Exhibit 10.5
BERNAL CORPORATE PARK
BERNAL CORPORATE PLAZA I
OFFICE LEASE
BETWEEN
PATRICIAN ASSOCIATES, INC.
A CALIFORNIA CORPORATION
("LANDLORD")
AND
ACCPAC INTERNATIONAL, INC.
A Delaware Corporation
("TENANT")
June 5, 1998
TABLE OF CONTENTS
ARTICLE PAGE
1 TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 BASIC RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4 RENTAL ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6 USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9 HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10 TAXES ON TENANT'S PROPERTY. . . . . . . . . . . . . . . . . . . . . . . 8
11 CONDITION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 9
12 ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13 REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14 LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15 ENTRY BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16 UTILITIES AND SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . 11
17 BANKRUPTCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19 DAMAGE TO TENANT'S PROPERTY . . . . . . . . . . . . . . . . . . . . . . 13
(i)
20 TENANT'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21 DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 15
22 EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
23 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . 17
24 ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . 19
25 SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
26 ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . 21
27 SIGNAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
28 RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 23
29 CONFLICT OF LAWS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
30 SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . . . 23
31 SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . 23
32 ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
33 PERFORMANCE BY TENANT . . . . . . . . . . . . . . . . . . . . . . . . . 24
34 MORTGAGEE PROTECTION. . . . . . . . . . . . . . . . . . . . . . . . . . 24
35 DEFINITION OF LANDLORD. . . . . . . . . . . . . . . . . . . . . . . . . 24
36 WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
37 IDENTIFICATION OF TENANT. . . . . . . . . . . . . . . . . . . . . . . . 25
38 PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
39 TERMS AND HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
40 EXAMINATION OF LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . 26
(ii)
41 TIME. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
42 PRIOR AGREEMENT: AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . 26
43 SEPARABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
44 RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
45 CONSENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
46 LIMITATION ON LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . 27
47 RIDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
48 EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
49 MODIFICATION FOR LENDER . . . . . . . . . . . . . . . . . . . . . . . . 28
50 PROJECT PLANNING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
51 OPTION TO RENEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
52 RIGHT OF FIRST OFFER . . . . . . . . . . . . . . . . . . . . . . . . . . 29
LIST OF EXHIBITS
EXHIBIT A The Premises
EXHIBIT A-1 The Project
EXHIBIT B Work Letter Agreement
EXHIBIT C Standards for Utilities and Services
EXHIBIT D Rules and Regulations
EXHIBIT E Parking Rules and Regulations
(iii)
BERNAL CORPORATE PARK
BERNAL CORPORATE PLAZA I
THIS LEASE is made as of the 5th day of June, 1998, by and between
PATRICIAN ASSOCIATES, INC., a California corporation ("Landlord"), and ACCPAC
INTERNATIONAL, INC., a Delaware corporation ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
Suite Number 300 (the "Premises") outlined on the floor plan attached hereto and
marked EXHIBIT A, the Premises being agreed, for the purposes of this Lease, to
have an area of approximately 29,357 rentable square feet and being situated on
the third floor of that certain office building located at 6700 Koll Center
Parkway, Bernal Corporate Plaza I, Pleasanton, California 94566 (the
"Building"), more particularly described in EXHIBIT A-1 attached hereto. The
Building contains approximately one hundred eight thousand five hundred
sixty-four (108,564) rentable square feet of space.
The parties hereto agree that said letting and hiring is upon and subject
to the terms, covenants and conditions herein set forth. 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 for which Tenant is liable and that
this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease the Premises shall be
improved by the Tenant Improvements described in the Work Letter marked EXHIBIT
B attached hereto.
ARTICLE 1
TERM
The term of this Lease shall be for sixty (60) months, unless sooner
terminated as hereinafter provided, commencing upon the date ("Commencement
Date") which is the earlier of :
(i) Substantial completion of the Tenant Improvements described in the
Work Letter (subject to the provisions of Paragraph 7 of the Work Letter) and
the tender of possession of the Premises to Tenant; or
(ii) The date that Tenant opened for business in the Premises;
and ending on the last day of the last month in the term of this Lease, unless
such term shall be sooner terminated as hereinafter provided. As soon as the
Commencement Date is determined, the parties shall enter into an amendment of
this Lease setting forth the precise commencement and termination dates of this
Lease. Failure to enter into such an amendment, however, shall not affect the
parties respective rights and liabilities hereunder. Reference in this Lease to
a "Lease Year" shall mean each successive twelve month period commencing with
the Commencement Date.
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Landlord and Tenant estimate that the Commencement Date shall be August 1, 1998.
ARTICLE 2
POSSESSION
Tenant agrees that, if Landlord is unable to deliver possession of the
Premises to Tenant on or before the scheduled 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, but in such event the Term of
this Lease shall not commence until Landlord tenders possession of the Premises
to Tenant with the Tenant Improvements substantially completed. If, however,
Landlord is unable to deliver possession of the Premises to Tenant with the
Tenant Improvements substantially completed within five months from the date
this Lease is fully executed, for any reason other than delays caused by Tenant,
then Tenant shall have the right to terminate this Lease by delivery of written
notice to Landlord no later than ten business days after the expiration of such
five-month period. If Landlord completes construction of the Tenant
Improvements prior to the date scheduled in the Work Letter, Landlord shall
deliver possession of the Premises to Tenant upon such completion and the term
of this Lease shall thereupon commence.
ARTICLE 3
BASIC RENT
(a) Tenant agrees to pay Landlord Basic Rent for the Premises (subject to
adjustment as hereinafter provided) as follows:
MONTHS OF TERM BASIC RENT/PER MONTH
01-60 $66,053.25
The Basic Rent shall be paid monthly, in advance on the first (1st) day of each
calendar month during the term, commencing on the first (1st) month of the Lease
term and continuing on the first day of each month thereafter, except that the
first (1st) month's rent shall be paid on execution hereof. If Tenant's
obligation to pay rent commences or ends on a day other than the first day of a
calendar month, then the rental for such period shall be prorated in the
proportion that the number of days this Lease is in effect during such period
bears to thirty. In addition to the Basic Rent, Tenant agrees to pay as
additional rental the amount of rental adjustments and other charges required by
this Lease. All rental shall be paid to Landlord, without prior demand and
without any deduction or offset, in lawful money of the United States of
America, at the address of Landlord designated on the signature page of this
Lease or to such other person or at such other place as Landlord may from time
to time designate in writing.
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(b) LATE CHARGES. In the event Tenant fails to pay any installment of
rent when due or in the event Tenant fails to make any other payment for which
Tenant is obligated under this Lease when due, then Tenant shall pay to Landlord
a late charge equal to 5% of the amount due to compensate Landlord for the extra
costs incurred as a result of such late payment.
ARTICLE 4
RENTAL ADJUSTMENT
(a) For the purpose of this Article 4, the following terms are defined as
follows:
(i) TENANT'S PERCENTAGE. That portion of the Project occupied by
Tenant divided by the total rentable square footage of the Project, which result
is the following: 28.859%.
(ii) DIRECT EXPENSES BASE. The amount of annual Direct Expenses which
Landlord has included in Annual Basic Rent, which amount is Tenant's Percentage
of the actual Direct Expenses for 1999. If the Project is less than ninety-five
percent (95%) occupied during any calendar year of the term, an adjustment shall
be made in computing the Direct Expenses for such year so that Direct Expenses
shall be computed as though the Project were ninety-five percent (95%) occupied.
(iii) DIRECT EXPENSES. The term "Direct Expenses" shall include:
(A) All real and personal property taxes and
assessments (excluding those assessments described in Paragraph 4(a)(iii)(D))
imposed by any governmental authority or agency on the Project and the land on
which the Project is located (including a pro-rata portion of any taxes levied
on any common areas); any assessments levied in lieu of taxes; any
non-progressive tax on or measured by gross rentals received from the rental of
space in the Project; and any other costs levied or assessed by, or at the
direction of, any federal, state, or local government authority in connection
with the use or occupancy of the Premises or the parking facilities serving the
Premises; any tax on this transaction or any document to which Tenant is a party
creating or transferring an interest in the Premises, and any expenses,
including cost of attorneys or experts, reasonably incurred by Landlord in
seeking reduction by the taxing authority of the above-referenced taxes, less
tax refunds obtained as a result of an application for review thereof; but shall
not include any net income, franchise, capital stock, estate or inheritance
taxes.
(B) Operating costs consisting of costs incurred by Landlord to
the extent they relate to maintaining and operating the Project, exclusive of
costs required to be capitalized for federal income tax purposes, costs relating
to the leasing, mortgaging, disputes with and special requirements of other
tenants, and including (without limiting the generality of the foregoing) the
following: costs of utilities, supplies and insurance, cost of services of
independent contractors, managers and other suppliers, the fair rental value of
the Project management office, cost of compensation (including employment taxes
and fringe benefits) of all persons who perform regular and recurring duties
connected with the management, operation, maintenance, and repair of the
Project, its equipment, parking facilities and
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the common areas, including, without limitation, engineers, janitors,
foremen, floor waxers, window washers, watchmen and gardeners, but excluding
persons performing services not uniformly available to or performed for
substantially all Project tenants; cost of maintaining, repairing and
replacing landscaping, sprinkler systems, concrete walkways, paved parking
areas, signs, and site lighting.
(C) Amortization of such capital improvements as Landlord may
have installed: (a) for the purpose of reducing operating costs, (b) to
comply with governmental rules and regulations promulgated after the date of
substantial completion of the Premises, and (d) any costs required by the
CC&R's, as defined in Article 6, affecting the Premises or by any corporation,
committee or association formed in connection therewith, provided that such cost
together with interest at the prime rate for money center banks plus 100 basis
points as published from time to time in the Wall Street Journal shall be
amortized over such reasonable period as Landlord shall determine in accordance
with generally accepted accounting principles, and only the monthly amortized
cost shall be included in Direct Expenses monthly.
(D) ASSESSMENTS. Tenant acknowledges that the Premises are
subject to assessments levied to secure bonds sold by the City of Pleasanton
pursuant to Consolidated Reassessment District 1993-1. Such assessments shall
be Landlord's responsibility throughout the term of this Lease. Tenant hereby
consents to the formation of any other districts formed for maintenance,
utilities, landscaping, lighting, special service zones, fire district, water
district, road extensions, traffic mitigation, sports facilities or other
improvements in the Project or Bernal Corporate Park and to the re-financing of
any assessment districts. Tenant hereby waives any right of notice and protest
in connection with the formation and continued existence of the assessment
districts so long as Tenant is not required to pay any assessments for any
assessment districts that are specific to Bernal Corporate Park. Tenant shall
execute all documents, including, but not limited to, petitions and formal
waivers of notice and protest of formation, evidencing such consent and waiver
upon request of Landlord or the City of Pleasanton.
(b) PAYMENT OF DIRECT EXPENSES.
(i) If Tenant's Percentage of the Direct Expenses paid or incurred by
Landlord for any calendar year exceeds the Direct Expenses Base included in
Tenant's rent, then Tenant shall pay such excess as additional rent.
(ii) In addition, for each year after the first calendar year, or
portion thereof, Tenant shall pay Tenant's Percentage of Landlord's estimate of
the amount by which Direct Expenses for that year shall exceed the Direct
Expenses Base ("Landlord's Estimate"). This estimated amount shall be divided
into twelve equal monthly installments. 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 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 payable concurrently with the regular monthly
rent payments for the balance of that calendar year and shall continue until the
next calendar year's statement is rendered.
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(iii) As soon as possible after the end of each calendar year,
Landlord shall provide Tenant with a reasonably detailed statement showing
the amount of Tenant's Percentage of Direct Expenses, the amount of
Landlord's Estimate actually paid by Tenant and the amount of the Direct
Expenses Base. Thereafter, Landlord shall reconcile the above amounts and
shall either bill Tenant for the balance due (payable on demand by Landlord)
or credit any overpayment by Tenant towards the next monthly installment of
Landlord's Estimate falling due, as the case may be. For purposes of making
these calculations, in no event shall Tenant's Percentage of the Direct
Expenses be deemed to be less than the Direct Expenses Base.
(c) Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Percentage of Direct 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 rebated by Landlord to Tenant.
(d) Tenant shall have the right to inspect Landlord's books and records
for the Project for the prior calendar year at any time within twelve (12)
months after Tenant's receipt of Landlord's statement of the actual Direct
Expenses to verify the Direct Expenses for such calendar year. Tenant shall
conduct such inspection during normal business hours at the office of Landlord's
property manager upon not less than two business days prior notice to Landlord.
If Tenant questions or disputes any Direct Expenses billed to Tenant, Tenant
shall notify Landlord in writing, and Landlord and Tenant shall attempt in good
faith to resolve any dispute regarding such expenses. If Landlord and Tenant
fail to resolve such dispute within thirty days after Tenant has notified
Landlord of the expenses questioned, Tenant shall be permitted to conduct an
audit of Landlord's books and records of the Direct Expenses, using an
independent, licensed and reputable accounting firm, which audit shall be
completed no later than eighteen (18) months from the date that Landlord's
statement of the actual Direct Expenses for the calendar year in question has
been delivered to Tenant. If the audit discloses that the Direct Expenses
charged to Tenant for the period under review were overstated by five percent
(5%) or more, Landlord shall reimburse Tenant for the cost of the audit;
otherwise, the cost of the audit shall be paid by Tenant. Landlord shall
promptly refund to Tenant the full amount of any overpayment made by Tenant.
ARTICLE 5
SECURITY DEPOSIT
Tenant shall deposit with Landlord the sum of Sixty-Six Thousand Fifty
Three and 25/100ths Dollars ($66,053.25) upon Lease execution by Tenant.
Said sum shall be held by Landlord as security for the faithful performance by
Tenant of all of Tenant's obligations hereunder. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, and such default continues beyond
the expiration of any applicable cure period provided for in this Lease,
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 other loss or damage which Landlord may suffer by reason of
Tenant's default. If any portion of the deposit is so used or applied,
Tenant shall, upon demand, deposit cash with Landlord in
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an amount sufficient to restore the security deposit to
its original amount. 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. The security deposit or any balance thereof shall be returned to
Tenant at the expiration of the Lease term, provided that Landlord may retain
the security deposit for any outstanding amount due from Tenant in accordance
with Article 4 hereof at the expiration of the Lease.
ARTICLE 6
USE
Tenant shall use the Premises for general office use and shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord. Nothing contained herein shall be deemed to give Tenant
any exclusive right to such use in the Project. Tenant shall not use or occupy
the Premises in violation of law or of the certificate of occupancy issued for
the Building or Project, and shall, upon written notice from Landlord,
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of law or of said certificate of
occupancy. 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's
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 Project and/or property located therein and shall comply with
all rules, orders, regulations and requirements of the Insurance Service
Offices, formerly known as the Pacific Fire Rating Bureau or any other
organization performing a similar function. Tenant shall promptly, upon demand,
reimburse Landlord for any additional premium charged for such policy by reason
of Tenant's failure to comply with the provisions of this Article. 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
Project, or injure 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. Tenant
acknowledges that Landlord has recorded covenants, conditions and restrictions
against the Premises on February 18, 1987 as Instrument Number 87/046032 in the
Official Records of Alameda County (the "CC&Rs"). Tenant's use of the Premises
shall be subject to and Tenant shall comply with the CC&R's, as the same may be
amended from time to time, provided that any amendments do not materially
diminish Tenant's rights under this Lease or materially increase Tenant's
obligations. Tenant acknowledges that there have been and may be from time to
time recorded easements and/or declarations granting or declaring easements for
parking, utilities, fire or emergency access, and other matters. Tenant's use
of the Premises shall be subject to and Tenant shall comply with any and all
such easements and declarations. Tenant's use of the Premises shall be subject
to such guidelines as may from time to time be prepared by Landlord or the
Bernal Corporate Park Owner's Association in their sole discretion. Tenant
acknowledges that governmental entities with jurisdiction over the Premises
may, from time to time promulgate laws, rules, plans and regulations affecting
the use of the Premises, including, but not limited to, traffic management
plans and
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energy conservation plans. Tenant's use of the Premises shall be subject to
and Tenant shall comply with any and all such laws, rules, plans, and
regulations. Tenant, at its sole cost, shall comply with all laws relating
to the storage, use and disposal of hazardous, toxic or radioactive matter, to
the extent brought into the Project by Tenant, its agents or employees,
including those materials identified in Sections 66680 through 66685 of
Title 33 of the California Administrative Code, Division 4, Chapter 30
("Title 22") as they may be amended from time to time (collectively "Toxic
Materials"). If Tenant does store, use or dispose of any Toxic Materials,
Tenant shall notify Landlord in writing at least ten (10) days
prior to their first appearance on the Premises.
ARTICLE 7
NOTICES
Any notice required or permitted to be given hereunder must be in writing
and may be given by personal delivery, by mail, or by nationally recognized
overnight delivery service, and if given by mail shall be deemed sufficiently
given if sent by registered or certified mail addressed to Tenant at the
Project, or to Landlord at its address set forth at the end of this Lease.
Either party may specify a different address for notice purposes by written
notice to the other except that the Landlord may in any event use the Premises
as Tenant's address for notice purposes.
ARTICLE 8
BROKERS
Landlord and Tenant warrant, each to the other, that it has had no dealings
with any real estate broker or agent in connection with the negotiation of this
Lease, except David B. Jonas of BT Commercial Real Estate, whose commission
shall be payable by Landlord, and that it knows of no other real estate broker
or agent who is or might be entitled to a commission in connection with the
Lease. If either Landlord or Tenant has dealt with any other person or real
estate broker with respect to leasing or renting space in the Project, such
party shall be solely responsible for the payment of any fee due said person or
firm and shall hold the other party free and harmless against any liability in
respect thereto, including attorneys' fees and costs.
ARTICLE 9
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 one hundred fifty percent
(150%) of the rent in effect upon the date of such expiration (subject to
adjustment as provided in Paragraph 4 hereof and prorated on a daily basis), and
otherwise subject to the terms, covenants and conditions herein specified, so
far as applicable. If Tenant desires to holdover possession of the Premises
after the expiration of the term with the consent of Landlord, Tenant shall
provide Landlord with at least six months' prior written notice of Tenant's
desire to do so, which
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notice shall specify the number of days or months of the proposed holdover.
Landlord shall notify Tenant within ten business days after receipt of Tenant's
notice whether Landlord will be able to accommodate Tenant's request.
Any such holdover will be a rental rate equal to one hundred fifty percent
(150%) of the rent in effect upon the date of such expiration (subject to
adjustment as provided in Paragraph 4 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 result in a renewal of this Lease. The foregoing
provisions of this Article 9 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 or following any permitted holdover period, 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 and any attorneys' fees
and costs.
ARTICLE 10
TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and shall pay, at least ten days before
delinquency, all 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 of 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 assessment, 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 so levied
against Landlord, or the portion of such taxes resulting from such increase in
the assessment.
(b) If any improvements or alterations are made to Premises after the
commencement of the term, 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 valuation higher than
the valuation at which any improvements or alterations in other space in the
Project of tenants not separately charged are assessed, then the real property
taxes and assessment levied against the Project 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 Paragraph 10(a), above.
If the records of the County Assessor are available and sufficiently detailed to
serve as a basis for determining whether said improvements or alterations are
assessed at a higher valuation than improvements or alterations of tenants not
separately charged, such records shall be binding on both the Landlord and the
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.
8
ARTICLE 11
CONDITION OF PREMISES
Tenant acknowledges that, except as expressly stated herein, neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises or the Project 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 establish that the Premises and the Project were in
satisfactory condition at such time.
ARTICLE 12
ALTERATIONS
(a) Tenant shall make no alterations, additions or improvements in or to
the Premises without Landlord's prior written consent, which consent shall not
be unreasonably withheld, delayed or conditioned, and then only by contractors
or mechanics reasonably approved by Landlord. Tenant agrees that there shall be
no construction or partitions or other obstructions which might interfere with
Landlord's free access to mechanical installations or service facilities of the
Building or Project or interfere with the moving of Landlord's equipment to or
from the enclosures containing said installations or facilities. All such work
shall be done at such times and in such manner as Landlord may reasonably
designate from time to time. Tenant covenants and agrees that all work done by
Tenant shall be performed in full compliance with all laws, rules, orders,
ordinances, regulations and requirements of all governmental agencies, offices,
and boards having jurisdiction, and in full compliance with the rules,
regulations and requirements of the Insurance Service Offices formerly known as
the Pacific Fire Rating Bureau, and of any similar body. Before commencing any
work, Tenant shall give Landlord at least ten days written notice of the
proposed commencement of such work and shall, if required by Landlord, secure at
Tenant's own cost and expense, a completion and lien indemnity bond, reasonably
satisfactory to Landlord, for said work. Tenant further covenants and agrees
that any mechanic's lien filed against the Premises or against the Building or
Project 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 30 days after Landlord has notified Tenant in writing of the filing
thereof, at the cost and expense of Tenant. All alterations, 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 to Tenant at the time that Landlord
grants its consent to any alterations, additions or improvements, specify that
Tenant shall be required to remove such alterations, additions or improvements
at the expiration or sooner termination of this Lease, and in such event Tenant
shall repair all damage resulting from such removal or, at Landlord's option,
shall pay to Landlord all reasonable costs arising from such removal.
(b) 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
9
lease term. If Tenant shall fail to remove all of its effects from the
Premises upon termination of this Lease for any cause whatsoever (other than
Landlord's acts), Landlord may, at its option, remove the same in any
reasonable and prudent manner that Landlord shall choose, and store said
effects without liability to Tenant for loss thereof. In such event, Tenant
agrees to pay Landlord upon demand any and all reasonable and actual 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. Landlord may, at its option, with 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.
[cad 228][cad 228]
ARTICLE 13
REPAIRS
(a) By entry hereunder upon substantial completion of the Tenant
Improvements, Tenant accepts the Premises as being in good and sanitary order,
condition and repair, except for latent defects and any incomplete punch-list
items. Landlord shall keep, maintain and preserve the Premises in first class
condition and repair, and shall, when and if needed, make all repairs to the
Premises and every part thereof where required except due to excess wear and
tear by Tenant. Tenant shall, upon the expiration or sooner termination of the
term hereof, surrender the Premises to Landlord in the same condition as when
received, usual and ordinary wear and tear excepted and subject to the
provisions of Article 12. Except as provided in EXHIBIT B, Landlord shall have
no obligation to alter, remodel, improve, decorate or paint the Premises or any
part thereof. The parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises or the
Project except as specifically herein set forth.
(b) Anything contained in Paragraph 13(a) above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, including the foundations, building shell, and roof structure, all
at Landlord's expense. Landlord shall also repair and maintain the basic
plumbing, elevators, life safety systems and other building systems, heating,
ventilating, air conditioning and electrical systems installed or furnished by
Landlord, and perform roof repair and maintenance to the Premises; the cost of
such repairs and maintenance shall be included in Direct Expenses as provided in
Article 4. 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 21
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, Project 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.
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ARTICLE 14
LIENS
Tenant shall not permit any mechanic's, materialmen's or other liens to be
filed against the Building or Project, nor against 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 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.
ARTICLE 15
ENTRY BY LANDLORD
Landlord reserves and shall at any and all reasonable times have the right
to enter the Premises to inspect the same, to supply janitorial service and any
service to be provided by Landlord to Tenant hereunder, to show the Premises to
prospective purchasers or tenants, to post notices of nonresponsibility, to
alter, improve or repair the Premises or any other portion of the Building or
Project, all without being deemed guilty of any eviction of Tenant and without
abatement of rent. Except for emergencies and regularly scheduled janitorial
services, Landlord shall provide Tenant with reasonable prior notice of
Landlord's intended entry. Landlord may, in order to carry out any of the
foregoing 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, except to the extent caused by the gross
negligence or willful misconduct of Landlord, its agents or employees. Landlord
shall at all times have and retain a key with which to unlock all doors in the
Premises, excluding Tenant's vaults and safes. Landlord shall have the right to
use any and all means which Landlord reasonably may deem proper to open said
doors in an emergency in order to obtain entry to the Premises. Any entry to
the Premises obtained by Landlord by any of said means, or otherwise, shall not
be construed or deemed to be a forcible or unlawful entry into the Premises, or
any eviction of Tenant from the Premises or any portion thereof. Any damage to
the Premises caused on account thereof shall be paid by Landlord. 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 by Landlord.
ARTICLE 16
UTILITIES AND SERVICES
Landlord agrees to furnish or cause to be furnished to the Premises the
utilities and services described in the Standards for Utilities and Services,
11
attached hereto as EXHIBIT C, subject to the conditions and in accordance with
the standards set forth therein. Landlord's failure to furnish any of the
foregoing items when such failure is caused by:
(i) Accident, breakage, or repairs,
(ii) Strikes, lockouts or other labor disturbance or labor dispute of any
character,
(iii) Governmental regulation, moratorium or other governmental action,
(iv) Inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel, or by
(v) Any other cause beyond Landlord's reasonable control, shall not result
in any liability to Landlord.
In addition, Tenant shall not be entitled to any abatement or reduction of rent
by reason of such failure, no eviction of Tenant shall result from such failure
and Tenant shall not be relieved from the performance of any covenant or
agreement in this Lease because of such failure. In the event of any failure,
stoppage or interruption thereof, Landlord shall diligently attempt to resume
service promptly.
ARTICLE 17
BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any provision of the
Bankruptcy Code as then in effect, or if Tenant shall be adjudicated a bankrupt
in involuntary bankruptcy proceedings and such adjudication shall not have been
vacated within thirty days from the date thereof, or if a receiver or trustee
shall be appointed of Tenant's property and the order appointing such receiver
or trustee shall not be set aside or vacated within thirty 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, by operation of law or otherwise, pass to any
person or persons other than Tenant, then in any such event Landlord may
terminate this Lease, if Landlord so elects, with or without notice of such
election and with or without entry or action by Landlord. In such case,
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 Paragraph
23(b) hereof. 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 surrender the Premises to landlord. Nothing contained
herein shall limit or prejudice the right of Landlord to recover damages by
reason of any such termination 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 is greater, equal to,
or less than the amount of damages recoverable under the provisions of this
Article 17.
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ARTICLE 18
INDEMNIFICATION
(a) Tenant shall indemnify, defend and hold Landlord harmless from 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 in or
about the Premises, except to the extent arising from the gross negligence or
willful misconduct of Landlord, its agents, or employees. Tenant shall further
indemnify, defend and hold Landlord harmless from all claims arising from any
breach or default in the performance of any obligation to be performed by Tenant
under the terms of this Lease, or arising from any act, neglect, fault or
omission of Tenant or of its agents or employees, 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
shall 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
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 person 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 where such failure has persisted for an unreasonable
period of time after written notice of such failure. Tenant hereby waives all
its claims in respect thereof against Landlord.
(b) Landlord shall indemnify, defend and hold Tenant harmless from all
claims arising from any breach or default in the performance of any obligation
to be performed by Landlord under the terms of this Lease, or arising from the
negligence or willful misconduct of Landlord or of its agents or employees, 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 shall be brought against Tenant by reason of any such
claim, Landlord upon notice from Tenant shall defend the same at Landlord's
expense by counsel approved in writing by Tenant.
ARTICLE 19
DAMAGE TO TENANT'S PROPERTY
Notwithstanding the provisions of Article 18 to the contrary, Landlord or
its agents shall not be liable for (i) loss or damage to any property by theft
or otherwise, or (ii) any injury or damage to property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water or rain which may
leak from any part of the Project or from the pipes, appliances or plumbing work
therein or from the roof, street or sub-surface or from any other place or
resulting from dampness or from any other cause whatsoever. Landlord or its
agents shall not be liable for interference with light or other incorporeal
hereditaments. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the Project or of defects therein or in the
fixtures or equipment.
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ARTICLE 20
TENANT'S INSURANCE
(a) Tenant shall, during the term hereof and any other period of
occupancy, at its sole cost and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against the perils of
fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be
upon all property owned by Tenant, for which Tenant is legally liable or that
was installed at Tenant's expense, and which is located in the Project
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant improvements installed by Landlord), and any other personal
property in an amount not less than ninety percent of the full replacement cost
thereof. Such policy shall name Landlord and any mortgagees of Landlord as
additional insured parties, as their respective interests may appear.
(ii) Commercial General Liability Insurance insuring Tenant against
any liability arising out of the lease, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $3,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence. The policy shall insure the hazards of premises
and operation, contractual liability (covering the Indemnity contained in
Paragraph 18 hereof) and shall (1) name Landlord as an additional insured, and
(2) contain a cross liability provision, and (3) contain a provision that "the
insurance provided the Landlord hereunder shall be primary and non-contributing
with any other insurance available to the Landlord."
(iii) Workers' Compensation and Employer's Liability insurance (as
required by state law).
(iv) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself; provided that such other insurance is warranted due to a substantial
change in the nature of Tenant's operations at the Premises and the increased
risks associated therewith or due to the total amount of any claims paid on
Tenant's insurance policies in the prior twelve (12) month period, or such
insurance is customarily required for similar uses by owners of comparable
buildings in Pleasanton, California.
(b) All policies shall be written in a form satisfactory to Landlord and
shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Bests Insurance Guide. Within ten days after the execution
14
of this Lease, Tenant shall deliver to Landlord certificates evidencing the
existence of the amounts and forms of coverage satisfactory to Landlord. No
such policy shall be cancelable or reducible in coverage except after thirty
days prior written notice to Landlord. Tenant shall, within ten days prior to
the expiration of such policies, furnish Landlord with a new certificate of
insurance evidencing the renewal thereof, or within ten (10) days after written
notice Landlord may order such insurance and charge the cost thereof to Tenant
as additional rent. If Landlord obtains any insurance that is the
responsibility of Tenant under this section, Landlord shall deliver to Tenant
a written statement setting forth the cost of any such insurance and showing
in reasonable detail the manner in which it has been computed.
ARTICLE 21
DAMAGE OR DESTRUCTION
(a) In the event the Project and/or the Premises is damaged by fire or
other perils covered by Landlord's insurance, Landlord shall have the following
rights and obligations:
(i) In the event of total destruction, at Landlord's option, as soon
as reasonably possible thereafter, commence repair, reconstruction and
restoration of the Project and/or the Premises and prosecute the same diligently
to completion, in which event this Lease shall remain in full force and effect;
or within ninety days after such damage, elect not to so repair, reconstruct or
restore the Project and/or the Premises, in which event this Lease shall
terminate. In either event, Landlord shall give Tenant written notice of its
intention within said ninety day period. In the event Landlord elects not to
restore the Project and/or the Premises, this Lease shall be deemed to have
terminated as of the date of such total destruction.
(ii) In the event of a partial destruction of the Project and/or the
Premises, to an extent not exceeding twenty-five percent of the full insurable
value thereof, and if the damage thereto is such that the Project and/or the
Premises may be repaired, reconstructed or restored within a period of ninety
days from the date of the happening of such casualty and if Landlord will
receive insurance proceeds sufficient to cover at least ninety-five percent
(95%) of the cost of such repairs, then Landlord shall commence and proceed
diligently with the work of repair, reconstruction and restoration and this
Lease shall continue in full force and effect. If such work of repair,
reconstruction and restoration shall require a period longer than ninety days or
exceeds twenty-five percent of the full insurable value thereof, or if said
insurance proceeds will not be sufficient to cover the cost of such repairs,
then Landlord either may elect to so repair, reconstruct or restore and the
Lease shall continue in full force and effect or Landlord may elect not to
repair, reconstruct or restore and the Lease shall then terminate. Under any of
the conditions of this Subparagraph 21(a)(ii), Landlord shall give written
notice to Tenant of its intention within said ninety day period. In the event
Landlord elects not to restore the Project and/or the Premises, 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 Article 21, the parties shall be released 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.
15
(c) In the event of repair, reconstruction and restoration by Landlord as
herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the 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 or annoyance
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
Article 21. Notwithstanding anything to the contrary contained in this Article
21, if Landlord is delayed or prevented from repairing or restoring the damaged
Premises within one 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 obligation under this Lease as of the end
of said one year period.
(e) If damage, as defined and described in paragraph 21(a) above, is due
to causes other than fire or other peril covered by extended coverage insurance,
Landlord may elect to terminate this Lease.
(f) If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repair or restoration only of
those portions of the Project and the Premises which were originally provided at
Landlord's expense, and the repair and restoration of items in the Premises not
provided at Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this Article 21,
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 21 occurs during the last twelve 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, which permit termination of a lease upon destruction of the Leased
Premises, are hereby waived by Tenant; and the provisions of this Article shall
govern in case of such destruction.
ARTICLE 22
EMINENT DOMAIN
In case all 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
16
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, Landlord shall 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
made to Tenant for the taking of personal property and fixtures belonging to
Tenant.
ARTICLE 23
DEFAULTS AND REMEDIES
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) 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, where such failure shall continue for a period of ten business 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 Section 1161 regarding unlawful detainer
actions.
(ii) 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 23(a)(i) above, where such
failure shall continue for a period of thirty days after written notice thereof
from Landlord to Tenant. Any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil Procedure
Section 1161 regarding unlawful detainer actions. If the nature of Tenant's
default is such that more than thirty 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 thirty-day period and thereafter diligently prosecute such cure
to completion.
(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 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 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 days.
17
(b) In the event of any such default by Tenant which continues beyond the
expiration of any applicable cure period provided for herein, 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 Tenant's obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom.
As used in Subparagraph 23(b)(i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted by law.
As used in Subparagraph 23(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.
(d) All rights, options and remedies contained in this Lease shall be
constructed and held to be cumulative, and no one of them shall be exclusive of
the other, and either party 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.
18
(e) The chronic delinquency by Tenant in the payment of Basic Rent or any
other payments required to be paid by Tenant under this Lease shall constitute a
default hereunder by Tenant. "Chronic delinquency" shall mean failure by Tenant
to pay Basic Rent, or any other payments required to be paid by Tenant under
this Lease within ten (10) business days after written notice thereof (together
with appropriate invoices or other back-up documentation for any non-rent
payments due from Tenant) for any three (3) occasions (consecutive or
non-consecutive) during any twelve (12) month period. In the event of a chronic
delinquency, Landlord shall have the right, at Landlord's option, to require
that Basic Rent be paid by Tenant quarterly, in advance.
ARTICLE 24
ASSIGNMENT AND SUBLETTING
(a) 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 which consent shall not
be unreasonably withheld, delayed or conditioned. Any assignment, encumbrance
or sublease without Landlord's prior written consent shall be voidable, at
Landlord's election, and shall constitute a default. No consent to assignment,
encumbrance, or sublease shall constitute a further waiver of the provisions of
this paragraph. Tenant shall notify Landlord in writing of Tenant's intent to
sublease, encumber or assign this Lease and Landlord shall, within ten business
days of receipt of such written notice, elect one of the following:
(i) Consent to such proposed assignment, encumbrance or sublease;
(ii) Refuse such consent, which refusal shall be on reasonable
grounds; or
(iii) Elect to terminate this Lease in its entirety if an
assignment or a sublease of more than seventy-five percent (75%) of the
Premises, or to terminate this Lease with respect to only the portion of the
Premises affected and for the term affected if a sublease of less than
seventy-five percent (75%) of the Premises.
(b) As a condition for granting its consent to any assignment, encumbrance
or sublease, 30 days prior to any anticipated assignment or sublease Tenant
shall give Landlord written notice (the "Assignment Notice"), which shall set
forth the name, address and business of the proposed assignee or sublessee,
information (including references) concerning the character, ownership, and
financial condition of the proposed assignee or sublessee, and the Assignment
Date, any ownership or commercial relationship between Tenant and the proposed
assignee or sublessee, and the consideration of all other material terms and
conditions of the proposed assignment or sublease, all in such detail as
Landlord shall reasonably require. If Landlord requests reasonable additional
detail upon receipt of the Assignment Notice, such notice shall not be deemed to
have been received until Landlord receives such additional detail, and Landlord
may withhold consent to any assignment or sublease until such additional detail
is provided to it. Further, Landlord may require that the sublessee or assignee
remit directly to Landlord on a monthly basis, all monies due to Tenant by said
assignee or sublessee.
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(c) The consent by Landlord to any assignment or subletting shall not be
construed as relieving Tenant or any assignee of this Lease or sublessee of the
Premises from obtaining the express written consent of Landlord to any further
assignment or subletting or as releasing Tenant or any assignee or sublessee of
Tenant from any liability or obligation hereunder whether or not then accrued.
In the event Landlord shall consent to an assignment or sublease, Tenant shall
pay Landlord as Additional Rent a reasonable attorneys' and administrative fee
not to exceed $500 for costs incurred in connection with evaluating the
Assignment Notice. This section shall be fully applicable to all further sales,
hypothecations, transfers, assignments and subleases of any portion of the
Premises by any successor or assignee of Tenant, or any sublessee of the
Premises.
(d) As used in this section, the subletting of substantially all of the
Premises for substantially all of the remaining term of this Lease shall be
deemed an assignment rather than a sublease. Notwithstanding the foregoing,
Landlord's consent shall not be required for an assignment, sale or transfer to
an affiliate of Tenant, any entity into which Tenant is merged, with which
Tenant is consolidated or which acquires all or substantially all of the assets
or stock of Tenant, provided that the assignee first executes, acknowledges and
delivers to Landlord an agreement whereby the assignee agrees to be bound by all
of the covenants and agreements in this Lease which Tenant has agreed to keep,
observe or perform, that the assignee agrees that the provisions of this section
shall be binding upon it as if it were the original Tenant hereunder and that
the assignee shall have a net worth (determined in accordance with generally
accepted accounting principles consistently applied) immediately after such
assignment which is at least equal to the net worth (as so determined) of Tenant
at the commencement of this Lease.
(e) Except as provided above, Landlord's consent to any sublease shall not
be unreasonably withheld. A condition to such consent shall be delivery by
Tenant to Landlord of a true copy of any such sublease. 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 and after Tenant has first recovered any reasonable and customary
brokerage commission, reasonable attorneys' fees, and advertising costs paid by
Tenant in connection with the assignment or sublease, Tenant shall pay to
Landlord as additional rent hereunder one-half (1/2) 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. The parties intend that
the preceding sentence shall not apply to any sublease rentals respecting a
portion of the Premises that during the entire term of this Lease was not
occupied by Tenant for its own use, but was always subleased by Tenant and/or
kept vacant. For the purpose of this section, the rent for each square foot of
floor space in the Premises shall be deemed equal.
20
ARTICLE 25
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 mortgagee with a lien on the Project or any ground lessor with respect to
the Project, this Lease shall be subject and subordinate at all times to:
(i) All ground leases or underlying leases which may now exist or
hereafter be executed affecting the Project or the land upon which the Project
is situated or both,
(ii) The lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the Project, land, ground leases
or underlying leases, or Landlord's interest or estate in any of said items is
specified as security,
so long as the holder of any such ground or underlying lease, mortgage or deed
of trust executes and delivers to Tenant a non-disturbance agreement which
provides that in the event of any termination of such lease or foreclosure of
any such mortgage or deed of trust this Lease shall not be terminated so long as
Tenant is not in default hereunder. 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 the 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, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord. 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 so long as, in the
event of any subordination, such document(s) contain the non-disturbance
provisions stated above.
(iii) The CC&R's as described in Article 6.
ARTICLE 26
ESTOPPEL CERTIFICATE
(a) Within ten days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord a statement
prepared initially by Landlord and confirming:
(i) The date of commencement 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, and stating the date and nature of such modifications);
21
(iii) The date to which the rental and other sums payable under
this Lease have been paid;
(iv) That there are no current notices of any defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and
(v) Such other matters reasonably requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this Article
26 may be relied upon by any mortgagee, beneficiary, purchaser or prospective
purchaser of the Building or Project or any interest therein.
(b) Tenant's failure to deliver such statement to Landlord within five (5)
days after Landlord has delivered a second notice to Tenant requesting
completion of such statement shall be conclusive upon Tenant:
(i) That this Lease is in full force and effect, without
modification,
(ii) That there are no uncured defaults in Landlord's performance, and
(iii) That not more than one month's rental has been paid in
advance.
ARTICLE 27
SIGNAGE
Landlord shall provide for Tenant the opportunity to have Tenant's name
placed upon the Building lobby directory sign, and at Tenant's entrance to the
Premises. Tenant shall also be allowed signage on the Building parapet facing
I-680, the cost of said signage to be paid by the Tenant. Tenant shall have no
right to maintain any other Tenant identification sign in any other location in,
on or about the Premises, the Building, the Project, or Bernal Corporate Park
and shall not display or erect any Tenant identification sign, display or other
advertising material within the Premises that is visible from the exterior of
the Building. The size, design, color and other physical aspects of the Tenant
identification sign shall be subject to Landlord's written reasonable approval
prior to installation. The cost of the installation of the sign, and its
maintenance and removal expense, shall be at Tenant's sole expense. If Tenant
fails to maintain its sign or if Tenant fails to remove its sign upon
termination of this Lease, Landlord may do so at Tenant's expense and Tenant's
reimbursement to Landlord for such amounts shall be deemed additional rent. All
signs shall comply with rules and regulations set for by Landlord as may be
modified from time to time.
22
ARTICLE 28
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked EXHIBIT D, 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 non-performance by any other tenant
or occupant of the Project of any of said Rules and Regulations.
ARTICLE 29
CONFLICT OF LAWS
This Lease shall be governed by and construed pursuant to the laws of the
State of
California.
ARTICLE 30
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
representatives, successors and assigns.
ARTICLE 31
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 and
subtenancies.
ARTICLE 32
ATTORNEYS' FEES
If Landlord should bring suit for possession of the Premises, or if either
party should bring suit 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 the other party hereunder, or in the event of any other litigation
between the parties with respect to this Lease, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party 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.
23
ARTICLE 33
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. If Tenant shall fail to pay any sum
of money owed to any party other than Landlord for which it is liable hereunder
and has received written notice with appropriate detailed information or if
Tenant shall fail to perform any other act on its part to be performed hereunder
and such failure shall continue for 30 days after written notice thereof by
Landlord, Landlord may, without waiving or releasing Tenant from obligations of
Tenant, but shall not be obligated to, make any such payment or perform any such
other act to be made or performed by Tenant. All sums so paid by Landlord and
all necessary incidental costs together with interest thereon at the maximum
rate permissible by law, from the date of such payment by Landlord, shall be
payable to Landlord on demand. Tenant covenants to pay any such sums and
Landlord shall have (in addition to any other right or remedy of Landlord) all
rights and remedies in the event of the non-payment thereof by Tenant as are set
forth in Article 23 hereof.
ARTICLE 34
MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee 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.
ARTICLE 35
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 of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title,
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 as respects the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed. Without further agreement, the
transferee of such title shall be deemed to have assumed and 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.
24
ARTICLE 36
WAIVER
The waiver by either Landlord or Tenant of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition herein
contained, nor shall any custom or practice which may grow up between the
parties in the administration of the terms hereof be deemed a waiver of or in
any way affect the right of either Landlord or Tenant to insist upon the
performance by the other 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 or 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.
ARTICLE 37
IDENTIFICATION OF TENANT
If more than one person executes this Lease as Tenant:
(i) 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
(ii) The term "Tenant" as used in this Lease shall mean and include
each of them jointly and severally. The act of or notice from, or notice to
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 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.
ARTICLE 38
PARKING
The use by Tenant, its employees and invitees, of the parking facilities of
the Project shall be on the terms and conditions set forth in EXHIBIT E 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.
Tenant, its employees and invitees shall use no more than four (4) non-exclusive
parking spaces per one thousand (1,000) square feet of leased space. Tenant's
use of the parking spaces shall be confined to the Project. If, in Landlord's
reasonable business judgment, it becomes necessary, Landlord shall exercise due
diligence to cause the creation of cross-parking easements and such other
agreements as are necessary to permit Tenant, its employees and invitees to use
parking spaces on the properties and buildings of Bernal Corporate Park, which
are separate legal parcels from the Project. Tenant acknowledges that other
tenants of the Project and the tenants of the other buildings, their employees
and invitees, may be given the right to park at the Project. Tenant will be
provided two (2) reserved parking spaces proximate to the entrance of
25
the building. All parking shall be provided to Tenant at no charge during the
term of this Lease; provided, however, that if the City of Pleasanton or any
other governmental entity with jurisdiction imposes any fees or charges
related to parking, such fees or charges may be included in Direct Expenses
and billed to Tenant as provided in Article 4.
ARTICLE 39
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. 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.
ARTICLE 40
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.
ARTICLE 41
TIME
Time is of the essence with respect to the performance of every provision
of this Lease in which time of performance is a factor.
ARTICLE 42
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 pertaining to any such matter shall be effective for any
purpose. No provisions 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.
ARTICLE 43
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,
any such other provisions shall remain in full force and effect.
26
ARTICLE 44
RECORDING
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
ARTICLE 45
CONSENTS
Whenever the consent of either party is required hereunder such consent
shall not be unreasonably withheld.
ARTICLE 46
LIMITATION ON LIABILITY
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:
(a) The sole and exclusive remedy shall be against the Landlord's interest
in the Project;
(b) No partner, officer, agent or employee of Landlord shall be sued or
named as a party in any suit or action (except as may be necessary to secure
jurisdiction of Landlord);
(c) No service or process shall be made against any partner, officer,
agent or employee of Landlord (except as may be necessary to secure jurisdiction
of Landlord);
(d) No partner, officer, agent or employee of Landlord shall be required
to answer or otherwise plead to any service of process;
(e) No judgment will be taken against any partner, officer, agent or
employee of Landlord;
(f) Any judgment taken against any partner, officer, agent or employee of
Landlord may be vacated and set aside at any time nunc pro nunc;
(g) No writ of execution will ever be levied against the assets of any
partner, officer, agent or employee of Landlord;
(h) These covenants and agreements are enforceable both by Landlord and
also by any partner, officer, agent or employee of Landlord.
27
ARTICLE 47
RIDERS
Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
ARTICLE 48
EXHIBITS
All Exhibits attached hereto are incorporated into this Lease.
ARTICLE 49
MODIFICATION FOR LENDER
If, in connection with obtaining construction, interim or permanent
financing for the Project 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.
ARTICLE 50
PROJECT PLANNING
If Landlord requires the Premises for use in conjunction with another suite
or for other reasons connected with the Project planning program, upon notifying
Tenant in writing, Landlord shall have the right to relocate Tenant to other
space in the Project, at Landlord's sole cost and expense, and the terms and
conditions of the original Lease shall remain in full force and effect, except
that a revised EXHIBIT A reflecting the location of the new space shall be
attached to and become a part of this Lease. However, if the new space does not
meet with Tenant's approval, Tenant shall have the right to terminate this Lease
effective thirty (30) days after written notice to Landlord, which notice shall
be given within sixty (60) days after receipt of Landlord's notification.
ARTICLE 51
OPTION TO RENEW
Provided that Tenant is not in default under the terms and conditions
of this Lease at the time of its exercise of this Option to Renew, Tenant
shall have the right to renew this Lease for one (1) five (5) year term at one
hundred percent (100%) of the then fair market rental value of the Premises.
Tenant shall exercise its option by delivery of written notice to Landlord not
less than one hundred eighty (180) days, but no more than two hundred seventy
(270) days, prior to the expiration of the initial term of this Lease.
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ARTICLE 52
RIGHT OF FIRST OFFER
Provided that Tenant is not in default of any provision of this Lease
at the time of exercise, Tenant shall have the right of first offer to lease the
approximately 8,000 square feet of space adjacent to the Premises (the
"Additional Space") on the following terms and conditions. If at any time
during the initial term of this Lease, all or any portion of the Additional
Space becomes available for lease after such space has first been occupied by
another tenant, Landlord shall notify Tenant of the portion of the Additional
Space available (the "Offered Space") and the rent and other terms and
conditions upon which Landlord would be willing to lease the Offered Space
("Landlord's Notice"). Tenant shall have five (5) business days after receipt
of Landlord's Notice to notify Landlord in writing of Tenant's election to lease
the Offered Space on the terms stated in Landlord's Notice. If Tenant notifies
Landlord within such five-day period of Tenant's desire to lease the Offered
Space, Landlord and Tenant shall enter into an amendment to this Lease adding
the Offered Space to the Premises and modifying the Basic Rent and any other
terms affected by the addition of the Offered Space. If, however, Tenant fails
to notify Landlord of Tenant's election to lease the Offered Space within such
five-day period or, if Landlord and Tenant, through no fault of Landlord, fail
to execute an amendment to this Lease within thirty (30) days after the date of
Tenant's notice to Landlord, Tenant shall be deemed to have waived its right to
lease the Offered Space at such time and Landlord shall have the right to lease
the Offered Space to any third party on substantially the terms stated in
Landlord's Notice without further notice to Tenant. For the purposes of this
Article 52, the Additional Space shall not be deemed to be "available for lease"
if Landlord is negotiating with the existing tenant or tenants of such space
for a renewal or extension of its lease term.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
Patrician Associates, Inc., a
California Corporation ADDRESS:
By: /s/ Thomas R. Pospisil Patrician Associates
---------------------------- c/o Parkway Properties, Inc.,
Thomas R. Pospisil 7011 Koll Center, Suite 210
Pleasanton, California 94566
Its: Counsel
---------------------------
By: /s/ Ralph C. Eucher
----------------------------
Ralph C. Eucher
Its: Vice President
---------------------------
TENANT: ADDRESS:
ACCPAC INTERNATIONAL, INC., a
California corporation
By: /s/ Frederick S. Wysocki
----------------------------
Its: CEO & President
---------------------------
By:
----------------------------
Its:
---------------------------
29
THE PREMISES
OUTLINE OF TENANT'S FLOOR PLAN
EXHIBT A
THE PROJECT
That certain building consisting of approximately one hundred eight thousand
five hundred and sixty-four (108,564) rentable square feet located on that
certain real property consisting of approximately six and 0794/10,000th (6.0794)
acres more particularly described as:
PARCEL 1 OF PARCEL D OF PARCEL MAP 5075 OF BERNAL CORPORATE PLAZA FILED JUNE 5,
1987 IN BOOK 168 OF MAPS, PAGE 85, ALAMEDA COUNTY RECORDS.
EXHIBIT A-1
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the fifth day of June,
1998 by and between Patrician Associates, Inc., a California corporation
("Landlord") and Accpac International, Inc., a California 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
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 hereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE
Within ten days after the execution of the Lease, Landlord shall deliver to
Tenant, for Tenant's review and approval, a schedule (the "Work Schedule")
setting forth a timetable for the planning and completion of the installation of
the Tenant Improvements to be constructed in the Premises. The Work Schedule
shall set forth each of the various items of work to be done by or approval to
be given by Landlord and Tenant in connection with the completion of the Tenant
Improvements. Such schedule shall be submitted to Tenant for its approval and,
upon approval by both Landlord and Tenant, such schedule shall become the basis
for completing the Tenant Improvement Work. Tenant shall approve the Work
Schedule, as it may be modified after discussions between Landlord and Tenant,
within five working days after the date such schedule is first received by
Tenant.
2. TENANT IMPROVEMENTS
Reference herein to "Tenant Improvements" shall include all work to be done
in the Premises pursuant to the Tenant Improvement Plans described in Paragraph
3 below, including but not limited to partitioning, doors, ceilings, floor
coverings, finishes, (including paint and wallcovering) electrical, (including
lighting, switching, outlets, etc.) plumbing, heating ventilating and air
conditioning, fire protection, cabinets an other mill work.
3. TENANT IMPROVEMENT PLANS
Based upon the space plan and annotations described on Exhibit B-1
attached hereto,
EXHIBIT B
Page 1 of 4
Landlord's architect and engineer shall prepare final working drawings and
specifications may be referred to herein as the "Tenant Improvement Plans."
4. FINAL PRICING AND DRAWING SCHEDULE
Landlord shall cause its architect to prepare and submit to Tenant the
final working drawings and specifications referred to in Paragraph 3 hereof.
Such working drawings shall be approved by Landlord and Tenant in accordance
with the Work Schedule and shall thereafter be submitted to the appropriate
governmental body for plan checking and a building permit. Concurrent with
the plan checking, Landlord shall have prepared a final pricing for Tenant's
approval, taking into account any modifications which may be required to
reflect changes in the plans and specifications required by the City or
County in which the Premises are located. After final approval of the working
drawings, no further changes to Tenant Improvement Plans may be made without
the prior written approval from both Landlord and Tenant, and then only after
agreement by Tenant to pay any excess costs resulting from such changes.
5. CONSTRUCTION OF TENANT IMPROVEMENTS
After the Tenant Improvement Plans have been prepared and approved, the
final pricing has been approved and a building permit for the Tenant
Improvements has been issued, Landlord shall enter into a construction contract
at competitive rates and terms with a general contractor selected by Landlord
for the installation of the Tenant Improvements in accordance with the Tenant
Improvement Plans. Landlord and Tenant agree that Hillhouse Construction will
be one of the general contractors selected to bid the construction of the Tenant
Improvements. Landlord shall supervise the completion of such work and shall use
its best efforts to secure completion of the work in accordance with the Work
Schedule.
6. PAYMENT OF COST OF THE TENANT IMPROVEMENTS
(a) Landlord shall deliver the Premises to Tenant in a "turnkey"
condition in accordance with the approved Tenant Improvement Plans and shall
pay for the cost of the Tenant Improvements shown on the Tenant
Improvement Plans. In connection therewith, Landlord shall only be
responsible for the following costs:
(i) Payment of the cost of preparing the space plan and the
final working drawings and specifications, including mechanical, electrical
and structural drawings and of all other aspects of the Tenant Improvement
Plans. Landlord will not be responsible for the payment of extraordinary
design work not included within the scope of the approved and annotated space
plan attached as Exhibit B-1 or for payments to any other consultants,
designers or architects other than Landlord's architect, engineer, and/or
space planner;
(ii) The payment of permit and license fees relating to
construction of the Tenant Improvements;
EXHIBIT B
Page 2 of 4
(iii) Construction of the Tenant Improvements, including,
without limitation, the following:
(1) Installation within the Premises of all partitioning,
doors, floor coverings, finishes, ceilings, wall coverings and painting,
millwork and similar items.
(2) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the Premises.
(3) The furnishing and installation of all duct work,
terminal boxes, defusers and accessories required for the completion of the
heating, ventilation and air conditioning systems within the Premises, including
the cost of meter and key control for after-hour air conditioning.
(4) Any additional Tenant requirements including, but not
limited to odor control, special heating, ventilation and air conditioning,
noise or vibration control or other special systems.
(5) All fire and life safety control systems such as fire
walls, sprinklers, halon, fire alarms, including piping, wiring and accessories
installed with the Premises.
(6) All plumbing, fixtures, pipes, and accessories to be
installed within the Premises.
(7) Owner shall provide telephone conduit only from the
telephone jacks in the walls to the top of the ceiling at those locations
specified in the Tenant Improvement Plans. Tenant shall be responsible for
pulling all wires from the service boards to the individual jacks.
(b) In the event that the cost of installing the Tenant Improvements,
after the working drawings have been approved by Tenant, shall exceed the cost
of the improvements as indicated on the attached Exhibit "A", the excess shall
be paid by Tenant to Landlord prior to Landlord prior to the commencement of
construction of the Tenant Improvements.
(c) In the event that, after the Tenant Improvement Plans have been
prepared and a price therefore established by Landlord, Tenant shall require any
changes or substitutions to the Tenant Improvement Plans, any additional costs
therefor including architectural and space planning fees, shall be paid by
Tenant to Landlord prior to the commencement of such work.
7. COMPLETION AND RENTAL COMMENCEMENT DATE
The commencement of the term of this 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 to the
extent the delay is as a result of:
EXHIBIT B
Page 3 of 4
(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 this Lease and the commencement date shall
be accelerated by the number of days of such delay.
In Witness whereof, this Work Letter Agreement is executed as of the date
first written above.
ADDRESS:
PATRICIAN ASSOCIATES, INC., a Patrician Associates
California corporation c/o Parkway Properties, Inc.,
7011 Koll Center, Suite 210
By: /s/ Thomas R. Pospisil Pleasanton, California 94566
---------------------------
Thomas R. Pospisil
Its: Counsel
--------------------------
By: /s/ Ralph C. Eucher
---------------------------
Ralph C. Eucher
Its: Vice President
--------------------------
TENANT: ADDRESS:
ACCPAC INTERNATIONAL, INC., a
California corporation
By: /s/ Frederick S. Wysocki
-------------------------------
Its: CEO & President
------------------------------
By: -------------------------------
Its:-------------------------------
EXHIBIT B
Page 4 of 4
Tenant improvements will be done in substantial conformance with the
Ambiance Associates plan dated June 4, 1998, as annotated by Computer
Associates June 8, 1998 as described in and attached as Exhibit B-1.1; and
the TENANT DESIGN PROGRAM prepared by Computer Associates, Inc. and dated
11/5/97, all with the following exclusions or clarifications:
1. Wallcovering will not be provided in the coffee rooms, lunch rooms
or p.c. labs.
2. The custom reception unit is not included (existing unit to be
donated by Landlord).
3. Two (2) projection screens are included.
4. Column covers will be square, not round.
5. There will be no two-hour-rated walls. One-hour walls will be
provided where required by code.
6. Cost of Computer Associates-prescribed Bentley carpet not to exceed
$18.00/sq. yd. (not including installation).
7. The maximum allowance for the 24-hour supplemental air conditioning
unit is $12,500.
8. No upper cabinets are provided in copy rooms. No millwork is
provided in any conference/board rooms.
9. Miniblinds are not included on interior glass.
10. Maximum allowance for four (4) refrigerators is $3,000 ($750 each).
11. Card-key security system is included; Landlord to provide
electrified hardware only at three (3) doors.
EXHIBIT B-1
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:
Landlord shall:
(a) On Monday through Friday, except holidays, from 7 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 reasonable judgment of Landlord, in accordance with prudent
practices for comparable Class A office buildings in Pleasanton, it may be
required for the comfortable occupancy of the Premises. The air conditioning
system achieves maximum cooling when the window coverings are closed. Landlord
shall not be responsible for room temperatures to the extent affected where
Tenant does not keep all window coverings in the Premises 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 its 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.
(b) Landlord shall furnish to Tenant after-hours heating and air
conditioning at the rate of $20.00 per hour (two-hour minimum charge) for such
after-hours use. If the actual cost to Landlord of providing such after-hours
heating and air-conditioning increases at any time during the term of this
Lease, Landlord shall have the right to increase the hourly rate charged by
Landlord for such after-hours usage to the extent such costs are increased upon
at least 10 days prior notice to Tenant. Landlord shall bill Tenant monthly for
such after-hours usage. If such charges are billed to Tenant separately from
rent, then Tenant shall pay such charges to Landlord, as additional rent, within
30 days after receipt of Landlord's statement of such charges.
(c) Landlord shall furnish to the Premises, during the usual
business hours on business days, electric current sufficient for normal
office use. 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
EXHIBIT C
Page 1 of 3
reviewed and adjusted quarterly. The parties agree that such process shall
be used for calculating the electrical usage attributable to Tenant's
dedicated air unit to be installed in the telecommunications room in the
Premises. Tenant shall pay Landlord the estimated cost of such electrical
usage monthly, as additional rent. 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 and Tenants shall not install
or use or permit the installation or use of any computer, larger than
personal computer, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, delayed or conditioned.
(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
kept reasonably in order by Tenant, and if to be kept clean by Tenant, no one
other than persons reasonably 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.
(f) Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electric systems, to the extent
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,
EXHIBIT C
Page 2 of 3
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, covenants, 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.
EXHIBIT C
Page 3 of 3
RULES AND REGULATIONS
BERNAL CORPORATE PLAZA I PROJECT
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, 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 and walls shall be printed, painted, affixed or inscribed at the expense
of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any windowsill,
which is visible from the exterior of the Premises and which Landlord has not
previously approved, Tenant shall immediately discontinue such use. 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 Project. The halls,
passages, exits, entrances, elevators, and stairways are not open to the general
public, but are open, subject to reasonable regulation, to Tenant's business
invitees. 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 interest of the Project
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 or
unlawful activities. No tenant and no employee or invitee of any tenant shall
go upon the roof of any building of the Project.
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 Project and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, which consent shall not be unreasonably withheld, delayed
or conditioned, 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.
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.
EXHIBIT D
Page 1 of 5
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's reasonable
instructions in their installation.
8. 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 Project. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
Premises or to any space therein to such a degree to be objectionable to
Landlord or to any tenants in the Project, 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 Premises 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 Premises, by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
9. 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 Project by
reason of noise, odors or vibrations, nor shall Tenant bring into or keep in or
about the Premises any birds or animals.
10. Tenant shall not use any method of heating or air-conditioning other
than that supplied or approved by Landlord.
11. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Premises' 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. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
12. Landlord reserves the right, exercisable upon prior written notice and
without liability to Tenant, to change the name of the Project to the extent the
same is not in conflict with Tenant's operations.
13. Landlord reserves the right to exclude from the Project between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord in a manner consistent with first
class office buildings in Pleasanton, California, and on Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Project or has a pass or is properly identified. Landlord
shall not
EXHIBIT D
Page 2 of 5
be liable for damages for any error with regard to the admission to or
exclusion from the Project of any person. Landlord reserves the right to
prevent access to the Project in case of invasion, mob, riot, public excitement
or other commotion by closing the doors or by other appropriate action.
14. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or gas 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 Project or by Landlord for noncompliance
with this rule.
15. Tenant shall not obtain for use on the Premises ice, drinking water,
food beverages, towel or other similar services upon the Premises, except at
such reasonable hours and under such reasonable regulations as may be reasonably
fixed by Landlord.
16. 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 of damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
17. 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 Project. Tenant shall not
use the Premises for any business or activity other than that specifically
provided for in Tenant's Lease.
18. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof or exterior walls of the Premises without
Landlord's prior written approval. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Project or elsewhere.
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 in accordance with the provisions of the Lease pertaining to
alterations. 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 machines without the written consent of Landlord.
21. Canvassing, soliciting and distributing of handbills or any other
written material, and peddling in the Project are prohibited, and Tenant
shall cooperate to prevent such activities.
EXHIBIT D
Page 3 of 5
22. Landlord reserves the right to exclude or expel from the Project 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 Project if such violation materially adversely affects any other tenant's
use and occupancy.
23. Tenant shall store all its trash and garbage within its Premises or in
other facilities provided by Landlord. 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 reasonable 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 on the Premises without Landlord's
consent, except that use by Tenant of Underwriter's Laboratory approved
equipment for brewing coffee, tea, hot chocolate and similar beverages or use of
microwave ovens for employee use 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.
25. Tenant shall not use in the Premises any hand truck 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 Premises.
26. Without the written consent of Landlord, Tenant shall not use the name
of the Project 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.
28. Tenant and its employees, guests and invitees shall not enter into the
waterways located in the Project. No object of any kind may be floated or
submerged in the waterways, and no foreign substance of any kind may be thrown
in the waterways. The expense of any breakage or damage to any mechanical
equipment related to the waterways resulting from violation of this rule or any
expense incurred restoring the waterways to their normal condition shall be
borne by the tenant who, or whose employees or invitees, shall have caused such
damage.
29. Tenant assumes responsibility for protecting its Premises from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed.
30. Tenant's requirements will be attended to only upon appropriate
application to the Project management office 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,
EXHIBIT D
Page 4 of 5
and no employee of Landlord will admit any person (Tenant or otherwise) to
any office without specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant in a non-discriminatory manner, 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 Project.
32. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of Tenant's lease of its Premises in the
Project.
33. Landlord reserves the right to make such other and reasonable Rules
and Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Project 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.
In particular, tenant shall comply at all times with the City of Pleasanton's
Transportation Systems Management Ordinance (TSM Ordinance, Chapter 17.24,
Pleasanton Municipal Code), as said Ordinance may be amended from time to time."
34. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
EXHIBIT D
Page 5 of 5
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Building.
1. All claimed damage or loss must be reported and itemized in
writing delivered to the Landlord within ten business days after any
claimed damage or loss occurs. Landlord has the option to make
repairs at its expense of any claimed damage within two business days
after filing of any claim. In all court actions the burden of proof
to establish a claim remains with Tenant. Court actions by Tenant for
any claim must be filed in the court of jurisdiction where a claimed
loss occurred within ninety days after date of damage or loss.
Landlord is not responsible for damage by water, fire, or defective
brakes, or parts, or for the act of omissions of others, or for
articles left in the car. Landlord is not responsible for loss of
use.
2. Tenant shall not park or permit its employees to park in any
parking areas designated by Landlord as areas for parking by visitors
to the Building. Tenant shall not leave vehicles in the parking areas
overnight nor park any vehicles in the parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by Landlord as a condition of use of the Parking Facilities
shall remain the property of Landlord. Such parking identification
device must be displayed as requested and may not be mutilated in any
manner. The serial number of the parking identification device may
not be obliterated. Devices are not transferable and any device in
the possession of an unauthorized holder will be void.
4. No overnight or extended term storage of vehicles shall be
permitted.
5. Vehicles must be parked entirely within the painted stall lines
of a single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per
hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
EXHIBIT E
Page 1 of 2
(c) where "no parking" signs are posed;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord or
Landlord's Parking Operator.
9. Every parker is required to park and lock his own vehicle.
All responsibility for damage to vehicles is assumed by the parker.
10. Loss of theft of parking identification devices from automobiles
must be reported immediately, and a lost or stole report must be filed
by the customer at that time. Landlord has the right to exclude any
car from the parking facilities that does not have an identification.
11. Any parking identification devices reported lost or stolen found
on any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported
immediately to avoid confusion.
13. Washing, waxing, cleaning or servicing (except in an emergency)
of any vehicle in any area not specifically reserved for such purpose
is prohibited.
14. Landlord reserves the right to refuse the sale 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 these Rules and Regulations and all unposted City, State
or Federal ordinances, laws or agreements.
15. Landlord reserves the right to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems necessary for the operation of the
parking facilities provided that such rules and regulations do not
materially diminish Tenant's rights or materially increase Tenant's
obligations. Landlord may refuse to permit any person who violates
these rules to park in the parking facilities, and any violation of
the rules shall subject the car to removal.
EXHIBIT E
Page 2 of 2