LEASE AGREEMENT
between
THE LANDMARK
and
SOFTWARE PARTNERS, INC.
for
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Date: July 20, 1993
LANDMARK BUILDING LEASE
1. PARTIES. This Lease dated, for reference purposes only, July 20, 1993, by and
between LANDMARK INVESTMENTS, LIMITED ("Landlord") and SOFTWARE PARTNERS, INC.
("Tenant"), who agree as follows:
2. PREMISES. Landlord leases to Tenant, and Tenant leases from Landlord the
office space located in Xxxxxxxx Xxxx, Xxxxxxxxxx, 00000, described as 0000
Xxxxxxxx X\Xxxxx, outlined in Exhibit "A" ("Premises"). Premises have an agreed
area o approximately One Thousand One Hundred and One (1,101) rentable square
feet.
3. TERM. The term of this Lease shall be for three (3) years, commencing on
September 1, 1993 and ending on August 31, 1996.
4. RENT.
4.1 Tenant shall pay to Landlord as rent for the Premises, without demand,
deduction, or off-set, the sum of One Thousand Seven Hundred Six and 55/100
Dollars ($1,706.55) on or before the first day of each and every month of the
term of this Lease, the first monthly payment to be made concurrently with the
execution hereof. If the commencement date is not the first day of a month or if
the Lease termination date is not the last day of a month, the rent payable
hereunder shall be prorated, based upon a thirty day month, at the current rate
for the fractional month during which this Lease commences and/or terminates.
Any rent payable for a partial month directly following the commencement date
shall be payable on the first day of the first full calendar month of the term.
Rent shall be paid to Landmark Investments, limited, at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx Xxxx, XX 00000.
4.2 Rent provided for in 4.1 above shall not be subject to consumer price
adjustments.
4.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include,
1
but are not limited to, processing and accounting charges, and late charges
which may be imposed upon Landlord by terms of any mortgage or trust deed
covering the Premises. Accordingly, if any installment of rent or of a sum due
from Tenant shall not be received by Landlord or Landlord's designees by 12:00
noon on the fifth (5th) day of each month of the term hereof, then Tenant shall
pay to Landlord a late charge equal to five percent (5%) of such overdue amount.
The parties hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of the late payment by
Tenant. Acceptance of such late charges by the Landlord shall in no event
constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
5. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord $1,706.55 as a security deposit for the performance by Tenant of the
provisions of this Lease. If Tenant is in default, Landlord can use the security
deposit, or any portion of it, to cure the default or to compensate Landlord for
all damage sustained by Landlord resulting from Tenant's default. Tenant shall
immediately on demand pay to Landlord a sum equal to the portion of the security
deposit expended or applied by Landlord as provided in this paragraph so as to
maintain the security deposit in the sum initially deposited with Landlord. If
Tenant is not in default at the expiration or termination of this Lease,
Landlord shall, no later than fourteen (14) days after lease expiration or
termination, return to Tenant (or at Landlord's option, to the last assignee of
Tenant's interest hereunder), the balance of the security deposit. 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.
6. POSSESSION.
6.1 If Landlord, for any reason cannot deliver possession of the Premises on
Tenant at the commencement of the term hereof, this Lease shall not be void or
voidable nor shall Landlord be liable to Tenant for any loss or damage resulting
therefrom, nor shall the expiration date of the above term be extended, but, in
that event, all rent shall be abated during the period between the commencement
of said term and the time when Landlord delivers possession.
6.2 In the event that Landlord shall permit Tenant to occupy the Premises prior
to the commencement date of the term, such occupancy shall be subject to all of
the provisions of this Lease and said early possession shall not advance the
termination date hereinabove provided. Rent shall be prorated and prepaid for
early occupancy at the current rate.
2
7. USE.
7.1 Use. The Premises shall be used and occupied by Tenant for general office
purposes and for no other purpose without the prior written consent of the
Landlord.
7.2 Uses Prohibited.
a. Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will increase the existing rate or
affect any fire or other insurance upon the building or any of its contents, or
cause a cancellation of any insurance policy covering said building or any part
thereof or any of its contents, nor shall Tenant sell or permit to be kept used
or sold in or about said Premises any articles or substances, inflammable or
otherwise, which may be prohibited by a standard form policy of fire insurance.
b. 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 of
the building or injure or annoy them or use or allow the Premises to be used for
any unlawful or objectionable purpose.
c. Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law now in force or which
may hereafter be enacted. Tenant shall at its cost promptly comply with all laws
not in force or which may hereafter be in force and with the requirements of any
board of fire underwriters or other similar body relating to Tenant's
improvements or acts.
8. ALTERATIONS AND ADDITION. Tenant shall not make or allow any alterations,
additions or improvements of or to the Premises without Landlord's prior written
consent. Any such alterations, additions or improvements, including, but not
limited to, wallcovering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall become a part of the realty, shall
belong to the Landlord and shall be surrendered with the Premises at expiration
or termination of the Lease. If Landlord consents to any such alterations,
additions or improvements by Tenant, they shall be made by Tenant at Tenant's
cost, and any contractor or person selected by Tenant to perform the work shall
first be approved of, in writing, by Landlord. Upon expiration, or sooner
termination of the term hereof, Tenant shall, upon written demand by Landlord
promptly remove any alterations, additions or improvements made by Tenant and
designated by Landlord to be removed. Such removal and repair of any damage to
the premises caused by such removal shall be at Tenant's cost.
3
9. LIENS. Tenant shall keep the Premises and the property in which the Premises
are situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Landlord may require Tenant to
provide Landlord, at Tenant's cost, a lien and completion bond in an amount
equal to one and one-half (1-1/2) times the estimated cost of any improvements,
additions, or alterations by Tenant, to insure Landlord against liability for
mechanic's and materialmen's liens and to insure completion for the work.
10. REPAIRS AND MAINTENANCE. By taking possession of the Premises, Tenant shall
be deemed to have accepted the Premises as being in good sanitary order,
condition and repair. Tenant shall at Tenant's cost, keep the premises and every
part thereof in good condition and repair except for damages from causes beyond
the control of Tenant and ordinary wear and tear. Tenant shall upon the
expiration or sooner termination of this Lease surrender the Premises to the
Landlord in good condition, ordinary wear and tear and damage from causes beyond
the reasonable control of the Tenant excepted. Unless specifically provided in
an addendum to this Lease, Landlord shall have no obligation to alter, remodel,
improve repair, decorate or paint the Premises or any part thereof and the
parties hereto affirm that Landlords has made no representations to Tenant
respecting the condition of the premises or the building except as specifically
herein set forth. Notwithstanding the above provisions, Landlord shall repair
and maintain the structural portions of the building, including the standard
plumbing, air conditioning, heating and electrical systems furnished by
Landlord, unless such maintenance and repairs are caused in part or in whole by
the act, neglect, fault or omission of any duty by the Tenant, its agents,
employees or invitees, in which case Tenant shall pay to Landlord the reasonable
cost of such maintenance and repairs. Tenant shall give Landlord written notice
of any required repairs or maintenance. Landlord shall not be liable for any
failure to repair or to perform any maintenance unless such failure shall
persist for an unreasonable time after written notice. Any repairs or
maintenance to supplemental cooling equipment required for Tenant's special
needs are the responsibility of Tenant. Except as specifically herein set forth,
there shall be no abatement of rent or 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 to any portion of the building or the
Premises 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.
11. ASSIGNMENTS AND SUBLETTING. Tenant shall not,
4
voluntarily or by operation of law, assign, transfer, or encumber its interest
under this Lease or in the Premises nor sublease all or any part of the premises
or allow any other person or entity (except Tenant's employees, agents and
invitees) to occupy or use all or any part of the premises without the prior
written consent of Landlord. Landlord's consent shall not be unreasonably
withheld. Any such consent shall not release Tenant from liability hereunder,
and a consent to one assignment, subletting, occupation or use shall not be
deemed a consent to any subsequent assignment, subletting, occupation or use.
Any such purported assignment, subletting, or permission to occupy or use
without such consent from Landlord shall be void and shall, at the option of
Landlord, constitute a default under this Lease. Tenant immediately and
irrevocably assigns to Landlord, as security for Tenant's obligations under this
Lease, all rent from any subletting of all or a part of the Premises as
permitted by this Lease, and Landlord, as assignee and as attorney-in-fact for
Tenant, or a receiver for Tenant appointed on Landlord's application, may
collect such rent and apply it toward Tenant's obligations under this Lease;
except that, until the occurrence of an act of default by Tenant, Tenant shall
have the right to collect such rent.
12. HOLD HARMLESS. Except as to claims based on the sole negligence or willful
misconduct of Landlord, its agents or employees, Tenant shall hold Landlord
harmless from any claims arising from Tenant's use of the premises or from any
activity permitted by Tenant in or about the Premises, and any claims arising
from any breach or default in Tenant's performance of any obligation under the
terms of this Lease. If any action or proceeding is brought by reason of any
such claim in which Landlord is named as a party, Tenant shall defend Landlord
therein at Tenant's expense by counsel reasonably satisfactory to Landlord.
Landlord and its agents shall not be liable for any damage to property entrusted
to employees of the building, nor for loss or damage to any property by theft or
otherwise, nor from any injury to or damage to persons or property resulting
from any cause whatsoever, unless caused by or due to the sole negligence or
willful misconduct of Landlord, its agents, or employees. Landlord shall not be
liable for any latent defect in the Premises or in the building of which they
are a part. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the building or of alleged defects in the
building, fixtures or equipment.
13. INSURANCE.
13.1 Coverage. Tenant shall assume the risk of damage to any fixtures, goods,
inventory, merchandise, equipment, furniture and leasehold improvements, and
Landlord shall not be liable for injury to Tenant's business or any loss of
5
income therefrom relative to such damage. Tenant shall, at all times during the
term of this Lease, and at its own cost, procure and continue in force the
following insurance coverage.
a. Comprehensive public liability insurance, insuring Landlord and Tenant
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto.
13.2 Insurance Policies. The limits of said insurance policies shall not,
however, limit the liability of the Tenant hereunder. Tenant may carry said
insurance under a blanket policy, providing, however, said insurance by Tenant
shall name Landlord as an additional insured. If Tenant shall fail to procure
and maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Insurance required hereunder
shall be in companies that rate B+ or better in "Best's Insurance Guide". Tenant
shall deliver to Landlord prior to occupancy of the premises copies of policies
of insurance required herein or certificates evidencing the existence and
amounts of such insurance with loss payable clauses, satisfactory to Landlord.
No policy shall be cancelable or subject to reduction of coverage except after
fifteen (15) days prior written notice to Landlord. The minimum acceptable
amount of comprehensive liability insurance is $1,000,000 against claims in any
occurrence, and property damage insurance in an amount of not less than $100,000
per occurrence, or combined single limit of $1,000,000 comprehensive liability
and property damage insurance.
13.3 Waiver of Subrogation. As long as their respective insurers so permit,
Landlord and Tenant each hereby waive any and all rights of recovery against the
other for any loss or damage occasioned to such waiving party or its property of
others under its control to the extent that such loss or damage is insured
against under any fire or extended coverage insurance policy which either may
have in force at the time of such loss or damage. Each party shall obtain any
special endorsement, if required by their insurer, to evidence compliance with
the aforementioned waiver.
14. SERVICE AND UTILITIES.
14.1 Landlord's Obligations. Landlord agrees to furnish to the Premises during
reasonable hours of generally recognized business days to be determined by
Landlord, and subject to the Rules and Regulations of the building, electricity
for normal lighting and fractional horsepower office machines, heat and air
conditioning required in Landlord's judgment for the comfortable use and
occupancy of the Premises, janitorial, window washing and elevator service.
Landlord
6
shall also maintain the common areas and keep lighted the common stairs,
gallerias, entries and toilet room and the parking areas until late evening.
Landlord shall not be liable for and Tenant shall not be entitled to any
reduction of rental by reason of Landlord's failure to furnish any of the
foregoing when such failure is caused by accident, breakage, repairs, strikes,
lockouts or other labor disturbances or labor disputes of any character, or by
any other cause, similar or dissimilar, beyond the reasonable control of
Landlord.
14.2 Tenant's Obligation. Tenant shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly required to be
paid by Landlord, which may be furnished to or used in, on or about the Premises
during the term of this Lease. Tenant will not, without the prior written
consent of Landlord and subject to any conditions which Landlord may impose, use
any apparatus or device in the Premises which will in any way increase the
amount of electricity or water usually furnished for use of the Premises as
general office space If Tenant shall require water or electric current in excess
of that usually furnished or supplied for use of the Premises as general office
space, Tenant shall first procure the consent of Landlord. Wherever heat
generating machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost installation, operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Landlord shall not be liable for Landlord's failure to furnish any of
the foregoing when such failure is caused by any cause beyond the reasonable
control of Landlord. Landlord shall not be liable under any circumstances for
loss of or injury to property, however occurring, in connection with failure to
furnish any of the foregoing.
15. PROPERTY TAXES. Tenant shall pay before delinquency, all personal property
taxes levied or assessed and which become payable during the term hereof upon
all Tenant's equipment, furniture, fixtures and personal property located in the
Premise. Landlord shall pay all property taxes on the land and building, except
should the California Constitution be changed in a way that results in a higher
or lower tax on the Premises than the annual increases now a matter of law, any
such increase or decrease shall be passed through to tenant on a prorated basis
as an item separate from any CPI adjustments. Tenant shall pay to Landlord its
share of such taxes, if any, within thirty days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such taxes.
16. RULES AND REGULATIONS. Tenant shall faithfully observe
7
and comply with the rules and regulations attached as Exhibit "B" to this Lease,
as well as such rules and regulations that Landlord shall from time to time
promulgate. Landlord reserves the right from time to time to make all reasonable
modifications to those rules which shall be binding to Tenant upon delivery of a
copy of them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any of said rules by any other tenant.
17. HOLDING OVER. If Tenant remains in possession without Landlord's consent,
after termination of the Lease, by lapse of time or otherwise, Tenant shall pay
Landlord for each day of such retention one-fifteenth (1/15th) of the amount of
the monthly rental for the last month prior to such termination and Tenant shall
also pay all costs, expenses and damages sustained by Landlord by reason of such
retention, including, without limitation, claims made by a succeeding tenant
resulting from Tenant's failure to surrender the Premises.
18. ENTRY BY LANDLORD. Landlord reserves the right to enter the premises at any
time to inspect the Premises, to provide any service for which landlord is
obligated hereunder, to submit the Premises to prospective purchasers or
tenants, to post notices of nonresponsibility, and to alter, improve, maintain
or repair the Premises or any portion of the building of which the Premises are
a part that Landlord deems necessary or desirable, all without abatement of
rent. Landlord may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, but shall not
block entrance to the Premises and not interfere with tenant's business, except
as reasonably required for the particular activity by Landlord. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance, interference with quiet enjoyment, or other damage arising
out of Landlord's entry on the Premises as provided in this paragraph, except
damage, if any, resulting from the negligence or wilful misconduct of Landlord
of its authorized representative. Landlord shall retain a key with which to
unlock all doors into, within and about the Premises, excluding Tenant's vaults,
safes and files. In an emergency Landlord shall have the right to use any means
which Landlord deems reasonably necessary to obtain entry to the Premises,
without liability to Tenant, except for any failure to exercise due care for
Tenant's property. Any such entry to the Premises by Landlord shall not be
construed or deemed to be forcible or unlawful entry into or a detainer of the
Premises or an eviction of Tenant from the Premises or any portion thereof.
19. RECONSTRUCTION. If the Premises or the building of which the Premises are a
part are damaged by fire or other peril covered by extended coverage insurance,
Landlord agrees to make repairs and restorations to the extent and in the manner
possible at a cost not exceeding the proceeds of the
8
insurance received by Landlord. If the cost of repair and restoration exceeds
the amount of proceeds received from insurance, Landlord may elect to terminate
this Lease by giving notice to Tenant within twenty (20) days after determining
that the cost will exceed such proceeds. If Landlord proceeds with repair and
restoration, this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate reduction of rent while such repairs
are being made. The rent reduction shall be based upon the extent to which
repair and restoration activity materially interferes with Tenant's business at
the Premises, provided, however, that if the damage was occasioned by the fault
or neglect of Tenant, its agents or employees, there shall not be an abatement
of rent.
20. DEFAULT; REMEDIES.
20.1 Default. The occurrence of any of the following shall constitute a default
by Tenant:
a. Failure by Tenant to pay the rent or other monies when due, where such
failure continues or three (3) business days after written notice by Landlord to
Tenant.
b. Abandonment of the Premises by Tenant.
c. Failure by Tenant to perform any other provision of this Lease where such
failure to perform is not cured within thirty (30) days after notice has been
given to Tenant; provided, however, that if the nature of the default is such
that the same cannot reasonably be cured within said thirty (30) day period,
Tenant shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to completion.
d. The making by Tenant of any general assignment or general arrangement for the
benefit of creditors; the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of a petitio for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, same is dismissed within sixty (60) days; the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
20.2 Remedies. In the event of any such default Landlord may:
9
Maintain this Lease in full force and effect and recover the rent and other
monetary charges as they become due, without terminating Tenant's right to
possession irrespective of whether Tenant shall have abandoned the Premises. In
the event Landlord elects not to terminate the Lease, Landlord shall have the
right to attempt to re-let the Premises at such rent and upon such condition and
for such a term, and to do all acts necessary to maintain or preserve the
Premises as Landlord deems reasonable and necessary without being deemed to have
elected to terminate the Lease, including removal of all persons and property
from the Premises. Such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant. In the event any such
reletting occurs, this Lease shall terminate automatically upon the new tenant
taking possession of the Premises. Notwithstanding that Landlord fails to elect
to terminate the Lease initially, Landlord at any time during the term of this
Lease may elect to terminate this Lease by virtue of such previous default of
Tenant.
Terminate Tenant's right to possession by any lawful means, in which case this
Lease shall terminate and Tenant shall immediately surrender possession of the
Premises to Landlord. In such event Landlord shall be entitled to recover from
Tenant all damages incurred by Landlord by reason of Tenant's default, including
without limitation thereto, the following: (1) the worth at the time of award of
any unpaid rent which would have been earned at the time of such termination;
plus (2) 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 is proved could have reasonably avoided;
plus (3) the worth at the time of award of the amount by which unpaid rent for
the balance of the term after the time of award exceeds the amount of such
rental loss that is proved could be reasonably avoided; plus (4) any other
amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform his obligations under this Lease or which in the
ordinary course of events would be likely to result therefrom; plus (5) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from tie to time by applicable law. Upon any such
re-entry Landlord shall have the right to make any reasonable repairs,
alterations or modifications to the Premises, which Landlord in its sole
discretion deems reasonable and necessary. As used in (1) above, the "worth at
the time of award" is computed by allowing interest at the rate of ten percent
(10%) per annum from the date of default. As used in (2) and (3) above, the
"worth at the time of award" is computed by discounting such amount at the
discount rate of the U.S. Federal Reserve Bank at the time of award plus one
percent (1%).
Remedies of Landlord contained in this Lease shall be
10
construed and held to be cumulative, and Landlord shall have the right to pursue
any one or all of such remedies or any other remedy or relief which may be
provided by law. 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.
21. EMINENT DOMAIN. If more than twenty-five percent (25%) of the Premises is
taken or appropriated by any public or quasi-public authority under powers of
eminent domain, either party hereto shall have the right at its option, to
terminate this Lease. If less than twenty-five percent (25%) of the Premises is
taken (or neither party elects to terminate as above, provided if more than
twenty-five percent (25%) is taken), the Lease shall continue, but the rental
thereafter to be paid shall be equitably reduced. If any part of the building of
which the Premises are a party is so taken or appropriated, whether or not any
part of the Premises is involved, Landlord shall be entitled to the entire award
and compensation for the taking which is paid or made by the public or
quasi-public agency, and Tenant shall have no claim against said award.
22. STATEMENT TO LENDER. Tenant shall at any time and from time to time, upon
not less than ten (10) days prior written notice from Landlord, execute,
acknowledge, and deliver to Landlord a statement in writing, (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modifications and certifying that this Lease as so modified,
is in full force and effect), and the date to which the rental and other charges
are paid in advance, if any, and (b) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of the Landlord hereunder,
or specifying such defaults if any are claimed. Any such statement may be relied
upon by any prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
23. PARKING. Tenant shall have the right to use, in common with other tenants or
occupants of the building, parking facilities, provided by Landlord for Tenants
of The Landmark, subject to the rules and regulations established by Landlord.
Said parking shall be at no expense to the Tenant unless a tax, fee or levy is
imposed directly or indirectly by a Federal, State or local agency or
jurisdiction for parking. If such a tax, fee or levy is imposed tenant agrees to
pay
11
its portion of said fee as reasonably determined by the Landlord.
24. AUTHORITY OF PARTIES.
24.1 Corporate authority. If Tenant is a corporation, each individual executing
this Lease on behalf of said corporation represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said corporation, in
accordance with a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the by-laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms.
24.2 Limited Partnerships. Landlord herein is a limited partnership. It is
understood and agreed that any claims by Tenant on Landlord shall be limited to
the assets of the limited partnership. And furthermore, Tenant expressly waives
any and all rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the extent of
their interest in said limited partnership.
25. GENERAL PROVISIONS.
25.1 Exhibits. Exhibits attached hereto, and addendums initialed by the parties,
are deemed to constitute a part hereof.
25.2 Waiver. The waiver by Landlord of any provision of this Lease shall not be
deemed to be a waiver of any subsequent breach of the same or any other
provisions of this Lease herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any provision of this Lease, other than the failure of the Tenant
to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of the acceptance of such rent.
25.3 Notices. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by the Landlord to the Tenant shall be sufficient if delivered in person or sent
by first class mail, postage prepaid, addressed to the Tenant at the Premises or
to such other place as Tenant may from time to time designate in a written
notice to the Landlord. All written notices and demands by the tenant to the
Landlord shall be sufficient if delivered in person or sent by first class mail,
postage prepaid, addressed to the Landlord at the office of the building or to
such other person or place as the Landlord may from time to time designate in a
notice to the Tenant. Any such notice is effective at the time of delivery or 48
hours after mailing.
12
25.4 Rentable Area. Rentable square footage, as herein used, is the actual
square footage of the office suite plus a load factor for gallerias, restrooms,
hallways and other common areas. The stated rentable area will not be used as a
basis for either party making any claim against the other.
25.5 Joint and Several Obligations. If there be more than one Tenant, the
obligations hereunder imposed upon tenants shall be joint and several.
25.6 Captions. The captions of the paragraphs of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
25.7 Time. Time is of the essence hereof.
25.8 Successors and Assigns. The provisions of this Lease, subject to the
provisions as to assignment, apply to and bind the successors and assigns of the
parties hereto.
25.9 Recording. Neither Landlord nor Tenant shall record this Lease or a short
form memorandum hereof without the prior written consent of the other party.
25.10 Scope and Amendments. This Lease is and shall be considered to be the only
agreement between the parties hereto. All negotiations and oral agreements
acceptable to both parties are included herein. No amendment or other
modification of this Lease shall be effective unless in a writing signed by
Landlord and by Tenant.
25.11 Legal Fees. In the event of any action brought by either party against the
other under this Lease, the prevailing party shall be entitled to recover all
costs including the fees of its attorneys as the court may adjudge reasonable.
25.12 Sale. In the event of any sale of the building, Landlord shall be released
of any liability under this Lease, and the purchaser of the Premises shall be
deemed to have assumed and agreed to carry out all of the obligations of the
Landlord under this Lease.
25.13 Lender Requirements. Upon request of the Landlord, Tenant will, in
writing, subordinate its rights hereunder to the lien of any mortgagee, or deed
of trust to any bank, insurance company or other lending institution, now or
hereafter in force against the land and building of which the Premises are a
part, and to all advances made or hereafter to be made upon the security
thereof. If any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deed of trust made by the
Landlord covering the Premises, the Tenant shall
13
recognize such purchaser as the Landlord under this Lease.
25.14 Name. Tenant shall not use the name of the development in which the
Premises are situated for any purpose other than as an address of the business
to be conducted by the Tenant in the Premises, unless written authorization is
obtained from Landlord.
25.15 Severability. any provision of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other provision
hereof.
25.16 Applicable Law. This Lease shall be governed by the laws
of the State of California.
25.17 Toxics. Landlord and Tenant acknowledge that they have been advised that
numerous federal, state, and/or local laws, ordinances and regulations ('law")
affect the existence and removal, storage, disposal, leakage of contamination by
materials designated as hazardous or toxic ("Toxics"). Many materials, some
utilized in everyday business activities and property maintenance, are
designated as hazardous or toxic. Some of the Laws require that Toxics be
removed or cleaned up without regard to whether the party required to pay for
the "clean up" caused the contamination, owned the property at the time the
contamination occurred or even knew about the contamination. Some items, such as
asbestos or PCB's, which were legal when installed, now are classified as
Toxics, and are subject to removal requirements. Civil lawsuits for damages
resulting from Toxics may be filed by third parties in certain circumstances.
26. BROKERS. Tenant warrants that it has had no dealing with any real estate
broker or agent in connection with the negotiation of this Lease.
27. TENANT IMPROVEMENTS. Prior to Tenant's occupancy, Landlord, at its expense,
shall replace the carpet, paint the office and install mini blinds in narrow
windows on the side of the front door. 28. LEASE AMENDMENTS. Landlord and Tenant
agree to amend the
foregoing as follows.
Page 8. 17. Add the following: LANDLORD'S CONSENT FOR HOLDING OVER SHALL NOT BE
UNREASONABLY WITHHELD.
14
The parties hereto have executed this Lease on the dates specified immediately
adjacent to their respective signatures.
LANDLORD: LANDMARK INVESTMENTS, LIMITED
By: THRUST IV, INC., General Partner
By: /s/Xxxxxx Call Date: July 29, 1993
---------------------------- ---------------------
Xxxxxx Call, Vice President
TENANT: SOFTWARE PARTNERS, INC.
By: /s/Xxxx X. Xxxxxx President Date: July 29, 1993
---------------------------- --------------------
(SIGNATURE) (TITLE)
Xxxx X. Xxxxxx
----------------------------
(PRINT NAME)
15
MODIFICATION NO. 1
Software Partners, Inc. / Landmark Investments, LTD
Lease Agreement For Suite 2013
Dated July 20, 1993
This Modification No. 1 to Lease Agreement between LANDMARK
INVESTMENTS, LTD, (Landlord) and SOFTWARE PARTNERS, INC. (Tenant)
dated July 20, 1993, is entered into as of the 7th day of
November, 1994 by and between Landlord and Tenant.
Landlord and Tenant herein agree to change the terms of their Lease Agreement,
as follows:
1. The Premises are increased by adding the space known as 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxx, XX, consisting of a total of One Thousand Four
Hundred and Two (1,402) rentable square feet.
2. The term of this lease shall be for Twenty one (21) Months, commencing
December 1, 1994 and ending on August 31, 1996.
3. The rent for 0000 Xxxxxxxx Xxxxx, shall be Two Thousand Three Hundred
Eighty Three Dollars and 40/100 ($2,383.40) per month.
4. The security deposit shall be increased in the amount of $2,383.40.
5. Tenant shall have access to the Premises for the purpose of installing
communication, network cabling and general office set up, commencing upon
full execution of this Modification. Tenant shall not commence operations
of business until December 1, 1994.
6. The following shall be added to the Lease as paragraph 29. ELECTRICAL
COMMUNICATIONS AND ALARMS.
29.1 Tenant shall contact the Landlord prior to installing or repairing any
electrical, telephone, network, LAN, intercom, doorbell, or alarm system at
the Landmark Office Center.
29.2 All electrical wiring shall be installed by a licensed contractor in
expanded metal tubing in accordance with the most current electrical code.
29.3 All communication cabling shall be installed by a licensed contractor
and shall be plenum rated and shall not be installed as to "lay" on ceiling
tile or t-bar
grid systems.
A certificate of compliance shall be provided by contractor to Landlord at
time of completion.
A certificate of compliance shall be provided by contractor to Landlord at
time of completion.
29.4 Landlord shall not be financially responsible for any repair or
replacement of any communication cables, telephone lines, telephone
feeders, or trunk lines beyond the M.P.O. (minimum point of entry)
established by Pacific Xxxx. If one or more of these serve several tenants,
the cost of installation and repair shall be divided among tenants
currently being served by said cables.
29.5 Not all existing telephone rooms/punchdown boards are permanent.
Tenant and his contractor must verify location of termination points with
the Landlord prior to installation.
29.6 No audible alarm systems will be permitted. Landlord will not assume
any financial responsibility for any alarms attributable to its employees,
contractors, including janitors, guards, or service personnel.
29.7 Any work requiring access to adjoining tenants spaces shall be
prearranged so that Landlord can obtain permission for the
intrusion/interruption of the space. Tenant shall reasonably cooperate in
arranging access to contractors for adjoining tenant when requested by
landlord.
29.8 Upon request of Landlord, Tenant shall remove all communication cables
which they have installed in the Premises upon expiration of this Lease and
repair all damage caused by said removal.
7. The following shall be added to the Lease as Paragraph 30. AMERICANS WITH
DISABILITIES ACT. Landlord believes the Premises complies with the
"Americans With Disabilities Act" (ADA), but no independent investigation
has been made to ensure compliance with the "Americans With Disabilities
Act" (ADA). This act may require a variety of changes to a facility,
including potential removal of barriers to access by disabled persons and
provision of auxiliary aids and services for hearing, vision or speech
impaired persons, some of which would be the Landlord's responsibility and
some would be the Tenant's responsibility. Landlord urges all parties to
obtain independent legal and technical advice with respect to the physical
and environmental condition and ADA compliance of the
2
Property. The Parties agree that they will rely solely on their own
investigations and/or that of a licensed professional specializing in these
areas, and not of Landlord or Broker, if any.
8. Prior to Tenant's occupancy, Landlord shall paint the Premises and clean
the carpet.
Except as herein modified all the terms and conditions set forth in the Lease
shall remain unchanged.
LANDLORD: LANDMARK INVESTMENTS, LIMITED
By: THRUST IV, INC., General Partner
By: /s/Xxxx X. Xxxxx Date: 11/14/94
---------------------------- ----------------------
Xxxx X. Xxxxx, President
TENANT: SOFTWARE PARTNERS, INC.
By: /s/Xxxx X. Xxxxxx President Date: Nov. 9, 1006
---------------------------- ----------------------
(SIGNATURE) (TITLE)
Xxxx X. Xxxxxx
---------------------------- Tax ID# 00-0000000
(PRINT NAME) -------------------
3
MODIFICATION NO. 2
To Software Partners, Inc. / Landmark Lease Agreement
Dated July 20, 1993
This Modification No. 2 to Lease Agreement between LANDMARK
INVESTMENTS, LTD. (Landlord) and SOFTWARE PARTNERS, INC. (Tenant)
dated July 20, 1993, as modified November 7, 1994 is entered into
as of the 10th day of May, 1995 by and between Landlord and
Tenant.
Landlord and tenant herein agree to change the terms of their Lease Agreement,
as follows:
1. The Premises are increased by adding the space known as 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxx, XX, consisting of an additional Three Thousand Four
Hundred and Thirteen (3,413) rentable square feet.
2. The term of the Lease for 1953 Landings shall be for Three (3) years,
commencing June 1, 1995 and ending on May 31, 1998.
3. The lease term on Tenant's other two (2) suites shall remain unchanged.
4. The additional rent for 0000 Xxxxxxxx Xxxxx only, shall be as follows:
Jun. 1, 1995 thru May. 31, 1996 = $5,802.10/mo.
Jun. 1, 1996 thru May. 31, 1997 = $5,976.16/mo.
Jun. 1, 1997 thru May. 31, 1998 = $6,155.45/mo.
5. The security deposit shall be increased in the amount of $5,802.10, which
amount shall be paid on or before 6/1/95.
6. Tenant shall have immediate possession of 0000 Xxxxxxxx Xxxxx commencing
upon full execution of this Modification at no cost prior to 6/1/95.
Except as herein modified all the terms and conditions set forth in the Lease
shall remain unchanged.
LANDLORD: LANDMARK INVESTMENTS, LIMITED
By: THRUST IV, INC., General Partner
By: /s/Xxxx X. Xxxxx, Date: May 18, 1995
---------------------------- ---------------------
Xxxx X. Xxxxx, President
TENANT: SOFTWARE PARTNERS, INC.
By: /s/Xxxx Xxxxxxxxx Date: 5/10/95
---------------------------- ----------------------
(SIGNATURE) (TITLE)
Xxxx Xxxxxxxxx
---------------------------- Tax ID# 00-0000000
(PRINT NAME) -------------------
MODIFICATION NO. 3
To Software Partners, Inc. / Landmark Lease Agreement
Dated July 20, 1993
This Modification No. 3 to Lease Agreement between LANDMARK
INVESTMENTS, LTD. (Landlord) and SOFTWARE PARTNERS, INC. (Tenant)
dated July 20, 1993, as modified November 7, 1994 and further
Modified May 10, 1995 is entered into as of the 5th day of March,
1996 by and between Landlord and Tenant.
Landlord and Tenant herein agree to change the terms of their Lease Agreement
and Modifications as follows:
1. the term of the Lease for 2013 and 1971 Landings shall be extended by
Twenty One (21) Months, commencing September 1, 1996 and ending on May 31,
1998.
2. The rent for 2013 and 0000 Xxxxxxxx Xxxxx only, shall be Four Thousand
Eight Hundred Eighty Dollars and 85/100 ($4,880.85) per month.
3. the base rent provided for above shall increase three percent (3%) per year
on the anniversary date of the commencement of the term of this
modification.
4. the lease term and rent on Tenant's other suite shall remain unchanged.
Except as herein modified all the terms and conditions set forth in the Lease,
as modified shall remain unchanged.
LANDLORD: LANDMARK INVESTMENTS, LIMITED
By: THRUST IV, INC., General Partner
By: /s/Xxxx X. Xxxxx, Date: May 18, 1995
---------------------------- ---------------------
Xxxx X. Xxxxx, President
TENANT: SOFTWARE PARTNERS, INC.
By: /s/Xxxx X. Xxxxxx Date: 5/10/95
---------------------------- ----------------------
(SIGNATURE) (TITLE)
Xxxx X. Xxxxxx
---------------------------- Tax ID# 00-0000000
(PRINT NAME) -------------------
EXHIBIT B
Rules and Regulations
1. Keys are issued, in a reasonable number, by Landlord to Tenant at no charge.
2. Access cards, used to open the electronic lock of the front entry door of a
particular building after normal business hours, are assigned to individual
people pursuant to a list submitted by Tenant to Landlord. A $10.00 deposit per
card is charged upon issuance and refundable upon return. when a card holder is
no longer entitled to a card (left employment, etc.) Tenant shall notify
Landlord of a new holder, or if the card has been taken or lost. By so notifying
Landlord, a particular card code can be removed from the authorized list, sot
hat it no longer will activate the lock.
3. No sign or notice shall be displayed by Tenant outside of its office space
without written consent of Landlord. If approval is not given, Landlord shall
have the right to remove such sign or notice without notice to and at expense of
the Tenant. All signs on access doors to the Premises shall be approved by
Landlord. The original standard company sign on the main door to the Premises
will be installed at Landlord's expense. Tenant may, at its expense, install a
different sign, after written design approval by Landlord. Design criteria
should be obtained from Landlord in advance.
Tenant shall not place anything within the Premises which may appear unsightly
from outside of the Premises.
Tenant shall not install any curtains, blinds, shades, or screens on any windows
or doors of the Premises without Landlord's consent.
4. Sidewalks, halls, passages, exits, entrances, elevators, and stairways shall
not be obstructed by any of the tenants, or used by them for any purpose other
than for ingress or egress from their respected offices.
5. Tenant shall not alter any lock or install any new or additional locks or
bolts on any doors or windows without the written consent of Landlord.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than for which they were installed.
7. Tenant shall not overload the floor of the office complex. Tenant shall not
xxxx, drive nails, screw or drill
into the partitions, woodwork, or plaster or in any way deface the
Premises, except for hanging of small items such as pictures with nail type of
hangers, without Landlord's approval.
8. No unusually large or heavy equipment shall be brought into the complex
without prior notice to Landlord and all moving of the same into or out of the
office complex shall be done at such time and such a manner as Landlord shall
designate.
All damage done to the office complex by moving or maintaining any such
equipment shall be repaired at the expense of Tenant.
9. Tenant shall not use the office complex in a manner offensive or
objectionable to the Landlord or other occupants by reason of noise, odors,
and/or vibrations, or interfere in any way with other tenants or those having
business herein, nor shall any animals or birds be brought in or about the
office complex.
10. No lodging, washing clothes, cooking, excluding use of coffee makers and
microwave ovens, shall be done or permitted by any Tenant on the Premises.
11. Tenant shall not use or keep on the Premises any foul or noxious gas,
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
12. Landlord will direct electricians as to where and how telephone wires are to
be installed. No changing of wires will be allowed without the consent of the
Landlord. The location of the telephones, call boxes and other office equipment
affixed to the office complex shall be subject to the approval of Landlord.
13. No aerial satellite dish or other item shall be erected on the roof or
exterior walls of the complex, or on the grounds, without in each instance, the
written consent of the Landlord. Any such item so installed without such written
consent shall be subject to removal without notice at any time.
14. No loud speakers, televisions, radios or other devices shall be used in a
manner so as to be heard or seen outside of the Premises without prior written
consent of the Landlord.
15. On Saturdays, Sundays, legal holidays, and on other days between the hours
of 7:00 P.M. and 7:00 A.M. the following day, access to the office complex, or
to the Premises may be refused unless the person seeking is known to the person
or
2
employee of the office complex in charge or is properly identified. The Landlord
shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the office complex of any person.
16. Any person whose presence on the Premises may in the judgment of the
Landlord be prejudicial to the safety, character, reputation and interest of the
office complex or of its tenants may be denied access to the office complex or
may be ejected therefrom.
17. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
18. tenant shall not disturb, solicit, or canvass any occupant of the office
complex and shall cooperate to prevent the same.
19. Landlord shall control and operate the public portions of the office
complex, in such manner as it deems best for the benefit of the tenants
generally.
20. All windows and entrance doors in the office complex shall be left locked
when the Premises are not in use, and all doors opening to public corridors
shall be kept closed except for normal ingress and egress from the office
complex.
21. In case of invasions, mob riot, public excitement, or other emergency, the
Landlord reserves the right to prevent access to the office complex during the
continuance of the same by closing of the doors or otherwise, for the safety of
the tenants and protection of property in the office complex. Landlord will also
direct tenants as necessary in an emergency and will not assume any liability
for damages suffered by tenants as the result of such directions.
3
