OFFICE LEASE
THIS LEASE is made and entered into as of the 20th day of October 1997,
by and between SOUTHLAKE PARTNERS #1, a Kansas general partnership,
hereinafter referred to as Lessor, and INFORMIX SOFTWARE, INC., a Delware
corporation, hereinafter referred to as Lessee.
WITNESSETH:
Lessor, for and in consideration of the rent and other covenants
hereinafter mentioned and contained to be kept and performed by Lessee, does
hereby demise, lease, and let to Lessee, and Lessee does hereby rent, hire,
and take from Lessor, in accordance with the covenants hereinafter set forth,
the land and buildings known as 00000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, as
legally described on Exhibit "A" hereto. It is contemplated that for
purposes of this Lease the premises will contain 44,131 square feet of net
rentable area, The foregoing shall hereinafter be referred to as the
"Premises."
1. TERM:
The original term of this Lease shall commence on the 1st day of
May, 1998, and shall continue for five (5) years, ending on the 30th day of
April, 2003, unless sooner terminated in accordance with the provisions
hereof, Upon the expiration of the term of this Lease or its termination for
any reason contained herein. Lessee shall return all keys, remove all of its
personal property, and return the Premises to Lessor in accordance with the
terms of this Lease.
2. RENTAL:
The Base Rental for the Premises shall be at the rate of Two
Hundred Seventy-Five Thousand Eight Hundred Twenty and No/100 Dollars
($275,820.00) annually, payable in equal monthly installments of Twenty-Two
Thousand Nine Hundred Eighty Five and No/100 Dollars ($22,985.00), with
proration for any partial month's occupancy, without deduction or set off,
except as herein provided, each due and payable to Lessor on the first day of
each and every month of the term hereof in advance. Any rentals not received
by Lessor within ten (10) days after this due date set forth herein shall be
subject to a late charge of five percent (5%) of the amount thereof for each
full or partial calendar month said rental remains unpaid. Failure by Lessee
to pay said late charge within thirty (30) days after receipt of notice from
Lessor that it is due shall in addition to any other default constitute a
default of this Lease by Lessee. All rental payments and other payments
required under this Lease shall be made to Lessor at P. O. Xxx 000000, Xxxxxx
Xxxx, Xxxxxxxx 00000, or at such other place as may be requested by Lessor in
writing.
3. ADDITIONAL RENT:
(a) In addition to the Base Rental and all other sums payable
pursuant hereto, Lessee shall pay to Lessor, as additional rental, the amount
of the "Direct Expenses" as defined below for each calendar year of the
original or extended term of this Lease with proration for the first and last
years of the original or extended term. Each calendar year is hereafter
called a. "Cost Year". Beginning on the
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ANSI 265.1 - 1980
commencement date of the original term of this Lease and on the first day of
each month thereafter, Lessee shall pay to Lessor an amount equal to
one-twelfth (1/12) of the Direct Expenses, as reasonably estimated from time
to time by Lessor by written notice delivered to Lessee. As soon as
reasonably possible after the expiration of each Cost Year, Lessor shall
furnish Lessee with a statement setting forth in reasonable detail the Direct
Expenses for the Cost Year and any excess of said costs over the estimated
expenses paid by Lessee during said Cost Year. Lessee (in person or through
its agents or employees) shall have the right to inspect and audit the books
of Lessor setting forth said expenses during normal business hours. If the
amount paid by Lessee as additional rental on a monthly basis for a Cost Year
as provided for above is greater than the amount set forth in the statement,
then Lessor shall credit the additional amount paid by Lessee toward the next
installments of additional rental. If the amount paid by Lessee is less than
the amount of the statement, then Lessee shall pay the additional amount
owing to Lessor on or before thirty (30) days after receipt by Lessee of said
statement. If the term of this Lease or any extension or renewal hereof ends
on a day other than the last day of a calendar year, Lessee's payment of
Direct Expenses for the Cost Year in which the Lease term ends shall be
prorated on a per diem basis. If Lessor's statement for said final Cost Year
discloses that Lessee has overpaid Lessee's obligation, then Lessor shall
remit to Lessee the amount of such overpayment on or before thirty (30) days
after Lessee's receipt of said statement. if Lessee's audit of the books of
Lessor setting forth such expenses reveals any improper charges or
overcharges for expenses, Lessor shall promptly remit such amounts to Lessee.
(b) "Direct Expenses" shall be defined as the sum of any and all
costs, expenses, and disbursements of every kind and character which Lessor
shall incur, pay, or become obligated to pay in any calendar year in
connection with the ownership, operation, maintenance, repair, replacement of
all or portions of the improvements, and security of the Premises which shall
include but not be limited to the following: real estate taxes and
assessments (provided, however, that as to any assessments which may be paid
in installments, Lessee shall be responsible only for those installments
becoming due during the term of this Lease and, with respect to the
assessment for Lenexa Benefit District created by City of Lenexa Resolution
No. 85-39, as amended from time to time, Lessee shall only be responsible to
the extent the amount exceeds the actual number of square feet of land
included in the Premises multiplied by $.50 per square foot); charges levied
pursuant to the Declaration of Covenants and Restrictions Affecting
SOUTHLAKE; rent taxes, gross receipts taxes' water and sewer charges;
insurance premiums, license, permit and inspection charges; utilities;
service contracts; labor; management of the Premises (not to exceed 3% of
rental); air conditioning, heating and elevator maintenance; supplies;
maintenance to all other parts of the building; security; garbage service;
maintenance and upkeep costs of all parking areas, drives, lawns, trees,
shrubbery and common areas; and the cost of contesting by appropriate
proceedings increases in real estate taxes and assessments and the
applicability to, or the validity of, any statute, ordinance, rule or
regulation affecting the Building or land which might increase Direct
Expenses; provided however, that the cost of such contest shall be a Direct
Expense only if such contest is consented to by Lessee.
Notwithstanding the foregoing, in the event the total cost (less
the amount paid with proceeds of insurance or to the extent covered by
warranty) of any repair, replacement or
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ANSI 265.1 - 1980
general maintenance item incurred after the Commencement Date and which, in
accordance with generally accepted accounting principles, is considered or
deemed to be a capital expenditure, exceeds $5,000.00, the amount to be
included in "Direct Expenses" for any' Cost Year shall be equal to the amount
necessary to amortize by equal monthly payments such cost, together with
interest as specified below, over the expected useful life of the asset
created thereby multiplied by the number of months of such expected life
which fall within such Cost Year. For purposes of the preceding sentence,
the interest shall be 150 basis points over the effective yield to maturity
on United States Government bonds with a term closest to the expected useful
life of the assets and most -recently auctioned before the completion of the
asset.
"Direct Expenses" shall not include expenses for repairs,
replacements, and general maintenance to the extent paid by proceeds of
insurance or to the extent covered by warranty; principal and interest
payments made by Lessor on mortgages on the Premises; depreciation; and
leasing commissions.
All payments, including those previously specified above, as
required in this Lease by Lessee to Lessor shall be deemed to be and shall
become additional rental hereunder, whether or not the same shall be
designated as such, and shall be due and payable along with usual rental
payments subject to the same conditions and remedies as exist for said rental
payments.
4. POSSESSION AND CONDITION AT BEGINNING OF TERM:
Lessee is in possession of the Premises by virtue of a Lease
expiring April 30, 1998. This Lease provides a continuation of occupancy to
Lessee by Lessor. Accordingly, Lessee accepts possession of the Premises
existing as of the date of this Lease.
5. USE OF PREMISES:
The demised Premises are leased for the business of Lessee,
consisting of general and administration offices, the manufacture, storage,
sale and distribution of computer software and related items and any other
lawful purpose consistent with the design and construction of the
improvements on the Premises and permitted under the Declaration of Covenants
and Restrictions Affecting SOUTHLAKE, which are filed of record in the office
of the Recorder of Deeds of Xxxxxxx County, Kansas, as the same may be
lawfully modified from time to time, and are not to be used for any other
purpose without first having secured the written consent of the Lessor.
6. PUBLIC REQUIREMENTS:
Lessee shall comply with all laws, ordinances, governmental orders
and regulations and other public requirements now and hereafter affecting the
Premises or the use thereof, and shall save and hold Lessor harmless from
expense or damage resulting from failure to do so; provided however, that if
any actions are hereafter required to cause the Premises to be in compliance
with any public requirements which existed as of the Commencement Date of
this Lease and which was not then complied with, then Lessor shall be
responsible for such compliance and the cost of satisfying and complying with
such public requirements shall be Lessor's expense and shall not be a "Direct
Expense".
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ANSI 265.1 - 1980
7. ASSIGNING AND SUBLEASING:
Lessee shall not sublet the Premises or any part thereof and Lessee
shall not assign, transfer, pledge, mortgage or otherwise encumber this
Lease, or any portion of the term thereof, without the previous written
consent in each instance of Lessor, and Lessee shall furnish to Lessor a copy
of such proposed instrument; Lessor agreeing, however, not to arbitrarily
withhold consent to subletting for any legitimate business not detrimental to
the Premises or occupants thereof, and not more hazardous on account of fire
or otherwise, and not creating wear and tear to the Premises more than the
business for which the Premises are herein leased. Permission is, however,
granted Lessee to assign this Lease and also to sublet the Premises in
connection with any merger, consolidation or sale of all or substantially all
of Lessee's assets or to any person or entity which controls Lessee, which
Lessee controls or which is under common control with Lessee, upon giving
Lessor written notice of intent to do so. In the event of any assignment or
subletting, Lessee shall remain the principal obligor to the Lessor under all
covenants of this Lease, and by accepting any assignment or subletting, an
assignee or sublessee shall become bound by and shall perform and shall
become entitled to the benefits of all of the terms, conditions and covenants
by which the Lessee hereunder is bound. As used herein, the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of management and policies, whether through the ownership of
voting securities, by contract or otherwise. Lessor and Lessee acknowledge
that if, at any time after the end of the third year following the
commencement date of this Lease, Lessee is subletting in the aggregate more
than fifty percent (50%) of the net rentable area contained in the Premises,
then all of Lessee's options to lease land set forth in that certain Option
to Lease Land Agreement dated as of August 15. 1987, executed by Lessee and
Lenexa Industrial Park, Inc. and certain ground leases which may be executed
pursuant to said Option to Lease Land may be terminated in accordance with
the terms set forth in said Option to Lease Land and ground leases by either
Lessor or Lessee.
8. INSURANCE
Lessor at all times during the term of this Lease shall maintain a
policy or policies insuring the building in which the Premises are located
against loss or damage by fire, explosives, or other hazards and
contingencies. The form of such policy shall be an "all risk" form, and the
amount of such policy shall be equal to 100% of the replacement cost thereof,
unless a different form or a lesser amount is approved by Lessee. Lessor
shall not be required to maintain a policy insuring the property of Lessee.
Lessor shall also at all times during the term of this Lease maintain a
policy or policies insuring against loss of rents in an amount not to exceed
the total annual rent provided herein from time to time. Lessee is hereby
restricted from using any machinery, storing any supplies, operating in any
manner or otherwise occupying or using the Premises so as to constitute a
hazard that would cause the cancellation of such insurance. The cost of the
foregoing is a part of Direct Expenses.
9. MAINTENANCE AND CARE OF PREMISES
Lessor shall maintain the roof and exterior walls of the building,
all downspouts, hallways, stairways, and other common facilities of the
building, including parking and landscaped areas. Lessor shall also maintain
elevators,
PAGE 4 - OFFICE LEASE
ANSI 265.1 - 1980
plumbing systems, heating, ventilating and air conditioning systems, fire
protection systems and electrical systems, installed by Lessor and serving
the building and the Premises, except for the responsibilities of Lessee as
set forth below.
Lessee shall promptly notify Lessor of the need for any repairs or
maintenance for which Lessor is obligated as described above, and Lessor
shall have reasonable time after receipt of such notice to complete such
repairs. Except as provided in Section 3(b) and Section 6 hereof, Lessor's
cost of the foregoing shall be a part of Direct Expenses.
Subject to the foregoing obligations, Lessee agrees to take good
care of the Premises, keep them free from filth, overloading, danger of fire,
or any pest or nuisance, and shall cause the Premises to be regularly cleaned
by a competent janitorial service for the healthful conduct of Lessee's
business. If requested by Lessee, Lessor may provide said janitorial service
and the same shall be a part of Direct Expenses.
10. ALTERATIONS BY LESSEE:
Lessee shall make no alterations in, or additions to the Premises
without first obtaining the Lessor's written consent for such alterations or
additions, which shall be made at the sole cost of the Lessee. All such
alterations, additions and improvements, made in or upon the Premises, either
by Lessor or Lessee, and attached to the Premises, to include carpet, shall
be the Lessor's property, and shall remain upon the Premises at the
termination of this Lease by lapse of time or otherwise, or upon entry by
Lessor without termination pursuant to Paragraph 15, without compensation to
the Lessee and without disturbance or injury. Notwithstanding the foregoing,
Lessee shall have the right to make non-structural, interior alterations and
additions without obtaining Lessor's consent but after giving Lessor prior
written notice. Lessee agrees to restore the portion of the Premises
affected by each non-structural, interior alteration or addition to its
condition on the Commencement Date if Lessor gives Lessee written notice of
its desire for restoration within twenty (20) days of Lessor's receipt of
Lessee's notice of intent to make such non-structural, interior alteration or
addition.
Lessee hereby agrees that prior to the commencement of alterations
to the Premises by a contractor employed by Lessee, Lessor shall approve in
writing said alterations. Any alterations so made shall be of a quality
equal to or exceeding building standard. Lessor hereby reserves the right to
require said contractor to provide lien waivers or payment and performance
bonds and liability insurance and such other instruments as may be necessary
to protect Lessor against loss resulting from work performed or to be
performed by said contractor. Lessee shall indemnify and hold Lessor
harmless for any loss which Lessor may incur as a result of any work
performed or services rendered to the Premises by persons or parties
employed by Lessee.
11. LESSOR'S RIGHT OF ENTRY
Lessor may enter the Premises at reasonable hours to exhibit the
Premises to prospective purchasers or, during the last six (6) months of the
term hereof, prospective tenants, to inspect the Premises to see that Lessee
is complying with all Lessee's obligations hereunder and to make repairs
required of Lessor under the terms of this Lease. Except in cases
constituting emergencies, Lessor will give Lessee
PAGE 5 - OFFICE LEASE
ANSI 265.1 - 1980
reasonable prior notice of Lessor's desire to enter the Premises and the
identity of all persons that Lessor proposes enter the Premises with or on
behalf of Lessor; provided, however, such notice need not be written
notwithstanding any provision to the contrary in this Lease. Lessee may deny
access to the Premises to any of Lessor's invitees if in the sole reasonable
judgment of Lessee admission would be detrimental to the proprietary nature
of Lessee's business. Additionally, Lessor agrees that it will exercise its
rights hereunder in such manner as to not unreasonably interfere with
Lessee's operations of its business in the Premises. Without limiting the
generality of the foregoing, Lessor agrees that it will use its best
reasonable efforts in exercising its rights hereunder to preserve the
confidentiality of Lessee's business operations, products and processes kept
in, on or about the Premises.
12. SIGNS AND ADVERTISEMENTS:
Any signs placed by Lessee on the Premises which are visible from
the exterior of the Premises shall be subject, in each instance, to the terms
and provisions of the Declaration of Covenants and Restrictions Affecting
SOUTHLAKE.
13. LIABILITY:
Lessee hereby relinquishes all claims, releases, assumes all risks
and agrees to hold Lessor harmless from any liability for any damage done or
occasioned by or from any plumbing, wiring, gas, water, steam, sprinkler
system, equipment or other pipes, or the bursting, leaking or running of any
tank, washstand, water closet, waste pipe or other articles in, above, upon
or about the building or Premises, or for damage occasioned from or by water,
snow or ice being upon, above or about the Premises unless caused by the
gross negligence or intentional act of Lessor.
Lessor and Lessee hereby expressly waive any cause of action or
right of recovery which either may have hereafter against the other for any
loss or damage to the leased Premises, or to the contents thereof, from all
claims and liabilities arising from or caused by any hazard that is actually
insured against or that could be covered by a standard fire insurance policy
with extended coverage and "all risk" endorsement on the leased Premises, or
on the contents thereof, and each party hereto shall obtain a waiver from any
insurance carrier with which it carries insurance covering the leased
Premises, or the contents thereof, releasing its subrogation rights as
against the other party, and upon request by either party evidence of said
waiver shall be furnished by each party hereto to the other party.
Subject to the provisions of the next preceding paragraph, Lessee
agrees to save and hold harmless the Lessor from any claim, damage,
liability, or expense arising from any injury (including death) to persons or
damage to property occurring in, on or about the leased Premises, unless
caused by the gross negligence or intentional act of Lessor. Lessee shall
maintain in effect throughout the term of this Lease, general public
liability insurance covering the Premises, and including the Lessor as an
additional insured, with limits not less than $1,000,000 for injury
(including death) to person or persons, and $100,000 for property damage.
All merchandise and property now owned by Lessor or Lessor's
invitees and in or about the Premises shall be at Lessee's sole duty and risk
and Lessee does hereby now and
PAGE 6 - OFFICE LEASE
ANSI 265.1 - 1980
forever relinquish all claims, release, and agree to hold Lessor harmless
from any claims for damages thereto or any of same, howsoever caused.
14. DAMAGE BY CASUALTY:
If, during the term hereof, or previous thereto, the Premises or
any building of which the Premises are a part, shall become untenantable or
otherwise damaged by virtue of damage by fire, explosion, providential means,
or any other casualty, and (in the case of untenantability) if the Premises
or building can be reasonably repaired within one hundred eighty (180) days
after date of such damage, Lessor shall repair the Premises as soon as
practicable with due diligence, placing the same in as good condition as they
were just before such damage, and rent shall xxxxx pro rata and in proportion
to untenantability of the Premises from the time of such damage until
restoration of the Premises by Lessor. In the case of untenantability, if
the Premises or building cannot be repaired within one hundred eighty (180)
days after the date of such damage, then either Lessor or Lessee may
terminate this Lease by written notice to the other party in which event the
term hereby created shall terminate as of the date of such damage and rent
shall cease as of the date of such damage, with proportionate refund of any
prepayment, on condition Lessee forthwith surrenders the Premises to Lessor.
It is further agreed that the period for reconstruction shall be extended for
such time during which strikes, riots, civil commotion, governmental
intervention, acts of God or any other contingency beyond Lessor's control,
shall delay the construction. In the case of such damage, whether this Lease
is thereby terminated or not, Lessee shall remove all of the rubbish and
debris of Lessee's property within five (5) days after written request by
Lessor, and if this Lease is not thereby terminated, Lessee shall not do
anything to hinder or delay Lessor's work of repair, and will cooperate with
Lessor in such work. Lessor shall not be liable for inconvenience to Lessee
by making repairs to any part of the Premises or building, nor for the
restoration of any improvements made by Lessee, nor for the restoration of
any property of Lessee. Notwithstanding anything herein to the contrary, in
the event the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then Lessor shall have the right to terminate this
Lease by delivering written notice of termination to Lessee, whereupon all
rights and obligations hereunder shall cease and terminate, except for
Lessee's option to purchase the Premises hereafter set forth. Lessor agrees
to use its best efforts to see that the holder of any such indebtedness does
not require that insurance proceeds be applied to indebtedness. For the
purposes of this Lease, said Premises shall be considered tenantable so long
as and to the extent that they are occupied. In the event Lessor terminates
this Lease under the provisions of this Paragraph 14, then Lessee shall have
an option to purchase the Premises under the following terms and conditions:
a. If Lessee desires to purchase the Premises, Lessee shall, within
ten (10) days of Lessee's receipt of notice of Lessor's election to
terminate this Lease, give notice in writing to Lessor of such
desire to purchase and the purchase price shall be fair market
value of the Premises which shall be determined by Lessor and
Lessee or in the absence of such agreement by appraisal. If the
parties have failed to agree on the value of the Premises or have
failed to agree on an appraiser to determine the value
PAGE 7 - OFFICE LEASE
ANSI 265.1 - 1980
twenty (20) days after Lessee's notice of Lessee's desire to
purchase, then either party may request the then-President of the
Metropolitan Kansas City Board of Realtors to designate a member of
the American Institute of Real Estate Appraiser Chapter having
jurisdiction over the area in which the Premises are located and
who has at least ten (10) years' experience in appraising property
similar to the Premises (provided, however, in the event an
appraiser has been designated pursuant to the provisions of Section
Twenty-Three of that certain lease (the "Ground Lease") as of
August 15, 1987, between Lessor and Lenexa Industrial Park, Inc.,
then the same appraiser shall be utilized for purposes of this
subparagraph) to appraise the Premises and report the fair market
value thereof which shall be deemed to be the fair market value of
the Premises and shall be binding upon Lessor and Lessee. In the
event said appraiser, or any substitute appraiser designated as
herein provided, fails to deliver a written report of the fair
market value of the demised premises within sixty (60) days after
such designation, then either party may request the designation of
a substitute appraiser in the same manner and with the same
qualifications as set forth above for the designation of the
appraiser who failed to report, Said appraiser shall be retained
jointly by Lessor and Lessee who shall each pay one-half of the
cost of the appraisal.
b. The Premises shall be conveyed by Lessor to Lessee subject to
easements, restrictions, reservations and other encumbrances of
record, and Lessor shall provide Lessee an owner's policy of title
insurance in the amount of the purchase price.
c. Closing of the sale shall occur not more than thirty (30) days
after determination of the fair market value of the Premises, and
payment of the purchase price shall be in cash, or, if later, upon
the date on which Lessor acquires title to all property included in
the Premises. Lessor shall act with diligence to exercise and
close its option to purchase fee title to the ground included
in the Premises in accordance with the Ground Lease.
15. DEFAULT:
If there be default in payment of any rent or other sums payable
hereunder and if such default shall continue after ten (10) days' notice, in
writing, from Lessor to Lessee to make good such default, or if Lessee
defaults or fails to perform any other of Lessee's obligations hereunder or
if the Premises are abandoned or vacated and if such default or condition
shall continue after thirty (30) days' notice, in writing, from Lessor to
Lessee to make good such default or correct such condition, Lessor may, at
Lessor's option, at any time thereafter while such default or condition
continues, without further notice or demand, declare this Lease terminated
and enter upon and repossess the Premises free of this Lease; or Lessor may,
at Lessor's option, enter upon and repossess the Premises as aforesaid or
receive the keys thereto, Lessee hereby acknowledging that the Lessor has
received same as Agent of the Lessee and is authorized to
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ANSI 265.1 - 1980
relet the Premises as Agent for the Lessee for the balance of the term of
this Lease, for a shorter or longer term, at such rental as Lessor deems fit,
and may receive the rents therefor, applying the same first to the payment of
the expense of such reletting and second to the payment of rent due and to
become due under this Lease, Lessee remaining liable for and agreeing hereby
to pay Lessor any deficiency. Provided, however, if any such default be
other than for non-payment of money and it would take more than thirty (30)
days to cure the same, Lessor shall not be entitled to terminate this Lease
or enter upon the Premises for such default if Lessee begins the cure of such
default within said thirty (30) days and prosecutes the cure thereof with due
diligence to completion. If any proceedings under the present or any other
Bankruptcy Code, including but not being limited to voluntary or involuntary
straight bankruptcy proceedings, arrangements or reorganizations, be
instituted by or against Lessee, or if a receiver or trustee be appointed for
or ordered to dispose of Lessee's business or property, or if Lessee makes
any assignment or conveyance for benefit of creditors, the same shall
constitute a breach of this Lease and Lessor shall forthwith on such breach
be entitled to collect damages therefore as provided by law, and, in addition
thereto, Lessor shall, to the extent permitted by law, have the right of
termination, entry and repossession as above, in this paragraph set forth.
16. EMINENT DOMAIN:
If the Premises, or any such portion thereof as will make the
Premises unusable for the purposes herein leased, be taken by any legally
constituted authority for any public use or purpose or by right of eminent
domain, or be conveyed in lieu of or in anticipation of such taking or the
exercise of such right, then in any of said events the term hereby granted
and all rights of the Lessee hereunder shall cease and terminate from the
time possession thereof is taken by public authorities, and rental shall be
accounted for as between Lessor and Lessee as of that date. Any lesser
condemnation shall in no way affect the respective rights and obligations of
Lessor and Lessee hereunder except for a pro rata abatement of rent in
proportion to the amount of useable space so taken. It is expressly agreed
that the Lessee shall not have any right or claim to any part of any award or
payment made to or received by the Lessor for such taking or for such
conveyance.
17. UTILITIES:
All utilities used in or serving the Premises and the improvements
thereon shall be contracted for by Lessee and the charges shall be paid by
Lessee directly to the furnishing company or organization.
18. MECHANIC'S LIENS:
Lessee will not permit any mechanic's liens, or other liens, to be
placed upon the Premises or any building or improvement thereon during the
term hereof, and in case of the filing of any such lien, Lessee will promptly
pay same; provided, however, that Lessee shall have the right to contest the
validity or amount of any such lien upon posting security with Lessor which
in Lessor's sole reasonable judgment is adequate to pay and discharge any
such lien in full if held valid. If default in payment thereof (without the
posting of security as herein provided) shall continue for thirty (30) days
after notice thereof from Lessor to Lessee, Lessor shall have the right and
privilege at Lessor's option of paying the same or any portion thereof
without inquiry as to the validity
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thereof and any amounts so paid, including expenses and interest, shall be
immediately due by Lessee to Lessor and shall be paid promptly upon
presentation of xxxx therefor.
19. MORTGAGES AND ESTOPPEL CERTIFICATES:
As of the date of this Lease, the Premises are subject to a
mortgage in favor of Travelers Insurance Company which matures in April,
1998. It is anticipated that Lessor will refinance the Premises on or about
the maturity date of said existing indebtedness. This Lease shall be subject
and subordinate to any future mortgage or deed of trust at any time
thereafter constituting a lien or charge upon the Premises or the
improvements situated thereon. Lessee shall at any time hereafter on demand
execute any instruments, releases or other documents which may be reasonably
required by any such mortgagee for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage. Notwithstanding
the provisions of this Agreement, Lessee's agreement to subordinate this
Lease is conditioned upon Lessor obtaining from any mortgagee of Lessor and
delivering to Lessee an agreement whereby said mortgagee agrees that so long
as Lessee is not in default under the terms of this Lease beyond any
applicable cure periods provided herein, the occupancy of Lessee in the
Premises pursuant to this Lease shall not be disturbed by the mortgagee in
the event of foreclosure of any mortgage or deed of trust on the Premises.
Lessee may participate with Lessor in any discussions on this subject with a
mortgagee.
Each party shall at any time and from time to time, upon not less
than ten (10) days' prior request by the other party execute, acknowledge and
deliver to the requesting party, a statement in writing certifying that (I)
this Lease is unmodified and in full force and effect (or if there have been
modifications that the same is in full force and effect as modified and
identifying the modifications), (ii) the dates to which the base rent and
other charges have been paid, and (iii) so far as the person making the
certificate knows, such party is not in default under any provisions of this
Lease (or if there are defaults specifying the defaults). It is intended
that any such statement may be relied upon by any person proposing to acquire
Lessor's or Lessee's interest in this lease or the real estate or any
prospective mortgagee of, or assignee of any mortgage upon, such interest or
the real estate of this Lease.
At the option and cost of Lessee, Lessor shall cause to be
delivered to Lessee a leasehold owner's policy of title insurance in favor of
Lessee as insured in form reasonably satisfactory to Lessee showing title to
the Premises as represented above and also subject to a lease between Lessor
and Lenexa Industrial Park, Inc. and the lien of a mortgage or mortgages
securing payment of the debt incurred by Lessor to finance the construction
of the Premises.
20. SECURITY DEPOSIT:
This paragraph has been deleted.
21. WAIVER:
A waiver by either party of any default or breach hereunder shall
not be construed to be a continuing waiver of such default or breach, nor as
a waiver or permission, expressed or implied, of any other or subsequent
default or breach. All waivers must be in writing and no course of
PAGE 10 - OFFICE LEASE
ANSI 265.1 - 1980
conduct shall establish a custom or confer any rights upon the other party.
22. NOTICES:
All notices, elections, demands, offers and acceptance
(collectively "notice") provided for in this Lease shall be in writing
delivered by hand or by registered or certified mail, postage prepaid and
return receipt requested, and in the latter case shall be directed to the
other party at the address set forth below:
To Lessor: SOUTHLAKE PARTNERS #1
c/x Xxxxxx Management Company
0000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: President
To Lessee: Informix Software, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Site Controller
In the event of mailing, notice shall be effective the day of deposit in the
mail, but the period for responding to such notice shall begin to run three
days after deposit in the mail. Refusal to accept or inability to deliver
because of changed address for which no notice was given shall be deemed a
receipt. Either party may change its address by giving notice in writing to
the other party.
23. SUCCESSORS:
All of the terms, covenants and conditions of this Lease shall
apply and inure to the benefit of, and be binding upon the parties hereto,
and upon their respective successors in interest, heirs, assigns, and legal
representatives, except as otherwise provided herein, subject always to the
provision of Paragraph 7.
Lessor covenants with Lessee that said Lessee, on paying the rent
herein required to be paid and performing the covenants herein contained,
shall and may peaceably and quietly have, hold and enjoy the Premises during
the term of this Lease.
24. PROCUREMENT OF THIS LEASE:
This paragraph has been deleted.
25. REMOVAL OF PERSONAL PROPERTY:
Lessee may (if not in default hereunder) prior to the expiration of
this Lease, or any extension thereof, remove all personal property which it
has placed in the Premises, provided Lessee repairs all damages to the
Premises caused by such removal. If Lessee shall not remove all its personal
property from the Premises upon the event of termination of this Lease or at
Lessor's request upon entry by Lessor without termination pursuant to
Paragraph 15, Lessor may, at Lessor's option, remove all or part of said
personal property in any manner that Lessor shall choose and store the same
without liability to Lessor for loss thereof, and Lessee agrees to pay to
Lessor upon demand all expenses incurred in such removal and storage of said
personal property including court costs, attorney fees and storage charges,
or Lessor may, at its option, sell all or any part of said personal property
at foreclosure as provided above for such price as Lessor may
PAGE 11 - OFFICE LEASE
ANSI 265.1 - 1980
obtain and apply the proceeds thereof to any amount due under this Lease from
Lessee to Lessor including the expenses of the removal and sale.
26. HOLDING OVER:
If Lessee remains in possession after expiration of the term
hereof, with Lessor's acquiescence and without any distinct agreement of
parties, Lessee shall be a tenant at will; and there shall be no renewal of
this Lease by operation of law.
27. ATTORNEY'S FEES:
If any action at law or in equity shall be brought to enforce any
of the covenants, terms or conditions of this Lease, the prevailing party
shall be entitled to recover from the other party, as part of the prevailing
party's costs, reasonable attorney's fees, the amount of which shall be fixed
by the court, and shall be made a part of any judgment or decree rendered.
28. OPTIONS TO RENEW:
Lessee is hereby given two (2) separate and successive five (5)
year renewal options to extend the original term of this Lease. In the event
that Lessee wishes to exercise either or both of said options, it shall give
written notice of its desire to renew this Lease not later than twelve (12)
months prior to the expiration of the then-existing original or renewal term.
Said options shall be as follows:
(a) The first option to extend shall be for a term commencing May 1,
2003 and ending April 30, 2008. During said renewal term the base
rental shall be $308,940.00 annually, payable in equal monthly
installments of $25,745.00.
(b) The second renewal option shall be for a term commencing on May 1,
2008 and ending April 30, 2013. During said period of renewal the
base rental shall be at the rate of $355,200.00 annually, payable
in equal monthly installments of $29,600.00.
29. LEASE CONSTITUTES ENTIRE CONTRACT:
Each party to this Lease acknowledges that this Lease constitutes
all of the agreements between the parties hereto, and that no
representations, warranties, or other covenants are included except as set
forth herein, and same shall not be recordable, but a "Memorandum of Lease"
in usual and customary form will be executed and acknowledged by the parties,
upon request of either party, which may be recorded.
30. CONSENT NOT UNREASONABLY WITHHELD:
Whenever consent or approval is required under this Lease, Lessor
and Lessee agree that such consent will not be unreasonably withheld or
delayed.
31. CONSTRUCTION WARRANTIES AND GUARANTEES:
This paragraph has been deleted.
32. LESSOR'S DEFAULT:
If Lessor shall default in the performance of Lessor's obligations
hereunder, and such default shall continue for
PAGE 12 - OFFICE LEASE
ANSI 265.1 - 1980
thirty (30) days after written notice from Lessee to Lessor, and any lender
of Lessor which Lessor has requested receive notice of such default, then
Lessee shall have the right, at Lessee's option, (a) to cure such default,
expending such sums as may be reasonably necessary for such purposes, and
thereafter to recover such amounts so expended but in no event by offsetting
the same against rent and other sums due to Lessor hereunder, or (b) if such
default continues for ninety (90) days after written notice from Lessee to
Lessor, and any lender of Lessor which Lessor has requested to receive
notice, of such default, to declare this Lease terminated by written notice
to Lessor, in which event Lessee shall, within sixty (60) days after such
notice, deliver possession of the Premises to Lessor. In the event of
termination by Lessee, rent shall cease as of the date Lessee pays all sums
due and payable by Lessee under the Lease and returns the Premises to Lessor
in the condition which would be required if the Lessor were terminating this
Lease.
33. PARKING AND APPURTENANCES:
Lessor agrees that subject to recorded easements, reservations,
restrictions, encumbrances and common areas, this Lease includes a lease to
Lessee of all parking areas, drives and access roads and walkways upon the
real property described on Exhibit "A" hereto. In addition, included herein
is a grant of a right to use all appurtenances, easements and privileges
accruing to said real property.
34. LESSEE'S PROTEST OF TAXES:
Lessor agrees to give notice to Lessee within ten (10) days of
receipt by Lessor of notice of any change in the valuation of the Premises
for purposes of assessment of real estate taxes. In the event Lessor decides
not to protest the proposed change in valuation, Lessee may protest the same,
but only to the extent Lessor would be permitted to do so under the terms of
any mortgage covering the Premises.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease
Agreement or have caused it to be executed by their respective authorized
representatives the day and year first above written.
ATTEST INFORMIX SOFTWARE, INC.
/s/ Signature Illegible By: /s/ Authorized Signature
Secretary ________________________
LESSEE
SOUTHLAKE PARTNERS #1 by its
general partners
ATTEST: LENEXA INDUSTRIAL PARK, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
Secretary Xxxxx X. Xxxxxx VP & Asst. Sec.
PAGE 13 - OFFICE LEASE
ANSI 265.1 - 1980
ATTEST: INFORMIX SOFTWARE, INC.
/s/ Signature Illegible By: /s/ Authorized Signature
Secretary LESSORS
This Lease consists of 14 pages, together with attached Exhibits "A" and
"A.-1".
PAGE 14 - OFFICE LEASE
ANSI 265.1 - 1980
EXHIBIT "A"
Xxx 0, Xxxxx 0, XXXXXXXXX Xxxxx Xxxx, a subdivision in the City of Lenexa,
Xxxxxxx County, Kansas, as shown on the attached Exhibit "A-1".
EXHIBIT A-1
[Schematic drawing of Southlake Third Plat from aerial perspective]
