting shall not terminate as a result of Landlord's consent to the
assignment of this Lease or the subletting of all or a portion of the Premises,
or Landlord's failure to exercise this right with respect to any assignment or
subletting.
27. Quiet Enjoyment. Landlord convenants and agrees with Tenant that
upon Tenant paying the rent required under this Lease and paying all other
charges and performing all of the covenants and provisions aforesaid on Tenant's
part to be observed and performed under this Lease, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises in accordance with this
Lease.
28. Subordination. Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a subordination, and at
the election of Landlord or any first mortgagee with a lien on the Building or
any ground lessor with respect to the Building, this least shall be subject and
subordinate at all times to; (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building or the land upon
which the Building is situated or both, and (b) the lien of any mortgage or deed
of trust which may now exist or hereafter be executed in any amount for which
the Building, land, ground leases or underlying leases, or Landlord's interest
or estate in any of said items is specified as security. Nothwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any such liens to
this lease. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, if requested by the
ground lessor, mortgagee or beneficiary, as applicable, attorn to and become the
Tenant of the successor in interest to Landlord and in such event Tenant's right
to possession of the Premises shall not be disturbed if Tenant is not in default
and so long as Tenant shall pay the rent and all other amounts required to be
Paid to Landlord pursuant to the terms hereof and observe and perform all of the
provisions of this Lease, unless the Lease is otherwise terminated pursuant to
its terms. Tenant covenants and agrees to execute and deliver upon demand by
Landlord and in the form requested by Landlord, any additional documents
evidencing the priority or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such mortgage or deed of
trust. Should Tenant fail to sign and return any such documents within ten (10)
business days of receipt, Tenant shall be in default. and Landlord may, at
Landlord's option, terminate this Lease provided written notice of such
termination is received by Tenant prior to Landlord's receipt of such documents.
29. Estoppel Certificate.
(a) Within ten (10) days following any written request which
Landlord may make from time to time, Tenant shall execute and deliver to
Landlord a statement, in a form substantially similar to the form of Exhibit 'E"
attached hereto certifying; (i) the Commencement Date of this Lease, (ii) the
fact that this Lease is unmodified and in full force and effect (or, if there
have been modifications hereto, that this Lease is in full force and effect, as
modified, and stating the date and nature of such modifications); (iii) the date
to which the rental and other sums payable under this Lease have been paid; (iv)
the fact that there are no current defaults under this Lease by either Landlord
or Tenant except as specified in Tenant's
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statement; and (v) such other matters requested by Landlord. Landlord and Tenant
intend that any statement delivered pursuant to this Paragraph 29 may be relied
upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein.
(b) Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performance, and (iii) that not more than
one (1) mouth's rent has been paid in advance, except as provided in Paragraph
36 hereof. Tenant's failure to deliver said statement to Landlord within ten
(10) working days of receipt shall constitute a default under this Lease, and
Landlord may, at Landlord's option, terminate the Lease provided written notice
of such termination is received by Tenant prior to Landlord's receipt of said
statement.
30. Building Planning. In the event Landlord requires the Premises
for use in conjunction with another suite or for other reasons connected with
the Building planning program upon notifying Tenant in writing, Landlord shall
have the right to move Tenant to other comparable space in the Building of which
the Premises forms a part, at Landlord's sole cost and expense, including all of
Tenant's moving expenses, telephone installation and stationery reprinting
charges, and the terms and conditions of the original Lease shall remain in full
force and effect save and excepting that a revised Exhibit "A" shall become part
of this Lease and shall reflect the location of the new space and Paragraph I of
this Lease shall be amended to include and state all correct data as to the new
space.
31. Rules and Regulations. Tenant shall faithfully observe and
comply with the "Rules and Regulations," a copy of which is attached hereto
and marked Exhibit "F" and all reasonable and nondiscriminatory modifications
thereof and additions thereto from time to time put into effect by Landlord.
Landlord shall not be responsible to Tenant for the violation or nonperformance
by any other tenant or occupant of the Building of any of said Rules and
Regulations.
32. Conflict of Laws. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
33. Successors and Assigns. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representative, successors and assigns.
34. Surrender of Premises. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger,
and shall, at the option of Landlord, operate as an assignment to it of any or
all subleases or subtenancies. Upon the expiration or termination of this Lease,
Tenant shall peaceably surrender the Premises and all alterations and additions
thereto broom-clean. in good order, repair and condition, reasonable wear and
tear excepted, and shall comply with the provisions of Subparagraphs 14(g) and
14(h). The delivery of keys to any employee of Landlord or to Landlord's agent
or any employee thereof shall not be sufficient to constitute a termination of
this Lease or a surrender of the Premises.
35. Professional Fees.
(a) In the event that Landlord should bring suit for the possession
of the Premises, for the recovery of any sum due under this Lease, or because of
the breach of any provisions of this Lease, or for any other relief against
Tenant hereunder, or should either party bring suit against the other with
respect to matters arising from or growing out of this Lease, then all costs and
expenses, including without limitation, its actual professional fees such as
appraisers', accountants' and attorneys' fees, incurred by the prevailing part
therein shall be paid by the other party, which obligation on the part of the
other party shall be deemed to have accrued on the date of the commencement of
such action and shall be enforceable whether or not the action is prosecuted to
judgment.
(b) Should Landlord be named as a defendant in any suit brought
against Tenant in connection with or arising out of Tenant's occupancy
hereunder, Tenant shall pay to Landlord its costs and expenses incurred in such
suit, including without limitation, its actual professional fees such as
appraiser's, accountants' and attorneys' fees.
36. Performance by Tenant. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant's sole cost and expense and without any abatement of rent.
Tenant acknowledges that the late payment by Tenant to Landlord of any sums due
under this Lease will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of such cost being extremely difficult and impractical
to fix. Such costs include, without limitation, processing and accounting
charges, and late charges that may be imposed on Landlord by the terms of any
encumbrance and note secured by any encumbrance covering the Premises or the
Building of which the Premises are a part. Therefore if any monthly installment
of Annual Basic Rent is not received by Landlord by the date when due, or if
Tenant fails to pay any other sum of money due hereunder and such failure
continues for ten (10) days after notice thereof by Landlord, Tenant shall pay
to Landlord, as additional rent, the sum of five percent (5 %) of the overdue
amount as a late charge. Such overdue amount shall also bear interest, as
additional rent, at the maximum rate permissible by law calculated, appropriate,
from the date either (a) the monthly installment of Annual Basic Rent is due, or
(b) of receipt of said notice, until the date of payment to Landlord. Landlord's
acceptance of any late charge or interest shall not constitute a waiver of
Tenant's default with respect to the overdue amount or prevent Landlord from
exercising any of the other rights and remedies available to Landlord under this
Lease or any law now or hereafter in effect. Further, in the event such late
charge is imposed by Landlord for two (2) consecutive months for whatever
reason, Landlord shall have the option to require that, beginning with the first
payment of rent due following the imposition of the second consecutive late
charge, rent shall no longer be Paid in monthly installments but shall be
payable three (3) months in advance.
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37. Mortgagee and Senior Lessor Protection. No act or failure to act
on the part of Landlord which would entitle Tenant under the terms of this
Lease, or by law, to be relieved of Tenant's obligations hereunder or to
terminate this Lease, shall result in a release of such obligations or a
termination of this Lease unless (a) Tenant has given notice by registered or
certified mail to any beneficiary of a dead of trust or mortgage covering the
Premises and to the Lessor under any master or ground lease covering the
Building, the Site or any interest therein whose identity and address shall have
been furnished to Tenant, and (b) Tenant offers such beneficiary, mortgagee or
Lessor a reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or of judicial foreclosure, if such
should prove necessary to effect a cure.
38. Definition of Landlord. The term "Landlord" as used in this
Lease, so far as covenants or obligations on the part of Landlord are concerned,
shall be limited to mean and include only the owner or owners, at the time in
question, of the fee title to, or a lessee's interest in a ground lease of the
Site or master lease of the Building. In the event of any transfer, assignment
or other conveyance or transfer of any such title or interest, Landlord herein
named (and in case of any subsequent transfers or conveyances, the then grantor)
shall be automatically freed and relieved from and after the date of such
transfer, assignment or conveyance of all liability with respect to the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed and, without further agreement, the
transferee of such title or interest shall be deemed to have agreed to observe
and perform any and all obligations of Landlord hereunder, during its ownership
of the Premises, Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
39. Waiver. The failure of Landlord to seek redress for violation
of, or to insist upon strict performance of, any term, covenant or condition of
this Lease or the Rules and Regulations attached hereto as Exhibit "F", shall
not be deemed a waiver of such violation or prevent a subsequent act which would
have originally constituted a violation from having all the force and effect of
an original violation, nor shall the failure of Landlord to enforce any of said
Rules and Regulations against any other tenant of the Building be deemed a
waiver of any such Rule or Regulation, nor shall any custom or practice which
may become established between the parties in the administration of the terms
hereof be deemed a waiver of, or in any way affect, the right of Landlord to
insist upon the performance by Tenant in strict accordance with said terms. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
40. Identification of Tenant. Unless the provisions of Paragraph 55
herein below are applicable to this Lease, then if more thin one person executes
this Lease as Tenant, (a) each of them is jointly and severally liable for the
keeping observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and (b) the term "Tenant" as used in this Lease shall mean and include
each of them jointly and severally and the act of or notice from, or notice or
refund to, or the signature of, any one or more of them, with respect to the
tenancy or this Lease, including, but not limited to, any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
41. Parking. The use by Tenant, its employees and invitees, of the
parking facilities of the Building shall be on the terms and conditions set
forth in Exhibit F attached hereto and by this reference incorporated herein and
shall be subject to such other agreement between Landlord and Tenant as may
hereinafter be established.
42. [DELETED]
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43. Terms and Headings. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words used in any
gender include other genders. If there be more than one Tenant, i.e., if two or
more persons or entities are jointly referred to in this Lease as "Tenant," the
obligations hereunder imposed upon Tenant shall be joint and several. The
Paragraph headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
44. Examination of Lease. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
45. Time. Time is of the essence with respect to the performance of
every provision of this Lease in which time or performance is a factor.
46. Prior Agreement: Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreement or understanding, oral or written, express
or implied, pertaining to any such matter shall be effective for any purpose. No
provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
The parties acknowledge that all prior agreements, representations and
negotiations are deemed superseded by the execution of this Lease to the extent
they are not incorporated herein.
47. Separability. Any provision of this Lease which shall prove to
be invalid, void or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
48. Recording. Neither Landlord nor Tenant shall record this Lease
nor a short memorandum thereof without the consent of the other and if such
recording occurs, it shall be at the sole cost and expense of the party
requesting the recording, including any documentary transfer taxes or other
expenses related to such recordation.
49. Limitation on Liability. The obligations of Landlord under this
Lease do not constitute personal obligations of the individual partners,
directors, officers or shareholders of Landlord, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders of
Landlord or any of their personal assets for satisfaction of any liability in
respect to this Lease. In consideration of the benefits accruing hereunder,
Tenant and all successors and assigns covenant and agree that in the event of
any actual or alleged failure, breach or default hereunder by Landlord, the sole
and exclusive remedy shall be against Landlord's interest in the Building.
50. Riders. Clauses, plats and riders, if any, signed by Landlord
and Tenant and affixed to this Lease are a part hereof.
51. Signs. Tenant shall not place any sign upon the Premises or the
Building without Landlord's prior written consent, except as specifically stated
in the signage provision, Rider #5, between Landlord and Tenant in that Lease
dated April 22, 1991.
52. Modification of Lender. If in connection with obtaining
construction, interim or permanent financing for the Building, the lender shall
request reasonable modifications in this Lease as a condition to such financing,
Tenant will not unreasonably withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
53. Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lessor amount than the rent payment herein stipulated shall be
deemed to be other than on account of the rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided in this Lease. Tenant agrees that each
of the foregoing covenants and agreements shall be applicable to any covenant or
agreement either expressly contained in this lease or imposed by any statute or
at common law.
54. Financial Statements. At any time within reason during the term
of this Lease, Tenant shall, upon ten (10) days prior written notice from
Landlord, provide Landlord with a current financial statement and financial
statements of the two (2) years prior to the current financial statement year.
Such statement shall be prepared in accordance with generally accepted
accounting principles and, if such is the normal practice of Tenant, shall be
audited by an independent certified public accountant.
55. Tenant as Corporation. If Tenant executes this lease as a
corporation, then Tenant and the persons executing this Lease on behalf of
Tenant represent and warrant that the individuals executing this lease on
Tenant's behalf are duly authorized to execute and deliver this Lease on its
behalf in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, and
in accordance with the By-Laws of Tenant and that this lease is binding upon
Tenant in accordance with its terms.
56. No Partnership or Joint Venture. Nothing in this Lease shall be
deemed to constitute Landlord and Tenant as partners or joint venturers. It is
the express intent of the parties hereto that their relationship with regard to
this Lease be and remain that of landlord and tenant.
17
47
57. Telecommunications/Intra-Building Network Cable.
(a) Subject to the exclusions hereafter set forth, the
intra-building network cable ("INC") shall mean, collectively, all telephone
wiring in the Building that begins at the terminal block closest to where the
telephone company facilities enter the Building. The INC shall exclude the
following wiring: (1) the wiring extending from the central distribution panel
of the Building to the outlet at the Premises to the extent such wiring is used
exclusively to service the Premises and (2) the wiring extending from such
outlet to the various installations in the Premises.
(b) Upon discovering or suspecting a defect, deficiency or
malfunctioning in any telecommunication service or services in the Building,
Tenant shall give to Landlord prompt notice of any such known or suspected
defect, deficiency or malfunctioning so as to enable Landlord to remedy the
problem and restore full service or remove the risk of an interruption of or
breakdown in service. Under no circumstances, shall Tenant take or cause to be
taken any remedial action or measures or otherwise resort to "self-help", for
the purpose of restoring such telecommunication service or services; instead,
Tenant shall rely upon Landlord taking all necessary action or measures,
following receipt of notice from Tenant. Tenant further agrees that,
notwithstanding any provision of this Lease to the contrary, it will not do any
of the following: (i) use any electrical or electronic devices or equipment
unless the same complies with Rule 15 of the Federal Communications Commission
Rules or (ii) connect or attach any device with or to the INC without, first,
(A) having given advance notice thereof to Landlord, describing in sufficient
detail the action proposed to be taken by Tenant and (B) having received, prior
to taking such action, Landlord's written approval thereof.
(c) Without limiting the generality of Subparagraph 19(a), Tenant
shall indemnify and hold Landlord harmless, and shall, at its sole cost and
expense, defend Landlord from and against any and all claims, liability, loss,
damages, costs and expenses, including reasonable attorneys' fees, arising out
of or in any way connected with (i) any repairs, modifications or additions of
or to the INC made, in violation of the provisions of this Lease, by Tenant, its
agents, employees or business invitees or (ii) any damage to the INC or
interference with the telecommunications services in the Building caused by the
acts or omissions of Tenant, its agents, employees or business invitees;
further, the costs and expenses referred to in the foregoing provisions of this
Subparagraph (c) shall, in addition to the cost of correcting any such repairs,
modifications or additions to or of the INC, any such damage to the INC or any
such interference with telecommunication services, include the cost to the
Landlord of handling and disposing of claims or complaints of other tenants in
the Building whose telecommunications service was interrupted or otherwise
affected by the conduct or actions of Tenant, its agents, employees or business
invitees. The provisions of this Subparagraph 60(c) shall survive the expiration
of the Term of this Lease or earlier termination of this Lease pursuant to its
terms.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year first
above written.
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LANDLORD: ADDRESS:
LINCOLN PROPERTY COMPANY N.C., INC. LARKSPUR LANDING OFFICE
As Manager and Agent for 1100 Larkspur Landing Circle
Lincoln Larkspur Office Three Associates, Ltd. Larkspur, California 94939
By: /s/ D. ALLEN PALMER Dated: 12-27-96
------------------------------------------- ----------------------
D. Allen Palmer
Vice President
TENANT: ADDRESS:
Synon, Inc. 1100 Larkspur Landing Circle
----------------------------------------- -----------------------------
a Illinois corporation
Suite 300
-----------------------------
Larkspur, CA 94939
-----------------------------
By: /s/ DENNIS HOLLIGAN Dated: 12/19/96
------------------------------------------ -----------------------------
Dennis Holligan
Its: Director of Administration
------------------------------------------
By: Dated:
------------------------------------------ ----------------------
Its:
-----------------------------------------
Continued from Page 3, "Rent Escalation":
ADJUSTED BASIC RENT. Each year during the term of this Lease other than
the Base Year, the Basic Rent or the prevailing Adjusted Basic Rent, as the case
may be, shall be adjusted for the ensuing twelve (12) months by the use of the
Consumer Price Index (All Urban Consumers component) for the San
Francisco-Oakland Area (1982 - 1984 - 100) published by the Bureau of Labor
Statistics of the U. S. Department of Labor. The Basic Rent will be increased by
the percentage increase, if any, between the latest index published just prior
to the commencement of the Lease Term and the comparable latest index published
just prior to January of the following year to arrive at the Adjusted Basic
Rent. Each year thereafter, the Adjusted Basic Rent will be increased by the
percentage increase, if any, between the index published just prior to January
of the subsequent year and the comparable latest index published just prior to
January of the preceding year.
In case the U.S. Department of Labor shall discontinue the computation
and publication of said Consumer Price Index or the publication thereof should
be delayed so as to prevent its use hereunder at the times required, there shall
be substituted therefor by Landlord such other index or method of ascertaining
changes in the price level as, in the opinion of Landlord, most closely
resembles the Consumer Price Index and method of arriving at the index figure by
said Bureau.
19
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EXHIBIT A
-
OUTLINE OF FLOOR PLAN OF PREMISES
[FLOOR PLAN]
A-1
50
EXHIBIT B
SITE PLAN
-
[SITE PLAN]
B-1
51
EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the 16th day of
December, 1996, by and between Lincoln Property Company N.C., Inc. as Manager
and Agent for Owner ("Landlord") and Synon, Inc., an Illinois corporation
("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
promises (the "Premises") more particularly described in Exhibit A attached to
the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows: Landlord to
provide a maximum Tenant improvement contribution or $3.00 per rentable square
foot toward mutually agreeable Tenant Improvement ($8,433.00).
[1-6 DELETED]
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52
7. COMPLETION AND RENTAL COMMENCEMENT DATE.
The commencement of the term of Lease and Tenant's obligation for the
payment of rental under the Lease shall not commence until substantial
completion of construction of the Tenant Improvements. However, if there shall
be a delay in substantial completion of the Tenant Improvements as a result of:
(i) Tenant's failure to approve any item or perform any other
obligation in accordance with and by the date specified in the
Work Schedule;
(ii) Tenant's request for materials, finishes or installations
other than those readily available; or
(iii) Tenant's changes in the Tenant Improvement Plans after
their approval by Tenant;
Then the commencement of the term of the Lease and the rental
commencement date shall be accelerated by the number of days of such delay.
Please Initial:
DAP/DH
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53
EXHIBIT D
NOTICE OF LEASE TERM DATES
To:
Date:
Re: Lease dated _______________ , 19 ____ between _______________,
Tenant, concerning Suite ____ located at ____________________.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises have been accepted herewith by the Tenant
as being substantially complete in accordance with the
subject Lease, and that there is no deficiency in
construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject
Lease, the term of said Lease shall commence as of
_______________ for a term of ___________, ending on
_______________.
3. That in accordance with the subject Lease, rental commenced
to accrue on _____________________________________________.
4. If the commencement date of the subject Lease is other than
the first day of the month, the first billing will contain
a pro rata adjustment. Each billing thereafter, with the
exception of the final billing, shall be for the full
amount of the monthly installment as provided for in said
Lease.
5. Rent is due and payable in advance on the first day of each
and every month during the term of said Lease. Your rent
checks should be made payable to __________________________
______________ at ________________________________________.
AGREED AND ACCEPTED
TENANT: LANDLORD:
____________________________________
By ____________________________________
Print Name ____________________________________
Its ____________________________________
By ____________________________________
Print Name ____________________________________
Its ____________________________________
D-1
54
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
The undersigned, ______________________ ("Landlord"), with a mailing address c/o
_________ _____________________, ________________________, and _____________
("Tenant"), hereby certify to _________________________, a _____________________
_____________________________ as follows:
1. Attached hereto is a true, correct and complete copy of
that certain lease dated ______________, 19__ between
Landlord and Tenant (the "Lease"), which demises promises
which are located at _____________________________________.
The Lease is now in full force and effect and has not been
amended, modified or supplemented, except as set forth in
Paragraph 4 below.
2. The term of the Lease commenced on _______________, 19____.
3. The term of the Lease shall expire on_______________,
19____ .
4. The Lease has: (Initial one)
( ) not been amended, modified, supplemented, extended,
renewed or assigned.
( ) been amended, modified, supplemented, extended, renewed
or assigned by the following described agreements,
copies of which are attached hereto:
--------------------------
--------------------------
5. Tenant has accepted, is now in possession of and is now
conducting business in said Premises.
6. Tenant and Landlord acknowledge that the Lease will be
assigned to _____________ and that no modification,
adjustment, revision or cancellation of the Lease or
amendments thereto shall be effective unless written
consent of ______________is obtained, and that until
further notice, payments under the Lease may continue as
heretofore.
7. The amount of fixed monthly rent is $ _______ Rent shall be
increased based upon operating expense increases and as
follows: ______________
8. The amount of security deposits (if any) is $ ________.
No other security deposits have been made.
9. Tenant is paying the full lease rental, which has been paid
in full as of the date hereof. No rent under the Lease has
been paid for more than thirty (30) days in advance of its
due date.
10. All work required to be performed by Landlord under the
Lease has been completed and all required contributions by
Landlord to Tenant on account of Tenants improvements have
been received.
11. There are no defaults on the part of the Landlord or Tenant
under the Lease.
12. Tenant has no defense as to its obligations under the Lease
and claims no set-off or counterclaim against Landlord.
13. Tenant has no right to any concessions (rental or
otherwise) or similar compensation in connection with
renting the space it occupies, except as provided in the
Lease.
14. The Lease, amended as noted in Item 4 above, represents the
entire agreement between Landlord and Tenant as to this
leasing.
E-1
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All provisions of the Lease and the amendments thereto (if any)
referred to above are hereby ratified.
DATED: ________________________, 19 ____.
TENANT: LANDLORD:
____________________________________
By ____________________________________
Print Name ____________________________________
Its ____________________________________
By ____________________________________
Print Name ____________________________________
Its ____________________________________
E-2
56
EXHIBIT F
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building without
the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on
doors, windows and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person chosen by Landlord, using materials of
Landlord's choice and in a style and format approved by Landlord.
2. Tenant must use Landlord's window coverings in all exterior and atrium
window offices. No awning shall be permitted on any part of the Premises.
Tenant shall not place anything against or near glass partitions or doors
or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls passages, exits, entrances,
elevators escalators or stairways of the Building. The halls, passages,
exits, entrances, shopping malls, elevators, escalators and stairways are
not for the general public, and Landlord shall in all cases retain the
right to control and prevent access thereto of all persons whose presence
in the judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No tenant
and no employee or invitee of any tenant shall go upon the roof of the
Building without Landlord's consent.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only and Landlord reserves the right to
exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises. Landlord shall not in any way be responsible to any Tenant
for any loss of property on the Premises, however occurring. or for any
damage to any Tenant's property by the janitor or any other employee or any
other person.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. Any freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord.
9. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects, if such objects are considered
necessary by Tenant, as determined by Landlord, shall stand on such
platforms as determined by Landlord to be necessary to properly distribute
the weight. Business machines and mechanical equipment belonging to Tenant,
which cause noise or vibration that may be transmitted to the structure of
the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration.
The persons employed to move such equipment in or out of the Building must
be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals, except
seeing-eye dogs when accompanied by their masters.
11. Tenant shall not use any method of heating or air conditioning other than
that supplied or approved by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls other than room
thermostats installed for Tenant's use. Tenant shall keep corridor doors
closed, and shall close window
F-1
57
coverings at the end of each business day. Heat and air conditioning shall
be provided during ordinary business hours of generally recognized business
days, but not less than the hours of 8:00 a.m. to 6:00 p.m. on Monday
through Friday (excluding in any event Saturdays, Sundays and legal
holidays).
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
14. Landlord reserves the right to exclude from the building between the hours
of 6:00 p.m. and 7:00 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Saturdays, Sundays and
legal holidays, any person unless that person is known to the person or
employee in charge of the Building and has a pass or is property
identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall not be liable for damages for any error with regard
to the admission to or exclusion from the Building of any person. Landlord
reserves the right to prevent access to the Building in case of invasion,
mob, riot, public excitement or other commotion by closing the doors or by
other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and, except with regard to
Tenant's computers and other equipment which requires utilities on a
twenty-four hour basis, all electricity, gas or air outlets before Tenant
and its employees leave the Premises. Tenant shall be responsible for any
damage or injuries sustained by other tenants or occupants of the Building
or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water, food
beverage, towel or other similar services or accept barbering or
bootblacking services upon the Premises, except as such hours and under
such regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
19. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except to install normal wall hangings, and to secure files and book cases
and other furniture that could fall over. Landlord reserves the right to
direct electricians as to where and how telephone and telegraph wires are
to be introduced to the Premises. Tenant shall not cut or bore holes for
wires. Tenant shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any vending
machine without the written consent of Landlord.
21. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building or the Site are prohibited. and each
tenant shall cooperate to prevent same.
22. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
23 Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
24. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by any tenant on the
Premises, except that use by Tenant of Underwriters' Laboratory-approved
equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, and the use of a microwave oven shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and
regulations. If odor is objectionable by Landlord or other Tenant's of
Building, microwave use may be prohibited by Landlord.
25. Tenant shall not use in any space or in the public halls of the Building
any mailcarts or hand trucks except those equipped with rubber tires and
side guards or such other material handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into the
Building except as provided in the Parking Rules and Regulations.
26. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
F-2
58
28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and
no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
31. These Rules and Regulations (including Parking Rules and Regulations below)
are in addition to the terms, covenants. agreements and conditions of any
lease of premises in the Building. In the event these Rules and Regulations
conflict with any provision of the Lease, the Lease shall control.
32. Landlord reserves the right to make such other and reasonable Rules and
Regulations (including Parking Rules and Regulations) as, in its judgment,
may from time to time be needed for safety and security, for care and
cleanliness of the Building and for the preservation of good order therein.
Tenant agrees to abide by all such Rules and Regulations hereinabove stated
and any additional rules and regulations which are adopted.
33. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
34. Each tenant and all employees and visitors of Tenant shall not use public
areas of the Building from the upper ground floor level and above,
including elevators, while wearing athletic attire, including, without
limitation, bathing suits, sweatsuits, jogging clothes, etc. Smoking is
prohibited in all enclosed Common Areas of the Building including without
limitation the main lobby, all hallways, all elevators, all elevator
lobbies, building conference rooms, and recreation rooms.
35. Smoking is prohibited in all enclosed Common Arm of the building,
including, but not limited to, the main lobbies, hallways, stairwells,
elevators, elevator lobbies, locker/shower rooms. restrooms and conference
room. The foregoing shall not be deemed to prohibit smoking within demised
Promises. When smoking outside the building, ash receptacles must be used
and provided by the smoker if not provided by Landlord. Smokers must not
leave any ashtrays, smoking material or debris in the area where they have
been smoking, except in ash receptacles provided by Landlord.
PARKING RULES AND REGULATIONS
1. Tenant and employees of Tenant (hereinafter referred to as "Tenant") shall
not park vehicles in any parking areas designated by Landlord as areas for
parking by visitors to the Building. Tenant shall not leave vehicles in the
Building parking areas overnight nor park any vehicles in the Building
parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks. Landlord may, in its sole
discretion, designate separate areas for bicycles and motorcycles.
2. Cars must be parked entirely within the stall lines painted on the floor.
3 All directional signs and arrows must be observed.
4. The speed limit shall be 5 miles per hour.
5. Parking is prohibited, unless a floor parking attendant approved by
Landlord directs otherwise:
a. In areas not striped for parking;
b. In aisles;
c. Where "No Parking" or "Handicap" signs are posted;
d. On ramps;
e. In crosshatched areas; or
f. In such other areas as may be designated by Landlord, its agent, lessee
or licensee.
6. Parking stickers or any other device or form of identification which may be
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may not be
mutilated in any manner.
F-3
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7. Every Tenant is requested to park and lock his own car. All responsibility
for damage to cars to be repaired is assumed by Tenant. Tenant shall repair
or cause to be repaired at its sole cost and expense any and all damage to
the Building parking facility or any part thereof caused by Tenant or
resulting from vehicles of Tenant.
8. Loss or theft of parking identification devices from automobiles must be
reported to Landlord immediately. Any parking identification devices found
on any unauthorized car will be confiscated and the illegal holder will be
subject to prosecution. Lost or stolen devices previously reported and then
found must be reported found to the Landlord immediately.
9. Spaces are for the express purpose of one automobile per space unless
approved by Landlord directs otherwise. Washing, waxing, cleaning or
servicing of any vehicle by the Tenant and/or his agents is prohibited.
Storage of vehicles for periods exceeding one week is prohibited and said
vehicles shall be subject to towing.
10. The Landlord reserves the right to refuse the issuance of monthly stickers
or other parking identification devices to any Tenant or person and/or his
agents or representatives who willfully refuse to comply with the above
Rules And Regulations or any City, State or Federal ordinance, law or
agreement. Tenant shall not load or unload in areas other than those
designated by Landlord for such activities.
12. Landlord reserves the right to charge for parking on a nondiscriminatory
basis.
13. Tenants parked in prohibited areas are subject to towing at their own
expense.
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EXHIBIT G
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for utilities and Services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) Provide non-attended automatic elevator facilities Monday through
Friday, except holidays from 8 a.m. to 6 p.m.
(b) On Monday through Friday, except holidays, from 8 a.m. to 6 p.m.
(and other times for a reasonable additional charge to be fixed by Landlord),
ventilate the Premises and furnish air conditioning or heating on such days and
hours, when in the judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The air conditioning system achieves maximum cooling
when the window coverings are closed. Tenant agrees to cooperate fully at all
times with Landlord, and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device conduit
or pipe to the Building chilled and hot water air conditioning supply lines.
Tenant further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities. The cost of
maintenance and service calls to adjust and regulate the air conditioning system
shall be charged to tenant if the need for maintenance work results from either
Tenant's adjustment of room thermostats or Tenant's failure to comply with it
obligations under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then-current
journeymen's wages for air conditioning mechanics.
(c) Landlord shall furnish to the Premises, during the usual business
hours on business days, electric current as required by the Building standard
office lighting and fractional horsepower office business machines in an amount
not to exceed .025 KWH per square foot per normal business day. Tenant agrees,
should its electrical installation or electrical consumption be in excess of the
aforesaid quantity or extend beyond normal business hours, to reimburse Landlord
monthly for the measured consumption at the average cost per kilowatt hour
charged to the Building during the period. If a separate meter is not installed
at Tenant's cost, such excess cost will be established by an estimate agreed
upon by Landlord and Tenant, and if the parties fail to agree, as established by
an independent licensed engineer. Said estimates to be reviewed and adjusted
quarterly. Tenant agrees not to use any apparatus or device in, or upon, or
about the Premises which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without written consent of Landlord. Should Tenant use
the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge shall
constitute a breach of the obligation to pay rent under this Lease and shall
entitle Landlord to the rights therein granted for such breach. At a11 times
Tenant's use of electric current shall never exceed the capacity of the feeders
to the Building or the risers or wiring installation.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy Tenant shall keep said meter
and installation equipment in good working order and repair at Tenant's own cost
and expense, in default of which Landlord may cause such meter and equipment to
be replaced or repaired and collect the cost thereof from Tenant. Tenant agrees
to pay for water consumed, as shown on said meter, as and when bills are
rendered, and on default in making such payment. Landlord may pay such charges
and collect the same from Tenant. Any such costs or expenses incurred, or
payments made by Landlord for any of the reasons or purposes hereinabove stated
shall be deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
(e) Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant, and if to be
kept clean by Tenant, no one other than persons approved by Landlord shall be
permitted to enter the Premises for such purposes. If the Promises are not used
exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant's expense, and to the satisfaction of Landlord, and by persons approved
by Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevators, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason of
accident or emergency or for repairs, alterations or improvements, in the
judgement of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and shall further have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations or requirements of
any federal, state, county or municipal authority or failure of gas, oil or
other suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil or other suitable fuel. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenant, conditions, provisions or agreements of this Lease or to
perform any act or thing for the benefit of Tenant, shall not be deemed breached
if Landlord is unable to furnish or perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control.
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EXHIBIT H
HAZARDOUS WASTE
Tenant shall use the Premises solely for the uses set forth in the
Basic Lease Information in Paragraph 8 and shall not use the Premises for any
other purpose without obtaining the prior written consent of Landlord.
In no event will Tenant use, introduce to the Premises, generate,
manufacture, produce, store, release, discharge or dispose of, on, under or
about the Premises or transport to or from the Premises any Hazardous Material
(as defined below) or allow its employees, agents, contractors, invitees or any
other person or entity to do so.
Tenant warrants that it shall not make any use of the Premises which
may cause contamination of the soil, the subsoil or ground water. Tenant shall
not do, bring, or keep anything in or about the Premises that will cause a
cancellation of any insurance covering the Premises. If the rate of any
insurance carried by Landlord is increased as a result of Tenant's use, Tenant
shall pay to Landlord within thirty (30) days before the date Landlord is
obligated to pay a premium on the insurance, or within ten (10) days after
Landlord delivers to Tenant a certified statement from Landlord's insurance
carrier stating that the rate increase was caused solely by an activity of
Tenant on the premises as permitted in this Lease, whichever date is later, a
sum equal to the difference between the original premium and the increased
premium.
Tenant shall keep and maintain the Premises in compliance with, and
shall not cause or permit the Premises to be in violation of any and all
federal, state or local laws, ordinances, rules or regulations pertaining to
health, industrial hygiene or the environmental conditions on, under or about
the Premises.
Tenant shall give immediate written notice to Landlord of (i) any
action, proceeding or inquiry by any governmental authority or any third party
with respect to the presence of any Hazardous Material on the Premises or the
migration thereof from or to other property or (ii) any spill, release or
discharge of Hazardous Materials that occurs with respect to the Premises or
Tenant's operations.
Tenant shall indemnify and hold harmless Landlord, its directors,
officers, employees, agents, successors and assigns (collectively "Landlord")
from and against any and all claims arising from (i) Tenant's uses of the
Premises for the conduct of its business or from any activity, work or other
things done or suffered by the Tenant in or about the Buildings, (ii) breach or
default in performance of any obligation on Tenant's part to be performed under
the terms of this Lease, (iii) any act or negligence of the Tenant, or any
officer, agent, employee, guest or invitee of Tenant. The indemnity shall
include all costs, fines, penalties, judgments, losses, attorney's fees,
expenses and liabilities incurred in or about the Premises for any such claim or
any action or proceeding brought thereon including, without limitation, (a) all
foreseeable consequential damages including without limitation loss of rental
income and diminution in property value; and (b) the costs of any cleanup,
detoxification or other ameliorative work of any kind or nature required by any
governmental agency having jurisdiction thereof or Landlord. This indemnity
shall survive the expiration or termination of this Lease. In any action or
proceeding brought against Landlord by reason of any such claim, upon notice
from Landlord if Landlord does not elect to retain separate counsel, Tenant
shall defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord.
HAZARDOUS MATERIAL DEFINITION:.
As used herein, the term "Hazardous Material" shall mean any substance
or material which has been determined by any state, federal or local government
authority to be capable of posing a risk of injury to health, safety or
property, including all of those materials and substances designated as
hazardous or toxic by the city in which the Premises are located, the U.S.
Environmental Protection Agency, the Consumer Product Safety Commission, the
Food and Drug Administration, the California Water Resources Control Board, the
Regional Water Quality Control Board, San Francisco Bay Region, the California
Air Resources Board, CAL/OSHA Standards Board, Division of Occupational Safety
and Health, the California Department of Food and Agriculture, the California
Department of Health Services, and any federal agencies that have overlapping
jurisdiction with such California agencies, or any other governmental agency now
or hereafter authorized to regulate materials and substances in the environment.
Without limiting the generality of the foregoing, the term 'Hazardous Material"
shall included all of those materials and substances defined as "hazardous
materials' or "hazardous waste" in Sections 66680 through 66685 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, as the same shall be
amended from time to time, petroleum, petroleum-related substances and the
by-products, fractions, constituents and sub-constituents of petroleum or
petroleum-related substances, asbestos, and any other materials requiring
remediation now or in the future under federal, state or local statutes,
ordinances, regulations or policies.
H-1
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LEASE #3
63
OFFICE LEASE
LANDLORD: LARKSPUR LANDING
TENANT: SYNON, INC.
64
TABLE OF CONTENTS
Page
----
1. Terms and Definitions ............................................. 1
2. Premises and Common Areas Leased .................................. 2
3. Term .............................................................. 3
4. Possession ........................................................ 3
5. Annual Basic Rent ................................................. 3
6. Rental Adjustment ................................................. 3
7. Security Deposit .................................................. 5
8. Use ............................................................... 5
9. Payments and Notices .............................................. 6
10. Brokers ........................................................... 6
11. Holding Over ...................................................... 6
12. Taxes on Tenant's Property ........................................ 6
13. Condition of Premises ............................................. 7
14. Alternations ...................................................... 7
15. Repairs ........................................................... 9
16. Liens ............................................................. 9
17. Entry by Landlord ................................................. 9
18. Utilities and Services ............................................ 9
19. Indemnification ................................................... 10
20. Damage to Tenant's Property ....................................... 10
21. Insurance ......................................................... 10
22. Damage or Destruction ............................................. 11
23. Eminent Domain .................................................... 12
24. Bankruptcy ........................................................ 12
25. Defaults and Remedies ............................................. 12
26. Assignment and Subletting ......................................... 13
27. Quiet Enjoyment ................................................... 14
28. Subordination ..................................................... 14
29. Estoppel Certificate .............................................. 14
30. Building Planning ................................................. 15
31. Rules and Regulations ............................................. 15
32. Conflict of Laws .................................................. 15
33. Successors and Assigns ............................................ 15
34. Surrender of Premises ............................................. 15
35. Professional Fees ................................................. 15
36. Performance by Tenant ............................................. 15
37. Mortgagee and Senior Lessor Protection ............................ 16
38. Definition of Landlord ............................................ 16
39. Waiver ............................................................ 16
40. Identification of Tenant .......................................... 16
41. Parking and Transportation ........................................ 16
42. Office and Communications Service ................................. 16
43. Terms and Headings ................................................ 16
44. Examination of Lease .............................................. 17
45. Time .............................................................. 17
46. Prior Agreement; Amendments ....................................... 17
47. Separability ...................................................... 17
48. Recording ......................................................... 17
49. Limitation on Liability ........................................... 17
50. Riders ............................................................ 17
51. Signs ............................................................. 17
52. Modification for Lender ........................................... 17
53. Accord and Satisfaction ........................................... 17
54. Financial Statements .............................................. 17
55. Tenant as Corporation ............................................. 17
56. No Partnership or Joint Venture ................................... 17
EXHIBITS
A. Outline of Floor Plan of Premises ................................. A-1
B. Site Plan ......................................................... B-1
C. Work Letter Agreement ............................................. C-1
D. Sample Form of Notice of Lease Term Dates ......................... D-1
E. Sample Form of Tenant Estoppel Certificate ........................ E-1
F. Rules and regulations ............................................. F-1
G. Standard for Utilities & Services ................................. G-1
H. Hazardous Waste ................................................... H-1
A
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STANDARD FORM OFFICE LEASE
THIS LEASE is made as of the 22nd day of April, 1991, by and between Landlord
and Tenant.
WITNESSETH:
1. TERMS AND DEFINITIONS. For the purposes of this Lease, the
following terms shall have the following definitions and meanings:
(a) Landlord: Lincoln Property Company N.C., Inc.
(b) Landlord's Address: Copy to:
1100 Larkspur Landing Circle, Suite 155
Larkspur, California 94939
(c) Tenant: Synon, Inc. an Illinois Corporation
-------------------------------------------
(d) Tenant's Address (Prior to commencement Date)
1100 Larkspur Landing Circle
---------------------------------------------------
Suite 300
---------------------------------------------------
Larkspur, CA 94939
---------------------------------------------------
Tenant's Address: (After Commencement Date)
same as above
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
(e) Building Address:
1100 Larkspur Landing Circle
Larkspur, CA 94939
(f) Suite Numbers:
180, 150, 185, 195 & 175
(g) Floor(s) upon which the Premises are located: 1st
(h) Premises: Those certain premises defined in Subparagraph 2(a)
hereinbelow.
(i) Site: The parcel of real property defined in Subparagraph
(a) below.
(j) Approximate Rentable Square Feet: 11,715 *See Premises/Sq.
Footage Schedule, Page 18
(k) Term: 4 yrs. Lease Years and 10 Months.
(l) Building Standard Work: All the work to be done in the
Premises pursuant to the provisions of the Work Letter
Agreement described in Paragraph 2 below.
(m) Building Nonstandard Work: All the work done in the Premises
pursuant to the provisions of the Work Letter Agreement other
than the Building Standard Work.
(n) Aggregate Improvements: The aggregate of the Building Standard
Work and the Building Nonstandard Work.
(o) Estimated Commencement Date: June 1, 1991
(p) Commencement Date: The earlier of the following two dates:
(i) The date upon which the Tenant takes possession of the
entire Premises or commences the operation of its business
in the Premises, which Tenant agrees will be accomplished
as soon as reasonably possible after the issuance of the
Certificate of Occupancy or temporary Certificate of
Occupancy for the Premises; or
(ii) 6/1/91, unless time to construct Tenant Improvements
exceeds four (4) weeks from receipt of City permits. In
the event said construction time exceeds four (4) weeks,
commencement date shall be delayed accordingly. However,
in the event Tenant is cause of any construction delay,
commencement date shall remain the earlier of (i) or June
1, 1991.
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66
(q) Annual Basic Rent: $302,244
Monthly Basic Rent: $25,187.00 Tenant's proportionate share
of actual 1991 Operating Expenses except that the first six
months of the least term shall be $20,033.00 per month.
(r) Operating Expenses Allowance:
(s) Tenant's Percentage Share: 14.99%
(t) Security Deposit: $25,187.00
(u) Permitted Use: office use
(v) Brokers: none
(w) Landlord's Construction Representative: Ross/Donovan, Inc.
___________________ Telephone: 461-8466
(x) Tenant's Construction Representative: N/A
___________________ Telephone: ___________________
(y) Parking: See Paragraph 41.
(z) Riders: 1 through 9, inclusive, which Riders are attached to
this Lease and are incorporated herein by this reference.
(aa) Lease Year: A period of twelve (12) consecutive months, the first
such period commencing on the Commencement Date and consecutive periods
beginning on each consecutive anniversary thereof.
(bb) Exhibits: A through H inclusive, which Exhibits are attached to
this Lease and are incorporated herein by this reference.
2. PREMISES AND COMMON AREAS LEASED.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the Premises contained within the suite designated in Paragraph 1,
outlined on the Floor Plan attached hereto and marked Exhibit "A" and
incorporated herein by this reference in the building and parking facilities at
the address designated in Subparagraph 1(e) above (the "Building"), located on
the parcel of real property (the "Site") outlined on the Site Plan attached
hereto as Exhibit "B", and incorporated herein by this reference, and improved
or to be improved by Landlord with the Aggregate Improvements described in the
Work Letter Agreement, a copy of which is attached hereto and marked Exhibit "C"
and incorporated herein by this reference. By taking possession of the Premises,
Tenant accepts the Aggregate Improvements as completed or as substantially
completed. In the latter case, Landlord shall provide Tenant with a list of
incomplete and/or corrective items, which list shall be approved and
acknowledged by Tenant within ten (10) days of receipt and which items Landlord
shall complete and/or correct promptly thereafter.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth and Tenant
covenants as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by it to be kept
and performed and that this Lease is made upon the condition of such
performance.
(b) Tenant shall have the nonexclusive right to use in common with
other tenants in the Building and subject to the Rules and Regulations referred
to in Paragraph 31 below, the following areas ("Common Area") appurtenant to the
Premises:
(i) The common entrances, lobbies, restrooms, elevators, stairways
and accessways, loading docks, ramps, drives and platforms and any
passageways and service ways thereto, and the common pipes,
conduits, wires and appurtenant equipment serving the Premises;
(ii) Parking areas (subject to the provisions of Paragraph 41
hereinbelow), loading and unloading areas, roadways, sidewalks,
walkways, parkways, driveways and landscaped areas appurtenant to
the Building.
(c) Landlord reserves the right from time to time without unreasonable
interference with Tenant's use:
(i) To install, use, maintain, repair and replace pipes, ducts,
conduits, wires and appurtenant meters and equipment for service to
others parts of the Building above the ceiling surfaces, below the
floor surfaces, within the walls and in the central core areas, and
to relocate any pipes, ducts, conduits, wires and appurtenant
meters and equipment included in the Premises which are located in
the Premises or located elsewhere outside the Premises, and to
expand the Building;
(ii) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of
driveways, entrances, loading and unloading areas, ingress, egress,
direction of traffic, landscaped areas and walkways and, subject to
Paragraph 41, parking spaces and parking areas.
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67
(iii) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
(iv) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building, or any
portion thereof;
(v) To do and perform such other acts and make such other changes
in, to or with respect to the Site, Common Areas and Building as
Landlord may, in the exercise of sound business judgment, deem to
be appropriate.
3. TERM. The term of this Lease shall be for the period designated in
Subparagraph 1(k) commencing on the Commencement Date, and ending on the
expiration of such period, unless the term hereby demised shall be sooner
terminated as hereinafter provided. The Commencement Date and the date upon
which the term of this Lease shall end shall be determined in accordance with
the provisions of Subparagraph 1(Premises) and said dates will be specified in
Landlord's Notice of Lease Term Dates ("Notice"), in the form of Exhibit "D"
which is attached hereto and is incorporated herein by this reference, and shall
be served upon Tenant as provided in Paragraph 9, after Landlord delivers or
tenders possession of the Premises to Tenant. The Notice shall be binding upon
Tenant unless Tenant objects to the Notice in writing, served upon Landlord as
provided for in Paragraph 9 hereof, within five (5) days of Tenant's receipt of
the Notice.
4. POSSESSION. Tenant agrees that in the event of the inability of
Landlord to deliver possession of the Premises to Tenant on the date above
specified for the commencement of the term of this Lease, this Lease shall not
be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom.
5. ANNUAL BASIC RENT.
(a) Tenant agrees to pay Landlord as Annual Basic Rent for the Premises
the Annual Basic Rent designated in Subparagraph 1(q) (subject to adjustment as
hereinafter provided) in twelve (12) equal monthly installments ("Monthly Basic
Rent"), each in advance of the first day of each and every calendar month during
said term, except that the first month's rent shall be paid upon the execution
hereof. In the event the term of this Lease commences or ends on a day other
than the first day of a calendar month, the rental for such periods shall be
prorated in the proportion that the number of days this Lease is in effect
during such periods bears to thirty (30), and such rental shall be paid at the
commencement of such periods. In addition to said Annual Basic Rent, Tenant
agrees to pay the amount of the rental adjustments as and when hereinafter
provided in this Lease. Said Annual Basic Rent, additional rent, and rental
adjustments shall be paid to Landlord, without any prior demand therefor and
without any deduction or offset whatsoever in lawful money of the United States
of America, which shall be legal tender at the time of payment, at the address
of Landlord designated in Subparagraph 1(B) or to such other person or at such
other place as Landlord may from time to time designate in writing. Further, all
charges to be paid by Tenant hereunder, including, without limitation, payments
for real property taxes, insurance, repairs, and parking shall be considered
additional rent for the purposes of this Lease, and the word "rent" in the Lease
shall include such additional rent unless the context specifically or clearly
implies that only the Annual Basic Rent is referenced.
(b) RENT ESCALATION. See page 18, "ADJUSTED BASIC RENT"
6. RENT ADJUSTMENT.
(a) For the purposes of this Subparagraph 6(a), the following terms are
defined as follows:
TENANT'S PERCENTAGE SHARE. Tenant's Percentage Share shall mean the
portion of the total rentable area of the Building leased by Tenant as set forth
as percentage in Subparagraph 1(s) above.
OPERATING EXPENSES ALLOWANCE. Operating Expenses Allowance shall mean
that portion of Tenant's percentage Share of the Operating Expenses which
Landlord has included in the Annual Basic Rent and which amount is set forth in
Subparagraph 1(r) above.
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68
OPERATING EXPENSES. Operating Expenses shall consist of all direct
costs of operation and maintenance of the Building, the Common Areas and the
Site as determined by standard accounting practices, calculated assuming the
Building is fully occupied, including the following costs by way of
illustration, but not limitation: real property taxes and assessments and any
taxes or assessments hereafter imposed in lieu thereof; rent taxes, gross
receipt taxes (whether assessed against Landlord or assessed against Tenant and
collected by Landlord, or both); water and sewer charges; the net cost and
expense of insurance for which Landlord is responsible hereunder or which
Landlord or any first mortgagee with a lien affecting the Premises reasonably
deems necessary in connection with the operation of the Building; utilities,
janitorial services; security; labor; parking expenses, utilities surcharges, or
any other costs levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations or interpretations thereof, promulgated
by any federal, state, regional, municipal or local government authority in
connection with the use or occupancy of the Building or in the Premises or the
parking facilities serving the Building or the Premises; the cost (amortized
over such reasonable period as Landlord shall determine together with interest
at the maximum rate allowed by law on the unamortized balance) of (a) any
capital improvements made to the Building by the Landlord after the first year
of the term of the Lease that reduce other Operating Expenses, or made to the
Building by Landlord after the date of the Lease that are required under any
governmental law or regulation that was not applicable to the Building at the
time it was constructed, or (b) replacement of any building equipment needed to
operate the Building at the same quality levels as prior to the replacement;
costs incurred in the management of the Building, if any (including supplies,
wages and salaries of employees used in the management, operation and
maintenance of the Building, and payroll taxes and similar governmental charges
with respect thereto); on site Building management office rental; a management
fee; air conditioning, waste disposal; heating, ventilating; elevator
maintenance; supplies; materials; equipment; tools; repair and maintenance of
the structural portions of the Building, including the plumbing, heating,
ventilating, air conditioning and electrical systems installed or furnished by
Landlord; and maintenance, costs and upkeep of all parking and common areas,
rental of personal property used in maintenance; costs and expenses of gardening
and landscaping, maintenance of signs (other than Tenant's signs); personal
property taxes levied on or attributable to personal property used in connection
with the entire Building, including the Common Areas; reasonable audit or
verification fees; and costs and expenses of repairs, resurfacing, repairing,
maintenance, painting, lighting, cleaning, refuse removal, security and similar
items, including appropriate reserves. Operating Expenses shall not include
depreciation on the Building or equipment therein. Landlord's executive
salaries, real estate brokers' commissions, interest expense on Building
financing; amortization of cost of tenant improvements in the Building; ground
rent; income and franchise taxes, dividends; and attorney's fees and expenses
which are not related to the operation of the Building.
As used herein, the term "real property taxes" shall included any form
of assessment, license fee, license tax, business license fee, commercial rental
tax, levy, charge, penalty, tax or similar imposition, imposed by any authority
having the direct power to tax, including any city, country, state or federal
government, or any school agricultural, lighting, drainage or other improvements
or special assessment district thereof, as against any legal or equitable
interest of Landlord in the Premises, including, but not limited to, the
following:
(i) any tax on Landlord's "right" to rent or "right" to other income
from the Premises or as against Landlord's business of leasing the
Premises;
(ii) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge
previously included within the definition of real estate tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by
the voters of the State of California in the June, 1978 Election and
that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street,
sidewalk and road maintenance, refuse removal and for other
governmental services formerly provided without charge to property
owners or occupants. It is the intention of Tenant and Landlord that
all such new and increased assessments, taxes, fees, levies and charges
be included within the definition of "real property taxes" for the
purposes of this Lease;
(iii) any assessment, tax, fee, levy or charge allocable to or measured
by the area of the Premises or the rent payable hereunder, including,
without limitation, any gross income tax or excise tax levied by the
State, City or Federal government, or any political subdivision
thereof, with respect to the receipt of such rent, or upon or with
respect to the possession, leasing, operating, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises, or any
portion thereof;
(iv) any assessment, tax, fee, levy or charge upon this transaction or
any document to which Tenant is a party, creating or transferring an
interest or an estate in the Premises;
(v) any assessment, tax, fee, levy or charge by any governmental agency
related to any transportation plan, fund or system instituted within
the geographic area of which the Building is a part; or
(vi) reasonable legal and other professional fees, costs and
disbursements incurred in connection with proceedings to contest,
determine or reduce real property taxes.
Notwithstanding any provision to this sub 6(a) expressed or implied to
the contrary, "real property taxes" shall not include Landlord's federal or
state income, franchise, inheritance or estate taxes.
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By the first day of March of each succeeding calendar year during the term of
this Lease, Landlord shall endeavor to deliver to Tenant a statement ("Estimate
Statement") wherein Landlord shall estimate the Operating Expenses for the
current calendar year, and the amount by which Tenant's Percentage Share of the
Operating Expense on account of the operation or maintenance of the Building is
in excess of the Operating Expenses Allowance. If Tenant's Percentage Share of
the Operating Expense estimated in the Estimate Statement exceeds the Operating
Expenses Allowance then such excess amount shall be divided into twelve (12)
equal monthly installments and Tenant shall pay to Landlord, concurrently with
the regular monthly rent payment next due following the receipt of such
statement, an amount equal to one (1) monthly installment multiplied by the
number of months from January in the calendar year in which said statement is
submitted to the month of such payment, both months inclusive. Subsequent
installments shall be paid concurrently with the regular monthly rent payments
for the balance of the calendar year and shall continue until the next calendar
year's Estimate Statement is rendered. By the first day of June of each
succeeding calendar year during the term of this Lease, Landlord shall endeavor
to deliver to Tenant a statement ("Actual Statement") wherein Landlord shall
state the actual Operating Expenses for the preceding calendar year. If the
Actual Statement reveals a greater increase in Tenant's Percentage Share of
Operating Expenses that was estimated by Landlord in the Estimated Statement
delivered as provided herein, then upon receipt of the Actual Statement from
Landlord, Tenant shall pay a lump sum equal to said total increase over the
Operating Expenses Allowance, less the total of the monthly installments of
increases set forth on the Estimate Statement which were paid in the previous
calendar year. If, in any calendar year, Tenant's Percentage Share of Operating
Expenses is less than the preceding calendar year, then upon receipt of
Landlord's Actual Statement, any overpayment made by Tenant on the monthly
installment basis provided above shall be credited toward the next monthly rent
falling due and the monthly installment of Tenant's Percentage Share of
Operating Expenses to be paid pursuant to the then current Estimate Statement
shall be adjusted to reflect such lower expenses for the most recent calendar
year, or if this Lease has been terminated, such excess shall be credited
against any amount which Tenant owes Landlord pursuant to this Lease and, to the
extent all amounts which Tenant owes Landlord pursuant to this Lease have been
paid, Landlord shall promptly pay such excess to Tenant. Any delay or failure by
Landlord in delivering any estimate or statement pursuant to this Paragraph
shall not constitute a waiver of its right to require an increase in rent nor
shall it relieve Tenant of its obligations pursuant to this Paragraph, except
that Tenant shall not be obligated to make any payments based on such estimate
or statement until ten (10) days after receipt of such estimate or statement.
(c) Even though the term as expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage Share of
Operating Expenses for the year in which this Lease terminates, Tenant shall
immediately pay any increase due over the estimated expenses paid and conversely
any overpayment made in the event said expenses decrease shall be immediately
rebated by Landlord to Tenant.
(d) Notwithstanding anything contained in this Paragraph 6, the rental
payable by Tenant shall in no event be less than the rent specified in Paragraph
5 hereof.
7. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security
Deposit designated in Subparagraph 1(t). Said deposit shall be held by Landlord
as security for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provision of this
Lease, including but not limited to the provisions relating to the payment of
rent, Landlord may (but shall not be required to) use, apply or retain all or
any part of this Security Deposit for the payment of any rent or any other sum
in default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. If any portio of said deposit is so used or applied, Tenant shall,
within ten (10) days after demand therefor, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such Security Deposit. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall be returned
to Tenant (or, at Landlord's option, to the last assignee of Tenant's interests
hereunder) at the expiration of the Lease term, provided that Landlord may
retain the Security Deposit until such time as any amount due from Tenant in
accordance with Paragraph 5 and 6 hereof has been determined and paid in full.
Should Landlord sell its interest in the Premises during the term hereof and if
Landlord deposits with the purchaser thereof the then unappropriated funds
deposited by Tenant as aforesaid, thereupon Landlord shall be discharged from
any further liability with respect to such Security Deposit.
8. USE. Tenant shall use the Premises for general office purposes and
purposes incident thereto in compliance with Exhibit H, Hazardous Waste, and
shall not use or permit the Premises to be used for any other purposes without
the prior written consent of Landlord. Tenant shall not use or occupy the
Premises in violation of any recorded covenants, conditions, and restrictions
affecting the Site or of any law or of the Certificate of Occupancy issued for
the Building of which the Premises are a part, and shall upon five (5) days'
written notice from Landlord, discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
any recorded covenants, conditions and restrictions affecting the Site or of any
law or of said Certificate of Occupancy. Tenant may not offer shared tenant
services,
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such as but not limited to telecommunications, data processing or word
processing, to any unaffiliated tenant in the Building without Landlord's prior
written consent, which consent may be withheld by Landlord at its sole and
absolute discretion. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere. Tenant shall comply with any direction of
any governmental authority having jurisdiction which shall, by reason of the
nature of Tenant's use or occupancy of the Premises, impose any duty upon Tenant
or landlord with respect to the Premises or with respect to the use or
occupation thereof. Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or any other
insurance policy covering the Building and/or property located therein and shall
comply with all rules, orders, regulations and requirements of the Pacific Fire
Rating Bureau of any other organization performing a similar function. Tenant
shall promptly upon demand reimburse Landlord as additional rent for any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Paragraph 8. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises and shall keep the
Premises in the first class repair and appearance. Tenant shall not place a load
upon the Premises exceeding the average pounds of live load per square foot of
floor area specified for the Building by Landlord's architect, with the
partitions to be considered a part of the live load. Landlord reserves the right
to prescribe the weight and position of all safes, files and heavy equipment
which Tenant desires to place in the Premises so as to distribute properly the
weight thereof. Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building structure or to any
other space in the building shall be installed, maintained and used by Tenant as
to eliminate such vibration or noise. Tenant shall be responsible for all
structural engineering required to determine structural load. Tenant shall
fasten all files, bookcases and like furnishings to walls in a manner to prevent
tipping over the event of earth movements. Landlord shall not be responsible for
any damage or liability for such events.
9. PAYMENTS AND NOTICES. Payments will be by check, only, unless Tenant
is in default as per Paragraph 25. All rents and other sums payable by Tenant to
Landlord hereunder shall be paid to Landlord by check, cashier's check, or cash,
at Landlord's option, at the address designated by Landlord in Subparagraph 1(b)
above or at such other places as Landlord may hereafter designate in writing.
Any notice required or permitted to be given hereunder must be in writing and
may be given by personal delivery or by mail, and if given by mail shall be
deemed sufficiently if sent by registered or certified mail addressed to Tenant
at the Building or to Landlord at both of the addresses designated in
Subparagraph 1(b). Either party may by written notice to the other specify a
different address for notice purposes except that Landlord may in any event use
the Premises as Tenant's address for notice purposes. If more than one person or
entity constitutes the "Tenant" under this Lease, service of any notice upon any
one of said persons or entities shall be deemed as service upon all of said
persons or entities.
10. BROKERS. The parties recognize that the brokers who negotiated this
Lease are the brokers whose names are stated in Subparagraph 1(v), and agree
that Landlord shall be solely responsible for the payment of brokerage
commissions to said brokers, and that Tenant shall have no responsibility
therefor. As part of the consideration for the granting of this Lease, Tenant
represents and warrants to Landlord that to Tenant's knowledge no other broker,
agent or finder negotiated or was instrumental in negotiating or consummating
this Lease and that Tenant knows of no other real estate broker, agent or finder
who is, or might be, entitled to a commission or compensation in connection with
this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to
disclose herein shall be paid by Tenant. Tenant shall hold Landlord harmless
from all damages and indemnify Landlord for all said damages paid or incurred by
Landlord resulting from any claims that may be asserted against Landlord by any
broker, agent or finder undisclosed by Tenant herein.
11. HOLDING OVER. It Tenant holds over after the expiration or earlier
termination of the term hereof without the express written consent of Landlord,
Tenant shall become a tenant at sufferance only, at a rental rate equal to
one-hundred fifty percent (150%) of the Annual Basic Rent which would be
applicable to the Premises upon the date of such expiration (subject to
adjustment as provided in Paragraph 6 hereof and prorated on a daily basis), and
otherwise subject to the terms, covenants and conditions herein specified, so
far as applicable. Acceptance by Landlord of rent after such expiration or
earlier termination shall not constitute a holdover hereunder or result in a
renewal. The foregoing provisions of this Paragraph 11 are in addition to and do
not affect Landlord's right of re-entry or any rights of Landlord hereunder or
as otherwise provided by law. If Tenant fails to surrender the Premises upon the
expiration of this Lease despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability, including
without limitation, any claim made by any succeeding tenant founded on or
resulting from such failure to surrender.
12. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay at least ten (10) days
before delinquency, taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessments, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall upon demand repay to Landlord the taxes levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment; provided that in any such event, at Tenant's sole cost and expense,
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest, any amount so recovered to
belong to Tenant.
(b) If the Aggregate Improvements in the Premises, whether installed
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property taxes
purposes at a
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valuation higher than the valuation at which Aggregate Improvements conforming
to Landlord's "Building Standard" in other space in the Building are assessed,
then the real property taxes and assessment levied against the Landlord or the
property by reason of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed by the
provisions of Subparagraph 12(a), above. If the records of the County Assessor
are available and sufficiently detailed to serve as a basis for determining
whether said Aggregate Improvements are assessed at a higher valuation than
Landlord's "Building Standard," such records shall be binding on both Landlord
and Tenant. If the records of the County Assessor are not available or
sufficiently detailed to serve as a basis for making said determination, the
actual cost of construction shall be used.
13. CONDITION OF PREMISES. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business. The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises and the Building were at
such time in satisfactory condition, however, partial occupancy and rent
commencement will not interfere with Landlord's obligation to complete Tenant
Improvements. Without limiting the foregoing, Tenant's execution of the Notice
attached hereto as Exhibit "D" shall constitute a specific acknowledgment and
acceptance of the various start-up inconveniences that may be associated with
the use of the Building Common Areas such as certain construction obstacles
including scaffolding, delays in the use of freight elevator service, certain
elevators not being available to Tenant, the passage of work crews using
elevators, uneven air conditioning service, and other typical conditions
incident to recently constructed office buildings. Further, Tenant's execution
of said Notice shall constitute an acknowledgment, in light of the practical
impossibility of ensuring that every floor slab has been installed with
absolutely no deflection, that all wood floor coverings, wood paneling, and
similar interior Aggregate Improvements have been and/or will be designed to
accommodate the actual floor slab deflection unique to each particular area of
the Premises to be so improved.
14. ALTERATIONS.
(a) Tenant may, at any time and from time to time during the term of
this Lease, at its sole cost and expense, make alterations, additions,
installations, substitutions, improvements, and decorations (hereinafter
collectively called "Change") in and to the Premises, excluding structural
changes, on the following conditions, and providing such Changes will not result
in a violation of or require a change in the Certificate of Occupancy
application to the Premises:
(i) The outside appearance, character or use of the Building shall not
be affected, and no Changes shall weaken or impair the structural
strength or, in the opinion of Landlord, lessen the value of the
Building or create the potential for unusual expenses to be incurred
upon the removal of Changes and the restoration of the Premises upon
the termination of this Lease.
(ii) No part of the Building outside of the Premises shall be
physically affected.
(iii) The proper functioning of any of the mechanical, electrical,
sanitary and other service systems or installations of the Building
("Service Facilities") shall not be adversely affected and there shall
be no construction which might interfere with Landlord's free access to
the Service Facilities or interfere with the moving of Landlord's
equipment to or from the enclosures containing the Service Facilities.
(iv) In performing the work involved in making such Changes, Tenant
shall be bound by and observe all of the conditions and covenants
contained in this Paragraph.
(v) All work shall be done at such times and in such manner as Landlord
from time to time may designate.
(vi) Tenant shall not be permitted to install and make part of the
Premises any materials, fixtures or articles which are subject to
liens, conditional sales contracts or chattel mortgages.
(vii) At the date upon which the term of this Lease shall end, or the
date of any earlier termination of this Lease, Tenant shall on
Landlord's written request restore the Premises to their condition
prior to the making of any Changes permitted by this Paragraph,
reasonable wear and tear excepted.
(b) Before proceeding with any Change (exclusive of changes to items
constituting Tenant's personal property), Tenant shall submit to Landlord plans
and specifications for the work to be done, which shall require Landlord's
written approval. Landlord shall then prepare or cause to be prepared, at
Tenant's expense, mechanical, electrical and plumbing drawings and may confer
with consultants in connection with the preparation of such drawings and may
also submit to such consultant(s) any of the plans prepared by Tenant. If
Landlord or such consultant(s) shall disapprove of any of the Tenant's plans
Tenant shall be advised of the reasons of such disapproval. In any event, Tenant
agrees to pay to Landlord, as additional rent, the cost of such consultation and
review immediately upon receipt of invoices either from Landlord or such
consultant(s). Any Change for which approval has been received shall be
performed strictly in accordance with the approved plans and specifications, and
no amendments or additions to such plans and specifications shall be made
without the prior written consent of Landlord.
(c) If the proposed Change requires approval by or notice to the lessor
of a superior lease or the holder of a mortgage, no Change shall be proceeded
with until such approval has been received, or such notice has been given, as
the case may be and all applicable conditions and provisions of said superior
lease or mortgage with respect to the proposed Change or alteration have been
met or complied with at Tenant's expense; and Landlord, if it approves the
Change, will request such approval or give such notice, as the case may be.
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(d) After Landlord's written approval has been sent to Tenant and the
approval by or notice to the lessor of a superior lease or the holder of a
superior mortgage has been received or given, as the case may be, Tenant shall
enter into an agreement for the performance of the work to be done pursuant to
this Paragraph with Landlord's contractor. In any event, Tenant agrees to pay to
Landlord, at Landlord's option, in advance of construction based upon Landlord's
cost estimates, or as additional rent, the cost of such construction immediately
upon receipt from Landlord of invoices from time to time during the course of
such construction. All costs and expenses incurred in Changes shall be paid by
Tenant within seven (7) days after each billing by Landlord or any such
contractor or contractors. If Landlord approves the construction of specific
interior improvements in the Premises by contractors or mechanics selected by
Tenant and approved by Landlord, then Tenant's contractors shall obtain on
behalf of Tenant and at Tenant's sole cost and expense, (i) all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion, and (ii) a
completion and lien indemnity bond, or other surety, satisfactory to Landlord,
for the Changes. In the event Tenant shall request any changes in the work to be
performed after the submission of the plans referred to in this Paragraph 14,
such additional changes shall be subject to the same approvals and notices as
the changes initially submitted by Tenant.
(e) Tenant shall pay to Landlord for Landlord's services in the event
Landlord performs as a general contractor in connection with the work performed
pursuant to this Paragraph 14, a fee equal to seven percent (7%) of the total
cost of the changes, and Landlord's reasonable overhead related thereto.
(f) All Changes and the performance thereof shall at all times comply
with (i) all laws, rules, orders, ordinances, directions, regulations and
requirements of all governmental authorities, agencies, offices, departments,
bureaus and boards having jurisdiction thereof, (ii) all rules, orders,
directions, regulations and requirements of the Pacific Fire Rating Bureau, or
of any similar insurance body or bodies, and (iii) all rules and regulations of
Landlord, and Tenant shall cause Changes to be performed in compliance therewith
and in good and first class workmanlike manner, using materials and equipment at
least equal in quality and class to the original installations of the Building.
Changes shall be performed in such manner as not to interfere with the occupancy
of any other tenant in the Building nor delay or impose any additional expense
upon Landlord in construction, maintenance or operation of the Building, and
shall be performed by Contractors or mechanics approved by Landlord and
submitted to Tenant pursuant to this Paragraph, who shall coordinate their work
in cooperation with any other work being performed with respect to the Building.
Throughout the performance of Changes, Tenant, at its expense, shall carry, or
cause to be carried, workmen's compensation insurance in statutory limits, and
general liability insurance for any occurrence in or about the Building, of
which Landlord and its managing agent shall be named as parties insured, in such
limits as Landlord may reasonably prescribe, with insurers reasonably
satisfactory to Landlord all in compliance with Subparagraph 21(b).
(g) Tenant further covenants and agrees that any mechanic's lien filed
against the Premises or against the Building for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after the filing thereof,
at the cost and expense of Tenant. All alterations, decorations, additions or
improvements upon the Premises, made by either party, including (without
limiting the generality of the foregoing) all wallcovering, built-in cabinet
work, paneling and the like, shall, unless Landlord elects otherwise, become the
property of Landlord, and shall remain upon, and be surrendered with the
Premises, as a part thereof, at the end of the term hereof, except that Landlord
may by written notice to Tenant, given at least thirty (30) days prior to the
end of the term, require Tenant to remove all partitions, counters, railings and
the like installed by Tenant, and Tenant shall repair any damage to the Premises
arising from such removal or, at Landlord's options, shall pay to the Landlord
all of Landlord's costs of such removal and repair.
(h) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term provided Tenant is not in default hereunder, and provided further that
Tenant shall repair any damage caused by such removal. If Tenant shall fail to
remove all of its effects from said Premises upon termination of this Lease for
any cause whatsoever, Landlord may, at its option, remove the same in any manner
that Landlord shall choose, and store said effects without liability to Tenant
for loss thereof, and Tenant agrees to pay Landlord upon demand any and all
expenses incurred in such removal, including court costs and attorney's fees and
storage charges on such effects for any length of time that the same shall be in
Landlord's possession or Landlord may, at its option, without notice, sell said
effects, or any of the same, at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
(i) Subject to Landlord's agreement to minimize any disturbance of
Tenant's use of the Premises, Landlord reserves the right at any time and from
time to time without the same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefor or otherwise affecting
Tenant's obligations under this Lease, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Site or the
Building (including the Premises required so to do by any law or regulation) and
the fixtures and equipment thereof, as well as in or to the street entrance,
halls, passages and stairways thereof, to change the name by which the Building
is commonly known, except as controlled by the signage provision, Rider #5, as
Landlord may deem necessary or desirable. Nothing contained in this Paragraph 14
shall be deemed to relieve Tenant of any duty, obligation, liability of Tenant
with respect to making any repair, replacement or improvement or complying with
any law, order or requirement of any government or other authority and nothing
contained in this Paragraph 14, shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
supervision or repair of the Building or any part thereof other than as
otherwise provided in this Lease.
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15. REPAIRS.
(a) By entry hereunder, Tenant accepts the Premises as being in good
and sanitary order, condition and repair, however, partial occupancy and rent
commencement will not interfere with Landlord's obligation to complete Tenant
improvements. Tenant shall, when and if needed or whenever requested by Landlord
to do so, at Tenant's sole cost and expense, maintain and make all repairs to
the Premises and every part thereof, to keep, maintain and preserve the Premises
in first class condition, excepting ordinary wear and tear. Any such maintenance
and repairs shall be performed by Landlord's contractor, or a Landlord's
approved contractor or contractors. All costs and expenses incurred in such
maintenance and repair shall be paid by Tenant within seven (7) days after
billing by Landlord or such contractor or contractors. Tenant shall upon the
expiration or sooner termination of the term hereof surrender the Premises to
Landlord in the same condition as when received, reasonable wear and tear
excepted. Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and the parties hereto affirm
that Landlord has made no representations to Tenant respected to the condition
of the Premises or the Building except as specifically herein set forth.
(b) Anything contained in Subparagraph 15(a) above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, unless
such maintenance and repairs are caused in part or in whole by the act, neglect,
fault of or omission of any duty by Tenant, its agents, servants, employees or
invitees, in which case Tenant shall pay to Landlord as additional rent, the
reasonable cost of such maintenance and repairs. Landlord shall not be liable
for any failure to make any such repairs, or to perform any maintenance unless
such failure shall persist for any unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Paragraph 22, hereof there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interferences with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect. Notwithstanding anything to the contrary contained in Subparagraph (a)
and (b) of this Paragraph 15, Tenant shall maintain and repair at its sole cost
and expense, and with maintenance contractors approved by Landlord, all non-base
building facilities, including lavatory, shower, toilet, washbasin and kitchen
facilities and heating and air conditioning systems, including all plumbing
connected to said facilities or systems installed by Tenant or on behavior of
Tenant or existing in the Premises at the time of delivery of possession of the
Premises to Tenant by Landlord. The provisions of the immediately preceding
sentence shall not apply to the basic heating and air conditioning system
provided by Landlord to all tenants in the Building.
16. LIENS. Tenant shall not permit any mechanic's, materialmen's or
other liens to be filed against the real property of which the Premises form a
part nor against the Tenant's leasehold interest in the Premises. Landlord shall
have the right at all reasonable times to post and keep posted on the Premises
any notices which it deems necessary for protection from such liens. If any such
liens are filed, Landlord may, without waiving its rights and remedies based on
such breach of Tenant and without releasing Tenant from any of its obligations,
cause such liens ton be released by any means if shall deem proper, including
payments in satisfaction of the claim giving rise to such lien. Tenant shall pay
to Landlord at once, upon notice by Landlord, any sum paid by Landlord to remove
such liens, together with interest at the maximum rate per annum permitted by
law from the date of such payment by Landlord.
17. ENTRY BY LANDLORD. Subject to Landlord's agreement to minimize any
disturbance of Tenant's use of the Premises by exercise of the following rights,
Landlord reserves and shall at any and all times have the right to enter the
Premises to inspect the same, to supply janitor service and any other service to
be provided by Landlord to Tenant hereunder to submit said Premises to
prospective purchasers or, during the last six (6) months of the term of this
Lease, prospective tenants, to post notices of nonresponsibility, to alter,
improve or repair the Premises or any other portion of the Building, all without
being deemed guilty of any eviction of Tenant and without abatement of rent, and
may, in order to carry out such purposes, erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, provided that the business of Tenant shall be interfered with as
little as is reasonable practicable. Tenant hereby waives any claim for damages
for any injury or inconvenience to or interferences with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises, and any other loss
occasioned thereby. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in, upon and
about the Premises, excluding Tenant's vaults and safes, and Landlord shall have
the means which Landlord may deem proper to open said doors in an emergency in
order to obtain entry to the Premises, and any entry to the Premises obtained by
Landlord by any of said means or otherwise shall not under any circumstances be
construed or deemed to be forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction of Tenant from the Premises or any portion thereof, and
any damages caused on account thereof shall be paid by Tenant. It is understood
and agreed that no provision of this Lease shall be construed as obligating
Landlord to perform any repairs, alterations or decorations except as otherwise
expressly agreed herein to be performed by Landlord. Landlord shall attempt in
the exercise of its rights under this Paragraph 17 to minimize any disturbance
of Tenant's use and possession of the Premises and to provide as much notice to
Tenant as may be reasonably possible prior to any such exercise of Landlord's
rights under this Paragraph 17.
18. UTILITIES AND SERVICES. Provided that Tenant is not in default
hereunder, Landlord agrees, during the Lease term, to furnish to the Premises as
part of the Operating Expenses during those hours set forth in the Rules and
Regulations as defined in Paragraph 31 hereof, as may be amended in writing by
Landlord from time to time during the term of this Lease and delivered to
Tenant, reasonable quantities of electric current for normal lighting and
fractional horsepower office machines, water for lavatory and drinking purposes,
heat and air conditioning required in Landlord's judgment for the comfortable
use and occupation of the Premises, janitorial service (including washing of
windows with reasonable frequency as determined by Landlord) and elevator
service by non-attended automatic elevators. Landlord shall not be liable for,
and Tenant shall not be entitled to any abatement or reduction of rent by reason
of Landlord's failure to furnish any of the foregoing when such failure is
caused by accident, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or for any other causes. If
Tenant requires or utilizes more water or electric power than is considered
reasonable or normal by
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Landlord, Landlord may at its option require Tenant to pay, as additional rent,
the cost, as fairly determined by Landlord, incurred by such extraordinary
usage. In addition, Landlord may install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant thereafter shall pay all charges of the
utility providing service. Tenant specifically undertakes to install and
maintain at Tenant's cost such fire protection equipment including, without
limitation, emergency lighting as required by any governmental authority or
insurer, and if so required, Tenant shall appoint one of Tenant's personnel to
coordinate with the fire protection facilities and personnel of Landlord. Any
incandescent light bulbs used in the Premises shall be paid for the Tenant. Upon
Tenant's request, Landlord's personnel shall install incandescent light bulbs or
other Building Nonstandard bulbs in the Premises. Tenant agrees to pay Landlord
upon demand Landlord's cost for all such incandescent light bulbs installed or
other Building nonstandard improvements including but not limited to metallic
trim, wood floor covering, glass panels, windows, partitions, kitchens and
executive washrooms in the Premises. Landlord shall not be responsible in any
manner for said maintenance, cleaning and repair.
19. INDEMNIFICATION. To the fullest extent permitted by law Tenant
hereby agrees to defend, indemnity and hold Landlord harmless against and from
any and all claims arising from Tenant's use of the Premises or the conduct of
its business or from any activity, work, or thing done, permitted or suffered by
Tenant, its agents, contractors, employees or invitees in or about the Premises
or elsewhere, and hereby agrees to further indemnify and hold harmless Landlord
against and from any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease or arising from any act, neglect, fault or omission of Tenant, or
of its agents, employees or invitees, and from and against all costs, attorneys'
fees, expenses and liabilities incurred in or about such claim or any action or
proceeding brought thereon. In case any actin or proceeding is brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord hereby
agrees to defend the same at Tenant's expense by counsel approved in writing by
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises from any cause whatsoever except that which is caused by the
failure of Landlord to observe any of the terms and conditions of this Lease and
such failure has persisted for an unreasonable period of time after written
notice of such failure, and Tenant hereby waives all its claims in request
thereof against Landlord.
20. DAMAGE TO TENANT'S PROPERTY. Notwithstanding the provisions of
Paragraph 19 to the contrary, Landlord or its agents shall not be liable for any
damage to property entrusted to employees of the building, nor for loss of or
damage to any property by theft or otherwise, nor for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steams,
gas, electricity, water or rain which may leak from any part of the Building or
from the pipes, appliances or plumbing works therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
patent or latent cause whatsoever. Landlord or its agents shall not be liable
for interference with the light or other incorporeal hereditaments. Tenant
shall give prompt notice to Landlord in case of fire or accidents in the
Premises or in the Building or of defects therein or in the fixtures or
equipment located therein.
21. INSURANCE.
(a) During the term hereof, Tenant, at its sole expense, shall obtain
and keep in force the following insurance:
(i) All Risk insurance upon property owned by Tenant and located in
the Building for which Tenant is legally liable. Aggregate
Improvements (other than "Building Standard Work" as described in
Subparagraph 1(1) hereof), and alterations, in any amount not less
than ninety percent (90%) of the full replacement cost thereof. All
such insurance policies shall name Tenant and Landlord as named
insured thereunder and, at Landlord's request, shall name
Landlord's mortgagees (and, if applicable, ground or primary
lessors) as loss payees thereunder, all as their respective
interests may appear. Landlord will not be required to carry
insurance of any kind on any "Building Non-Standard Work", as
described in Subparagraph 1(m) hereof, on Tenant's furniture or
furnishings, or on any of Tenant's fixtures, equipment,
improvements, or appurtenances under this Lease, and Landlord shall
not be obligated to repair any damage thereto or replace the same.
(ii) Comprehensive general liability insurance coverage, including
personal injury, bodily injury, broad form property damage,
operations hazard, owner's protective coverage, contractual
liability, and products and completed operations liability, in
limits not less than $2,000,000 inclusive. All such insurance
policies shall name Tenant as named insured thereunder and shall
name Landlord and Landlord's mortgagees (and, if applicable, ground
or primary lessors) as additional insured thereunder, all as their
respective interests may appear.
(iii) Worker's Compensation and Employer's Liability insurance,
with a waiver of subrogation endorsement, in form and amount
satisfactory to Landlord.
(v) Liquor liability insurance coverage in limits of not less than
Five Hundred Thousand Dollars ($500,000) at any time during the
term or on any occurrence hereof any alcoholic beverages of any
nature are served on the Premises.
(vi) Any other form or forms of insurance as Tenant, Landlord, or
Landlord's mortgagees or ground or primary lessors may reasonably
require from time to time in form, in amounts, and for insurance
risks against which a prudent tenant of a comparable size and in a
comparable business would protect itself.
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(b) All policies shall be issued by insurers that are acceptable to
Landlord and in form satisfactory from time to time to Landlord. Tenant will
deliver certificates of insurance to Landlord as soon as practicable after the
placing of the required insurance, but not later than ten (10) days prior to the
date Tenant takes possession of all or any part of the Premises. All policies
shall contain an undertaking by the insurers to notify Landlord and Landlord's
mortgagees (and, if applicable, ground or primary lessors) in writing, not less
than thirty (30) days before any material change, reduction in coverage,
cancellation, or other termination thereof. Ten (10) days prior to the
expiration of any insurance policy, Tenant will provide Landlord with a
Certificate of Insurance extending the term of the original policy or a
certified copy of a new policy extending the required coverage.
(c) During the Term, Landlord shall insure the Building and the
Building Standard Work (excluding any property which Tenant is obligated to
insure under Subparagraph 21(a) hereof) against damage with All Risk insurance
and public liability insurance, all in such amounts and with such deductions as
Landlord considers appropriate, Landlord may, but shall not be obligated to,
obtain and carry any other form or forms of insurance as it or Landlord's
mortgagees may determine advisable. Notwithstanding any contribution by Tenant
to the cost of insurance premiums, as provided herein, Tenant acknowledges that
it has no right to receive any proceeds from any insurance policies carried by
Landlord.
(d) Tenant will not keep, use, sell, or offer for sale in, or upon, the
Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building and the Building Standard Work.
Tenant shall promptly comply with all reasonable requirements of the insurance
authority or any present or future insurer relating to the Premises.
(e) If any Landlord's insurance policies shall be cancelled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or sub-tenant of Tenant or by anyone
Tenant permits on the Premises and, if Tenant fails to remedy the condition
giving rise to such cancellation, threatened cancellation, reduction of
coverage, threatened reduction of coverage, increase in premiums, or threatened
increase in premiums, within 48 hours after notice thereof, Landlord may, at its
option, either terminate this Lease or enter upon the Premises and attempt to
remedy such condition, and Tenant shall promptly pay the cost thereof to
Landlord as additional rent. Landlord shall not be liable for any damage or
injury caused to any property of Tenant or of others located on the Premises
resulting from such entry. If Landlord is unable, or elects not, to remedy such
condition, then Landlord shall have all of the remedies provided for in this
Lease in the event of a default by Tenant. Notwithstanding the foregoing
provisions of this Subparagraph 21(e), if Tenant fails to remedy as aforesaid,
Tenant shall be in default of its obligations hereunder and Landlord shall have
no obligations to remedy such default.
(f) All policies covering real or personal property which either party
obtains affecting the Premises shall include a clause or endorsement denying the
insurer any rights of subrogation against the other party to the extent rights
have been waived by the insured before the occurrence of injury or loss, if same
are obtainable without unreasonable cost. Landlord and Tenant waive any rights
of recovery against the other for injury or loss due to hazards covered by
policies of insurance containing such a waiver of subrogation clause or
endorsement, to the extent of the injury or loss covered thereby.
22. DAMAGE OR DESTRUCTION.
(a) In the event the Building and/or the Building Standard Work or any
insured alterations are damaged by fire or other perils covered by Landlord's
extended coverage insurance to an extent not exceeding twenty-five percent (25%)
of the full insurable value thereof and if the damage thereto is such that the
Building and/or the Building Standard Work and any insured alterations may be
repaired, reconstructed or restored within a period of ninety (90) days from the
date of the happening of such casualty and Landlord will receive insurance
proceeds sufficient to cover the cost of such repairs, Landlord shall commence
and proceed diligently with the work of repair, reconstruction and restoration
and the Lease shall continue in full force and effect. If such work or repair,
reconstruction and restoration is such as to require a period longer than ninety
(90) days or exceeds twenty-five percent (25%) of the full insurable value
thereof, or if said insurance proceeds will not be sufficient to cover the cost
of such repairs, Landlord either may elect to so repair, reconstruct or restore
the Building and/or Building Standard Work and any insured alterations and the
Lease shall continue in full force and effect or Landlord may elect not to
repair, reconstruct or restore the Building and/or Building Standard Work and
any insured alterations and the Lease shall in such event terminate. Under any
of the conditions of this Subparagraph 22(a), Landlord shall give written notice
to Tenant of its intention within thirty (30) days from the date of such event
of damage or destruction. In the event Landlord elects not to restore said
Building and/or Building Standard Work and any insured alterations, this Lease
shall be deemed to have terminated as of the date of such partial destructions.
(b) Upon any termination of this Lease under any of the provisions of
this Paragraph 22, the parties shall be released thereby without further
obligation to the other from the date possession of the Premises is surrendered
to Landlord except for items which have therefore accrued and are then unpaid.
(c) In the event of repair, reconstructions and restoration by Landlord
as herein provided, the rent provided to be paid under the Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the
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period of such repair, reconstruction or restoration. Tenant shall not be
entitled any compensation or damages for loss in the use of the whole or any
part of the Premises and/or any inconvenience, annoyance or loss of business
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in this
Paragraph 22. Notwithstanding anything to the contrary contained in this
Paragraph 22, should Landlord be delayed or prevented from repairing or
restoring the damaged Premises within one (1) year after the occurrence of such
damage or destruction by reason of acts of God, war, Governmental restrictions,
inability to procure the necessary labor or materials, or other cause beyond the
control of Landlord, Landlord shall be relieved of its obligation to make such
repairs or restoration and Tenant shall be released from its obligations under
this Lease as of the end of said year.
(e) In the event that damage is due to any cause other than fire or
other peril covered by extended coverage insurance, Landlord may elect to
terminate this Lease.
(f) It is hereby understood that if Landlord is obligated to or elects
to repair or restore as herein provided, Landlord shall be obligated to make
repairs or restoration only of those portions of the Building and the Premises
which were originally provided at Landlord's expense or which were insured by
either party and the proceeds of such insurance have been received by Landlord,
and the repair and restoration of items not provided at Landlord's expense shall
be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this
Paragraph 22, Landlord shall not have any obligations whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Paragraph 22 occurs during the last twelve (12) months of the
term of this Lease or any extension hereof.
(h) The provisions of California Civil Code 1932, Subsection 2, and
1933, Subsection 4, are hereby waived by Tenant.
23. EMINENT DOMAIN.
(a) In case the whole of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be taken
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain, or sold
to prevent such taking, either party shall have the right to terminate this
Lease effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall be
entitled to receive the entire amount of any award without deduction for any
estate or interest of Tenant. In the event the amount of property or the type of
estate taken shall not substantially interfere with the conduct of Tenant's
business, Landlord shall be entitled to the entire amount of the award without
deduction for any estate or interest of Tenant, and Landlord at his option may
terminate this Lease. If Landlord does not so elect, Landlord shall promptly
proceed to restore the Premises to substantially their same condition prior to
such partial taking, and a proportionate allowance shall be made to Tenant for
the rent corresponding to the time during which, and to the part of the Premises
of which, Tenant shall be so deprived on account of such taking and restoration.
Nothing contained in this Paragraph shall be deemed to give Landlord any
interest in any aware separately made to Tenant for the taking of personal
property and trade fixtures belonging to Tenant or for moving costs incurred by
Tenant in relocating Tenant's business.
(b) In the event of taking of the Premises or any part thereof for
temporary use, (i) this Lease shall be and remain unaffected thereby and rent
shall not abate, and (ii) Tenant shall be entitled to receive for itself such
portion or portions of any award made for such use with respect to the period of
the taking which is within the term, provided that if such taking shall remain
in force at the expiration or earlier terminations of this Lease. Tenant shall
then pay to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations under Paragraph 15 with respect to surrender of the Premises and
upon such payment shall be excused from such obligations. For the purpose of
this Subparagraph 23(b), a temporary taking shall be defined as a taking for a
period of 270 days or less.
24. BANKRUPTCY. If Tenant shall file a petition in bankruptcy under any
Chapter of federal bankruptcy law as then in effect, or if Tenant be adjudicated
a bankrupt in involuntary bankruptcy proceedings and such adjudications shall
not have been vacated within thirty (30) days from the date thereof, or if a
receiver or trustee be appointed of Tenant's property and the order appointing
such receiver or trustee not be set aside or vacated within thirty (30) days
after the entry thereof, or if Tenant shall assign Tenant's estate or effects
for the benefit or creditors, or if this Lease shall otherwise by operation of
law pass to any person or persons other than Tenant, then and in any such event
Landlord may, if Landlord so elects, with or without notice of such election and
with or without entry or action by Landlord, forthwith terminate this Lease.
Notwithstanding any other provisions of this Lease, Landlord, in addition to any
and all rights and remedies allowed by law or equity, shall upon such
termination be entitled to recover damages in the amount provided in
Subparagraph 25(b) below and neither Tenant nor any person claiming through or
under Tenant or by virtue of any statute or order of any court shall be entitled
to possession of the Premises but shall forthwith quit and surrender the
Premises to Landlord. Nothing herein contained shall limit or prejudice the
right of Landlord to prove and obtain as damages by reason of any such
termination an amount equal to the maximum allowed by any statute or rule of law
in effect at the time when, governing the proceedings in which, such damages are
proved, whether or not such amount be greater, equal to, or less than the amount
of damages recoverable under the provisions of this Paragraph 24.
25. DEFAULTS AND REMEDIES.
(a) The occurrence of any one or more of the following events
shall constitute a default hereunder by Tenant:
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(i) The vacation or abandonment of the Premises by Tenant.
Abandonment is herein defined to included, but is not limited, to,
any absence by Tenant from the Premises for five (5) days or longer
while in default of any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by Tenant
hereunder, as and when due.
(iii) The failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be
observed or performed by Tenant, other than as specified in
Subparagraph 25(a)(i) or (ii) above, where such failure shall
continue for a period of ten (10) days after written notice thereof
from Landlord to Tenant; provided, however, that any such notice
shall be in lieu of, and not in addition to, any notice required
under California Code of Civil Procedure 1161; provided, further,
that if the nature of Tenant's default is such that more than ten
(10) days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant shall commence such cure
within said ten-day period and, thereafter diligently prosecute
such cure to completion, which completion shall occur not later
than sixty (60) days from the date of such notice from Landlord.
(iv) (1) The making by Tenant of any general assignment for the
benefit of creditors; (2) the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, the same
is dismissed within thirty (30) days; (3) the appointment of a
trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in
this Lease, where possession is not restored to Tenant within
thirty (30) days; or (4) the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease where such
seizure is not discharged within thirty (30) days.
(b) In the event of any such default by Tenant, in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant hereunder.
In the event that Landlord shall elect to so terminate this Lease then Landlord
may recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform his
obligations under this Lease or which in the ordinary course of
things would be likely a result therefrom.
As used in Subparagraph 25(b)(i) and (ii) above, the "worth at the time
of award" is computed by allowing interest at the maximum rate permitted by law
per annum. As used in Subparagraph 25(b)(iii) above, the "worth at the time of
award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of Service Facilities at the time of award plus one percent
(1%).
(c) In the event of any such default by Tenant, Landlord shall also
have the right, with or without terminating this Lease, to re-enter the Premises
and remove all persons and property from the Premises. Such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant for such period of time as may be required by applicable law
after which Landlord may dispose of such property in accordance with applicable
law. No re-entry or taking possession of the Premises by Landlord pursuant to
this Subparagraph 25(c) shall be construed as an election to terminate this
Lease unless written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
(d) All rights, options and remedies of Landlord contained in this
Lease shall be construed and held to be cumulative and no one of them shall be
exclusive of the other, and Landlord shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or other
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval or Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall be deemed to waive or render unnecessary Landlord's consent or
approval to or of any subsequent similar acts by Tenant.
26. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily assign or
encumber its interest in this Lease or in the Premises, or sublease all or any
part of the Premises, or allow any other person or entity to occupy or use all
or any part of the Premises, without first obtaining Landlord's prior written
consent. Any assignment, encumbrance or sublease without Landlord's prior
written consent shall be voidable, at Landlord's election, and shall constitute
a default. For purposes hereof, in the event Tenant is a partnership, a
withdrawal or change of partners, or change of ownership of partners, owning
more than a fifty percent (50%) interest in the partnership, or if Tenant is a
corporation, any transfer of fifty percent (50%) of its stock, shall constitute
a voluntary assignment and shall be subject to these provisions. No consent to
any assignment encumbrance, or sublease shall constitute a further waiver of the
provisions of this Paragraph. Tenant shall notify Landlord
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in writing of Tenant's intent to assign encumber, or sublease this lease, the
name of the proposed assignee or sublessee, information concerning the financial
responsibility of the proposed assignee or sublessee and the terms of the
proposed assignment or subletting, and Landlord shall, within thirty (30) days
of receipt of such written notice, and additional information requested by
Landlord concerning the proposed assignee's or sublessee's financial
responsibility, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or sublease;
(b) Refuse such consent, which refusal shall be on reasonable grounds;
(c) Elect to terminate this Lease, or in the case of a partial
sublease, terminate this Lease as to the portion of the Premises
proposed to be sublet.
Without limiting Landlord's grounds for disapproval, Landlord's
disapproval shall be deemed reasonable if it is based on Landlord's analysis of
(a) the proposed assignee's or sublessee's credit, character and business or
professional standing, (b) whether the assignee's or sublessee's use and
occupancy of the Premises will be consistent with Subparagraph 1(u) and
Paragraph 8 of this Lease and whether assignee's proposed intensity of use is
consistent with that shown by Tenant, (c) whether the proposed assignee or
sublessee is a then existing or prospective tenant of the Building, as a
condition for granting its consent to any assignment, encumbrance or sublease.
Landlord may require that the rent payable by such assignee or sublessee is at
the then current published rental rates for the Premises or comparable premises
in the Building, but not less than the then current Annual Basic Rent under this
Lease and may require that the assignee or sublessee remit directly to Landlord
on a monthly basis, all monies due to Tenant by said assignee or sublessee. In
the event that Landlord shall consent to any assignment or sublease under the
provisions of this Paragraph 26, Tenant shall pay Landlord's processing costs
and attorneys' fees incurred in giving such consent. If for any proposed
assignment or sublease Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess of the rent
called for hereunder, or, in case of the sublease of a portion of the Premises,
in excess of such rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for hereunder are taken
into account, Tenant shall pay to Landlord as additional rent hereunder all of
the excess of each such payment of rent or other consideration received by
Tenant promptly after its receipt. Landlord's waiver or consent to any
assignment or subletting shall not relieve Tenant from any obligation under this
Lease. Occupancy of all or part of the Premises by parent, subsidiary, or
affiliated companies of Tenant shall not be deemed an assignment or subletting.
If Tenant requests Landlord's consent to any assignment of this Lease or any
subletting of all or a portion of the Premises, Landlord shall have the right,
to be exercised by giving written notice to Tenant within thirty (30) days of
receipt by Landlord of the financial responsibility information required by this
Paragraph 26 to terminate this Lease effective as of the date Tenant proposes to
assign this Lease or sublet all or a portion of the Premises. Landlord's right
to terminate this lease as to all or a portion of the Premises on assignment or
subletting shall not terminated as a result of Landlord's consent to the
assignment of this Lease or the subletting of all or a portion of the Premises,
or Landlord's failure to exercise this right with respect to any assignment or
subletting.
27. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent required under this Lease and paying all other
charges and performing all of the covenants and provisions aforesaid on Tenant's
part to be observed and performed under this Lease, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises in accordance with this
Lease.
28. SUBORDINATION. Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a subordination, and at
the election of Landlord or any first mortgagee with a lien on the Building or
any ground lessor with respect to the Building, this lease shall be subject and
subordinate at all times to: (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building or the land upon
which the Building is situated or both, and (b) the lien of any mortgage or deed
of trust which may now exist or hereafter be executed in any amount for which
the Building, land, ground leases or underlying leases, or Landlord's interest
or estate in any of said items is specified as security. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying lease or any such liens to
this lease. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, if requested by the
ground lessor, mortgagee or beneficiary, as applicable, attorn to and become the
Tenant of the successor in interest to Landlord and in such event Tenant's right
to possession of the Premises shall not be disturbed if Tenant is not in default
and so long as Tenant shall pay the rent and all other amounts required to be
paid to Landlord pursuant to the terms hereof and observe and perform all of the
provisions of this Lease, unless the Lease is otherwise terminated pursuant to
its terms. Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in the form requested by Landlord, any additional documents
evidencing the priority or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such mortgage or deed of
trust. Should Tenant fail to sign and return any such documents within ten (10)
business days of receipt, Tenant shall be in default, and Landlord may at
Landlord's option, terminate this Lease provided written notice of such
termination is received by Tenant prior to Landlord.
29. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which Landlord
may make from time to time, Tenant shall execute and deliver to Landlord a
statement, in a form substantially similar to the form of Exhibit "E" attached
hereby, certifying: (i) the Commencement Date of this Lease; (ii) the fact that
this Lease is unmodified and in full force and effect for, if there have been
modifications hereto, that the Lease is in full force and effect, as modified,
and stating the date and nature of such modifications); (iii) the date to which
the rental and other sums payable under this Lease have been paid; (iv) the fact
that there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's
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statement; and (v) such other matters requested by Landlord. Landlord and Tenant
intend that any statement delivered pursuant to this Paragraph 29 may be relied
upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performance, and (iii) that not more than
one (1) month's rent has been paid in advance, except as provided in Paragraph
36 hereof. Tenant's failure to deliver said statement to Landlord within ten
(10) working days of receipt shall constitute a default under this Lease, and
Landlord may, at Landlord's option, terminate the Lease, provided written notice
of such termination is received by Tenant prior to Landlord's receipt of said
statement.
30. BUILDING PLANNING. In the event Landlord requires the Premises for
use in conjunction with another suite or for other reasons connected with the
Building planning program, upon notifying Tenant in writing, Landlord shall have
the right to move Tenant to other comparable space in the Building of which the
Premises forms a part, at Landlord's sole cost and expense, including all of
Tenant's moving expenses, telephone installation and stationary reprinting
charges, and the terms and conditions of the original Lease shall remain in full
force and effect, safe and excepting that a revised Exhibit "A" shall become
part of this Lease and shall reflect the location of the new space and Paragraph
1 of this Lease shall be amended to include and state all correct data as to the
new space.
31. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with the "Rules and Regulations," ??? of which is attached hereto and marked
Exhibit "F", and all reasonable and nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the violation or nonperformance by any other
tenant or occupant of the Building of any of said Rules and Regulations.
32. CONFLICT OF LAWS. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
33. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease,
all of the covenants, conditions and provisions of this Lease shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, personal representative, successors and assigns.
34. SURRENDER OF PREMISES. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Landlord, operate as an assignment to it of any or all
subleases or subtenancies. Upon the expiration or termination of this Lease,
Tenant shall peaceably surrender the Premises and all alterations and additions
thereto broom-clean, in good order, repair and condition, reasonable wear and
tear excepted, and shall comply with the provisions of Subparagraph 14(g) and
14(h). The delivery of keys to any employee of Landlord or to Landlord's agent
or any employee thereof shall not be sufficient to constitute a termination of
this Lease or a surrender of the Premises.
35. PROFESSIONAL FEES.
(a) In the event that Landlord should bring suit for the possession of
the Premises, for the recovery of any sum due under this Lease, or because of
the breach of any provisions of this Lease, or for any other relief against
Tenant hereunder, or should either party bring suit against the other with
respect to matters arising from or growing out of this Lease, then all costs and
expenses, including without limitation, its actual professional fees such as
appraisers', accountants' and attorneys' fees, incurred by the prevailing part
therein shall be paid by the other party, which obligation on the part of the
other party shall be deemed to have accrued on the date of the commencement of
such action and shall be enforceable whether or not the action is prosecuted to
judgment.
(b) Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
without limitation its actual professional fees such as appraiser's,
accountants' and attorneys' fees.
36. PERFORMANCE BY TENANT. All covenants and agreements to be performed
by Tenant under any of the terms of this lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of rent. Tenant
acknowledges that the late payment by Tenant to Landlord of any sums due under
this Lease will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of such cost being extremely difficult and impractical to fix.
Such costs include, without limitation, processing and accounting charges, and
late charges that may be imposed on Landlord by the terms of any encumbrance and
note secured by any encumbrance covering the Premises or the Building of which
the Premises are a part. Therefore if any monthly installment of Annual Basic
Rent is not received by Landlord by the date when due, or if Tenant fails to pay
any other sum of money due hereunder and such failure continues for ten (10)
days after notice thereof by Landlord, Tenant shall pay to Landlord, as
additional rent, the sum of five percent (5%) of the overdue amount as a late
charge. Such overdue amount shall also bear interest, as additional rent, at the
maximum rate permissible by law calculated, as appropriate, from the date either
(a) the monthly installment of Annual Basic Rent is due, or (b) of receipt of
said notice, until the date of payment to Landlord. Landlord's acceptance of any
late charge or interest shall not constitute a waiver of Tenant's default with
respect to the overdue amount or prevent Landlord from exercising any of the
other rights and remedies available to Landlord under this Lease or any law now
or hereafter in effect. Further, in the event such late charge is imposed by
Landlord for two (2) consecutive months for whatever reason, Landlord shall have
the option to require that, beginning with the first payment of rent due
following the imposition of the second consecutive late charge, rent shall no
longer be paid in monthly installments but shall be payable three (3) months in
advance.
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37. MORTGAGEE AND SENIOR LESSOR PROTECTION. No act or failure to act on
the part of Landlord which would entitle Tenant under the terms of this Lease,
or by law, to be relieved of Tenant's obligations hereunder or to terminate this
Lease, shall result in a release of such obligations or a termination of this
Lease unless (a) Tenant has given notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises and to the
lessor under any master or ground lease covering the Building, the Site or any
interest therein whose identity and address shall have been furnished to Tenant,
and (b) Tenant offers such beneficiary, mortgagee or Lessor a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure.
38. DEFINITION OF LANDLORD. The term "Landlord" as used in this Lease,
so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners, at the time in
questions, of the fee title to, or a lessee's interest in a ground lease of the
Site or master lease of the Building. In the event of any transfer, assignment
or other conveyance or transfer of any such title or interest, Landlord herein
named (and in case of any subsequent transfers or conveyances, the then grantor)
shall be automatically freed and relieved from and after the date of such
transfer, assignment or conveyance of all liability with respect to the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed and, without further agreement, the
transferee of such title or interest shall be deemed to have agreed to observe
and perform any and all obligations of Landlord hereunder, during its ownership
of the Premises, Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
39. WAIVER. The failure of Landlord to seek redress for violation of,
or to insist upon strict performance of, any term, covenant or condition of this
Lease or the Rules and Regulations attached hereto as Exhibit "F", shall not be
deemed a waiver of such violation or prevent a subsequent act which would have
originally constituted a violation from having all the force and effect of an
original violation, nor shall the failure of Landlord to enforce any of said
Rules and Regulations against any other tenant of the Building be deemed a
waiver of any such Rule and Regulation, nor shall any custom or practice which
may become established between the parties in the administration of the terms
hereof be deemed a waiver of, or in any way affect, the right of Landlord to
insist upon the performance by Tenant in strict accordance with said terms. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
40. INDENTIFICATION OF TENANT. Unless the provisions of Paragraph 55
herein below are applicable to this Lease, then if more than one person executes
this Lease as Tenant, (a) each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept observed and performed by
Tenant, and (b) the term "Tenant" as used in this Lease shall mean and include
each of them jointly and severally and the act of or notice from, or notice or
refund to, or the signature of, any one or more of them, with respect to the
tenancy of this Lease, including, but not limited to, any renewal extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the personal executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
41. PARKING. The use by Tenant, its employees and invitees, of the
parking facilities of the Building shall be on the terms and conditions set
forth in Exhibit F attached hereto and by this reference incorporated herein and
shall be subject to such other agreement between Landlord and Tenant as may
hereinafter be established.
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43. TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words used in any
gender include other genders. If there be more than one Tenant, i.e. if two or
more personal or entities are jointly referred to in this Lease as "Tenant," the
obligations hereunder imposed upon Tenant shall be joint and several. The
Paragraph headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
44. EXAMINATION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for Lease,
and it is not effective as a Lease or otherwise until execution by and delivery
to both Landlord and Tenant.
45. TIME. Time is of the essence with respect to the performance of
every provision of this Lease in which time or performance is a factor.
46. PRIOR AGREEMENT: AMENDMENTS. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreement or understanding, oral or written, express
or implied, pertaining to any such matter shall be effective for any purpose. No
provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
The parties acknowledge that all prior agreements, representations and
negotiations are deemed superseded by the execution of this Lease to the extent
they are not incorporated herein.
47. SEPARABILITY. Any provision of this Lease which shall prove to be
invalid, void or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
48. RECORDING. Neither Landlord nor Tenant shall record this Lease nor
a short memorandum thereof without the consent of the other and if such
recording occurs, it shall be at the sole cost and expense of the party
requesting the recording, including any documentary transfer taxes or other
expenses related to such recordation.
49. LIMITATION ON LIABILITY. The obligations of Landlord under this
Lease do not constitute personal obligations of the individual partners,
directors, officers or shareholders of Landlord, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders of
Landlord or any of their personal assets for satisfaction of any liability in
respect to this Lease. In consideration of the benefits accruing hereunder,
Tenant and all successors and assigns covenant and agree that in the event any
actual or alleged failure, breach or default hereunder by Landlord, the sole and
exclusive remedy shall be against Landlord's interest in the Building.
50. RIDERS. Clauses, plats and riders, if any, signed by Landlord and
Tenant and affixed to this Lease are a part hereof.
51. SIGNS. Tenant shall not place any sign upon the Premises or the
Building without Landlord's prior written consent except as specifically stated
in the signage provision, Rider #5.
52. MODIFICATION OF LENDER. If a connection with obtaining
construction, interim or permanent financing for the Building, the lender shall
request reasonable modifications in this Lease as a condition to such financing,
Tenant will not unreasonably withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
53. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the rent payment herein stipulated shall be
deemed to be other than on account of the rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided in this Lease. Tenant agrees that each
of the foregoing covenants and agreements shall be applicable to any covenant or
agreement either expressly contained in this lease or imposed by any status or
at common law.
54. FINANCIAL STATEMENTS. At any time within reason during the term of
this Lease, Tenant shall, upon ten (10) days prior written notice from Landlord,
provide Landlord with a current financial statement and financial statements of
the two (2) years prior to the current financial statement year. Such statement
shall be prepared in accordance with generally accepted accounting principles
and, if such is the normal practice of Tenant, shall be audited by an
independent certified public accountant.
55. TENANT AS CORPORATION. If Tenant executes this Lease as a
corporation, then Tenant and the persons executing this Lease on behalf of
Tenant represent and warrant that the individuals executing this Lease on
Tenant's behavior are duly authorized to execute and deliver this Lease on its
behalf in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, and
in accordance with the By-Laws of Tenant and that this Lease is binding upon
Tenant in accordance with its terms.
56. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Lease shall be
deemed to constitute Landlord and Tenant as partners or joint ventures. It is
the express intent of the parties hereto that their relationship with regard to
this Lease be and remains that of landlord and tenant.
IN WITNESS WHEREOF, the parties have executed this Lease the day and
year first above written.
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LANDLORD: ADDRESS:
LINCOLN PROPERTY COMPANY N.C., INC. LARKSPUR LANDING OFFICE
1100 Larkspur Landing Circle, 155
Larkspur, California 94939
By: /s/ BURCH BOONE Dated: 5/14/91
------------------------------ --------------------------
Burch Boone
Vice President
TENANT: ADDRESS
Synon, Inc. 1100 Larkspur Landing Circle
------------------------------ ---------------------------------
An Illinois Corporation Suite 300
---------------------------------
Larkspur, CA 94939
---------------------------------
By: /s/ DENNIS HOLLIGAN Dated: 4/30/91
------------------------------ ---------------------------------
Dennis G. Holligan
Its: Chief Financial Officer
------------------------------
By: ______________________________ Dated: __________________________
Its: ______________________________
Continued from Page 1, "Premises/Sq. Footage Schedule":
1100 Larkspur Landing Circle
Suite Rentable Sq. Ft. Useable Sq. Ft.
180 6,083 5,431
150 1,408 1,257
185 1,008 900
195 1,086 970
175 2,130 1,902
Total 11,715 Rentable 10,460 Useable
Continued from Page 3, "Rent Escalation":
ADJUSTED BASIC RENT. Each year during the term of this Lease other than
the Base Year, the Basic Rent or the prevailing Adjusted Basic Rent, as the case
may be, shall be adjusted for the ensuing twelve (12) months by the use of the
Consumer Price Index (All Urban Consumers component) for the San
Francisco-Oakland Area (1982 - 1984 - 100) published by the Bureau of Labor
Statistics of the U.S. Department of Labor. The Basic Rent will be increased by
the percentage increase, if any, between the latest index published just prior
to the commencement of the Lease Term and the comparable latest index published
just prior to January of the following year to arrive at the Adjusted Basic
Rent. Each year thereafter, the Adjusted Basic Rent will be increased by the
percentage increase, if any, between the index published just prior to January
of the subsequent year and the comparable latest index published just prior to
January of the preceding year.
In case the U.S. Department of Labor shall discontinue the computation
and publication of said Consumer Price Index or the publication thereof should
be delayed so as to prevent its use hereunder at the times required, there shall
be substituted therefor by Landlord such other index or method of ascertaining
changes in the price level as, in the opinion of Landlord, most closely
resembles the Consumer Price Index and method of arriving at the index figure by
said Bureau.
83
RIDERS 1 THROUGH 9
1. Option to Extend All Initial Terms: If Tenant is not in default in the
performance of any of its obligations under any of Tenant's Leases, Tenant shall
have the right, at its option, to extend the initial terms of all Synon, Inc.'s
Leases in the Building, one time only, for five (5) years, only, following the
expiration dates of the Landlord's (the "Extended Terms"). If Tenant elects not
to extend all Leases, this option shall be deemed null and void. The Leases of
the Premises during the Extended Terms shall be upon the same terms, covenants,
and conditions as are set forth in the Leases other than the rent and the terms
of the leaseholds. If Landlord does not receive from Tenant written notice of
Tenant's exercise of this option for all Leases on or before 5:00 p.m. on
October 1, 1995, (the "Option Notice") this option shall terminate. The monthly
rent for the extended terms shall be the then current market rent for comparable
space; however, the monthly rent shall in no event be less than the highest rent
paid during the initial terms of the Leases, (the "Fair Rental Value") agreed
upon solely by and between land Tenant and their agents appointed for this
purpose. Neither Landlord nor Tenant shall have the right to have a court or any
other third party or entity establish the Fair Rental Value.
If Landlord and Tenant are unable to agree on the Fair Rental Value for the
Extended Terms within sixty (60) days after receipt by Landlord of the Option
Notice, Landlord and Tenant being obligated only to act in good faith, this
option shall terminate, and the Leases shall terminate at the end of their
initial terms.
2. First Right of Notice: During the term of this Lease, Tenant will have the
first right ("First Right") to be notified by Landlord of the availability for
lease of the following spaces: 1100 Larkspur Landing Circle, SUITES 260/290,
255/275/285/299, 165, AND 100, (the "Expansion Spaces"). Prior to the expiration
date of a Lease for any of the Expansion Spaces or upon any of the Expansion
Spaces otherwise becoming available through Landlord (excludes subleases),
Landlord will give Tenant written notice (the "Negotiation Notice"). Tenant
shall have ten (10) business days from receipt of the Negotiation Notice in
which to negotiate with Landlord the terms and conditions of the Lease of the
space referenced in the Negotiation Notice. If the parties are unable to agree
on the terms and conditions of the Lease of said space within said ten (10) day
period, Landlord may lease the space described in the Negotiation Notice to a
third party.
This First Right shall not be applicable to any extension of a Lease by an
existing Tenant nor to any new Lease between Landlord and any existing Tenant of
any of the Expansion Spaces.
This First Right shall terminate and be of no force and effect if, at the time
of the delivery to Tenant of any Negotiation Notice, Tenant is in default of the
performance of any of the covenants, conditions or agreements to be performed by
Tenant under the Lease.
Neither party to the Lease shall have the right to have a court or arbitrator or
other third party set the rent or any of the other terms of the Lease for any of
the Expansion Spaces.
This First Right is personal to Tenant and may not be assigned by Tenant
separately or as a part of this Lease.
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3. First Right to Negotiate - Suite 365: On or before January 1, 1992, Tenant
will have the first right ("First Right") to negotiate with Landlord for the
lease of the contiguous 7,513 rentable square feet, commonly known as Suite 365,
(the "Expansion Space"). On or before January 1, 1992 Tenant will give Landlord
written notice (the "Negotiation Notice"). Tenant shall have sixty (60) days
from giving the Negotiation Notice in which to negotiate with Landlord the terms
and conditions of the Lease for Suite 365 which shall commence no sooner than
July 1, 1992, unless existing Tenant in Suite 365 vacates earlier. If the
parties are unable to agree on the terms and conditions of the Lease of said
space within said sixty (60) day period, Landlord may lease the space described
in the Negotiation Notice to a third party. Failure by Tenant to give timely
notice shall render this First Right null and void.
This First Right shall be for a Lease of the Expansion Space for a five (5) year
term, only. All other terms and conditions shall be negotiable in the sixty (60)
day negotiation period.
This First Right shall be exercisable one time only, that being on or before
January 1, 1992 as stated above.
This First Right shall terminate and be of no force and effect if, at the time
of the delivery to Tenant of the Negotiation Notice, Tenant is in default of the
performance of any of the covenants, conditions or agreements to be performed by
Tenant under the Lease.
Neither party to the Lease shall have the right to have a court or arbitrator or
other third party set the rent or any of the other terms of the Lease for the
Expansion Space.
This First Right is personal to Tenant and may not be assigned by Tenant
separately or as a part of this Lease.
4. First Right to Negotiate - Suite 190: During the term of this Lease, Tenant
will have the first right ("First Right") to negotiate with Landlord for the
Lease of the contiguous 952 rentable square feet, commonly known as Suite 190,
(the "Expansion space"), currently leased by R.E. Lewis, (the "Existing
Tenant").
Should Landlord determine that there is space comparable to the Expansion Space
within Larkspur Landing Office Park, this First Right shall be exercisable under
all of the following conditions:
a) The Existing Tenant executes a lease on comparable space, subject to
Landlord and Tenant agreeing to terms on the Expansion Space.
b) Tenant agrees in writing to pay the cost of providing improvements
in the new location within Larkspur Landing Office Park comparable to
the improvements of the Existing Tenant's current space.
c) Tenant agrees in writing to pay the expenses reasonably incurred by
the Existing Tenant in the relocation to new space including without
limitation, the costs of moving, telephone relocation, and reasonable
quantities of new stationery.
Upon the above conditions being met, Landlord shall give written notice to
Tenant of the availability of the Expansion Space (the "Negotiation Notice").
Tenant shall have ten (10) business days from receipt of the Negotiation Notice
in which to negotiate with Landlord the terms and conditions of the Lease of the
space referenced in the Negotiation Notice. If the parties are unable to agree
on the terms and conditions of the Lease of said space within said ten (10) day
period, this First Right shall become null and void.
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This First Right shall terminate and be of no force and effect if, at the time
of the delivery to Tenant of the Negotiation Notice, Tenant is in default of the
performance of any of the covenants, conditions, or agreements to be performed
by Tenant under the Lease.
Neither party to the Lease shall have the right to have a court or arbitrator or
other third party set the rent or any of the other terms of the Lease for the
Expansion Space.
This First Right is personal to Tenant and may not be assigned by Tenant
separately or as a part of the Lease.
5. Signage: Upon at least 56% occupancy of the Building (44,000 Rentable Square
Feet), Tenant, at Tenant's sole cost and expense, shall be entitled to modify
the monument sign in front of Building 1100 to include Tenant's name under the
following conditions:
a) Tenant shall be responsible for preparing all plans and obtaining
any necessary approvals by the City.
b) Tenant shall submit signage modification plan to Landlord for
Landlord's prior approval.
c) Any modifications to Building sign shall continue to designate the
Building address and Leasing Office.
d) If at any time Tenant's occupancy of the Building is less than 56%
Tenant shall, at Landlord's option, restore the sign to its
original condition at Tenant's sole cost and expense.
6. Landlord and Tenant hereby acknowledge that Suites 185 and 175 are subject to
U.S. Bankruptcy Court for the District of Delaware as pertains to SystemOne
Travel Resources/Continental Airlines. Landlord shall reimburse Tenant for all
actual and incurred costs should the Bankruptcy Court exercise its control over
these spaces.
7. All definitions and terms used in this Amendment shall have the same meaning
and definition as set forth in the Lease.
8. Except as amended in this Amendment, the terms and provisions of the Lease
are hereby ratified and confirmed and shall remain in full force and effect.
Should any inconsistency arise between this Amendment, then the terms of this
Amendment shall control.
9. Early Occupancy: Landlord agrees to allow Tenant to take early possession of
Suites 195 and 185 at a rental rate of $2.15 per rentable square foot per month,
pro-rated for partial month as per Paragraph 5(a) of the Lease.
IN WITNESS WHEREOF, the parties hereto subscribe their names as of the below
date.
LINCOLN PROPERTY COMPANY N.C., INC.
/s/ BURCH L. BOONE Date 5/14/91
- -------------------------------------------- -----------
Burch Boone, Vice President
"LANDLORD"
SYNON, INC.
/s/ DENNIS HOLLIGAN Date 4/30/91
- -------------------------------------------- -----------
Dennis G. Holligan, Chief Financial Officer
"TENANT"
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EXHIBIT A
OUTLINE OF FLOOR PLAN OF PREMISES
(TO BE ATTACHED)
A-1
87
EXHIBIT B
SITE PLAN
[GRAPHIC -- DEPICTION OF FLOOR PLAN OMITTED].
B-1
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EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the 22 day of April,
1991, by and between LINCOLN PROPERTY COMPANY N.C., INC. ("Landlord"), and
Synon, Inc. ("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit A attached to
the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows: Landlord to
provide a maximum Tenant Improvement contribution of $6.00 per rentable square
foot ($70,290.00).
*Continued. See Page C-2.
C-1
89
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the date first
above written.
*Continued from Page C-1: Tenant will pay 50% of all construction costs over
Landlord's maximum Tenant Improvement contribution prior to commencement of
construction, and the balance upon completion of work and billing by Landlord.
Notwithstanding the above, if Tenant's contribution towards Tenant Improvements
exceeds $135,000.00, all such excess Tenant Improvements shall be paid to
Landlord prior to commencement of construction.
Please Initial:
DH/BB
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EXHIBIT D
NOTICE OF LEASE TERM DATES
To: Date:
Re: Lease dated __________, 19___ between _______________, Tenant,
concerning Suite ____ located at _____________________________________.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises have been accepted herewith by the Tenant as
being substantially complete in accordance with the subject Lease,
and that there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the
term of said Lease shall commence as of ________ for a term of
__________, ending on __________.
3. That in accordance with the subject Lease, rental commenced to
accrue on _____________.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the terms of said Lease. Your rent checks
should be made payable to __________________________ at
AGREED AND ACCEPTED
TENANT: LANDLORD:
_______________________________
BY _______________________________
Print Name _______________________________
Its _______________________________
By _______________________________
Print Name _______________________________
Its _________________________________
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EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
The undersigned, ________________________ ("Landlord"), with a mailing address
c/o _________________________________, _____________________________________,
_____________________ and ____________________ ("Tenant"), hereby certify to
__________________________, a _________________________ as follows:
1. Attached hereto is a true, correct and complete copy of that
certain lease dated ______________, 19____ between Landlord and
Tenant (the "Lease"), which demises premises which are located at
________________________________.
The Lease is now in full force and effect and has not been
amended, modified or supplemented, except as set forth in
Paragraph 4 below.
2. The term of the Lease commenced on _________________, 19____.
3. The term of the Lease shall expire on _________________, 19____.
4. The Lease has: (Initial one)
( ) not been amended, modified, supplemented, extended, renewed
or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned by the following described agreements, copies of
which are attached hereto:
------------------------------------------
------------------------------------------
5. Tenant has accepted, is now in possession of and is now conducting
business in said Premises.
6. Tenant and Landlord acknowledge that the Lease will be assigned to
______________ and that no modification, adjustment, revision or
cancellation of the Lease or amendments thereto shall be effective
unless written consent of ________________ is obtained, and that
until further notice, payments under the Lease may continue as
heretofore.
7. The amount of fixed monthly rent is $___________. Rent shall be
increased based upon operating expense increase and as follows:
_________________
8. The amount of security deposits (if any) is $____________.
No other security deposits have been made.
9. Tenant is paying the full lease rental, which has been paid in
full as of the date hereof. no rent under the Lease has been paid
for more than thirty (30) days in advance of its due date.
10. All work required to be performed by Landlord under the Lease has
been completed and all required contributions by Landlord to
Tenant on account of Tenants improvements have been received.
11. There are no defaults on the part of the Landlord or Tenant under
the Lease.
12. Tenant has no defense as to its obligations under the Lease and
claims no set-off or counterclaim against Landlord.
13. Tenant has no right to any concessions (rental or otherwise) or
similar compensation in connection with renting the space it
occupies, except as provided in the Lease.
14. The Lease, amended as noted in Item 4 above, represents the entire
agreement between Landlord and Tenant as to this leasing.
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All provisions of the Lease and the amendments thereto (if any)
referred to above are hereby ratified.
DATED: ____________________________, 19___.
TENANT: LANDLORD:
_______________________________
By _______________________________
Print Name _______________________________
Its _______________________________
By _______________________________
Print Name _______________________________
Its _______________________________
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EXHIBIT F
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building without
the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on
doors, windows and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person chose by Landlord, using materials of
Landlord's choice and in a style and format approved by Landlord.
2. Tenant must use Landlord's window coverings in all exterior and atrium
window offices. No awning shall be permitted on any part of the Premises.
Tenant shall not place anything against or near glass partitions or doors
or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls passages, exits, entrances,
elevators, escalators or stairways of the Building. The halls, passages,
exits, entrances, shopping malls, elevators, escalators and stairways are
not for the general public, and Landlord shall in all cases retain the
right to control and prevent access thereto of all persons whose presence
in the judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No tenant
and no employee or invitee of any tenant shall go upon the roof of the
Building without Landlord's consent.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises. Landlord shall not in any way be responsible to any Tenant
for any loss of property on the Premises, however occurring, or for any
damage to any Tenant's property by the janitor or any other employee or any
other person.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. Any freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord.
9. Tenant shall not place or load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects, if such objects are considered
necessary by Tenant, as determined by Landlord, shall stand on such
platforms as determined by Landlord to be necessary to properly distribute
the weight. Business machines and mechanical equipment belonging to Tenant,
which cause noise or vibration that may be transmitted to the structure of
the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration.
The persons employed to move such equipment in or out of the Building must
be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals, except
seeing-eye dogs when accompanied by their masters.
11. Tenant shall not use any method of heating or air conditioning other than
the supplied or approved by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls other than room
thermostats installed for Tenant's use. Tenant shall keep corridor doors
closed, and shall close window
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coverings at the end of each business day. Heat and air conditioning shall
be provided during ordinary business hours of generally recognized business
days, but not less than the hours of 8:00 a.m. to 6:00 p.m. on Monday
Friday (excluding in any event Saturdays, Sundays and legal holidays).
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
14. Landlord reserves the right to exclude from the building between the hours
of 6:00 p.m. and 7:00 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Saturdays, Sundays and
legal holidays any person unless that person is known to the person or
employee in charge of the Building and has a pass or is properly
identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall not be liable for damages for any error with regard
to the admission to or exclusion from the Building of any person. Landlord
reserves the right to prevent access to the Building in case of invasion,
mob, riot, public excitement or other commotion by closing the doors or by
other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and, except with regard to
Tenant's computers and other equipment which require utilities on a
twenty-four hour basis, all electricity, gas or air outlets before Tenant
and its employees leave the Premises. Tenant shall be responsible for any
damage or injuries sustained by other tenants or occupants of the Building
or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water, food
beverage, towel or other similar services or accept barbering or
bootblacking services upon the Premises, except as such hours and under
such regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
19. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except to install normal wall hangings, and to secure files and book cases
and other furniture that could fall over. Landlord reserves the right to
direct electricians as to where and how telephone and telegraph wires are
to be introduced to the Premises. Tenant shall not cut or bore holes or
wires. Tenant shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any vending
machine without the written consent of Landlord.
21. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building or the Site are prohibited, and each
tenant shall cooperate to prevent same.
22. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
23. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
24. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by any tenant on the
Premises, except that use by Tenant of Underwriters' Laboratory-approved
equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, and the use of a microwave oven shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and
regulations. If odor is objectionable by Landlord or other Tenant's of
Building, microwave use may be prohibited by Landlord.
25. Tenant shall not use in any space or in the public halls of the Building
any mailcarts or hand trucks except those equipped with rubber tires and
side guards or such other material handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into the
Building except as provided in the Parking Rules and Regulations.
26. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
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28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and
no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
31. These Rules and Regulations (including Parking Rules and Regulations below)
are in addition to the terms, covenants, agreements and conditions of any
lease of premises in the Building. In the event these Rules and Regulations
conflict with any provision of the Lease, the Lease shall control.
32. Landlord reserves the right to make such other and reasonable Rules and
Regulations (including Parking Rules and Regulations) as, in its judgment,
may from time to time be needed for safety and security, for care and
cleanliness of the Building and for the preservation of good order therein.
Tenant agrees to abide by all such Rules and Regulations hereinabove stated
and any additional rules and regulations which are adopted.
33. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
34. Each tenant and all employees and visitors of Tenant shall not use public
areas of the Building from the upper ground floor level and above,
including elevators, while wearing athletic attire, including, without
limitations, bathing suits, sweatsuits, jogging clothes, etc. Smoking is
prohibited in all enclosed Common Areas of the Building including without
limitation the main lobby, all hallways, all elevators, all elevator
lobbies, building conference rooms, and recreation rooms.
PARKING RULES AND REGULATIONS
1. Tenant and employees of Tenant (hereinafter referred to as "Tenant") shall
not park vehicles in any parking areas designated by Landlord as areas for
parking by visitors to the Building. Tenant shall not leave vehicles in the
Building parking areas overnight nor park any vehicles in the Building
parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks. Landlord may, in its sole
discretion, designate separate areas for bicycles and motorcycles.
2. Cars must be parked entirely within the stall lines painted on the floor.
3. All directional signs and arrows must be observed.
4. The speed limit shall be 5 miles per hour.
5. Parking is prohibited, unless a floor parking attendant approved by
Landlord directs otherwise:
a. In areas not striped for parking;
b. In aisles;
c. Where "No Parking" or "Handicap" signs are posted;
d. On ramps;
e. In crosshatched areas; or
f. In such other areas as may be designated by Landlord, its
agent, lessee or licensee.
6. Parking stickers or any other device or form of identification which may be
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may not be
mutilated in any manner.
7. Every Tenant is requested to park and lock his own car. All responsibility
for damage to cars to be repaired is assumed by Tenant. Tenant shall repair
or cause to be repaired at its sole cost and expense any and all damage to
the Building parking facility or any part thereof caused by Tenant or
resulting from vehicles of Tenant.
8. Loss or theft of parking identification devices from automobiles must be
reported to Landlord immediately. Any parking identification devices found
on any unauthorized car will be confiscated and the illegal holder will be
subject to prosecution. Lost or stolen devices previously reported and then
found must be reported found to the Landlord immediately.
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9. Spaces are for the express purpose of one automobile per space unless
approved by Landlord directs otherwise. Washing, waxing, cleaning or
servicing of any vehicle by the and/or his agents is prohibited. Storage of
vehicles for periods exceeding one week is prohibited and said vehicles
shall be subject to towing.
10. The Landlord reserves the right to refuse the issuance of monthly stickers
or other parking identification devices to any Tenant or person and/or his
agents or representatives who willfully refuse to comply with the above
Rules and Regulations or any City, State or Federal ordinance, law or
agreement. Tenant shall not load or unload in areas other than those
designated by Landlord for such activities.
12. Landlord reserves the right to charge for parking on a nondiscriminatory
basis.
13. Tenant parked in prohibited areas are subject to towing at their own
expense.
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EXHIBIT H
HAZARDOUS WASTE
Tenant shall use the Premises solely for the uses set forth in the
Basic Lease Information to Paragraph 8 and shall not use the Premises for any
other purpose without obtaining the prior written consent of Landlord.
In no event will Tenant use, introduce to the Premises, generate,
manufacture, produce, store, release, discharge or dispose of, on, under or
about the Premises or transport or from the Premises any Hazardous material (as
defined below) or allow its employees, agents, contractors, invitees or any
other person or entry to do so.
Tenant warrants that it shall not make any use of the Premises which
may cause contamination of the soil, the subsoil or ground water. Tenant shall
not do, bring, or keep anything in or about the Premises that will cause a
cancellation of any insurance covering the Premises. If the rate of any
insurance carried by Landlord is increased as a result of Tenant's use, Tenant
shall pay to Landlord within thirty (30) days before the date Landlord is
obligated to pay a premium on the insurance. or within ten (10) days after
Landlord delivers to Tenant a certified statement from Landlord's insurance
carrier stating that the rate increase was caused solely by an activity of
Tenant on the premises as permitted in this Lease, whichever date is later, a
sum equal to the difference between the original premium and the increased
premium.
Tenant shall keep and maintain the Premises in compliance with, and
shall not cause or permit the Premises to be in violation of any and all
federal, state or local laws, ordinances, rules or regulations pertaining to
health, industrial hygiene or the environmental conditions on, under or about
the Premises.
Tenant shall give immediate written notice of Landlord of (i) any
action, proceeding or inquiry by any governmental authority or any third party
with respect to the presence of any Hazardous Material on the Premises or the
migration thereof from or to other property or (ii) any spill, release or
discharge of Hazardous Materials that occurs with respect to the Premises or
Tenant's operations.
Tenant shall indemnify and hold harmless Landlord, its directors,
officers, employees, agents, successors and assigns (collectively "Landlord")
from and against any and all claims arising from (i) Tenant's use of the
Premises for the conduct of its business or from any activity, work or other
things done or suffered by the Tenant in or about the Buildings, (ii) breach of
or default in performance of any obligation on Tenant's part to be performed
under the terms of this Lease, (iii) any act or negligence of Tenant, or any
officer, agent, employee, guest or invitee of Tenant. The indemnity shall
include all costs, fines, penalties, judgments, losses, attorney's fees,
expenses and liabilities incurred in or about any such claim or any action or
proceeding brought thereon including, without limitation, (a) all foreseeable
consequential damages including without limitation loss of rental income and
diminution in property value; and (b) the costs of any cleanup, detoxification
or other ameliorative work of any kind or nature required by any governmental
agency having jurisdiction thereof or Landlord. This indemnity shall survive the
expiration or termination of this Lease. In any action or proceeding brought
against Landlord by reason of any such claim, upon notice from Landlord if
Landlord does not elect to retain separate counsel, Tenant shall defend the same
at Tenant's expense by counsel reasonably satisfactory to Landlord.
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EXHIBIT G
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for utilities and Services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) Provide non-attended automatic elevator facilities Monday through
Friday, except holidays from 8 a.m. to 6 p.m.
(b) On Monday through Friday, except holidays, from 8 a.m. to 6 p.m.
(and other times for a reasonable additional charge to be fixed by Landlord),
ventilate the Premises and furnish air conditioning or heating on such days and
hours, when in the judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The air conditioning system achieve maximum cooling
when the window coverings are closed. Tenant agrees to cooperate fully at all
times with Landlord, and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device conduit
or pipe to the b chilled and hot water air conditioning supply lines. Tenant
further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installation or facilities. The cost of
maintenance and service calls to adjust and regulate the air conditioning system
shall be charged to tenant if the need for maintenance work results from either
Tenant's adjustment of room thermostats or Tenant's failure to comply with it
obligations under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then-current
journeymen's wages for air conditioning mechanics.
(c) Landlord shall furnish to the Premises, during the usual business
hours on business days, electric current as required by the Building standard
office lighting and fractional horsepower office business machines in an amount
not to exceed .025 KWH per square foot per normal business day. Tenant agrees,
should its electrical installation or electrical consumption be in excess of the
aforesaid quantity or extend beyond normal business hours, to reimburse Landlord
monthly for the measured consumption at the average cost per kilowatt hour
charged to the Building during the period. If a separate meter is not installed
at Tenant's cost, such excess cost will be established by an estimate agreed
upon by Landlord and Tenant, and if the parties fail to agree, as established by
an independent licensed engineer. Said estimates to be reviewed and adjusted
quarterly. Tenant agrees not to use any apparatus or device in, or upon. or
about the Premises which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without written consent of Landlord. Should Tenant use
the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge shall
constitute a breach of the obligation to pay rent under this Lease and shall
entitle Landlord to the rights therein granted for such breach. At all times
Tenant's use of electric current shall never exceed the capacity of the feeders
to the Building or the risers or wiring installation.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy Tenant shall keep said meter
and installation equipment in good working order and repair at Tenant's own cost
and expense, in default of which Landlord may cause such meter and equipment to
be replaced or repaired and collect the cost thereof from Tenant. Tenant agrees
to pay for water consumed, as shown on said meter, as and when bills are
rendered, and on default in making such payment. Landlord may pay such charges
and collect the same from Tenant. Any such costs or expenses incurred, or
payments made by Landlord for any of the reasons or purposes hereinabove stated
shall be deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
(e) Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant, and if to be
kept clean by Tenant, no one other than persons approved by Landlord shall be
permitted to enter the Premises for such purposes. If the Premises are not used
exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant's expense and to the satisfaction of Landlord, and by persons approved by
Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the pr as offices.
Landlord reserves the right to stop service of the elevators, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason of
accident or emergency or for repairs, alterations or improvements, in the
judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and shall further have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations or requirements of
any federal, state, county or municipal authority or failure of gas, oil or
other suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil or other suitable fuel. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenant, conditions, provisions or agreements of this Lease or to
perform any act or thing for the benefit of Tenant, shall not be deemed breached
if Landlord is unable to furnish or perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control.
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EXHIBIT D
NOTICE OF LEASE TERM DATES
To: SYNON, INC.
Date: JUNE 18, 1991
Re: Lease dated APRIL 22, 1991 between SYNON, INC., Tenant, concerning
Suite * located at 1100 LARKSPUR LANDING CIRCLE, LARKSPUR, CA 94939
*SUITES 150 - 1,408 Rentable Sq. Ft.
180 - 6,083 Rentable Sq. Ft.
-----
7,491 Total
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises above have been accepted herewith by the Tenant
as being substantially complete in accordance with the subject
Lease, and that there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the
term of said Lease shall commence as of 6/22/91 for a term of 57
MONTHS and 9 days, ending on 3/31/96.
3. That in accordance with the subject Lease, rental commenced to
accrue on 6/21/91.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should
be made payable to LINCOLN PROPERTY COMPANY at 1100 LARKSPUR
LANDING CIRCLE, STE 155, LARKSPUR, CA 94939.
AGREED AND ACCEPTED
TENANT: LANDLORD:
SYNON, INC. LINCOLN PROPERTY COMPANY N.C., INC.
---------------------------
By /s/ DENNIS HOLLIGAN By /s/ JOHN R. MILLER
--------------------------- -------------------------------
Print Name DENNIS G. HOLLIGAN
--------------------------
Its CHIEF FINANCIAL OFFICER
--------------------------
By __________________________
Print Name __________________________
Its __________________________
D-1
100
EXHIBIT D
NOTICE OF LEASE TERM DATES
To: SYNON, INC. Date: JUNE 18, 1991
Re: Lease dated APRIL 22, 1991 between SYNON, INC., Tenant, concerning
Suite * located at 1100 LARKSPUR LANDING CIRCLE, LARKSPUR, CA 94939
*SUITE 175 - 2,130 Rentable Sq. Ft.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises above have been accepted herewith by the Tenant
as being substantially complete in accordance with the subject
Lease, and that there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the
term of said Lease shall commence as of 6/15/91 for a term of 57
1/2 MONTHS, ending on 3/31/96.
3. That in accordance with the subject Lease, rental commenced to
accrue on 6/15/91.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should
be made payable to LINCOLN PROPERTY COMPANY at 1100 LARKSPUR
LANDING CIRCLE, STE 155, LARKSPUR, CA 94939.
AGREED AND ACCEPTED
TENANT: LANDLORD:
SYNON, INC. LINCOLN PROPERTY COMPANY N.C., INC.
---------------------------
By /s/ DENNIS HOLLIGAN By /s/ JOHN R. MILLER
--------------------------- -------------------------------
Print Name Dennis G. Holligan
--------------------------
Its CHIEF FINANCIAL OFFICER
--------------------------
By __________________________
Print Name __________________________
Its __________________________
D-1
101
EXHIBIT D
NOTICE OF LEASE TERM DATES
To: SYNON, INC. Date: May 29, 1991
Re: Lease dated April 22, 1991 between SYNON, INC., Tenant, concerning
Suite * located at 1100 LARKSPUR LANDING CIRCLE, LARKSPUR, CA 94939
*SUITES 185 - 1,008 rentable square feet
195 - 1,086 rentable square feet
-----
2,094 Total
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises above have been accepted herewith by the Tenant
as being substantially complete in accordance with the subject
Lease, and that there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the
term of said Lease shall commence as of 5/17/91 for a term of 58
1/2 Months, ending on 3/31/96.
3. That in accordance with the subject Lease, rental commenced to
accrue on 5/17/91.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should
be made payable to Lincoln Property Company at 1100 Larkspur
Landing Circle, Ste 155, Larkspur, CA 94939.
6. That rent for the period of 5/17/91 - 5/31/91 shall be at the
Early Occupancy rate of $2.15 per rentable square feet per Rider
#9 of the Lease.
AGREED AND ACCEPTED
TENANT: LANDLORD:
SYNON, INC. LINCOLN PROPERTY COMPANY N.C., INC.
---------------------------
By /s/ DENNIS HOLLIGAN By /s/ BURCH BOONE
--------------------------- -------------------------------
Print Name Dennis G. Holligan Burch Boone
-------------------------- Vice President
Its CHIEF FINANCIAL OFFICER
--------------------------
By __________________________
Print Name __________________________
Its __________________________
D-1
102
LEASE AMENDMENT AGREEMENT
The Amendment Agreement, made as of this date, October 1, 1992, by and between
LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Owner, hereinafter
referred to as Landlord, and SYNON INC., an Illinois corporation hereinafter
referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Lease dated April 22, 1991,
hereinafter referred to as the Lease, (the term "Lease" includes any amendments
or modifications thereof) 10,460 useable square feet and 11,715 rentable square
feet on the First Floor of that certain Building known as 1100 Larkspur Landing
Circle, Suites, 180, 150, 185, 195, and
175, Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to eliminate a
portion of the Premises.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
1. PREMISES: The Premises, as defined in said Lease shall be
decreased by 1,902 useable square feet, and 2,130 rentable square
feet, outlined in red on Exhibit "B" attached hereto, on the First
Floor of that certain building known as 1100 Larkspur Landing
Circle, Suite 175, Larkspur, California, effective October 31,
1992.
2. BASIC RENT: Paragraph 1 (q) of said Lease is hereby amended to
decrease the Basic Rent stipulated therein from $25,187.00 per
month to $21,144.51 per month, effective October 31, 1992.
3. ADDITIONAL RENT: Paragraph 1(s) of said Lease is hereby amended to
decrease Tenant's proportionate share of any increase in Operating
Expenses to 12.27%.
4. SECURITY DEPOSIT: Paragraph 1 (t) of said Lease is hereby amended
to decrease the Security Deposit stipulated therein from $25,
187.00 to $21,144.51 for a Security Deposit refund of $4,042.49.
5. SIGNAGE: Rider #5, "Signage", of said Lease is hereby amended to
decrease Tenant's building occupancy requirement for signage from
56% (44,000 rentable square feet) to 54.6% (42,675 rentable square
feet).
All other terms and conditions of this Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY N.C., INC.,
as Manager and Agent for Owner
BY: /s/ ROGER LEE OSER 11/2/92
-----------------------------------
Roger Lee Oser, V.P.
"LANDLORD"
SYNON, INC.
an Illinois corporation
BY /s/ PAUL WILDE
-----------------------------------
Paul Wilde,
Vice President of Finance
"TENANT"
103
EXHIBIT B
SITE PLAN
[GRAPHIC DEPICTION OF FLOOR PLAN OMITTED]
B-1
104
LEASE AMENDMENT TWO
This Lease Amendment Two, made as of this date, April 19, 1996, by and between
LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln Larkspur
Office Three Associates, Ltd., hereinafter referred to as Landlord, and SYNON,
INC., an Illinois corporation, hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Office Lease dated April 22, 1991,
hereinafter referred to as the Lease, (the term "Lease" includes any amendments
or modifications thereof) approximately 9,585 rentable square feet on the first
floor of that certain Building known as 1100 Larkspur Landing Circle, Suites
180, 150, 185, and 195, Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide an
extended term ("Extended Term One").
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
A. TERM: Paragraph 1(k), "Term" of said Lease is hereby extended for
an additional term of twelve (12) months, ("Extended Term One"),
commencing April 1, 1996 and ending March 31, 1997.
B. BASIC RENT: Paragraph 1(q) "Monthly Basic Rent" of said Lease is
hereby amended to reduce Tenant's Monthly Basic Rent from
$22,998.15 to $21,566.25 effective April 1, 1996, and thereby the
"Annual Basic Rent" shall be $258,795.00.
All other terms and conditions of this Lease remain in full force and effect. If
any inconsistencies in the terms and conditions arise between the Lease and the
Lease Amendment Two, the terms and conditions of Lease Amendment Two shall
prevail.
IN WITNESS WHEREOF, the Parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY N.C., INC.,
as Manager and Agent for
Lincoln Larkspur Office Three Associates, Ltd.
By: /s/ D. ALLEN PALMER
---------------------------------------------
D. Allen Palmer
Its: Vice President
--------------------------------------------
"LANDLORD"
SYNON, INC.
an Illinois corporation
By: /s/ DENNIS HOLLIGAN
---------------------------------------------
Its: DIRECTOR OF ADMINISTRATION
--------------------------------------------
"TENANT"
105
LEASE AMENDMENT THREE
This Lease Amendment Four, made as of this date, March 28, 1997, by and
between LINCOLN - PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln
Larkspur Office Three Associates, Ltd., hereinafter referred to as Landlord, and
SYNON, INC., an Illinois corporation hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Office Lease dated April 22, 1991,
hereinafter referred to as the Lease, (the term "Lease" includes any amendments
or modifications thereof) approximately 9,585 rentable square feet on the first
floor of that certain Building known as 1100 Larkspur Landing Circle, Suites
180,150,185, and 195, Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide an
extended term ("Extended Term Two").
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
A. TERM: Paragraph 1 (k), "Term" of said Lease is hereby extended for
an additional term of thirty-six (36) months, ("Extended Term
Two"), commencing April 1, 1997 and ending March 31, 2000.
B. ADJUSTED BASIC RENT: Paragraph 5(b), "Adjusted Basic Rent" of said
Lease is hereby amended to exclude an increase in the Adjusted
Basic Rent for the year of 1997. Therefore, the next Adjustment to
Basic Rent shall be April 1, 1998.
C. OPERATING EXPENSE ALLOWANCE: Paragraph 1 (r), "Operating Expense
Allowance" of said Lease is hereby amended to change the Operating
Expense Allowance from Tenant's proportionate share of 1991 actual
Operating Expenses to Tenant's proportionate share of 1997 actual
Operating Expenses, effective January 1, 1997.
D. TENANT IMPROVEMENT: Landlord shall contribute up to $28,755.00
(9,585 sf x $3.00) towards Tenant Improvements which shall be
mutually acceptable between Landlord and Tenant.
E. FIRST RIGHT TO NEGOTIATE - SUITE 190: Landlord and Tenant
acknowledge that Rider #4, "First Right to Negotiate - Suite 190"
of said Lease is hereby made void with the execution of this Lease
Amendment Three.
All other terms and conditions of this Lease remain in full force and effect. If
any inconsistencies in the terms and conditions arise between the Lease and the
Lease Amendment Three, the terms and conditions of Lease Amendment Three shall
prevail.
IN WITNESS WHEREOF, the Parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY N.C., INC.,
as Manager and Agent for Lincoln Larkspur Office Three Associates, Ltd.
By: /s/ D. ALLEN PALMER
---------------------------------------------
D. Allen Palmer, Vice President
"LANDLORD"
SYNON, INC.
an Illinois corporation
By: /s/ DENNIS HOLLIGAN
---------------------------------------------
Dennis Holligan, Director of Administration
"TENANT"
106
OFFICE LEASE #4
LANDLORD: LARKSPUR LANDING
TENANT: SYNON, INC.
107
TABLE OF CONTENTS
Page
----
1. Terms and Definitions ............................................ 1
2. Promises and Common Areas Leased ................................. 2
3. Term ............................................................. 3
4. Possession ....................................................... 3
5. Annual Basic Rent ................................................ 3
6. Rental Adjustment ................................................ 3
7. Security Deposit ................................................. 5
8. Use .............................................................. 5
9. Payments and Notices ............................................. 6
10. Brokers .......................................................... 6
11. Holding Over ..................................................... 6
12. Taxes on Tenant's Property ....................................... 6
13. Condition of Premises ............................................ 7
14. Alterations ...................................................... 7
15. Repairs .......................................................... 9
16. Liens ............................................................ 9
17. Entry by Landlord ................................................ 9
18. Utilities and Services ........................................... 9
19. Indemnification .................................................. 10
20. Damage to Tenant's Property ...................................... 10
21. Insurance ........................................................ 10
22. Damage or Destruction ............................................ 11
23. Eminent Domain ................................................... 12
24. Bankruptcy ....................................................... 12
25. Defaults and Remedies ............................................ 12
26. Assignment and Subletting ........................................ 13
27. Quiet Enjoyment .................................................. 14
28. Subordination .................................................... 14
29. Estoppel Certificate ............................................. 14
30. Building Planning ................................................ 15
31 Rules and Regulations ............................................ 15
Conflict of Laws ................................................. 15
Successors and Assigns ........................................... 15
34. Surrender of Premises ............................................ 15
35. Professional Fees ................................................ 15
36. Performance by Tenant ............................................ 15
37. Mortgagee and Senior Lessor Protection ........................... 16
38. Definition of Landlord ........................................... 16
39. Waiver ........................................................... 16
40. Identification of Tenant ......................................... 16
41. Parking and Transportation ....................................... 16
42. Office and Communications Services ............................... 16
43. Terms and Headings ............................................... 17
44. Examination of Lease ............................................. 17
45. Time ............................................................. 17
46. Prior Agreement; Amendments ...................................... 17
47. Separability ..................................................... 17
48. Recording ........................................................ 17
49. Limitation on Liability .......................................... 17
50. Riders ........................................................... 17
51. Signs ............................................................ 17
52. Modification for Lender .......................................... 17
53. Accord and Satisfaction .......................................... 17
54. Financial Statements ............................................. 17
55. Tenant as Corporation ............................................ 17
56. No Partnership or Joint Venture .................................. 17
EXHIBITS
A. Outline of Floor Plan of Premises ................................ A-1
B. Site Plan ........................................................ B-1
C. Work Letter Agreement ............................................ C-1
D. Sample Form of Notice of Lease Term Dates ........................ D-1
E. Sample Form of Tenant Estoppel Certificate ....................... E-1
F. Rules and Regulations ............................................ F-1
G. Standard for Utilities Services .................................. G-1
H. Hazardous Waste .................................................. H-1
108
STANDARD FORM OFFICE LEASE
THIS LEASE is made as of the 22nd day of September, 1992, by and between
Landlord and Tenant.
WITNESSETH:
1. Terms and Definitions. For the purposes of this Lease, the following terms
shall have the following definitions and meanings:
(a) Landlord: Lincoln Property Company N.C., Inc.
(b) Landlord's Address: Copy to:
1100 Larkspur Landing Circle, Suite 155
Larkspur. California 94939
(c) Tenant: Synon. Inc., an Illinois corporation
------------------------------------------
(d) Tenant's Address: (Prior to Commencement Date)
1100 Larkspur Landing Circle, Suite 300
--------------------------------------------------
Larkspur, CA 94939
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Tenant's Address: (After Commencement Date)
Same as above
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
(e) Building Address: 1100 Larkspur Landing Circle, Larkspur, CA 94939
(f) Suite Number. 365
(g) Floor(s) upon which the Premises arc located: 3rd
(h) Premises; Those certain premises defined in Subparagraph 2(a) hereinbelow.
(i) Site: The parcel of real property defined in Subparagraph 2(a) below.
(j) Approximate Rentable Square Feet: 7,513
(k) Term: four Lease Years and seven Months.
(1) Building Standard Work: All the work to be done at Landlord's expense
(including the "Allowance" as described in Subparagraph 6 of the Work
Letter Agreement) in the Premises pursuant to the provisions of the Work
Letter Agreement described in Paragraph 2 below.
(m) Building Nonstandard Work: All the work done in the Premises by Landlord
pursuant to the provisions of the Work Letter Agreement other than the
Building Standard Work.
(n) Aggregate Improvements: The aggregate of the Building Standard Work and the
Building Nonstandard Work.
(o) Estimated Commencement Date: November 1, 1992
(p) Commencement Date: The earlier of the following two dates:
(i) The date upon which the Tenant takes possession of or commences
the operation of its business in the Premises, which Tenant agrees
will be accomplished as soon as reasonably possible after the
issuance of the Certificate of Occupancy or temporary Certificate
of Occupancy for the Premises; or
(ii) The date upon which the Aggregate Improvements have been
substantially completed as determined by Landlord
1
109
(q) Annual Basic Rent: $193,836.00
Monthly Basic Rent: $16,153.00
(r) Operating Expenses Allowance-Tenant's percentage share of 1993 Operating
Expenses
(s) Tenant's Percentage Share: 9.62%
(t) Security Deposit: $16,153.00
(u) Permitted Use: office use
(v) Brokers: N/A
(w) Landlord's Construction Representative: N/A Telephone:
(x) Tenant's Construction Representative: N/A Telephone:
(y) Parking: See Paragraph 41.
(z) Riders: -0- through -0- inclusive, which Riders are attached to this Lease
and are incorporated herein by this reference.
(aa) Lease Year: A period of twelve (12) consecutive months, the first such
period commencing on the Commencement Date and consecutive periods
beginning on each consecutive anniversary thereof.
(bb) Exhibits: A through H inclusive, which Exhibits are attached to this Lease
and are incorporated herein by this reference.
2. PREMISES AND COMMON AREAS LEASED.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the Premises contained within the suite designated in Paragraph 1,
outlined on the Floor Plan attached hereto and marked Exhibit "A" and
incorporated herein by this reference in the building and parking facilities at
the address designated in Subparagraph 1(e) above (the "Building'), located the
parcel of real property (the "Site") outlined on the Site Plan attached hereto
as Exhibit "B", and incorporated herein by this reference, and improved or to be
improved by Landlord with the Aggregate Improvements described in the Work
Letter Agreement, a copy of which is attached hereto and marked Exhibit "C" and
incorporated herein by this reference. By taking possession of the Premises
Tenant accepts the Aggregate Improvements as completed or as substantially
completed. In the latter case, Landlord shall provide Tenant with a list of
incomplete and/or corrective items, which list shall be approved and
acknowledged by Tenant within ten (10) days of receipt and which items Landlord
shall complete and/or correct promptly thereafter.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth and Tenant
covenants as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by it to be kept
and performed and that this Lease is made upon the condition of such
performance.
(b) Tenant shall have the nonexclusive right to us in common with other
tenants in the Building and subject to the Rules and Regulations referred to in
Paragraph 31 below, the following areas ("Common Areas") appurtenant to the
Premises:
(i) The common entrances, lobbies, restrooms, elevators, stairways
and accessways, loading docks, ramps, drives and platforms and
any passageways and serviceways thereto, and the common pipes,
conduits, wires and appurtenant equipment serving the
Premises;
(ii) Parking areas(subject to the provisions of Paragraph 41
hereinbelow), loading and unloading areas, roadways,
sidewalks, walkways, parkways, driveways and landscaped areas
appurtenant to the Building.
(c) Landlord reserves the right from time to time without unreasonable
interference with Tenant's use:
(i) To install, use, maintain, repair and replace pipes, ducts,
conduits, wires and appurtenant meters and equipment for
service to other parts of the Building above the ceiling
surfaces, below the floor surfaces, within the walls and in
the central core areas, and to relocate any pipes, ducts,
conduits, wires and appurtenant meters and equipment included
in the Premises which are located in the Premises or located
elsewhere outside the Premises, and to expand the Building;
(ii) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of
driveways, entrances, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas and walkways
and, subject to Paragraph 41, parking spaces and parking
areas;
2
110
(iii) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
(iv) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building, or any
portion thereof;
(v) To do and perform such other acts and make such other changes
in, to or with respect to the Site. Common Areas and Building
as Landlord may, in the exercise of sound business judgment,
deem to be appropriate.
3. TERM. The term of this Lease shall be for the period designated in
Subparagraph 1(k) commencing on the Commencement Date, and ending on the
expiration of such period. unless the term hereby demised shall be sooner
terminated as hereinafter provided. The Commencement Date and the date upon
which the term of this Lease shall end shall be determined in accordance with
the provisions of Subparagraph 1(p) and said dates will be specified in
Landlord's Notice of Lease Term Dates ("Notice"), in the form of Exhibit "D"
which is attached hereto and is incorporated herein by this reference, and shall
be served upon Tenant as provided in Paragraph 9, after Landlord delivers or
tenders possession of the Premises to Tenant. The Notice shall be binding upon
Tenant unless Tenant objects to the Notice in writing, served upon Landlord as
provided for in Paragraph 9 hereof, within five (5) days of Tenant's receipt of
the Notice.
4. POSSESSION. Tenant agrees that in the event of the inability of
Landlord to deliver possession of the Premises to Tenant on the date above
specified for the commencement of the term of this Lease, this Lease shall not
be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom.
5. ANNUAL BASIC RENT.
(a) Tenant agrees to pay Landlord as Annual Basic Rent for the Premises
the Annual Basic Rent designated in Subparagraph 1(q) (subject to adjustment as
hereinafter provided) in twelve (12) equal monthly installments ("Monthly Basic
Rent"), each in advance on the first day of each and every calendar month during
said term, except that the first month's rent shall be paid upon the execution
hereof. In the event the term of this Lease commences or ends on a day other
than the first day of a calendar month, then the rental for such periods shall
be prorated in the proportion that the number of days this Lease is in effect
during such periods bears to thirty (30), and such rental shall be paid at the
commencement of such periods. In addition to said Annual Basic Rent, Tenant
agrees to pay the amount of the rental adjustments as and when hereinafter
provided in this Lease. Said Annual Basic Rent, additional rent, and rental
adjustments shall be paid to Landlord, without any prior demand therefor and
without any deduction or offset whatsoever in lawful money of the United States
of America, which shall be legal tender at the time of payment, at the address
of Landlord designated in Subparagraph 1(b) or to such other person at such
other place as Landlord may from time to time designate in writing. Further, all
charges to be paid by Tenant under, including, without limitation, payments for
real property taxes, insurance. repairs, and parking shall be considered
additional rent for the purposes of this Lease, and the word 'rent' in this
Lease shall include such additional rent unless the context specifically or
clearly implies that only the Annual Basic Rent is referenced.
(b) RENT ESCALATION. See Page 18, "ADJUSTED BASIC RENT"
6. RENTAL ADJUSTMENT.
(a) For the purposes of this Subparagraph 6(a), the following terms are
defined as follows:
TENANT'S PERCENTAGE SHARE. Tenant's Percentage Share shall mean that
portion of the total rentable area of the Building leased by Tenant as set forth
as percentage in Subparagraph 1(s) above.
OPERATING EXPENSES ALLOWANCE. Operating Expenses Allowance shall mean
that portion of Tenant's Percentage Share of the Operating Expenses which
Landlord has included in the Annual Basic Rent and which amount is set forth in
Subparagraph 1(r) above.
3
111
OPERATING EXPENSES. Operating Expenses shall consist of a1l direct
costs of operation and maintenance of the Building, the Common Areas and the
Site as determined by standard accounting practices, calculated assuming the
Building is fully occupied, including the following costs by way of
illustration, but not limitation: real property taxes and assessments and any
taxes or assessments hereafter imposed in lieu thereof; rent taxes, gross
receipt taxes (whether assessed against Landlord or assessed against Tenant and
collected by Landlord, or both); water and sewer charges; the net cost and
expense of insurance for which Landlord is responsible hereunder or which
Landlord or any first mortgagee with a lien affecting the Premises reasonably
deems necessary in connection with the operation of the Building; utilities;
janitorial services; security; labor; parking expenses, utilities surcharges, or
any other costs levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations or interpretations thereof, promulgated
by any federal, state, regional, municipal or local government authority in
connection with the use or occupancy of the Building or the Premises or the
parking facilities serving the Building or the Premises; the cost (amortized
over such reasonable period as Landlord shall determine together with interest
at the maximum rate allowed by law on the unamortized balance) of (a) any
capital improvements made to the Building by the Landlord after the first year
of the term of the Lease that reduce other Operating Expenses, or made to the
Building by Landlord after the date of the Lease that are required under any
governmental law or regulation that was not applicable to the Building at the
time it was constructed, or (b) replacement of any building equipment needed to
operate the Building at the same quality levels as prior to the replacement;
costs incurred in the management of the Building, if any (including supplies,
wages and salaries of employees used in the management, operation and
maintenance of the Building, and payroll taxes and similar governmental charges
with respect thereto); on site Building management office rental; a management
fee; air conditioning; waste disposal; heating; ventilating; elevator
maintenance; supplies; materials; equipment; tools; repair and maintenance of
the structural portions of the Building, including the plumbing, heating,
ventilating, air conditioning and electrical systems installed or furnished by
Landlord; and maintenance, costs and upkeep of all parking and common areas,
rental of personal property used in maintenance; costs and expenses of gardening
and landscaping, maintenance of signs (other than Tenant's signs); personal
property taxes levied on or attributable to personal property used in connection
with the entire Building, including the Common Areas; reasonable audit or
verification fees; and costs and expenses of repairs, resurfacing, repairing,
maintenance, painting, lighting, cleaning, refuse removal, security and similar
items, including appropriate reserves. Operating Expenses shall not include
depreciation on the Building or equipment therein, Landlord's executive
salaries, real estate brokers' commissions, interest expense on Building
financing; amortization of cost of tenant improvements in the Building; ground
rent; income and franchise taxes; dividends; and attorney's fees and expenses
which are not related to the operation of the Building.
As used herein, the term "real property taxes" shall included any form
of assessment, license fee, license tax, business license fee, commercial rental
tax, levy, charge, penalty, tax or similar imposition, imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school agricultural, lighting, drainage or other improvement
or special assessment district thereof, as against any legal or equitable
interest of Landlord in the Premises, including, but not limited to, the
following:
(i) any tax on Landlord's "right" to rent or "right" to other income
from the Premises or as against Landlord's business of leasing the
Premises;
(ii) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge
previously included within the definition of real estate tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by
the voters of the State of California in the June, 1978 Election and
that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street,
sidewalk and road maintenance, refuse removal and for other
governmental services formerly provided without charge to property
owners or occupants. It is the intention of Tenant and Landlord that
all such new and increased assessments, taxes, fees, levies and charges
be included within the definition of "real property taxes" for the
purposes of this Lease;
(iii) any assessment, tax, fee, levy or charge allocable to or measured
by the area of the Premises or the rent payable hereunder, including,
without limitation, any gross income tax or excise tax levied by the
State, City or Federal government, or any political subdivision
thereof, with respect to the receipt of such rent, or upon or with
respect to the possession, leasing, operating, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises, or any
portion thereof:
(iv) any assessment, tax, fee, levy or charge upon this transaction or
any document to which Tenant is a party, creating or transferring an
interest or an estate in the Premises;
(v) any assessment, tax, fee, levy or charge by any governmental agency
related to any transportation plan, fund or system instituted within
the geographic area of which the Building is a part; or
(vi) reasonable legal and other professional fees, costs and
disbursements incurred in connection with proceedings to contest,
determine or reduce real property taxes.
Notwithstanding any provision of this Subparagraph 6(a) expressed or
implied to the contrary, "real property taxes" shall not include Landlord's
federal or state income, franchise, inheritance or estate taxes.
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Preceding calendar year during the term of this Lease, Landlord shall endeavor
to deliver to Tenant a statement ("Estimate Statement") wherein Landlord shall
estimate the Operating Expenses for the current calendar year, and the amount by
which Tenant's Percentage Share of the Operating Expenses on account of the
operation or maintenance of the Building is in excess of the Operating Expenses
Allowance. If Tenant's Percentage Share of the Operating Expenses estimated in
the Estimate Statement exceeds the Operating Expenses Allowance then such excess
amount shall be divided into twelve (12) equal monthly installments and Tenant
shall pay to Landlord, concurrently with the regular monthly rent payment next
due following the receipt of such statement, an amount equal to one (1) monthly
installment multiplied by the number of months from January in the calendar year
in which said statement is submitted to the month of such payment, both months
inclusive. Subsequent installments shall be paid concurrently with the regular
monthly rent payments for the balance of the calendar year and shall continue
until the next calendar year's Estimate Statement is rendered. By the first day
of June of each succeeding calendar year during the term of this Lease, Landlord
shall endeavor to deliver to Tenant a statement ("Actual Statement") wherein
Landlord shall state the actual Operating Expenses for the preceding calendar
year. If the Actual Statement reveals a greater increase in Tenant's Percentage
Share of Operating Expenses than was estimated by Landlord in the Estimated
Statement delivered its provided herein, then upon receipt of the Actual
Statement from Landlord, Tenant shall pay a lump sum equal to said total
increase over the Operating Expenses Allowance, less the total of the monthly
installments of increases set forth on the Estimate Statement which were paid in
the previous calendar year. If, in any calendar year, Tenant's Percentage Share
of Operating Expenses is less than the preceding calendar year, then upon
receipt of Landlord's Actual Statement, any overpayment made by Tenant on the
monthly installment basis provided above shall be credited toward the next
monthly rent falling due and the monthly installment of Tenant's Percentage
Share of Operating Expenses to be paid pursuant to the then current Estimate
Statement shall be adjusted to reflect such lower expenses for the most recent
calendar year, or if this Lease has been terminated, such excess shall be
credited against any amount which Tenant owes Landlord pursuant to this Lease
and, to the extent all amounts which Tenant owes Landlord pursuant to this Lease
have been paid, Landlord shall promptly pay such excess to Tenant. Any delay or
failure by Landlord in delivering any estimate or statement pursuant to this
Paragraph shall not constitute a waiver of its right to require an increase in
rent nor shall it relieve Tenant of its obligations pursuant to this Paragraph,
except that Tenant shall not be obligated to make any payments based on estimate
or statement until ten (10) days after receipt of such estimate or statement.
(c) Even though the term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage Share of
Operating Expenses for the year in which this Lease terminates, Tenant shall
immediately pay any increase due over the estimated expenses paid and conversely
any overpayment made in the event said expenses decrease shall be immediately
rebated by Landlord to Tenant.
(d) Notwithstanding anything contained in this Paragraph 6, the rental
payable by Tenant shall in no event be less than the rent specified in Paragraph
5 hereof.
7. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security
Deposit designated in Subparagraph I (t). Said deposit shall be held by Landlord
as security for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provision of this
Lease, including but not limited to the provisions relating to the payment of
rent, Landlord may (but shall not be required to) use, apply or retain all or
any part of this Security Deposit for the payment of any rent or any other sum
in default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant shall,
within ten (10) days after demand therefor, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such Security Deposit. If
0Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall be returned
to Tenant (or, at Landlord's option, to the last assignee of Tenant's interests
hereunder) at the expiration of the Lease term, provided that Landlord may
retain the Security Deposit until such time as any amount due from Tenant in
accordance with Paragraph 5 and 6 hereof has been determined and paid in full.
Should Landlord sell its interest in the Premises during the term hereof and if
Landlord deposits with the purchaser thereof the then unappropriated funds
deposited by Tenant as aforesaid, thereupon Landlord shall be discharged from
any further liability with respect to such Security Deposit.
8. USE. Tenant shall use the Premises for general office purposes and
purposes incident thereto in compliance with Exhibit H, Hazardous Waste, and
shall not use or permit the Premises to be used for any other purpose without
the prior written consent of Landlord. Tenant shall not use or occupy the
Premises in violation of any recorded covenants, conditions and restrictions
affecting the Site or of any law or of the Certificate of Occupancy issued for
the Building of which the premises are a part, and shall upon five (5) days'
written notice from Landlord, discontinue any use of the Premises which declared
by any governmental authority having jurisdiction to be a violation of any
recorded covenants, conditions and restrictions affecting the Site or of any law
or of said Certificate of Occupancy. Tenant may not offer shared tenant
services,
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such as but not limited to telecommunications, data processing or word
processing, to any unaffiliated tenant in the Building without Landlord's prior
written consent, which consent may be withheld by Landlord at its sole and
absolute discretion. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere. Tenant shall comply with any direction of
any governmental authority having jurisdiction which shall, by reason of the
nature of Tenant's use or occupancy of the Premises, impose any duty, upon
Tenant or Landlord with respect to the Premises or with respect to the use or
occupation thereof. Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or any other
insurance policy covering the Building and/or property located therein and shall
comply with all rules, orders, regulations and requirements of the Pacific Fire
Rating Bureau or any other organization performing a similar function. Tenant
shall promptly upon demand reimburse Landlord as additional rent for any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Paragraph 8. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Promises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises and shall keep the
Premises in first class repair and appearance. Tenant shall not place a load
upon the Premises exceeding the average pounds of live load per square foot of
floor area specified for the Building by Landlord's architect, with the
partitions to be considered a part of the live load. Landlord reserves the right
to prescribe the weight and position of all safes, files and heavy equipment
which Tenant desires to place in the Premises so as to distribute properly the
weight thereof. Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building structure or to any
other space in the Building shall be so installed, maintained and used by Tenant
as to eliminate such vibration or noise. Tenant shall be responsible for all
structural engineering required to determine structural load. Tenant shall
fasten all files, bookcases and like furnishings to walls in a manner to prevent
tipping over in the event of earth movements. Landlord shall not be responsible
for any damage or liability for such events.
9. PAYMENTS AND NOTICES. *Payments will be by check only, unless Tenant
is in default, as per Paragraph 25. All rents and other sums payable by Tenant
to Landlord hereunder shall be paid to Landlord by check, cashier's check, or
cash, at Landlord's option, at the address designated by Landlord in
Subparagraph I (b) above or at such other places as Landlord may hereafter
designate in writing. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery or by mail, and if
given by mail shall be deemed sufficiently given if sent by registered or
certified mail addressed to Tenant at the Building or to Landlord at both of the
addresses designated in Subparagraph 1(b). Either party may by written notice to
the other specify a different address for notice purposes except that Landlord
may in any event use Premises as Tenant's address for notice purposes. If more
than one person or entity constitutes the "Tenant" under this Lease, service of
any notice upon any one of said persons or entities shall be deemed as service
upon all of said persons or entities.
10. BROKERS. The parties recognize that the brokers who negotiated this
Lease are the brokers whose names are stated Subparagraph l(v), and agree that
Landlord shall be solely responsible for the payment of brokerage commissions to
said brokers, and that Tenant shall have no responsibility therefor. As part of
the consideration for the granting of this Lease, Tenant represents and warrants
to Landlord that to Tenant's knowledge no other broker, agent or finder
negotiated or was instrumental in negotiating or consummating this Lease and
that Tenant knows of no other real estate broker, agent or finder who is, or
might be, entitled to a commission or compensation in connection with this
Lease. Any broker, agent or finder of Tenant whom Tenant has failed to disclose
herein shall be paid by Tenant. Tenant shall hold Landlord harmless from all
damages and indemnify Landlord for all said damages paid or incurred by Landlord
resulting from any claims that may be asserted against Landlord by any broker,
agent or finder undisclosed by Tenant herein.
11. HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the term hereof without the express written consent of Landlord,
Tenant shall become a tenant at sufferance only, at a rental rate equal to two
hundred fifty (250%) of the Annual Basic Rent which would be applicable to the
Premises upon the date of such expiration (subject to adjustment as provided in
Paragraph 6 hereof and prorated on a daily basis), and otherwise subject to the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent after such expiration or earlier termination
shall not constitute a holdover hereunder or result in a renewal. The foregoing
provisions of this Paragraph 11 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise provided
by law. If Tenant fails to surrender the Premises upon the expiration of this
Lease despite demand to do so by Landlord, Tenant shall indemnify and hold
Landlord harmless from all loss or liability, including without limitation, any
claim made by any succeeding tenant founded on or resulting from such failure to
surrender.
12. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay at least ten (10) days
before delinquency, taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessments, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall upon demand repay to Landlord the taxes levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment; provided that in any such event, at Tenant's sole cost and expense,
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest, amount so recovered to belong to
Tenant.
(b) If the Aggregate Improvements in the Premises, whether installed
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a
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valuation higher than the valuation at which Aggregate Improvements conforming
to Landlord's "Building Standard" in other space in the Building are assessed,
then the real property taxes and assessment levied against Landlord or the
property by on of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be ned by the provisions of
Subparagraph l2(a),above. If the records of the County Assessor are available
and sufficiently ted to serve as a basis for determining whether said Aggregate
Improvements are assessed at a higher valuation than Landlord's "Building
Standard", such records shall be binding on both Landlord and Tenant. If the
records of the County Assessor are not available or sufficiently detailed to
serve as a basis for making said determination, the actual cost of construction
shall be used.
13. CONDITION OF PREMISES. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises or the Building or with respect to the suitability of either for
the conduct of Tenant's business. The taking possession of the Premises by
Tenant shall conclusively establish that the Premises and be Building were a
such time in satisfactory condition however, partial occupancy and rent
commencement will not interfere with Landlord's obligation to complete Tenant
Improvements. Without limiting the foregoing, Tenant's execution of the Notice
attached hereto a Exhibit "D" shall constitute a specific acknowledgment and
acceptance of the various start-up inconveniences that may be associated with
the use of the Building Common Areas such as certain construction obstacles
including scaffolding, delays in the use of freight elevator service, certain
elevators not being available to Tenant, the passage of work crews using
elevators, uneven air conditioning service, and other typical conditions
incident to recently constructed office buildings. Further, Tenant's execution
of said Notice shall constitute an acknowledgment, in light of the practical
impossibility of ensuring that every floor slab has been installed with
absolutely no deflection, that all wood floor coverings, wood paneling , and
similar interior Aggregate Improvements have been and/or will be designed to
accommodate the actual floor slab deflection unique to each particular area of
the Premises to be so improved.
14. ALTERATIONS.
(a) Tenant may, at any time and from time to time during the term of
this Lease, at its sole cost and expense, make alterations, additions,
installations, substitutions, improvements and decorations (hereinafter
collectively called "Changes") in and to the Premises, excluding structural
changes, on the following conditions, and providing such Changes will not result
in a violation of or require a change in the Certificate of Occupancy applicable
to the Premises:
(i) The outside appearance, character or use of the Building shall not
be affected, and no Changes shall weaken or impair the structural
strength or, in the opinion of Landlord, lessen the value of the
Building or create the potential for unusual expenses to be incurred
upon the removal of Changes and the restoration of the Premises upon
the termination of this Lease.
(ii) No part of the Building outside of the Premises shall be
physically affected.
(iii) The proper functioning of any of the mechanical, electrical,
sanitary and other service systems or installations of the Building
("Service Facilities") shall not be adversely affected and there shall
be no construction which might interfere with Landlord's free access to
the Service Facilities or interfere with the moving of Landlord's
equipment to or from the enclosures containing the Service Facilities.
(iv) In performing the work involved in making such Changes, Tenant
shall be bound by and observe all of the conditions and covenants
contained in this Paragraph.
(v) All work shall be done at such times and in such manner as Landlord
from time to time may designate.
(vi) Tenant shall not be permitted to install and make part of the
Premises any materials, fixtures or articles which are subject to
liens, conditional sales contracts or chattel mortgages.
(vii) At the date upon which the term of this Lease shall end, or the
date of any earlier termination of this Lease, Tenant shall on
Landlord's written request restore the Premises to their condition
prior to the making of any Changes permitted by this Paragraph,
reasonable wear and tear excepted.
(b) Before proceeding with any Change (exclusive of changes to items
constituting Tenant's Personal Property), Tenant shall submit to Landlord plans
and specifications for the work to be done, which shall require Landlord's
written approval. Landlord shall then prepare or cause to be prepared, at
Tenant's expense, mechanical, electrical and plumbing drawings and may confer
with consultants in connection with the preparation of such drawings and may
also submit to such consultant(s) any of the plans prepared by Tenant. If
Landlord or such consultant(s) shall disapprove of any of the Tenant's plans
Tenant shall be advised of the reasons of such disapproval. In any event, Tenant
agrees to pay to Landlord, as additional rent, the cost of such consultation and
review immediately upon receipt of invoices either from Landlord or such
consultant(s). Any Change for which approval has been received shall be
performed strictly in accordance with the approved plans and specifications and
no amendments or additions to such plans and specifications shall be made
without the prior written consent of Landlord.
(c) If the proposed Change requires approval by or notice to the lessor
of a superior lease or the holder of a mortgage, no Change shall be proceeded
with until such approval has been received, or such notice has been given, as
the case may be and all applicable conditions and provisions of said superior
lease or mortgage with respect to the proposed Change or ation have been met or
complied with at Tenant's expense; and Landlord, if it approves the Change, will
request such roval or give such notice, as the case may be.
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(d) After Landlord's written approval has been sent to Tenant and the
approval by or notice to the lessor of a superior lease or the holder of a
superior mortgage has been received or given, as the case may be, Tenant shall
enter into an agreement the performance of the work to be done pursuant to this
Paragraph with Landlord's contractor. In any event, Tenant agrees to pay to
Landlord, at Landlord's option, in advance of construction based upon Landlord's
cost estimates, or as additional rent the cost of such construction immediately
upon receipt from Landlord of invoices from time to time during the course of
such construction. All costs and expenses incurred in Changes shall be paid by
Tenant within seven (7) days after each billing by Landlord or any such
contractor or contractors. If Landlord approves the construction of specific
interior improvements in the Premises by contractors or mechanics selected by
Tenant and approved by Landlord, then Tenant's contractors shall obtain on
behalf of Tenant and at Tenant's sole cost and expense, (i) all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion, and (ii) a
completion and lien indemnity bond, or other surety, satisfactory to Landlord,
for the Changes. In the event Tenant shall request any changes in the work to be
performed after the submission of the plans referred to in this Paragraph 14,
such additional changes shall be subject to the same approvals and notices as
the changes initially submitted by Tenant.
(e) Tenant shall pay to Landlord for Landlord's services in the event
Landlord performs as a general contractor in connection with the work performed
pursuant to this Paragraph 14, a fee equal to 7% of the total cost of the
changes, and Landlord's reasonable overhead related thereto.
(f) All Changes and the performance thereof shall at all times comply
with (i) all laws, rules, orders, ordinances, directions, regulations and
requirements of all governmental authorities, agencies, offices, departments,
bureaus and boards having jurisdiction thereof, (ii) all rules, orders,
directions, regulations and requirements of the Pacific Fire Rating Bureau, or
of any similar insurance body or bodies, and (iii) all rules and regulations of
Landlord, and Tenant shall cause Changes to be performed in compliance therewith
and in good and first class workmanlike manner, using materials and equipment at
least equal in quality and class to the original installations of the Building.
Changes shall be performed in such manner as not to interfere with the occupancy
of any other tenant in the Building nor delay or impose any additional expense
upon Landlord in construction, maintenance or operation of the Building, and
shall be performed by Contractors or mechanics approved by Landlord and
submitted to Tenant pursuant to this Paragraph, who shall coordinate their work
in cooperation with any other work being performed with respect to the Building.
Throughout the performance of Changes, Tenant, at its expense, shall carry, or
cause to be carried, workmen's compensation insurance in statutory limits, and
general liability insurance for any occurrence in or about the Building, of
which Landlord and its managing agent shall be named as parties insured, in such
limits as Landlord may reasonably prescribe, with insurers reasonably
satisfactory to Landlord all in compliance with Subparagraph 21(b).
(g) Tenant further covenants and agrees that any mechanic's lien filed
against the Premises or against the Building for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, bond or otherwise, within ten (10) days after the filing thereof, at
the cost and expense of Tenant. All alterations, decorations, additions or
improvements upon the Premises, made by either party, including (without
limiting the generality of the foregoing) all wallcovering, built-in cabinet
work, panelling and the like, shall, unless Landlord elects otherwise, become
the property of Landlord, and shall remain upon, and be surrendered with the
Premises, as a part thereof, at the end of the term hereof, except that Landlord
may by written notice to Tenant, given at least thirty (30) days prior to the
end of the term, require Tenant to remove all partitions, counters, railings and
the like installed by Tenant, and Tenant shall repair any damage to the Premises
arising from such removal or, at Landlord's option, shall pay to the Landlord
all of Landlord's costs of such removal and repair.
(h) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term provided Tenant is not in default hereunder, and provided further that
Tenant shall repair any damage caused by such removal. If Tenant shall fail to
remove all of its effects from said Premises upon termination of this Lease for
any cause whatsoever, Landlord may, at its option, remove the same in any manner
that Landlord shall choose, and store said effects without liability to Tenant
for loss thereof, and Tenant agrees to pay Landlord upon demand any and all
expenses incurred in such removal, including court costs and attorneys' fees and
storage charges on such effects for any length of time that the same shall be in
Landlord's possession or Landlord may, at its option, without notice, sell said
effects, or any of the same, at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
(i) Subject to Landlord's agreement to minimize any disturbance of
Tenant's use of the Premises, Landlord reserves the right at any time and from
time to time without the same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefor or otherwise affecting
Tenant's obligations under this Lease, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Site or the
Building (including the Premises required so to do by any law or regulation) and
the fixtures and equipment thereof, as wall as in or to the street entrances,
halls, passages and stairways thereof, to change the name by which the Building
is commonly known except as controlled by the signage provision, Rider #5,
between Landlord and Tenant in that Lease dated April 22, 1991, as Landlord may
deem necessary or desirable. Nothing contained in this Paragraph 14 shall be
deemed to relieve Tenant of any duty, obligation or liability of Tenant with
respect to making any repair, replacement or improvement or complying with any
law, order or requirement of any government or other authority and nothing
contained in this Paragraph 14, shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
supervision of repair of the Building or any part thereof other than as
otherwise provided in this Lease.
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15. REPAIRS.
(a) By entry hereunder, Tenant accepts the Premises as being in good
and sanitary order, condition and repair however, partial occupancy and rent
commencement will not interfere with Landlord's obligation to complete Tenant
Improvements. Tenant shall, when and if needed or whenever requested by Landlord
to do so, at Tenant's sole cost and expense, maintain and make repairs to the
Premises and every part thereof, to keep, maintain and preserve the Premises in
first class conditions, excepting ordinary wear and tear. Any such maintenance
and repairs shall be performed by Landlord's contractor, or a Landlord's
approved contractor or contractors. All costs and expenses incurred in such
maintenance and repair shall be paid by Tenant within seven (7) days after
billing by Landlord or such contractor or contractors. Tenant shall upon the
expiration or sooner termination of the term hereof surrender the Premises to
Landlord in the same condition as when received, reasonable wear and tear
excepted. Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and the parties hereto affirm
that Landlord has made no representations to Tenant respecting the condition of
the Premises or the Building except as specifically herein set forth.
(b) Anything contained in Subparagraph 15(a) above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, unless
such maintenance and repairs are caused in part or in whole by the act, neglect,
fault of or omission of any duty by Tenant, its agents, servants, employees or
invitees, in which case Tenant shall pay to Landlord as additional rent, the
reasonable cost of such maintenance and repairs. Landlord shall not be liable
for any failure to make any such repairs, or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Paragraph 22 hereof there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect. Notwithstanding anything to the contrary contained in Subparagraphs (a)
and (b) of this Paragraph 15, Tenant shall maintain and repair at its sole cost
and expense, and with maintenance contractors approved by Landlord, all non-base
building facilities, including lavatory, shower, toilet, washbasin and kitchen
facilities and heating and air conditioning systems, including all plumbing
connected to said facilities or systems installed by Tenant or on behalf of
Tenant or existing in the Premises at the time of delivery of possession of the
Premises to Tenant by Landlord. The provisions of the immediately preceding
sentence shall not apply to the basic heating and air conditioning system
provided by Landlord to all tenants of the Building.
16. LIENS. Tenant shall not permit any mechanic's, materialmen's or
other liens to be filed against the real property of which the Premises form a
part nor against the Tenant's leasehold interest in the Premises. Landlord shall
have the right at all reasonable times to post and keep posted on the Premises
any notices which it deems necessary for protection from such liens. If any such
liens are filed, Landlord may, without waiving its rights and remedies based on
such breach of Tenant and without releasing Tenant from any of its obligations,
cause such liens to be released by any means it shall deem proper, uding payment
in satisfaction of the claim giving rise to such lien. Tenant shall pay to
Landlord at once, upon notice by Landlord, any sum paid by Landlord to remove
such liens, together with interest at the maximum rate per annum permitted by
law from the date of such payment by Landlord.
17. ENTRY BY LANDLORD. Subject to Landlord's agreement to minimize any
disturbance of Tenant's use of the Premises by exercise of the following rights,
Landlord reserves and shall at any and all times have the right to enter the
Premises to inspect the same, to supply janitor service and any other service to
be provided by Landlord to Tenant herunder, to submit said Premises to
prospective purchasers or, during the last six months of the term of this Lease,
to prospective tenants, to post notices of nonresponsibility, to after, improve
or repair the Premises or any other portion of the Building, all without being
deemed guilty of any eviction of Tenant and without abatement of rent, and may,
in order to carry out such purposes, erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, provided that the business of Tenant shall be interfered with as
little as is reasonably practicable. Tenant hereby waives any claim for damages
for any injury or inconvenience to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises and any other loss
occasioned thereby. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in, upon and
about the Premises, excluding Tenant's vaults and safes, and Landlord shall have
the means which Landlord may deem proper to open said doors in an emergency in
order to obtain entry to the Premises, and any entry to the Premises obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction of Tenant from the Premises or any portion
thereof, and any damages caused on account thereof shall be paid by Tenant. It
is understood and agreed that no provision of this Lease shall be construed as
obligating Landlord to perform any repairs, alterations or decorations except as
otherwise expressly agreed herein to be performed by Landlord. Landlord shall
attempt in the exercise of its rights under this Paragraph 17 to minimize any
disturbance of Tenant's use and possession of the Premises and to provide as
much notice to Tenant as may be reasonably possible prior to any such exercise
of Landlord's rights under this Paragraph 17.
18. UTILITIES AND SERVICES. Provided that Tenant is not in default
hereunder, Landlord agrees, during the Lease term, to furnish to the Premises as
part of the Operating Expenses during those hours set forth in the Rules and
Regulations as defined in Paragraph 31 hereof, as may be amended in writing by
Landlord from time to time during the term of this Lease and delivered to
Tenant, reasonable quantities of electric current for normal lighting and
fractional horsepower office machines, water for lavatory and drinking purposes,
heat and air conditioning required in Landlord's judgment for the comfortable
use and occupation of the Premises, janitorial service (including washing of
windows with reasonable frequency as determined by landlord) and elevator
service by non-attended automatic elevators. Landlord shall not be liable for,
and Tenant shall not be led to any abatement or reduction of rent by reason of
Landlord's failure to furnish any of the foregoing when such failure is caused
by accident, breakage, repairs, strikes, lockouts or other labor disturbances or
labor disputes of any character, or for any other causes. If Tenant requires or
utilizes more water or electric power than is considered reasonable or normal by
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Landlord, Landlord may at its option require Tenant to pay, as additional rent,
the cost, as fairly determined by Landlord, incurred by such extraordinary
usage. In addition, Landlord may install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant thereafter shall pay all charges of the
utility providing service. Tenant specifically undertakes to install maintain at
Tenant's cost such fire protection equipment including, without limitation,
emergency lighting as required by governmental authority or insurer, and if so
required, Tenant shall appoint one of Tenant's personnel to coordinate with the
fire protection facilities and personnel of Landlord. Any incandescent light
bulbs used in the Premises shall be paid for the Tenant. Upon Tenant's request,
Landlord's personnel shall install incandescent light bulbs or other Building
Nonstandard bulbs in the Premises. Tenant agrees to pay Landlord upon demand
Landlord's cost for all such incandescent light bulbs installed or other
Building Nonstandard improvements including but not limited to metallic trim,
wood floor covering, glass panels, windows, partitions, kitchens and executive
washrooms in the Premises. Landlord shall not be responsible in any manner for
said maintenance, cleaning and repair.
19. INDEMNIFICATION. To the fullest extent permitted by law Tenant
hereby agrees to defend, indemnity and hold Landlord harmless against and from
any and all claims arising from Tenant's use of the Premises or the conduct of
its business or from any activity, work, or thing done, permitted or suffered by
Tenant, its agents, contractors, employees or invitees in or about the Premises
or elsewhere, and hereby agrees to further indemnify and hold harmless Landlord
against and from any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease or arising from any act, neglect, fault or omission of Tenant, or
of its agents, employees or invitees, and from and against all costs, attorneys'
fees, expenses and liabilities incurred in or about such claim or any action or
proceeding brought thereon. In case any action or proceeding is brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord hereby
agrees to defend the same at Tenant's expense by counsel approved in writing by
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises from any cause whatsoever except that which is caused by the
failure of Landlord to observe any of the terms and conditions of this Lease and
such failure has persisted for an unreasonable period of time after written
notice of such failure, and Tenant hereby waives all its claims in respect
thereof against Landlord.
20. DAMAGE TO TENANT'S PROPERTY. Notwithstanding the provisions of
Paragraph 19 to the contrary, Landlord or its agents shall not be liable for any
damage to property entrusted to employees of the Building, nor for loss of or
damage to any property by theft or otherwise, nor for any injury or damage to
persons or property resulting from fire, explosion, failing plaster, steams,
gas, electricity, water or rain which may leak from any part of the Building or
from the pipes, appliances or plumbing works therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
patent or latent cause whatsoever. Landlord or its agents shall not be liable
for interference with the light or other incorporeal hereditaments. Tenant shall
give prompt notice to Landlord in case of fire or accidents in the Premises or
in the Building or of defects therein or in the fixtures or equipment located
therein.
21. INSURANCE.
(a) During the term hereof, Tenant, at its sole expense, shall obtain
and keep in force the following insurance:
(i) All Risk insurance upon property owned by Tenant and located in the
Building or for which Tenant is legally liable, Aggregate Improvements
(other than "Building Standard Work" as described in Subparagraph l(l)
hereof), and alterations, in an amount not less than ninety percent
(90%) of the full replacement cost thereof. All such insurance policies
shall name Tenant and Landlord as named insured thereunder and, at
Landlord's request shall same Landlord's mortgagees (and, if
applicable, ground or primary lessors) as loss payees thereunder, all
as their respective interests may appear. Landlord will not be required
to carry insurance of any kind on any "Building Non-Standard Work", as
described in Subparagraph I (m) hereof, on Tenant's furniture or
furnishings, or on any of Tenant's fixtures, equipment, improvements,
or appurtenances under this Lease, and Landlord shall not be obligated
to repair any damage thereto or replace the same.
(ii) Comprehensive general liability insurance coverage, including
personal injury, bodily injury, broad form property damage, operations
hazard, owner's protective coverage, contractual liability, and
products and completed operations liability, in limits not less than
$2,000,000.00 inclusive. All such insurance policies shall name Tenant
as named insured thereunder and shall name Landlord and Landlord's
mortgagees (and, if applicable, ground or primary lessors) as
additional insured thereunder, all as their respective interests may
appear.
(iii) Worker's Compensation and Employer's Liability insurance, with a
waiver of subrogation endorsement in form and amount satisfactory to
Landlord.
(iv) [DELETED]
(v) Liquor liability insurance coverage in limits of not less than Five
Hundred Thousand Dollars ($500,000) if at any time during the term or
on any occurrence hereof any alcoholic beverages of any nature are
served on the Premises.
(vi) Any other form or forms of insurance as Tenant, Landlord, or
Landlord's mortgagees or ground or primary lessors may reasonably
require from time to time in form, in amounts, and for insurance risks
against which a prudent tenant of a comparable size and in a comparable
business would protect itself.
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(b) All policies shall be issued by insurers that are acceptable to
Landlord and in form satisfactory from time to time to Landlord. Tenant will
deliver certificates of insurance to Landlord as soon as practicable after the
placing of the required insurance, but not later than ten (10) days prior to the
date Tenant takes posession of all or any part of the Premises. All policies
shall contain an undertaking by the insurers to notify Landlord and Landlord's
mortgagees (and, if applicable, ground or primary lessors) in writing, not less
than thirty (30) days before any material change, reduction in coverage,
cancellation or other termination thereof. Ten (10) days prior to the expiration
of any insurance policy, Tenant will provide Landlord with a Certificate of
Insurance extending the term of the original policy or a certified copy of a new
policy extending the required coverage.
(c) During the Term, Landlord shall insure the Building and the
Building Standard Work (excluding any property which Tenant is obligated to
insure under Subparagraph 21(a) hereof) against damage with All Risk insurance
and public liability insurance, all in such amounts and with such deductions as
Landlord considers appropriate, Landlord may, but shall not be obligated to,
obtain and carry any other form or forms of insurance as it or Landlord's
mortgagees may determine advisable. Notwithstanding any contribution by Tenant
to the cost of insurance premiums, as provided herein, Tenant acknowledges that
it has no right to receive any proceeds from any insurance policies carried by
Landlord.
(d) Tenant will not keep, use, sell, or offer for sale in, or upon, the
Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building and the Building Standard Work.
Tenant shall promptly comply with all reasonable requirements of the insurance
authority or any present or future insurer relating to the Premises.
(e) If any of Landlord's insurance policies shall be cancelled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or subtenant of Tenant or by anyone
Tenant permits on the Premises and, if Tenant fails to remedy the condition
giving rise to such cancellation, threatened cancellation, reduction of
coverage, threatened reduction of coverage, increase in premiums, or threatened
increase in premiums, within 48 hours after notice thereof, Landlord may, at its
option, either terminate this Lease or enter upon the Premises and attempt to
remedy such condition, and Tenant shall promptly pay the cost thereof to
Landlord as additional rent. Landlord shall not be liable for any damage or
injury caused to any property or of others located on the Premises resulting
from such entry. If Landlord is unable, or elects not, to remedy such condition,
then Landlord shall have all of the remedies provided for in this Lease in the
event of a default by Tenant. Notwithstanding the foregoing provisions of this
Subparagraph 21(e), if Tenant fails to remedy as aforesaid, Tenant shall be in
default of its obligation hereunder and Landlord shall have no obligation to
remedy such default.
(f) All policies covering real or personal property which either party
obtains affecting the Premises shall include a clause or endorsement denying the
insurer any rights of subrogation against the other party to the extent rights
have been waived by the insured before the occurrence of injury or loss, if same
are obtainable without unreasonable cost. Landlord and Tenant waive any rights
of recovery against the other for injury or loss due to hazards covered by
policies of insurance containing such a waiver of subrogation clause or
endorsement, to the extent of the injury or loss covered thereby.
22. DAMAGE OR DESTRUCTION.
(a) In the event the Building and/or the Building Standard Work or any
insured alterations are damaged by fire or other perils covered by Landlord's
extended coverage insurance to an extent not exceeding twenty-five percent (25
%) of the full insurable value thereof and if the damage thereto is such that
the Building and/or the Building Standard Work and any insured alterations may
be repaired, reconstructed or restored within a period of ninety (90) days from
the date of the happening of such casualty and Landlord will receive insurance
proceeds sufficient to cover the cost of such repairs, Landlord shall commence
and proceed diligently with the work of repair, reconstruction and restoration
and the Lease shall continue in full force and effect. If such work or repair,
reconstruction and restoration is such as to require a period longer than ninety
(90) days or exceeds twenty-five percent (25%) of the full insurable value
thereof, or if said insurance proceeds will not be sufficient to cover the cost
of such repairs, Landlord either may elect to so repair, reconstruct or restore
the Building and/or Building Standard Work and any insured alterations and the
Lease shall continue in full force and effect or Landlord may elect not to
repair, reconstruct or restore the Building and/or Building Standard Work and
any insured alterations and the Lease shall in such event terminate. Under any
of the conditions of this Subparagraph 22(a), Landlord shall give written notice
to Tenant of its intention within thirty (30) days from the date of such event
of damage or destruction. In the event Landlord elects not to restore said
Building and/or Building Standard Work and any insured alterations, this Lease
shall be deemed to have terminated as of the date of such partial destruction.
(b) Upon any termination of this Lease under any of the provisions of
this Paragraph 22, the parties shall be released thereby without further
obligation to the other from the date possession of the Premises is surrendered
to Landlord except for which have therefore accrued and are then unpaid.
(c) In the event of repair, reconstruction and restoration by Landlord
as herein provided, the rent provided to be paid under this Lease shall be
abated proportionately with the degree to which Tenant's use of the Premises is
impaired during the
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period of such repair, reconstruction or restoration. Tenant shall not be
entitled to any compensation or damages for loss in the use of the whole or any
part of the Premises and/or any inconvenience, annoyance or loss of business
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in this
Paragraph 22. Notwithstanding anything to the contrary contained in this
Paragraph 22, should Landlord be delayed or prevented from repairing or
restoring the damaged Premises within one (1) year after the occurrence of such
damage or destruction by reason of acts of God, war, governmental restrictions,
inability to procure the necessary labor or materials, or other cause beyond me
control of Landlord, Landlord shall be relieved of its obligation to make such
repairs or restoration and Tenant shall be released from its obligations under
this Lease as of the end of said year.
(e) In the event that damage is due to any cause other than fire or
other peril covered by extended coverage insurance, Landlord may elect to
terminate this Lease.
(f) It is hereby understood that if Landlord is obligated to or elects
to repair or restore as herein provided, Landlord shall be obligated to make
repairs or restoration only of those portions of the Building and the Premises
which were originally provided at Landlord's expense or which were insured by
either party and the proceeds of such insurance have been received by Landlord,
and the repair and restoration of items not provided at Landlord's expense shall
be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this
Paragraph 22, Landlord shall not have any obligations whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Paragraph 22 occurs during the last twelve (12) months of the
term of this Lease or any extension hereof.
(h) The provisions of California Civil Code 1932, Subsection 2, and
1933, Subsection 4, are hereby waived by Tenant.
23. EMINENT DOMAIN.
(a) In case the whole of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be taken
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain, or sold
to prevent such taking, either party shall have the right to terminate this
Lease effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall be
entitled to receive the entire amount of any award without deduction for any
estate or interest of Tenant. In the event the amount of property or the type of
estate taken shall not substantially interfere with the conduct of Tenant's
business, Landlord shall be entitled to the entire amount of the award without
deduction for any estate or interest of Tenant, and landlord at his option
terminate this Lease. If Landlord does not so elect, Landlord shall promptly
proceed to restore the Premises to unreadable their same condition prior to such
partial taking, and a proportionate allowance shall be made to Tenant for the
rent corresponding to the time during which, and to the part of the Premises of
which, Tenant shall be so deprived on account of such taking and restoration.
Nothing contained in this Paragraph shall be deemed to give Landlord any
interest in any award separately made to Tenant for the taking of personal
property and trade fixtures belonging to Tenant or for moving costs incurred by
Tenant in relocating Tenant's business.
(b) In the event of taking of the Premises or any part thereof for
temporary use, (i) this Lease shall be and remain unaffected thereby and rent
shall not abate, and (ii) Tenant shall be entitled to receive for itself such
portion or portions of any award made for such use with respect to the period of
the taking which is within the term, provided that if such taking shall remain
in force at the expiration or earlier termination of this Lease, Tenant shall
then pay to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations under Paragraph 15 with respect to surrender of the Premises and
upon such payment shall be excused from such obligations. For purpose of this
Subparagraph 23(b), a temporary taking shall be defined as a taking for a period
of 270 days or less.
24. BANKRUPTCY. If Tenant shall file a petition in bankruptcy under any
Chapter of federal bankruptcy law as then in effect, or if Tenant be adjudicated
a bankrupt in involuntary bankruptcy proceedings and such adjudication shall not
have been vacated within thirty (30) days from the date thereof, or if a
receiver or trustee be appointed of Tenant's property and the order appointing
such receiver or trustee not be set aside or vacated within thirty (30) days
after the entry thereof, or if Tenant shall assign Tenant's estate or effects
for the benefit of creditors, or if this Lease shall otherwise by operation of
law pass to any person or persons other than Tenant, then and in any such event
Landlord may, if Landlord so elects, with or without notice of such election and
with or without entry or action by Landlord, forthwith terminate this Lease.
Notwithstanding any other provisions of this Lease, Landlord, in addition to any
and all rights and remedies allowed by law or equity, shall upon such
termination be entitled to recover damages in the amount provided in
Subparagraph 25(b) below and neither Tenant nor any person claiming through or
under Tenant or by virtue of any statute or order of any court shall be entitled
to possession of the Premises but shall forthwith quit and surrender the
Premises to Landlord. Nothing herein contained shall limit or prejudice the
right of Landlord to prove and obtain as damages by reason of any such
termination an amount equal to the maximum allowed by any statute or rule of law
in effect at the time when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount be greater, equal to, or less than
the amount of damages recoverable under the provisions of this Paragraph 24.
25. DEFAULTS AND REMEDIES.
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
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(i) The vacation or abandonment of the Premises by Tenant. Abandonment
is herein defined to included, But is not limited, to, any absence by
Tenant from the Premises for five (5) days or longer while in default
of any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or additional
rent or any other payment required to be made by Tenant hereunder, as
and when due.
(iii) The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in Subparagraph 25(a)(i)
or (ii) above, where such failure shall continue for a period of ten
(10) days after written notice thereof from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil
Procedure 1161; provided, further, that if the nature of Tenant's
default is such that more than ten (10) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within said ten-day period and
thereafter diligently prosecute such cure to completion, which
completion shall occur not later than sixty (60) days from the date of
such notice from Landlord.
(iv) (1) The making by Tenant of any general assignment for the benefit
of creditors; (2) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case
of a petition filed against Tenant, the same is dismissed within thirty
(30) days); (3) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is not
restored to Tenant within thirty (30) days; or (4) the attachment,
execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease
where such seizure is not discharged within thirty (30) days.
(b) In the event of any such default by Tenant, in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant hereunder.
In the event that Landlord shall elect to so terminate this lease then Landlord
may recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably
avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform his
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom.
As used in Subparagraphs 25(b)(i) and (ii) above, the "worth at the
time of award' is computed by allowing interest at the maximum rate permitted by
law per annum. As used in Subparagraph 25(b)(iii)above, the "worth at the time
of award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
(c) In the event of any such default by Tenant, Landlord shall also
have the right, with or without terminating this Lease, to re-enter the Premises
and remove all persons and property from the Premises. Such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant for such period of time as may be required by applicable law
after which time Landlord may dispose of such property in accordance with
applicable law. No re-entry or taking possession of the Premises by Landlord
pursuant to this Subparagraph 25(c) shall be construed as an election to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction.
(d) All rights, options' and remedies of Landlord contained in this
Lease shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Landlord shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or other
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval or Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
26. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily assign or
encumber its interest in this Lease or in the Premises, or sublease all or any
part of the Premises, or allow any other person or entity to occupy or use all
or any part of the Premises, without first obtaining Landlord's prior written
consent. Any assignment, encumbrance or sublease without Landlord's prior
written consent shall be voidable, at Landlord's election, and shall constitute
a default. For purpose hereof, the event Tenant is a partnership, a withdrawal
or change of partners, or change of ownership of partners, owning more
unreadable a fifty percent (50%) interest in the partnership, or if Tenant is a
corporation, any transfer of fifty percent (50%) of its Stock, shall constitute
a voluntary assignment and shall be subject to these provisions. No consent to
any assignment, encumbrance, or sublease shall constitute a further waiver of
the provisions of this Paragraph. Tenant shall notify Landlord
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in writing of Tenant's intent to assign encumber, or sublease this lease, the
name of the proposed assignee or sublessee, information concerning the financial
responsibility of the proposed assignee or sublessee and the terms of the
proposed assignment or subletting, and Landlord shall, within thirty (30) days
of receipt of such written notice, and additional information requested by
Landlord concerning the proposed assignee's or sublessee's financial
responsibility, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or sublease;
(b) Refuse such consent, which refusal shall be on reasonable grounds;
(c) Elect to terminate this Lease, or in the case of a partial
sublease, terminate this Lease as to the portion of the Premises
proposed to be sublet.
Without limiting Landlord's grounds for disapproval, Landlord's disapproval
shall be deemed reasonable if it is based on Landlord's analysis of (a) the
proposed assignee's or sublessee's credit, character and business or
professional standing, (b) whether the assignee's or sublessee's use and
occupancy of the Premises will be consistent with Subparagraph 1(u) and
Paragraph 8 of this Lease and whether assignee's proposed intensity of use is
consistent with that shown by Tenant, (c) whether the proposed assignee or
sublessee is a then existing or prospective tenant of the Building, as a
condition for granting its consent to any assignment, encumbrance or sublease.
Landlord may require that the rent payable by such assignee or sublessee is at
the then current published rental rates for the Premises or comparable premises
in the Building, but not less than the then current Annual Basic Rent under this
Lease and may require that the assignee or sublessee remit directly to Landlord
on a monthly basis, all monies due to Tenant by said assignee or sublessee. In
the event that Landlord shall consent to any assignment or sublease under the
provisions of this Paragraph 26, Tenant shall pay Landlord's processing costs
and attorneys' fees incurred in giving such consent. If for any proposed
assignment or sublease Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess of the rent
called for hereunder, or, in case of the sublease of a portion of the Premises,
in excess of such rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for hereunder are taken
into account, Tenant shall pay to Landlord as additional rent hereunder all of
the excess of each such payment of rent or other consideration received by
Tenant promptly after its receipt. Landlord's waiver or consent to any
assignment or subletting shall not relieve Tenant from any obligation under this
Lease. Occupancy of all or part of the Premises by parent, subsidiary, or
affiliated companies of Tenant shall not be deemed an assignment or subletting.
If Tenant requests Landlord's consent to any assignment of this Lease or any
subletting of all or a portion of the Premises, Landlord shall have the right,
to be exercised by giving written notice to Tenant within thirty (30) days of
receipt by Landlord of the financial responsibility information required by this
Paragraph 26 to terminate this Lease effective as of the date Tenant proposes to
assign this Lease or sublet all or a portion of the Premises. Landlord's right
to terminate this lease as to all or a portion of the Premises on assignment or
subletting shall not terminate as a result of Landlord's consent to the
assignment of this Lease or the subletting of all or a portion of the Premises,
or Landlord's failure exercise this right with respect to any assignment or
subletting.
27. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent required under this Lease and paying all other
charges and performing all of the covenants and provisions aforesaid on Tenant's
part to be observed and performed under this Lease, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises in accordance with this
Lease.
28. SUBORDINATION. Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a subordination, and at
the election of Landlord or any first mortgagee with a lien on the Building or
any ground lessor with respect to the Building, this lease shall be subject and
subordinate at all times to; (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building or the land upon
which the Building is situated or both, and (b) the lien of any mortgage or deed
of trust which may now exist or hereafter be executed in any amount for which
the Building, land, ground leases or underlying leases, or Landlord's interest
or estate in any of said items is specified as security. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases or any such liens to
this lease. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, if requested by the
ground lessor, mortgagee or beneficiary, as applicable, attorn to and become the
Tenant of the successor in interest to Landlord and in such event Tenant's right
to possession of the Premises shall not be disturbed if Tenant is not in default
and so long as Tenant shall pay the rent and all other amounts required to be
paid to Landlord pursuant to the terms hereof and observe and perform all of the
provisions of this Lease, unless the Lease is otherwise terminated pursuant to
its terms. Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in the form requested by Landlord, any additional documents
evidencing the priority or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such mortgage or deed of
trust. Should Tenant fail to sign and return any such documents within ten (10)
business days of receipt, Tenant shall be in default, and Landlord may, at
Landlord's option, terminate this Lease provided written notice of such
termination is received by Tenant prior to Landlord's receipt of such documents.
29. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which Landlord
may make from time to time, Tenant shall execute and deliver to Landlord a
statement, in a form substantially similar to the form of Exhibit "E" attached
hereto, certifying; (i) the Commencement Date of this Lease; (ii) the fact that
this Lease is unmodified and in full force and effect or, if there have been
modifications hereto, that this Lease is in full force and effect, as modified,
and stating the date and nature of such modifications); (iii) the date to which
the rental and other sums payable under this Lease have been paid; (iv) the fact
that there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's
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statement; and (v) such other matters requested by Landlord. Landlord and Tenant
intend that any statement delivered pursuant to this Paragraph 29 may be relied
upon by any mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performances, and (iii) that not more than
one (1) month's rent has been paid in advance, except as provided in Paragraph
36 hereof. Tenant's failure to deliver said statement to Landlord within ten
(10) working days of receipt shall constitute a default under this Lease, and
Landlord may, at Landlord's option, terminate the Lease, provided written notice
of such termination is received by Tenant prior to Landlord's receipt of said
statement.
30. BUILDING PLANNING. In the event Landlord requires the Premises for
use in conjunction with another suite or for other reasons connected with the
Building planning program, upon notifying Tenant in writing, Landlord shall have
the right to move Tenant to other comparable space in the Building of which the
Premises forms a part, at Landlord's sole cost and expense including all of
Tenant's moving expenses, telephone installation and stationery reprinting
charges, and the terms and conditions of the original Lease shall remain in full
force and effect, save and excepting that a revised Exhibit "A" shall become
part of this Lease and shall reflect the location of the new space and Paragraph
1 of this Lease shall be amended to include and state all correct data as to the
new space.
31. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with the "Rules and Regulations," a copy of which is attached hereto and marked
Exhibit "F", and all reasonable and nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the violation or nonperformance by any other
tenant or occupant of the Building of any of said Rules and Regulations.
32. CONFLICT OF LAWS. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
33. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease,
all of the covenants, conditions and provisions of this Lease shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, personal representative, successors and assigns.
34. SURRENDER OF PREMISES. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and
shall, at the option of Landlord, operate as an assignment to it of any or all
subleases or subtenancies. Upon the expiration or termination of this Lease,
Tenant shall peaceably surrender the Premises and all alterations and additions
thereto broom-clean, in good order, repair and condition, reasonable wear and
tear excepted, and shall comply with the provisions of Subparagraphs 14(g) and
14(h). The delivery of keys to any employee of Landlord or to Landlord's agent
or any employee thereof shall not be sufficient to constitute a termination of
this Lease or a surrender of the Premises.
35. PROFESSIONAL FEES.
(a) In the event that Landlord should bring suit for the possession of
the Premises, for the recovery of any sum due under this Lease, or because of
the breach of any provisions of this Lease, or for any other relief against
Tenant hereunder, or should either party bring suit against the other with
respect to matters arising from or growing out of this Lease, then all costs and
expenses, including without limitation, its actual professional fees such as
appraisers', accountants' and attorneys' fees, incurred by the prevailing part
therein shall be paid by the other party, which obligation on the part of the
other party shall be deemed to have accrued on the date of the commencement of
such action and shall be enforceable whether or not the action is prosecuted to
judgment.
(b) Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
without limitation, its actual professional fees such as appraiser's,
accountants' and attorneys' fees.
36. PERFORMANCE BY TENANT. All covenants and agreements to be performed
by Tenant under any of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of rent. Tenant
acknowledges that the late payment by Tenant to Landlord of any sums due under
this Lease will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of such cost being extremely difficult and impractical to fix.
Such costs include, without limitation, processing and accounting charges, and
late charges that may be imposed on Landlord by the terms of any encumbrance and
note secured by any encumbrance covering the Premises or the Building of which
the Premises are a part. Therefore if any monthly installment of Annual Basic
Rent is not received by Landlord by the date when due, or if Tenant fails to pay
any other sum of money due hereunder and such failure continues for ten (10)
days after notice thereof by Landlord, Tenant shall pay to Landlord, as
additional rent, the sum of five percent (5 %) of the overdue amount as a late
charge. Such overdue amount shall also bear interest, as additional rent, at the
maximum rate permissible by law calculated, as appropriate, from the date either
(a) the monthly installment of Annual Basic Rent is due, or (b) of receipt of
said notice, until the date of payment to Landlord. Landlord's acceptance of any
late charge or interest shall not constitute a waiver of Tenant's default with
respect to the overdue amount or prevent Landlord from exercising any of the
other rights and remedies available to Landlord under this Lease or any law now
or hereafter in effect. Further, in the event such late charge is imposed
Landlord for two (2) consecutive months for whatever reason, Landlord shall have
the option to require that, beginning It the first payment of rent due following
the imposition of the second consecutive late charge, rent shall no longer be
paid monthly installments but shall be payable three (3) months in advance.
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37. MORTGAGEE AND SENIOR LESSOR PROTECTION. No act or failure to act on
the part of Landlord which would entitle Tenant under the terms of the Lease, or
by law, to be relieved of Tenant's obligations hereunder or to terminate this
Lease, shall result in a release of such obligations or a termination of this
Lease unless (a) Tenant has given notice by stered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises and to the
Lessor under master or ground lease covering the Building, the Site or any
interest therein whose identity and address shall have been furnished to Tenant,
and (b) Tenant offers such beneficiary, mortgagee or Lessor a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or of judicial foreclosure, if such should prove
necessary to effect a cure.
38. DEFINITION OF LANDLORD. The term "Landlord" as used in this Lease,
so far as covenants or obligations on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners, at the time in
question, of the fee title to, or a lessee's interest in a ground lease of the
Site or master lease of the Building. In the event of any transfer, assignment
or other conveyance or transfer of any such title or interest, Landlord herein
named (and in case of any subsequent transfers or conveyances, the then grantor)
shall be automatically freed and relieved from and after the date of such
transfer, assignment or conveyance of all liability with respect to the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed and, without further agreement, the
transferee of such title or interest shall be deemed to have agreed to observe
and perform any and all obligations of Landlord hereunder, during its ownership
of the Premises, Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
39. WAIVER. The failure of Landlord to seek redress for violation of,
or to insist upon strict performance of, any term, covenant or condition of this
Lease or the Rules and Regulations attached hereto as Exhibit "F", shall not be
deemed a waiver of such violation or prevent a subsequent act which would have
originally constituted a violation from having all the force and effect of an
original violation, nor shall the failure of Landlord to enforce any of said
Rules and Regulations against any other tenant of the Building be deemed a
waiver of any such Rule or Regulation, nor shall any custom or practice which
may become established between the parties in the administration of the terms
hereof be deemed a waiver of, or in any way affect, the right of Landlord to
insist upon the performance by Tenant in strict accordance with said terms. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
40. IDENTIFICATION OF TENANT. Unless the provisions of Paragraph 55
herein below are applicable to this Lease, then if more than one person executes
this Lease as Tenant, (a) each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and (b) the term "Tenant" as used in this Lease shall mean and include
each of them tly and severally and the act of or notice from, or notice or
refund to, or the signature of, any one or more of them, with respect to the
tenancy or this Lease, including, but not limited to, any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
41. PARKING. The use by Tenant, its employees and invitees, of the
parking facilities of the Building shall be on the terms and conditions set
forth in Exhibit F attached hereto and by this reference incorporated herein and
shall be subject to such other agreement between Landlord and Tenant as may
hereinafter be established.
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43. TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words used in any
gender include other genders. If there be more than one Tenant, i.e. , if two or
more persons or entities are jointly referred to in this lease as "Tenant", the
obligations hereunder imposed upon Tenant shall be joint and ral. The Paragraph
headings of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
44. EXAMINATION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for Lease,
and it is not effective as a Lease or otherwise until execution by and delivery
to both Landlord and Tenant.
45. TIME. Time is of the essence with respect to the performance of
every provision of this Lease in which time or performance is a factor.
46. PRIOR AGREEMENT; AMENDMENTS. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreement or understanding, oral or written, express
or implied, pertaining to any such matter shall be effective for any purpose. No
provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
The parties acknowledge that all prior agreements, representations and
negotiations are deemed superseded by the execution of this Lease to the extent
they are not incorporated herein.
47. SEPARABILITY. Any provision of this Lease which shall prove to be
invalid, void or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
48. RECORDING. Neither Landlord nor Tenant shall record this Lease nor
a short memorandum thereof without the consent of the other and if such
recording occurs, it shall be at the sole cost and expense of the party
requesting the recording, including any documentary transfer taxes or other
expenses related to such recordation.
49. LIMITATION ON LIABILITY. The obligations of Landlord under this
Lease do not constitute personal obligations of the individual partners,
directors, officers or shareholders of Landlord, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders of
Landlord or any of their personal assets for satisfaction of any liability in
respect to this Lease. In consideration of the benefits accruing hereunder,
Tenant and all successors and assigns covenant and agree that in the event of
any actual or alleged failure, breach or default hereunder by Landlord, the sole
and exclusive remedy shall be against Landlord's interest in the Building.
5O. RIDERS. Clauses, plats and riders, if any, signed by Landlord and
Tenant and affixed to this Lease are a part thereof.
51. SIGNS. Tenant shall not place any sign upon the Premises or the
Building without Landlord's prior written consent, except as specifically stated
in the signage provision, Rider #5, between Landlord and Tenant in that Lease
dated April 22, 1991.
52. MODIFICATION OF LENDER. If in connection with obtaining
construction, interim or permanent financing for the Building, the lender shall
request reasonable modifications in this Lease as a condition to such financing,
Tenant will not unreasonably withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
53. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the rent payment herein stipulated shall be
deemed to be other than on account of the rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided in this Lease. Tenant agrees that each
of the foregoing covenants and agreements shall be applicable to any covenant or
agreement either expressly contained in this lease or imposed by any statute or
at common law.
54. FINANCIAL STATEMENTS. At any time within reason during the term of
this Lease, Tenant shall, upon ten (1O) days prior written notice from Landlord,
provide Landlord with a current financial statement and financial statements of
the two (2) years prior to the current financial statement year. Such statement
shall be prepared in accordance with generally accepted accounting principles
and, if such is the normal practice of Tenant, shall be audited by an
independent certified public accountant.
55. TENANT AS CORPORATION. If Tenant executes this Lease as a
corporation, then Tenant and the persons executing this Lease on behalf of
Tenant represent and warrant that the individuals executing this Lease on
Tenant's behalf are duly authorized to execute and deliver this Lease on its
behalf in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, and
in accordance with the By-Laws of Tenant and that this Lease is binding upon
Tenant in accordance with its terms.
56. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Lease shall be
deemed to constitute Landlord and Tenant as partners or joint venturers. It is
the express intent of the parties hereto that their relationship with regard to
this Lease be and remain that of landlord and tenant.
IN WITNESS WHEREOF, the parties have executed this Lease the day and
year first above written.
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LANDLORD: ADDRESS:
LINCOLN PROPERTY COMPANY N.C., INC. LARKSPUR LANDING OFFICE
As Manager and Agent for Owner 1100 Larkspur Landing Circle, Ste 155
Larkspur, California 94939
By: /s/ ROGER LEE OSER Dated: 11/2/92
--------------------------- --------------------------------
Roger Lee Oser, VP
TENANT: ADDRESS:
Synon, Inc. 1100 Larkspur Landing Circle
--------------------------- --------------------------------------
an Illinois corporation Suite 300
--------------------------- --------------------------------------
Larkspur. CA 94939
--------------------------- --------------------------------------
By: /s/ PAUL WILDE Dated: 9/22/92
--------------------------- --------------------------------
Paul Wilde,
Its: Vice President of Finance
---------------------------
By: Dated:
--------------------------- -------------------------------
Its:
---------------------------
Continued from Page 3, "Rent Escalation":
ADJUSTED BASIC RENT. Each year during the term of this Lease other than
the Base Year, the Basic Rent or the prevailing Adjusted Basic Rent, as the case
may be, shall be adjusted for the ensuing twelve (12) months by the use of the
Consumer Price Index (All Urban Consumers component) for the San
Francisco-Oakland Area (1982 - 1984 - 100) published by the Bureau of Labor
Statistics of the U.S. Department of Labor. he Basic Rent will be increased by
the percentage increase, if any, between the latest index published just prior
to the commencement of the Lease Term and the comparable latest index published
just prior to January of the following year to arrive at the Adjusted Basic
Rent. Each year thereafter, the Adjusted Basic Rent will be increased by the
percentage increase, if any, between the index published just prior to January
of the subsequent year and the comparable latest index published just prior to
January of the preceding year.
In case the U.S. Department of Labor shall discontinue the computation
and publication of said Consumer Price Index or the publication thereof should
be delayed so as to prevent its use hereunder at the times required, there shall
be substituted therefor by Landlord such other index or method of ascertaining
changes in the price level as, in the opinion of Landlord, most closely
resembles the Consumer Price Index and method of arriving at the index figure by
said Bureau.
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[ FLOOR PLAN ]
127
EXIBIT A
OUTLINE OF FLOOR PLAN OF PREMISES
(see EX. B)
A-1
128
EXHIBIT B
SITE PLAN
[FLOOR PLAN]
B-1
129
EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the 22nd day of
Sept.,1992 by and between Lincoln Property Company, N.C., Inc. ("Landlord"), and
Synon, Inc. ("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit A attached to
the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows: Landlord to
provide a maximum Tenant Improvement contribution of $6.00 per rentable square
foot ($45,078.00). In addition to the above allowance, Landlord shall contribute
up to $8,105.00 as a Carpet Allowance for the Premises known as 1100 Larkspur
Landing Circle, Suite 340, leased by Tenant in Lease dated September 1, 1989.
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7. COMPLETION AND RENTAL COMMENCEMENT DATE.
The commencement of the term of Lease and Tenant's obligation for the
payment of rental under the Lease shall not commence until substantial
completion of construction of the Tenant Improvements. However, if there shall
be a delay in substantial completion of the Tenant Improvements as a result of:
(i) Tenant's failure to approve any item or perform any other
obligation in accordance with and by the date specified in the Work
Schedule;
(ii) Tenant's request for materials, finishes or installations other
than those readily available; or
(iii) Tenant's changes in the Tenant Improvement Plans after their
approval by Tenant;
Then the commencement of the term of the Lease and the rental
commencement date shall be accelerated by the number of days of such delay.
Please Initial:
PW/M
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EXHIBIT D
NOTICE OF LEASE TERM DATES
To: Date:
Re: Lease dated__________19__ between_________________Tenant, concerning
Suite____ located at____________________.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the Premises have been accepted herewith by the Tenant as
being substantially complete in accordance with the subject Lease,
and that there is no deficiency in construction.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the
term of said Lease shall commence as of____________for a term
of_______ending_________on
3. That in accordance with the subject Lease, rental commenced to
accrue on_________________.
4. If the commencement date of the subject Lease is other than the
first day of the month, the first billing will contain a pro rata
adjustment. Each billing thereafter, with the exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should
be made payable to____________at_________________________________.
AGREED AND ACCEPTED
TENANT LANDLORD:
___________________________________
By ___________________________________
Print Name ___________________________________
Its ___________________________________
By ___________________________________
Print Name ___________________________________
Its ___________________________________
D-1
132
All provisions of the Lease and the amendments thereto (if any)
referred to above are hereby ratified.
DATED:______________,19____.
TENANT LANDLORD:
___________________________________
By ___________________________________
Print Name ___________________________________
Its ___________________________________
By ___________________________________
Print Name ___________________________________
Its ___________________________________
E-2
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EXHIBIT F
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building without
the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on
doors, windows and walls shall be printed, printed, affixed or inscribed at
the expense of Tenant by a person chosen by Landlord, using materials of
Landlord's choice and in a style and format approved by Landlord.
2. Tenant must use Landlord's window coverings in all exterior and atrium
window offices. No awning shall be permitted on any part of the Premises.
Tenant shall not place anything against or near glass partitions or doors
or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls passages, exits, entrances,
elevators, escalators or stairways of the Building. the halls, passages,
exits, entrances, shopping malls, elevators, escalators and stairways are
not for the general public, and Landlord shall in all cases retain the
right to control and prevent access thereto of all persons whose presence
in the judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No tenant
and no employee or invitee of any tenant shall go upon the roof of the
Building without Landlord's consent.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than lose approved by
Landlord shall be employed by Tenant or permitted to enter the Budding for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises. Landlord shall not in any way be responsible to any Tenant
for any loss of property on the Premises, however occurring, or for any
damage to any Tenant's property by the janitor or any other employee or any
other person.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. Any freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials, furniture,
packages. supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord.
9. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects, if such objects are considered
necessary by Tenant, as determined by Landlord, shall stand on such
platforms as determined by Landlord to be necessary to properly distribute
the weight. Business machines and mechanical equipment belonging to Tenant,
which cause noise or vibration that may be transmitted to the structure of
the Building or to any spaces therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration.
The persons employed to move such equipment in or out of the Building must
be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals, except
seeing-eye dogs when accompanied by their masters.
11. Tenant shall not use any method of heating or air conditioning other than
that supplied or approved by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls other than room
thermostats installed for Tenant's use. Tenant shall keep corridor doors
closed, and shall close window
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coverings at the end of each business day. Heat and air conditioning shall
be provided during ordinary business hours of generally recognized business
days, but not less than the hours of 8:00 a.m. to 6:00 p.m. on Monday
through Friday (excluding in any event Saturdays, Sundays and legal
holidays).
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
14. Landlord reserves the right to exclude from the building between the hours
of 6:00 p.m. and 7:00 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Saturdays, Sundays and
legal holidays, any person unless that person is known to the person or
employee in charge of the Building and has a pass or is properly
identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall not be liable for damages for any error with regard
to the admission to or exclusion from the Building of any person. Landlord
reserves the right to prevent access to the Building in case of invasion,
mob, riot, public excitement or other commotion by closing the doors or by
other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and, except with regard to
Tenant's computers and other equipment which requires utilities on a
twenty-four hour basis, all electricity, gas or air outlets before Tenant
and its employees leave the Premises. Tenant shall be responsible for any
damage or injuries sustained by other tenants or occupants of the Building
or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water, food
beverage, towel or other similar services or accept barbering or
bootblacking services upon the Premises, except as such hours and under
such regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
19. Tenant shall not mark, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except to install normal wall hangings, and to secure files and book cases
and other furniture that could fall over. Landlord reserves the right to
direct electricians as to where and how telephone and telegraph wires are
to be introduced to the Premises. Tenant shall not cut or bore holes for
wires. Tenant shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any vending
machine without the written consent of Landlord.
21. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building or the Site are prohibited, and each
tenant shall cooperate to prevent same.
22. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
23. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
24. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by any tenant on the
Premises, except that use by Tenant of Underwriters' Laboratory-approved
equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, and the use of a microwave oven shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and
regulations. If odor is objectionable by Landlord or other Tenant's of
Building, microwave use may be prohibited by Landlord.
25. Tenant shall not use in any space or in the public halls of the Building
any mailcarts or hand trucks except those equipped with rubber tires and
side guards or such other material handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into the
Building except as provided in the Parking Rules and Regulations.
26. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
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28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and
no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
31. These Rules and Regulations (including Parking Rules and Regulations below)
are in addition to the terms, covenants, agreements and conditions of any
lease of premises in the Building. In the event these Rules and Regulations
conflict with any provision of the Lease, the Lease shall control.
32. Landlord reserves the right to make such other and reasonable Rules and
Regulations (including Parking Rules and Regulations) as, in its judgment,
may from time to time be needed for safety and security, for care and
cleanliness of the Building and for the preservation of good order therein.
Tenant agrees to abide by all such Rules and Regulations hereinabove stated
and any additional rules and regulations which are adopted.
33. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
34. Each tenant and all employees and visitors of Tenant shall not use public
areas of the Building from the upper ground floor level and above,
including elevators, while wearing athletic attire, including, without
limitation, bathing suits, sweatsuits, jogging clothes, etc.Smoking is
prohibited in all enclosed Common Areas of the Building including without
limitation the main lobby, all hallways, all elevators, all elevator
lobbies, building conference rooms, and recreation rooms.
35. Smoking is prohibited in all enclosed Common Areas of the building,
including, but not limited to, the main lobbies, hallways, stairwells,
elevators, elevator lobbies, locker/shower rooms, restrooms and conference
room. The foregoing shall not be deemed to prohibit smoking within demised
Premises. When smoking outside the building, ash receptacles must be used
and provided by the smoker if not provided by Landlord. Smokers must not
leave any ashtrays, smoking material or debris in the area where they have
been smoking, except in ash receptacles provided by Landlord.
PARKING RULES AND REGULATIONS
1. Tenant and employees of Tenant (hereinafter referred to as "Tenant") shall
not park vehicles in any parking areas designated by Landlord as areas for
parking by visitors to the Building. Tenant shall not leave vehicles in the
Building parking areas overnight nor park any vehicles in the Building
parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks. Landlord may, in its sole
discretion, designate separate areas for bicycles and motorcycles.
2. Cars must be parked entirely within the stall lines painted on the floor.
3. All directional signs and arrows must be observed.
4 The speed limit shall be 5 miles per hour.
5. Parking is prohibited, unless a floor parking attendant approved by
Landlord directs otherwise:
a. In areas not striped for parking;
b. In aisles;
c. Where "No Parking" or "Handicap" signs am posted;
d. On ramps;
e. In crosshatched areas; or
f. In such other areas as may be designated by Landlord, its agent, lessee
or licensee.
6. Parking stickers or any other device or form of identification which may be
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may not be
mutilated in any manner.
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7. Every Tenant is requested to park and lock his own car. All responsibility
for damage to cars to be repaired is assumed by Tenant. Tenant shall
repair, or cause to be repaired at its sole cost and expense any and all
damage to the Building parking facility or any part thereof caused by
Tenant or resulting from vehicles of Tenant.
8. Loss or theft of parking identification devices from automobiles must be
reported to Landlord immediately. Any parking identification devices found
on any unauthorized car will be confiscated and the illegal holder will be
subject to prosecution. Lost or stolen devices previously reported and then
found must be reported found to the Landlord immediately.
9. Spaces are for the express purpose of one automobile per space unless
approved by Landlord directs otherwise. Washing, waxing, cleaning or
servicing of any vehicle by the Tenant and/or his agents is prohibited.
Storage of vehicles for periods exceeding one week is prohibited and said
vehicles shall be subject to towing.
10. The Landlord reserves the right to refuse the issuance of monthly stickers
or other parking identification devices to any Tenant or person and/or his
agents or representatives who willfully refuse to comply with the above
Rules and Regulations or any City, State or Federal ordinance, law or
agreement. Tenant shall not load or unload in areas other than those
designated by Landlord for such activities.
12. Landlord reserves the right to charge for parking on a nondiscriminatory
basis.
13. Tenants parked in prohibited areas are subject to towing at their own
expense.
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EXHIBIT G
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for utilities and Services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of to terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) Provide non-attended automatic elevator facilities Monday through
Friday, except holidays from 8 a.m. to 6 p.m.
(b) On Monday through Friday, except holidays, from 8 a.m. to 6 p.m.
(and other times for a reasonable additional charge to be fixed by Landlord),
ventilate the Premises and furnish air conditioning or heating on such days and
hours, when in the judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The air conditioning system achieves maximum cooling
when the window coverings are closed. Tenant agrees to cooperate fully at all
times with Landlord, and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device conduit
or pipe to the Building chilled and hot water air conditioning supply lines.
Tenant further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities. The cost of
maintenance and service calls to adjust and regulate the air conditioning system
shall be charged to tenant if the need for maintenance work results from either
Tenant's adjustment of room thermostats or Tenant's failure to comply with it
obligations under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then-current
journeymen's wages for air conditioning mechanics.
(c) Landlord shall furnish to the Premises, during the usual business
hours on business days, electric current as required by the Building standard
office lighting and fractional horsepower office business machines in an amount
not to exceed .025 KWH per square fool per normal business day. Tenant agrees,
should its electrical installation or electrical consumption be in excess of the
aforesaid quantity or extend beyond normal business hours, to reimburse Landlord
monthly for the measured consumption at the average cost per kilowatt hour
charged to the Building during the period. If a separate meter is not installed
at Tenant's cost, such excess cost will be established by an estimate agreed
upon by Landlord and Tenant, and if the parties fail to agree, as established by
an independent licensed engineer. Said estimates to be reviewed and adjusted
quarterly. Tenant agrees not to use any apparatus or device in, or upon, or
about the Premises which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without written consent of Landlord. Should Tenant use
the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge shall
constitute a breach of the obligation to pay rent under this Lease and shall
entitle Landlord to the rights therein granted for such breach. At all times
Tenant's use of electric current shall never exceed the capacity of the feeders
to the Building or the risers or wiring installation.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any Purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy Tenant shall keep said meter
and installation equipment in good working order and repair at Tenant's own cost
and expense, in default of which Landlord may cause such meter and equipment to
be replaced or repaired and collect the cost thereof from Tenant. Tenant agrees
to pay for water consumed, as shown on said meter, as and when bills are
rendered, and on default in making such payment. Landlord may pay such charges
and collect the same from Tenant. Any such costs or expenses incurred, or
payments made by Landlord for any of the reasons or purposes hereinabove stated
shall be deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
(e) Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Tenant, and if to be
kept clean by Tenant, no one other than persons approved by Landlord shall be
permitted to enter the Premises for such purposes. If the Premises are not used
exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant's expense, and to the satisfaction of Landlord, and by persons approved
by Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop service of the elevators, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason of
accident or emergency or for repairs, alterations or improvements, in the
judgement of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and shall further have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations or requirements of
any federal, state, county or municipal authority or failure of gas, oil or
other suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil or other suitable fuel. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenant, conditions, provisions or agreements of this Lease or to
perform any act or thing for the benefit of Tenant shall not be deemed breached
if Landlord is unable to furnish or perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control.
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EXHIBIT H
HAZARDOUS WASTE
Tenant shall use the Premises solely for the uses set forth in the
Basic Lease Information in Paragraph 8 and shall not use the Premises for any
other purpose without obtaining the prior written consent of Landlord.
In no event will Tenant use, introduce to the Premises, generate,
manufacture, produce, store, release, discharge or dispose of, on, under or
about the Premises or transport to or from the Premises any Hazardous Material
(as defined below) or allow its employees. agents, contractors, invitees or any
other person or entity to do so.
Tenant warrants that it shall not make any use of the Premises which
may cause contamination of the soil, the subsoil or ground water. Tenant shall
not do, bring, or keep anything in or about the Premises that will cause a
cancellation of any insurance covering the Premises. If the rate of any
insurance carried by Landlord is increased as a result of Tenant's use, Tenant
shall pay to Landlord within thirty (30) days before the date Landlord is
obligated to pay a premium on the insurance, or within ten (10) days after
Landlord delivers to Tenant a certified statement from Landlord's insurance
carrier stating that the rate increase was caused solely by an activity of
Tenant on the premises as permitted in this Lease, whichever date is later, a
sum equal to the difference between the original premium and the increased
premium.
Tenant shall keep and maintain the Premises in compliance with, and
shall not cause or permit the Premises to be in violation of any and all
federal, state or local laws, ordinances, rules or regulations pertaining to
health, industrial hygiene or the environmental conditions on, under or about
the Premises.
Tenant shall give immediate written notice to Landlord of (i) any
action, proceeding or inquiry by any governmental authority or any third party
with respect to the presence of any Hazardous Material on the Premises or the
migration thereof from or to other property or (ii) any spill, release or
discharge of Hazardous Materials that occurs with respect to the Premises or
Tenant's operations.
Tenant shall indemnify and hold harmless Landlord, its directors,
officers, employees, agents, successors and assigns (collectively "Landlord")
from and against any and all claims arising from (i) Tenant's uses of the
Premises for the conduct of its business or from any activity, work or other
things done or suffered by the Tenant in or about the Buildings, (ii) breach or
default in performance of any obligation on Tenant's part to be performed under
the terms of this Lease, (iii) any act or negligence of the Tenant, or any
officer, agent, employee, guest or invitee of Tenant. The indemnity shall
include all costs, fines, penalties, judgments, losses, attorney's fees,
expenses and liabilities incurred in or about any such claim or any action or
proceeding brought thereon including, without limitation, (a) all foreseeable
consequential damages including without limitation loss of rental income and
diminution in property value; and (b) the costs of any cleanup, detoxification
or other ameliorative work of any kind or nature required by any governmental
agency having jurisdiction thereof or Landlord. This indemnity shall survive the
expiration or termination of this Lease. In any action or proceeding brought
against Landlord by reason of any such claim, upon notice from Landlord if
Landlord does not elect to retain separate counsel, Tenant shall defend the same
at Tenant's expense by counsel reasonably satisfactory to Landlord.
HAZARDOUS MATERIAL DEFINITION:
As used herein, the term "Hazardous Material" shall mean any substance
or material which has been determined by any state, federal or local
governmental authority to be capable of posing a risk of injury to health,
safety or property, including all of those materials and substances designated
as hazardous or toxic by the city in which the Premises are located, the U.S.
Environmental Protection Agency, the Consumer Product Safety Commission, the
Food and Drug Administration, the California Water Resources Control Board, the
Regional Water Quality Control Board, San Francisco Bay Region, the California
Air Resources Board, CAL/OSHA Standards Board, Division of Occupational Safety
and Health, the California Department of Food and Agriculture, the California
Department of Health Services, and any federal agencies that have overlapping
jurisdiction with such California agencies, or any other governmental agency now
or hereafter authorized to regulate materials and substances in the environment.
Without limiting the generality of the foregoing, the term "Hazardous Material "
shall included all of those materials and substances defined as "hazardous
materials" or "hazardous waste" in Sections 66680 through 66685 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, as the same shall be
amended from time to time, petroleum, petroleum-related substances and the
by-products, fractions, constituents and sub-constituents of petroleum or
petroleum-related substances, asbestos, and any other materials requiring
remediation now or in the future under federal, state or local statutes,
ordinances, regulations or policies.
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139
LEASE AMENDMENT ONE
This Lease Amendment One, made as of this date, April 19, 1996, by and between
LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln Larkspur
Office Three Associates, Ltd., hereinafter referred to as Landlord, and SYNON.
INC., an Illinois corporation, hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Office Lease dated September 22,
1992, hereinafter referred to as the Lease, (the term "Lease" includes any
amendments or modifications thereof) approximately 7,513 rentable square feet on
the third floor of that certain Building known as 1100 LARKSPUR LANDING CIRCLE,
Suite 365, Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide an
extended term ("Extended Term One").
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
A. TERM: Paragraph 1(k), "Term" of said Lease is hereby extended for
and additional term of twelve (12) months, ("Extended Term One"),
commencing June 1, 1997 and ending May 31, 1998.
B. BASIC RENT: Paragraph I (q) "Monthly Basic Rent" of said Lease is
hereby amended to reduce Tenant's Monthly Basic Rent from the then
current Monthly Basic Rent to $16,904.25, effective June 1, 1997,
and thereby the "Annual Basic Rent" shall be $202, 851.00.
All other terms and conditions of this Lease remain in full force and effect. If
any inconsistencies in the terms and conditions arise between the Lease and
Lease Amendment One, the terms and conditions of Lease Amendment One shall
prevail.
IN WITNESS WHEREOF, the Parties hereto subscribe their names as of the above
date, LINCOLN PROPERTY COMPANY N.C., INC., as Manager and Agent for Lincoln
Larkspur Office Three Associates, Ltd.
By: /s/ D. ALLEN PALMER
--------------------------------
D. Allen Palmer
Its: Vice President
-------------------------------
"LANDLORD"
SYNON, INC.
a Illinois corporation
By: /s/ DENNIS HOLLIGAN
--------------------------------
Its: Director of Administration
-------------------------------
"TENANT"
140
LEASE AMENDMENT TWO
This Lease Amendment Four, made as of this date, March 28, 1997, by and
between LINCOLN PROPERTY COMPANY N.C. INC., as Manager and Agent for Lincoln
Larkspur office Three Associates, Ltd., hereinafter referred to as Landlord, and
SYNON. INC., an Illinois corporation, hereinafter referred to as Tenant.
WITNESSETH:
WHEREAS, the Tenant leased from Landlord, by Office Lease dated September 22,
1992, hereinafter referred to as the Lease, (the term "Lease" includes any
amendments or modifications thereof) approximately 7,513 RENTABLE SQUARE FEET on
the third floor of that certain Building known as 1100 LARKSPUR LANDING CIRCLE,
Suite 365, Larkspur, California.
WHEREAS, the Tenant and Landlord now desire to amend this Lease to provide an
extended term ("Extended Term Two').
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, it is mutually agreed between Landlord and Tenant as follows:
A. TERM: Paragraph I (k), "Term" of said Lease is hereby extended for
an additional term of thirty-six (36) months, ("Extended Term
Two'), commencing June 1, 1998 and ending May 31, 2001.
B. BASIC RENT: Paragraph I (q) "Monthly Basic Rent" of said Lease is
hereby amended to reduce Tenant's current Monthly Basic Rent from
$17,024.29 to $16,904.25, effective January 1, 1997.
C. ADJUSTED BASIC RENT: Paragraph 5(b), "Adjusted Basic Rent" of said
Lease is hereby amended to exclude an increase in the Adjusted
Basic Rent for the years of 1997 and 1998. Therefore, the next
Adjustment to Basic Rent shall be January 1, 1998.
D. OPERATING EXPENSE ALLOWANCE: Paragraph I (r), "Operating Expense
Allowance" of said Lease is hereby amended to change the Operating
Expense Allowance from Tenant's proportionate share of 1991 actual
Operating Expenses to Tenant's proportionate share of 1997 actual
Operating Expenses, effective January 1. 1997.
E. TENANT IMPROVEMENT: Landlord shall contribute up to, $22,539.00,
(7,513 sf x $3.00) towards Tenant Improvements which shall be
mutually acceptable between Landlord and Tenant.
All other terms and conditions of this Lease remain in full force and effect. If
any inconsistencies in the terms and conditions arise between the Lease and
Lease Amendment Two, the terms and conditions of Lease Amendment Two shall
prevail.
IN WITNESS WHEREOF, the Parties hereto subscribe their names as of the above
date.
LINCOLN PROPERTY COMPANY N.C., INC.,
as Manager and Agent for Lincoln Larkspur Office Three Associates, Ltd.
By: /s/ D. ALLEN PALMER
--------------------------------
D. Allen Palmer, Vice President
"LANDLORD"
SYNON, INC.
a Illinois corporation
By: /s/ DENNIS HOLLIGAN
---------------------------------------------
Dennis Holligan, Director of Administration
"TENANT"