LEASE AGREEMENT
between
THE LANDMARK
and
ROGUE WAVE SOFTWARE, INC.
for
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Dated: April 22, 1996
LANDMARK BUILDING LEASE
1. PARTIES. This Lease dated, for reference purposes only, April 22, 1996,
by and between LANDMARK INVESTMENTS, LIMITED ("Landlord") and ROGUE WAVE
SOFTWARE, 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 Xxxxx, outlined in Exhibit "A" ("Premises"). Premises have an agreed
area of Twelve Thousand Eight Hundred Sixteen (12,816) rentable square feet.
3. TERM. The term of this Lease shall be for Three (3) years commencing on
October 1, 1996 and ending on September 30, 1999.
4. RENT AND TENANT IMPROVEMENT COST REIMBURSEMENT.
4.1. Tenant shall pay to Landlord as rent for the Premises, without demand,
deduction, or off-set, the sum of Twenty Four Thousand Three Hundred Fifty
Dollars and 40/100 ($24,350.40) 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 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. The base rent provided for in 4.1. above shall increase three percent
(3%) per year on the anniversary date of the commencement of the term of the
Lease stated in 3. above.
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, 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
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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 increase its
security deposit with Landlord by $19,850.40 to a total of $24,350.40 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 to
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.
7. USE.
7.1. Use. The Premises shall be used and occupied by Tenant
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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 now 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 ADDITIONS. 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.
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
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obligations incurred by Tenant. Landlord may required 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 Landlord 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 and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements 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, 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
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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 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.
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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 cancellable 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 shall also maintain and keep lighted the common
stairs, gallerias, entries and toilet rooms in the building. Landlord shall
not be liable for and Tenant shall not be entitled to any reduction of rental
by reason of Landlord's
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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
of 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 or similar 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 Premises. 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 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
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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 willful misconduct of Landlord or 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 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
8
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 for 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 petition 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:
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
9
shall have the right to attempt to re-let the Premises at such rent and upon
such conditions 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 been 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 time 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 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
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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 part 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 its portion of said fee as reasonably
determined by the Landlord.
24. AUTHORITY OF PARTIES.
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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 fully 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 bylaws 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.
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
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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 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
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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. Tenant and Landlord agree to hold
the other harmless from any responsibility for any Toxics which are brought
on to the Premises or the project by themselves, their agents, employees or
contractors.
26. ELECTRICAL, COMMUNICATIONS AND ALARM WIRING.
26.1 Tenant shall contact the Landlord prior to installing or relocating any
electrical, telephone, network, LAN, intercom, doorbell, or alarm wiring
systems at the Landmark Office Center.
26.2 All electrical wiring shall be installed by a licensed contractor in
expanded metal tubing in accordance with the most current electrical code,
etc.
26.3 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.
26.4 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 lines serve several tenants, the cost
of installation and repair shall be divided among tenants currently being
served by said cable.
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26.5 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.
26.6 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.
26.7 Any work requiring access to adjoining tenant 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.
26.8 Upon request of Landlord, Tenant shall remove all communication cable
that Tenant has installed in the Premises upon expiration of this Lease and
repair all damage caused by said removal.
27. 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 conditions and ADA compliance of the Property.
The Parties agree that it will rely solely on their own investigations and/or
that of a licensed professional specializing in these areas, and not on the
investigation, assurances or opinion of Landlord or Broker, if any.
28. BROKERS. Tenant warrants that it has had no dealing with any real
estate broker or agent in connection with the negotiation of this Lease
excepting only Xxxx Xxxxx of Catalyst Real Estate Group, and it knows of no
other real estate broker or agent who is entitled to a commission in
connection with this Lease. Commissions shall be paid to Broker(s) on the
following schedule: 6%, 5%, 4%, 3%, 2%. No commissions shall be paid on Tenant
Improvement Amortizations, CPI Increases or any other rent adjustment covered
in section 4.2 herein.
29. TENANT IMPROVEMENTS.
a. Landlord shall, at its expense replace the carpet and paint the
walls. No rent will be charged to
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Tenant for the Premises during this time (approximately five days).
b. Landlord is also willing to construct 15 private offices on the 2nd
floor at Tenant's sole cost which may be paid in one lump sum or
amortized over the 36 months at an 8 1/2% per annum interest rate.
Tenant shall be responsible for the rent on 0000 Xxxxxxxx Xxxxx
during the construction of these improvements and Tenant may pay
this in one lump sum or amortized over the 36 months at an 8 1/2%
per annum interest rate.
29. HOLD OVER IN SUITES 2065 & 2073. Tenant shall remain in possession of
their existing Premises and at their existing rate until the Tenant
Improvements requested above are complete.
30. OPTION TO EXTEND TERM. Provided Tenant is not in default hereunder at
the expiration of the term herein provided for and has fully and faithfully
performed all of Tenant's obligations under the Lease during said term, then
Tenant shall have the option to extend the term for one additional three year
term, commencing immediately upon expiration of the initial term. Tenant
shall give Landlord written notice of exercise of the option at least 180
days before the expiration of the initial term. Lease payments for said
extension period shall be at rate to be negotiated between Tenant and
Landlord at the time the lease extension notice is given. If a lease
modification extending the term and including a new lease rate is not agreed
to in writing within 30 days of the extension notice being given, this option
to extend shall become void.
31. BUILDING SIGNAGE. Landlord shall provide Tenant, a sign consistent with
the other signs on the project for full building users. Landlord shall also
at Tenant's sole cost place a standard Tenant identification sign on the
corner of Charleston Road and the entry driveway.
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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: Date:
------------------------------------ ----------------------
Xxxx X. Xxxxx, President
TENANT: ROGUE WAVE SOFTWARE, INC.
By: Date:
------------------------------------ ----------------------
(SIGNATURE)
------------------------------------ Tax ID# --------------------
(PRINT NAME) (TITLE)
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EXHIBIT A
PAGE 1 OF 3
[INDUSTRIAL MAP SHOWING BUILDING DESIGNATIONS]
EXHIBIT A
PAGE 2 OF 3
[1ST FLOOR BUILDING E DESIGN LAYOUT]
EXHIBIT A
PAGE 3 OF 3
[2ND FLOOR BUILDING E DESIGN LAYOUT]
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 $15.00 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, so that 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 which may be unreasonably withheld.
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 which may be
unreasonably withheld.
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. All
such alterations shall be done by Landlord's agents at Tenant's cost.
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. If Tenant hangs any other furniture, equipment,
whiteboards etc. Tenant shall be responsible for the removal and repair of
all damages to the Premises.
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 shall 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 which may be unreasonably withheld. 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 which may be unreasonably withheld. 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 5:00 P.M. and 8:00 A.M. the following
day, access to the office complex, or to the Premises may be refused unless
the person seeking entry is known to the person or 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 judgement 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.
