EXHIBIT 10.8
OFFICE LEASE
THIS LEASE is made on the 27 day of March 1995 by and between Actuate Software
Corporation, a California corporation (hereinafter called "Tenant"), and
Mariners Island, Ltd., a California limited partnership (hereinafter called
"Landlord").
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE
AS FOLLOWS:
1. Premises. Landlord leases to Tenant and Tenant leases from Landlord, upon the
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terms and conditions herein set forth, those certain premises (the
"Premises") situated at 000 Xxxxx Xxx in the City of San Mateo, County of San
Mateo, California, as outlined in Exhibit A, attached hereto and incorporated
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herein by this reference, and described as follows: approximately 3,938
useable square feet, plus fifteen percent (15%) "load factor", for
approximately 4,529 rentable square feet, commonly referred to as Suite 330
on the 3rd floor of the Building.
2. Term. The term of this Lease shall commence on the date ("Commencement Date")
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which is the earlier of the following:
A. The date the Improvements have been Substantially Completed, as these
terms are hereinafter defined in Paragraph 6; or
B. The date on which Tenant takes possession of the Premises.
Landlord shall send to Tenant a notification, in the form attached hereto as
Exhibit B and incorporated herein by this reference, stating the Commencement
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Date, when it is ascertained.
The term of the Lease shall end eighteen (18) months from the Commencement
Date, unless sooner terminated pursuant to any provision hereof. Should Lease
not commence on the first (1st) day of the month, the Lease shall nonetheless
terminate on the last day of the month of the last year of the Term as
provided herein.
3. Rent.
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A. Basic Rent. Tenant shall pay to Landlord, as rent ("Rent") for the
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Premises the amount ("Basic Rent") of Eight Thousand Three Hundred
Seventy-Nine Dollars and 00/100ths ($8,379.00) per month for Months 1-12
and Eight Thousand Six Hundred Five and 00/100ths Dollars ($8,605.00)
per month for Months 13-18, in lawful money of the United States of
America, subject to adjustment as provided in subparagraph 3.B, below.
All Rent shall be paid without deduction or offset, prior notice,
abatement or demand, except as herein provided, to Landlord, at 000
Xxxxx Xxx, Xxxxx 000, Xxx Xxxxx, XX 00000, Attention: Accounting, or at
such other place as may be designated in writing from time to time by
Landlord in writing reasonably in advance.
Basic Rent for the first month of the term of this Lease shall be paid,
in advance, on the Commencement Date and on the first (1st) day of each
succeeding calendar month until the end of the term. Rent for any period
during the term hereof which is for less than one (1) full month shall
be a pro rata portion of the monthly Rent payment.
Tenant acknowledges that late payment by Tenant to Landlord of Rent or
any other payment due Landlord will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include,
without limitation, processing and accounting charges, and late charges
that may be imposed on Landlord by the terms of any encumbrance and note
secured by any encumbrance covering the Premises. Therefore, if any
installment of Rent or other payment due from Tenant is not received by
Landlord within five (5) days following the date it is due and payable,
Tenant shall pay to Landlord, in addition to the Rent due, and in
addition to interest thereon as provided in Paragraph 14, an additional
sum of ten percent (10%) of the overdue amount as a late charge. The
parties agree that this late charge and interest represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of
late payment by Tenant. Acceptance of any late charge shall not
constitute a waiver of Tenant's default with respect to the overdue
amount, nor prevent Landlord from exercising any of the other rights and
remedies available to Landlord.
If the parties hereto have agreed upon a specific date for the
Commencement Date and if for any reason whatsoever Landlord cannot
deliver possession of the Premises on the Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom; but in such event, Tenant
shall not be obligated to pay Rent until possession of the Premises is
tendered to Tenant, and the Commencement Date and termination date of
this Lease shall be revised to conform to the date of Landlord's
delivery of possession.
B. Basic Rent Increase. The Basic Rent shall be subject to adjustment at the
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commencement of the thirteenth (13th) month of the lease term as provided
in Paragraph 3.A. hereof.
C. Additional Rent: Increases in Operating Expenses and Taxes. For purposes
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of this Lease, the parties agree to the following:
(1) "Base Operating Expenses and Taxes" shall be the amount of the
Operating Expenses and Taxes for the 1995 calendar year (excluding
the rent and cost of the conference center and fitness facility).
(2) Tenant's proportionate share of Operating Expenses and Taxes is
agreed to be seven and 5/10ths percent (7.5%).
(3) "Operating Expenses" shall mean all direct costs of operating,
maintaining and managing the Building and the Property (including
parking areas) including, but not limited to, all charges paid or
expenses incurred by Landlord for: repairs; maintenance; utilities;
water; capital improvements required to meet changed government
regulations; cleaning and janitorial services; security services;
modifications or additional capital improvements or replacement of
existing building systems and equipment to reduce the Operating
Expenses; replacement of capital improvements or Building sewer
equipment existing as of the Commencement Date when required because
of normal wear and tear; maintenance and replacement of landscaping,
glazing, plumbing systems, electrical systems, heating and air
conditioning systems, a fitness center, automatic fire extinguishing
systems, conference centers, roofs, down spouts, elevators, common
area interiors, ceilings, and Building exterior and common area
doors; rubbish removal; property and liability insurance; licenses,
permits and inspections; reasonable accounting, administrative,
property management (equal to five percent (5%) of rent collected),
and legal expenses and the reasonable cost of contesting the validity
or applicability of any government enactments that may affect
Operating Expenses. The following shall not constitute Operating
Expenses for the purposes of this Lease, and nothing contained herein
shall be deemed to require Tenant to pay any of the following as
Operating Expenses: (i) deductible damage and repairs attributable to
condemnation, fire or other casualty (over and above the deductible);
(ii) damage and repairs covered under any warranty or insurance
policy carried by Landlord in connection with the Building or common
areas; (iii) damage and repairs necessitated by the gross negligence
or willful misconduct of Landlord or Landlord's employees,
contractors or agents; (iv) executive salaries of Landlord; (v)
Landlord's general overhead expenses not related to the Premises;
(vi) payments of principal or lease payments or points, commissions
and legal fees associated with financing; (vii) depreciation; (viii)
any cost or expense related to the testing for, removal,
transportation or storage of hazardous materials from the Premises,
Building or common areas; and (ix) interest, penalties or other costs
arising out of Landlord's failure to make timely payments of its
obligations, mortgages, real estate taxes and real estate insurance.
Landlord shall not collect in excess of one hundred percent (100%) of
Operating Expenses or any item of cost more than once. Any Operating
Expenses charged Landlord by any of its affiliates for goods and
service provided to the Building, Premises or common areas shall be
reasonable in the cost thereof that would be charged to Landlord by
non-affiliated parties. All Operating Expenses shall be directly
attributable to the operations, maintenance, management and repair of
the Premises.
(4) "Taxes" shall mean all Real Property Taxes as hereafter defined in
Paragraph 7, but excluding all other taxes which are paid by Landlord
and reimbursed by Tenant under this Lease.
If the aggregate Operating Expenses and Taxes for the 1995 calendar year
and each calendar year thereafter during the Lease term exceeds the Base
Operating Expenses and Taxes, then Tenant shall pay Landlord, as
Additional Rent, Tenant's pro rata share of this Increase ("Increase").
Notwithstanding anything in this Lease to the contrary, Landlord shall
calculate Increases (for purposes of both estimated and actual
calculations) as if the Building were fully occupied during the 1995
calendar year and each lease year thereafter regardless of the actual
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occupancy rate. In no event shall Landlord be liable to Tenant or will
Basic Rent be reduced based on any decrease in Operating Expenses and
Taxes during any calendar year in relation to Base Operating Expenses
and Taxes.
Tenant's pro rata share of Increases in Operating Expenses and Taxes
shall be Additional Rent and shall be paid to Landlord, except as
otherwise provided in this Lease, as follows: prior to the commencement
of each calendar year or within a reasonable period thereafter, Landlord
shall estimate Tenant's pro rata share Of such Increase for the
following calendar year and Landlord shall notify Tenant of such
estimate in writing. Commencing on the first day of the first month of
the calendar year for which Landlord has notified Tenant of the
estimated Increase, and on the first day of every month thereafter in
such year, Tenant shall pay to Landlord, as Additional Rent, one-twelfth
(1/12th) of Tenant's estimated pro rata share of the yearly Increase.
Within ninety (90) days of the end of each calendar year for which
Tenant has made estimated payments (the "Increase Adjustment Date"),
Landlord shall furnish Tenant a statement with respect to such year,
showing In reasonable detail actual charges for the past calendar year
and the total payments made by Tenant on the basis of Landlord's
estimate. If Tenant's actual pro rata share of the Increase exceeds the
payments made by Tenant based on Landlord's estimate, Tenant shall pay
the deficiency to Landlord within thirty (30) days of Tenant's receipt
of Landlord's statement. If the total payments by Tenant based on
Landlord's estimate exceed Tenant's actual pro rata share of the
Increase, Tenant's excess payment shall be credited toward future
payments by Tenant of Basic Rent and/or Additional Rent or refunded to
Tenant within thirty (30) days of Landlord's statement to Tenant if no
future Basic Rent or Additional Rent is to become due.
Upon request by Tenant to Landlord, Landlord shall allow Tenant to
review Landlord's records, at Landlord's office in place where the
records are kept, with respect to Operating Expenses and Taxes at all
reasonable times.
All Lease provisions with respect to late charges and interest on unpaid
Rent shall be applicable to Additional Rent, as well as to Basic Rent
and all other monetary amounts due from Tenant under this Lease.
D. Monetary Obligations as Rent. All monetary amounts payable by Tenant to
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Landlord under this Lease including but not limited to Basic and
Additional Rent, and amounts paid by Landlord to cure Tenant's
default(s) shall be deemed "Rent" hereunder.
E. First Month's Rent. Landlord hereby acknowledges that Tenant shall have
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deposited Eight Thousand Three Hundred Seventy-Nine and 00/100ths
Dollars ($8,379.00) which represents the First Month's Basic Rent.
4. Security Deposit. EIGHT THOUSAND FIVE HUNDRED AND NO/100THS DOLLARS
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($8,500.00)
5. Use of the Premises. The Premises shall be used exclusively for the purpose
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of software development and marketing/sales and general office use related
thereto. Tenant shall not use, or permit the Premises or any part thereof to
be used, for any purpose other than as provided herein; and no use shall be
made or permitted to be made of the Premises, nor acts done in, on or about
the Premises, which will increase the existing rate of insurance upon the
Building, or cause a cancellation of any insurance policy covering the
Building, or any part thereof, nor shall Tenant sell or permit to be kept,
used or sold, in or about the Premises, any article which may be prohibited
by the standard form of fire insurance policies. Tenant shall not commit, or
suffer to be committed, any waste upon the Premises, or any public or private
nuisance, or other act or thing which may injure, annoy or disturb the quiet
enjoyment of any occupant of neighboring properties or other tenant in the
Building or on the Property; nor, without limiting the generality of the
foregoing, shall Tenant allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose. Tenant shall not "place any
harmful liquids in the drainage system of the Premises or of the Building.
Tenant shall not place any loads upon the floors, walls, ceilings or roof
which might endanger the structure, nor overload any electrical, mechanical
or other systems.
No waste materials or refuse shall be dumped upon or permitted to remain upon
any part of the Premises outside the Building except in trash containers
placed inside exterior enclosures approved for that purpose by Landlord, or
inside the Building proper where designated by Landlord. No materials or
articles of any nature shall be stored upon or permitted to remain outside of
the Building. Subject to the provisions of Paragraph 35 of this Lease, Tenant
shall not place anything or allow anything to be placed near the glass of any
window, door, partition or wall which may appear unsightly from outside the
Premises (including the common areas and hallways of the Building), No
loudspeaker or other device, system or apparatus which can be heard outside
the Premises shall be used in or at the Premises without the prior written
consent of Landlord, which consent may be granted at Landlord's absolute
discretion.
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Tenant covenants and agrees that no diminution of light, air or view by any
structure which may be hereafter erected, whether or not by Landlord, or use
of the Building by any other occupants or use of neighboring buildings or
areas by others, shall in any way affect this Lease, entitle Tenant to any
reduction of Rent hereunder, or result in any liability of Landlord to Tenant.
Tenant shall comply with all the covenants, conditions and/or restrictions
("CC&Rs") affecting the Premises, the Building and the Property, and all rules
and regulations affecting the Premises, which rules and regulations shall be
enforced by Landlord in a non-discriminatory and non-arbitrary manner.
The term "Hazardous Material" means any hazardous or toxic substance, material
or waste, storage, use or disposition of which is or becomes regulated by any
local governmental authority, the State of California or the United States
government. The term "Hazardous Material" includes, without limitation, any
material or substance which is (i) defined as a "hazardous waste", "extremely
hazardous waste" or "restricted hazardous waste" under Sections 25115, 25117
or 25122.7, or listed pursuant to Section 25140, of the California Health and
Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii)
defined as a "hazardous substance" under Section 25136 of the California
Health and Safety Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Xxxxxxx-Xxxxxx
Hazardous Substance Account Act), (iii) defined as a "hazardous material",
"hazardous substance" or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory), (iv) defined as a "hazardous
substance" under Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v)
petroleum, (vi) asbestos, (vii) listed under Article 9 or defined as hazardous
or extremely hazardous pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (viii) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1317), (ix) defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. (42 U.S.C. Section 6903), (x) defined as a "hazardous
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substance" pursuant to Section 101 of the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601) or (xi) listed or defined as "hazardous waste", "hazardous
substance" or other similar designation by any regulatory scheme of the State
of California or the United States government.
Tenant, at its sole cost, shall comply with all laws and regulations relating
to Tenant's storage, use and disposal of Hazardous Materials on the Premises.
If Tenant does store, use or dispose of any Hazardous Materials on the
Premises, Tenant shall notify Landlord, in writing, at least five (5) days
prior to their first appearance on the Premises; provided, however, that
Tenant shall have the right to store reasonable amounts of chemicals and/or
solvents used for ordinary office equipment without notifying Landlord. Tenant
shall be solely responsible for and shall defend, indemnify and hold Landlord,
and Landlord's partners, officers, employees, successors, assigns and agents,
harmless from and against all claims, demands, damages, costs and liabilities,
including reasonable attorneys' fees and costs, arising out of or in
connection with the storage, use or disposal of Hazardous Materials by Tenant,
its agents, employees, contractors or sublessees.
If the presence of Hazardous Materials on the Premises caused or permitted by
Tenant, its agents, employees, contractors, or sublessees results in or is
likely to result in contamination or deterioration of water or soil resulting
in a level of contamination greater than the safe levels established by any
governmental agency having jurisdiction over such contamination, or if any
investigation of conditions, or any clean-up, remedial removal or restoration
work is required by any federal, state or local governmental agency or
political subdivision ("Governmental Agency") because of the level of
Hazardous Material in the soil or ground water or on the Premises caused or
permitted by Tenant, its agents, employees, contractors or sublessees, then
Tenant shall promptly, and at its sole cost, take any and all action necessary
to investigate and clean up such contamination. Tenant shall further be solely
responsible for, and shall defend, indemnify and hold Landlord and Landlord's
partners, officers, employees, successors, assigns and agents harmless from
and against, all claims, demands, damages, costs and liabilities, including
reasonable attorneys' fees and costs, arising out of or in connection with any
removal, clean-up and restoration work and materials required hereunder to
return the Premises, the Property or the surrounding properties to the
condition existing prior to the appearance of the Hazardous Materials caused
or permitted by Tenant, its agents, employees, contractors or sublessees.
If Landlord has good cause to believe that the Premises or the Property have
or may become contaminated by Hazardous Materials, Landlord may cause tests to
be performed, including xxxxx to be installed on the Property, and may cause
the soil or ground water to be tested to detect the presence of Hazardous
Materials by the use of such tests as are then customarily used for such
purposes, The cost of such tests of the installation, maintenance, repair and
replacement of such
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xxxxx shall be paid by Landlord, unless such contamination was caused by
Tenant or Tenant's, agents, employees or contractors.
The termination of the Lease shall not terminate the parties' respective
rights and obligations under this Paragraph 5, and the parties hereto
expressly agree that the provisions contained herein shall survive the
termination of Tenant's leasehold estate.
Tenant shall abide by all laws, ordinances and statutes, as they now exist or
may hereafter be enacted by legislative bodies having jurisdiction thereof,
relating to its use and occupancy of the Premises.
The provisions of this Paragraph are for the benefit of the Landlord only and
shall not be construed to be for the benefit of any other person or occupant
of the Premises.
6. Improvements. Landlord will, at its sole expense and using contractors of its
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choice, make improvements ("Improvements") to the Premises as specified in
Exhibit C attached hereto and incorporated herein by this reference. Tenant
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has delivered to Landlord, and Landlord has approved, its final plans with
detailed specifications and listing of finish materials, all of which have
been approved by Tenant. Notwithstanding anything in this Lease to the
contrary, if Tenant fails to provide Landlord with such final plans,
specifications, and finish material approved by Tenant on or before the date
specified for such delivery, or if Tenant changes any of the plans,
specifications or finish materials then the Commencement Date shall be the
Anticipated Completion Date as hereafter set forth, or the date of Landlord's
notification to Tenant of Substantial Completion (as hereinafter defined) of
the Improvements, or the date on which Tenant takes possession of the
Premises, whichever shall first occur.
Upon Landlord's approval (which shall not be unreasonably withheld or
delayed) of such final plans and specifications including finish materials
approved by Tenant, and upon Landlord's approval of the same, Landlord shall
diligently undertake to construct the Improvements in accordance with such
final plans, specifications and finish materials as approved by Landlord and
Tenant (collectively referred to as "Final Plans"). All such construction
shall be performed with due diligence and in substantial accordance with the
Final Plans. Landlord agrees to use all commercially reasonable efforts to
substantially complete the Improvements by April 24, 1995 ("Anticipated
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Completion Date"), but without any warranty as to when such Improvements
shall be substantially completed.Should Landlord not so substantially
complete the Improvements by May 31, 1995 and Tenant has not made any changes
to Final Plans after March 15, 1995, then Tenant may cancel this Lease by
providing Landlord within (10)days written notice.
Landlord's obligation to construct the Improvements is specifically subject
to any changes or other requirements of or imposed by all applicable
governmental body(ies), agency(ies) and/or utility(ies); Landlord shall
notify Tenant of any such changes and/or requirements promptly after Landlord
becomes aware of the same. Any improvements to the Premises not expressly
shown or stated in the Final Plans shall be made by Tenant at its sole cost
and expense in accordance with Paragraph 11 of this Lease; provided, however,
that notwithstanding anything in this Lease to the contrary, any delay in
Landlord's construction of the Improvements caused in whole by Tenant and
which are not caused by Tenant within one (1) day of written notice thereof
by Landlord including, but not limited to, delays caused by additional
improvements made or any changes requested by Tenant, shall not delay the
Commencement Date of this Lease, and Substantial Completion, as hereinafter
defined, for purposes of determining the Commencement Date of this Lease,
shall be at such time as the Improvements would have been Substantially
Complete absent such additional improvements made or changes requested by
Tenant.
It is understood that the Final Plans and the exact location of doors, walks,
lighting, plumbing and all other facilities and improvements are subject to
such minor changes as Landlord, or Landlord's architect or general contractor
in charge of the construction of the improvements, determine to be necessary
desirable in the course of construction of or to the Premises, and no such
changes shall affect this Lease or constitute a breach by Landlord hereunder.
If, upon substantial completion of Improvements and tender of the Premises to
Tenant for occupancy, such Improvements do not conform exactly to the Final
Plans, but the general appearance, structural integrity and Tenant's use and
occupancy of the Premises, the Building and such Improvements are not
materially or unreasonably affected by such deviation(s), it is agreed that
the Improvements shall be deemed "Substantially Complete" for purposes of
this Lease, and Tenant's obligation to pay Rent hereunder shall not be
affected by such deviation(s). In such event, Tenant agrees to accept the
Premises and such Improvements as so constructed by Landlord. However,
notwithstanding the above, Tenant shall have twenty (20) days from the date
of Substantial Completion to provide Landlord with a list of items requiring
repair or replacement. Upon Landlord's receipt of such list, Landlord shall
proceed to correct such "punch list" items with due
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diligence and in a manner designed to cause the least possible interruption
to Tenant and Tenant's use of the Premises.
7. Taxes and Assessments.
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A. Tenant shall pay before delinquency any and all taxes, assessments,
license fees and public charges levied, assessed or imposed upon or
against Tenant's fixtures, equipment, furnishings, furniture,
appliances and personal property installed or located on or within the
Premises. Tenant shall cause said fixtures, equipment, furnishings,
furniture, appliances and personal property to be assessed and billed
separately from the real property of Landlord. If any of Tenant's said
personal property shall be assessed with Landlord's real property,
Tenant shall pay to Landlord the taxes attributable to Tenant within
thirty (30) days after receipt of a written statement from Landlord
setting forth the taxes applicable to Tenant's property.
B. All Real Property Taxes shall be paid by Landlord. The term "Real
Property Taxes", as used herein, shall mean and include: (i) all taxes,
assessments, levies and other charges of any kind or nature whatsoever,
general and special, foreseen and unforeseen (including without
limitation, all installments of principal and interest required to pay
any general or special assessments for public improvements, and any
increases resulting from reassessments caused by any change in
ownership of the Premises, the Building or the Property, or otherwise)
now or hereafter imposed by any governmental or quasi-governmental
authority or special district having the direct or indirect power to
tax or levy assessments, which are levied or assessed against, or with
respect to the value, occupancy, or use of all or any portion of the
Property, the Building or the Premises (as now constructed or as may at
any time hereafter be constructed, altered, or otherwise changed) or
Landlord's interest therein; any improvements located within the
Property, the Building or the Premises (regardless of ownership); the
fixtures, equipment and other property of Landlord, real or personal,
that are an integral part of and located in, on or about the Property,
the Building or the Premises; and landscaping areas, walkways and
parking areas; and (ii) all costs and fees (including reasonable
attorneys' fees) incurred by Landlord in reasonably contesting any Real
Property Tax and in negotiating with public authorities as to any Real
Property Tax.
"Real Property Taxes" shall not include any franchise, rental, income,
inheritance or profit tax, capital levy or excise tax payable by
Landlord.
If at any time during the term of this Lease the taxation or assessment
of the Property, the Building or the Premises prevailing as of the
Commencement Date of this Lease shall be altered so that in lieu of or
in addition to any Real Property Tax described above there shall be
levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or
any other cause) an alternate or additional tax or charge (i) on the
value, use or occupancy of the Property, the Building or the Premises
or Landlord's interest therein, or (ii) on or measured by the gross
receipts, income or rentals from the Property, the Building or the
Premises, on Landlord's business of leasing the Property, the Building
or the Premises, or Landlord's interest therein, or based on parking,
employment, production or the like in, on or about the Property, the
Building or the Premises, or computed in any manner with respect to the
operation of the Property, the Building or the Premises, then any such
tax or charge, however designated, shall be included within the meaning
of the term "Real Property Taxes" for purposes of this Lease. If any
Real Property Tax is based in part upon property or rents unrelated to
the Property, the Building or the Premises, then only that part of such
Real Property Tax that is fairly allocable to the Property, the
Building or the Premises shall be included within the meaning of the
term "Real Property Taxes".
If, at any time during the term of this Lease, any assessments which
would be deemed to be Real Property Taxes are levied against the
Premises, the Building or the Property, Landlord may elect either to
pay the assessment in full or to allow the assessment to go to bond and
to pay it in installments. In either case, however, Tenant shall only
be obligated to pay to Landlord, with regard to any such assessment,
each time payment of Real Property Taxes is made, a sum equal to that
which would have been payable by Tenant as its pro rata percentage of
the installments of principal and interest which would have become due
during the term of this Lease had Landlord allowed the assessment to go
to bond.
8. Insurance.
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A. Indemnity. Tenant agrees to indemnify and defend (with counsel
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reasonably acceptable to Landlord) Landlord against and hold Landlord
and Landlord's partners, employees, officers, assigns and successors
harmless from any and all demands, claims, causes of action, judgments,
obligations or liabilities, and all reasonable expenses incurred in
investigating or resisting the same (including reasonable attorneys'
fees), on account of, or arising out of, Tenant's use or occupancy of
the Premises. This Lease is made on the express condition
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that Landlord shall not be liable for, or suffer loss by reason of,
injury to person or property, from whatever cause, in any way connected
with the use or occupancy of the Premises specifically including,
without limitation, any liability for injury to the person or property
of Tenant, its agents, officers, employees, licensees and invitees
except to the extent caused by the gross negligence or willful
misconduct of Landlord or Landlord's agents, employees or contractors.
B. Liability and Worker's Compensation Insurance. Tenant shall, at
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Tenant's expense, obtain and keep in force during the term of this
Lease a policy of worker's compensation insurance and a policy of
comprehensive public liability insurance insuring Landlord and Tenant;
with cross-liability endorsements, against any liability arising out of
the use or occupancy of the Premises and all areas appurtenant thereto,
including parking areas. Such insurance shall be in an amount
satisfactory to Landlord of not less than $1,000,000 for bodily injury
or death as a result of any one occurrence, and $1,000,000 for damage
to property as a result of any one occurrence. The insurance shall be
with companies admitted to do business in the State of California and
companies of Best's Rating Guide of A+9 or better. Tenant shall deliver
to Landlord, prior to taking possession of the Premises, a certificate
of insurance evidencing the existence of the policy required hereunder,
and such certificate shall certify that the policy (i) names Landlord
as an additional insured; (it) shall not be canceled or altered without
thirty (30) days prior written notice to Landlord; (iii) insures
performance of the indemnity set forth in subparagraph 8.A above; and
(iv) the coverage is primary and any coverage carried or obtained by
Landlord is in excess thereto.
Landlord shall, at all times during the term hereof, maintain in effect
a policy of public liability and property damage insurance insuring
against any liability (including bodily injury or property damage)
arising on or about the Property with policy limits determined by
Landlord in its sole discretion. Such insurance costs (including
deductibles) shall be included in Operating Expenses described in
Paragraph 3 above.
C. Insurance of Personal Property, Fixtures and Equipment. Tenant shall at
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all times during the term hereof, and at its sole cost and expense,
maintain in effect policies of insurance covering: (i) its personal
property, inventory, alterations, fixtures and equipment located on the
Premises, in an amount not less than one hundred percent (100%) of
their actual replacement value, providing protection against any peril
included within the classification "Fire and Extended Coverage,"
together with insurance against sprinkler damage, vandalism and
malicious mischief; and (it) all plate glass on the Premises. The
proceeds of such insurance, so long as this Lease remains in effect,
shall be used to repair or replace the personal property, inventory,
alterations, fixtures, equipment and plate glass so insured. In
addition, Tenant shall obtain and keep in force, at all times during
the term of this Lease, a policy of business interruption insurance
coverage, insuring that one hundred percent (100%) of the monthly Basic
Rent, and all Additional Rent due hereunder, will be paid to Landlord
for a period of not less than one (1) year, if the Premises are damaged
or destroyed or rendered unfit for occupancy by a risk insured against
by a policy of standard fire and extended coverage insurance, with
vandalism, sprinkler damage and malicious mischief endorsements.
D. Property Insurance. Landlord shall obtain and keep in force during the
-------------------
term of this Lease a policy or policies of insurance coverage including
fire and extended coverage (and, at Landlord's sole and absolute
discretion, earthquake and flood), for loss or damage to the Premises
and to the Building, in the amount of the full replacement value
thereof. Such insurance costs and deductibles shall be included in
Operating Expenses described in Paragraph 3 above.
E. Mutual Waiver of Subrogation. The parties hereto release each other and
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their respective authorized representatives, partners, officers,
agents, employees and servants, from any and all claims, demands, loss,
expense or injury to any person, or to the Premises or Building, or to
the furnishings, fixtures or equipment located therein, caused by or
resulting from perils, events or happenings which are the subject of
insurance in force at the time of such loss. Each party shall cause
each insurance policy obtained by it to provide that the insurer waives
all right of recovery by way of subrogation against either party in
connection with any damage covered by any policy. Neither party shall
be liable to the other for any damage caused by fire or any of the
risks insured against under any insurance policy in effect as required
by this Lease.
9. Operation, Management, Services and Utilities. All expenses of operation and
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management of the Premises and the Building or the Property, including, but
not limited to, water, gas, light, heat, power, electricity, telephone,
trash pick-up, property management services, landscaping, janitorial
services, sewer charges, pest control, security charges, and all other
services supplied to or consumed on the Premises or the Building or the
Property shall be included in Operating Expenses described in Paragraph 3
above, except to the extent such charges are directly billed to Tenant.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of Rent by reason of
7
any interruption or failure of utility or other services to the Premises
during the Lease term. Utilities and services shall be provided in
accordance with the Standards for Utilities and Services set forth in
Exhibit D attached hereto and incorporated herein. The parties agree to the
terms and provisions set forth in the Standards and to any modifications or
additions thereto.
10. Repair and Maintenance.
----------------------
A. Subject to provisions of Paragraph 15 of this Lease, below, Landlord
shall keep and maintain the roof, paving, structural elements,
landscaping, irrigation systems and exterior walls of the Building and
the Property in good order and repair. Landlord shall also keep and
maintain in good order and repair the windows, window frames, doors,
hardware, interior walls, and the electrical, plumbing, lighting,
heating and air conditioning systems. Such expenses shall be included
in Operating Expenses for purposes of Paragraph 3 above. If, however,
any repairs or maintenance are required because of an act or omission
of Tenant, or its agents, employees or invitees, then Tenant shall pay
to Landlord upon demand one hundred percent (100%) of the costs of such
repair or maintenance (except that if Landlord elects to file a claim
and is reimbursed, Tenant shall pay only the amount not so reimbursed.
Notwithstanding anything in this Lease to the contrary, after the
initial construction of the Improvements in the Premises by Landlord
pursuant to the provisions of Paragraph 6 of this Lease, Landlord shall
have no obligation to alter, remodel, improve, decorate, or paint the
Premises or any part thereof.
B. Except as expressly provided in subparagraph 10.A above, Tenant shall,
at its sole cost, keep and maintain the interior of the Premises in
good and sanitary order, condition and repair.
Notwithstanding anything to the contrary in the Lease, in no event
shall Tenant's obligation to repair under this section extend to (i)
damage and repairs covered under any insurance policy carried by
Landlord in connection with the Premises or Building; (ii) damage
caused by any defects In the design, construction or materials of the
Building, including the Premises, and improvements installed therein by
Landlord; (iii) damage caused in whole or in part by the gross
negligence or willful misconduct of Landlord or Landlord's agents,
employees, invitees or licensees; (iv) repairs covered under any
Operating Expenses; (v) reasonable wear and tear; (vi) conditions
covered under any warranties of Landlord's contractors; or (vii) damage
by fire and other casualties, or acts of governmental authorities, or
acts of god and the elements.
Landlord may give Tenant written notice of any repairs that are
required under the terms of this Lease and Tenant shall proceed
forthwith to effect the same with-reasonable diligence, but in no event
later than ten (10) days after receipt of such notice. If Tenant fails
to proceed to repair or maintain the Premises with due diligence or
within the ten (10) day period provided herein, Landlord may, in
addition to any other remedies Landlord may have at law or in equity,
perform the repairs or maintenance and, in such event, Tenant shall
promptly reimburse Landlord the cost thereof, as Additional Rent within
ten (10) days from written receipt, with interest thereon at the
Interest Rate until such amount is paid in full by Tenant.
Tenant hereby expressly waives the provisions of Subsection 1 of
Section 1932, and Sections 1941 and 1942 of the Civil Code of
California and all rights to make repairs at the expense of Landlord,
as provided in Section 1942 of said Civil Code.
11. Alterations and Additions. Tenant shall not make, or suffer to be made, any
-------------------------
alterations, improvements or additions in, on or about, or to the Premises
or any part thereof, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, and without a valid building
permit issued by the appropriate governmental authority. Such alterations,
improvements and additions shall then be performed by Landlord's
contractors.
As a condition to giving such consent, Landlord may require that Tenant
agree to remove any such alterations, improvements or additions at the
termination of this Lease, and to restore the Premises to their prior
condition. Any alteration, addition or improvements to the Premises, except
movable furniture and trade fixtures not affixed to the Premises, shall
become the property of Landlord upon installation, and shall (subject to the
provisions of the immediately preceding sentence) remain upon and be
surrendered with the Premises at the termination of this Lease. Landlord can
elect, however, at the time Landlord consents to such alterations to require
Tenant to remove an)/alterations, additions or improvements that Tenant has
made to the Premises. If Landlord so elects, Tenant shall restore the
Premises to the condition designated by Landlord in its election, before the
last day of the term.
8
Alterations, additions and improvements which are not to be deemed trade
fixtures include heating, lighting and electrical systems, air conditioning,
partitioning, window coverings, carpeting, or any other installation which
has become an integral part of the Premises.
Tenant shall provide Landlord with notice at least two (2) business days
prior to making any alterations to thE Premises so that Landlord may post
notices of non-responsibility thereon.
If, during the term hereof, any alteration, addition or change of any sort
through all or any portion of the Premises is required, due to Tenant's
particular use of the Premises as opposed to office uses generally by law,
regulation, ordinance or order of any public agency, Tenant, at its sole
cost and expense, shall promptly make the same.
12. Acceptance of the Premises and Covenant to Surrender. By entry and taking
----------------------------------------------------
possession of the Premises pursuant to this Lease, upon Substantial
Completion of the Improvements, Tenant, subject to Landlord's obligation to
correct so-called "punch list" items, as provided in Paragraph 6, above,
accepts the Premises as being in good and sanitary order, condition and
repair, and accepts the Building and the Improvements included in the
Premises in their condition existing as of the date of such entry and
without representation or warranty by Landlord as to the condition of the
Building or the Premises, or as to the use or occupancy which may be made
thereof. Tenant further accepts any Improvements to be constructed by
Landlord as being completed in accordance with the Final Plans for such
Improvements, except for items specified in writing as punch list items
pursuant to Paragraph 6.
Tenant agrees, on the last day of the term hereof, or on any sooner
termination of this Lease, to surrender the Premises, together with all
alterations, additions and improvements which may have been made in, to or
on the Premises by Landlord or Tenant, to Landlord, broom clean, in good and
sanitary order, condition and repair, except for damage due to casualty,
acts of the Landlord or its agents, employees or contractors and such wear
and tear as would be normal for the period of Tenant's occupancy. Tenant
further agrees that at the end of the term of this Lease or upon any sooner
termination of this Lease, Tenant, at its sole expense, shall have all the
floors in the Premises cleaned and waxed, the interior walls and columns
patched and repainted as necessary, any damaged ceiling tile replaced, light
lenses and ballasts restored to good order and repair, any damaged doors and
cabinetry replaced or repaired and the carpet steam cleaned and, if damaged,
replaced to match the existing carpet.
Tenant, on or before the end of the term of this Lease or on any sooner
termination of this Lease, shall remove all its personal property and trade
fixtures from the Premises, and all property not so removed shall be deemed
to be abandoned by Tenant and title to the same shall thereupon pass to
Landlord without compensation to Tenant. Landlord may, upon termination of
this Lease, remove, store and/or sell all moveable personal property and
trade fixtures so abandoned by Tenant, at Tenant's sole cost, and repair any
damage caused by such removal at Tenant's sole cost.
If the Premises are not so surrendered at the end of the term or sooner
termination of this Lease, then Tenant shall indemnify Landlord against loss
or liability resulting from the delay by Tenant in so surrendering the
Premises, including, without limitation, any claims made by any succeeding
tenant founded on such delay provided Tenant shall have a no liability
hereunder for the first thirty (30) days following the expiration of the
term.
No act or conduct of Landlord, whether consisting of the acceptance of the
keys to the Premises or otherwise, shall be deemed to be or to constitute an
acceptance of the surrender of the Premises by Tenant prior to the
expiration of the term hereof, and such acceptance of any surrender by
Tenant shall only be evidenced by a written acknowledgment of acceptance of
surrender signed by Landlord. The voluntary or other surrender of the
Premises by Tenant or a mutual cancellation of this Lease shall not work as
a merger and, at the option of Landlord, shall either terminate all existing
subleases or operate as an assignment to Landlord of all such subleases.
After the expiration or earlier termination of this Lease, Tenant shall
execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other document
required by any reputable title company, licensed to operate in the State of
California, to remove the cloud or encumbrance created by this Lease from
the Property.
13. Events of Default. The occurrence of any of one or more of the following
-----------------
events shall constitute a default hereunder by Tenant:
A. The abandonment of the Premises by Tenant. Abandonment is herein
defined to include, but Is not limited to, any absence by Tenant from
the Premise, for five (6) days or longer while in default of any
provision of this Lease.
B. The failure by Tenant to make any payment of Rent, or other payment
required to be made by Tenant hereunder, when due.
9
C. The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in subparagraphs 13.A or.
13.B, above, where such failure continues for a period of thirty (30)
days after written notice thereof from Landlord to Tenant; provided,
however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure
Section 1161; provided further, that if the nature of Tenant's default
is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant shall
commence such cure within said thirty (30) day period and thereafter
diligently prosecute such cure to completion.
D. Any assignment or subletting of this Lease without the consent of
Landlord, including, without limitation, an involuntary assignment as
defined in Paragraph 21, below.
14. Remedies for Default.
--------------------
A. In the event of any breach of this Lease by Tenant, or an abandonment
of the Premises by Tenant, Landlord has the option of (i) removing all
persons and property from the Premises and repossessing the Premises to
the extent permitted by law, in which case any of Tenant's property
which Landlord removes from the Premises may be stored in a public
warehouse or elsewhere at the cost of, and for the account of, Tenant,
or (ii) allowing Tenant to remain in full possession and control of the
Premises. If Landlord chooses to repossess the Premises, then this
Lease will automatically terminate in accordance with the provisions of
California Civil Code Section 1951.2. In the event of such termination
of this Lease, Landlord may recover from Tenant: (a) the worth at the
time of award of the unpaid Rent which had been earned at the time of
termination, including interest at the Interest Rate (as hereinafter
defined) charge; (b) the worth at the time of award of the amount by
which the unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided, including interest at
the Interest Rate (c) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the term after the time of
award exceeds the amount of such rental loss that Tenant proves could
be reasonably avoided; and (d) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which, in the ordinary
course of things, would be likely to result therefrom. "The worth at
the time of the award", as used in (a) and (b) of this paragraph, is to
be computed by allowing interest at the maximum rate an individual is
permitted by law to charge. "The worth at the time of the award", as
referred to in (c) of this paragraph, is to be computed by discounting
the amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%).
B. If Landlord chooses not to repossess the Premises, but allows Tenant to
remain in full possession and control of the Premises, in accordance
with provisions of California Civil Code Section 1951.4, then Landlord
may treat this Lease as being in full force and effect, and may collect
from Tenant all Rents as they become due through the termination date
of this Lease, as specified in this Lease. For the purpose of this
Paragraph 14, the following shall not constitute a termination of
Tenant's right to possession:
(1) Acts of maintenance or preservation, or efforts to relet the
Premises;
(2) The appointment of a receiver on the initiative of Landlord to
protect its interest under this Lease.
C. Tenant shall be liable immediately to Landlord for all costs Landlord
incurs in reletting the Premises, including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by
the reletting, and like costs. Reletting can be for a period shorter or
longer than the remaining term of this Lease. Tenant shall pay to
Landlord the Rent due under this Lease on the dates the Rent is due,
less the Rent Landlord receives from the new Tenant, unless Landlord
notifies Tenant that Landlord elects to terminate this Lease. After
Tenant's default and for as long as Landlord does not terminate
Tenant's right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant shall have the right to assign its interest
in this Lease, or sublet all or a portion of the Premises, but Tenant
shall not be released from liability and obligations under this Lease.
Landlord's consent to a proposed assignment or subletting shall be as
required in Paragraph 21.
D. If Landlord elects to relet the Premises as provided in this Paragraph
14, then any Rent that Landlord receives from reletting shall be
applied to the payment of:
(1) First, any indebtedness from Tenant to Landlord other than Rent
due from Tenant;
(2) Second, all costs, including for maintenance, incurred by Landlord
in reletting; and
(3) Third, Rent due and unpaid under this Lease.
10
E. After deducting the payments referred to in this Paragraph 14, any sum
remaining from any Rent which Landlord receives from reletting shall
be held by Landlord and applied in payment of future Rent as Rent
becomes due under this Lease. In no event shall Tenant be entitled to
any excess Rent received by Landlord. If, on the date Rent is due
under this Lease, the Rent received from any reletting is less than
the Rent due on that date, then Tenant shall pay to Landlord, in
addition to the remaining Rent due, all costs which Landlord incurred
in reletting, including without limitation maintenance, that remain
after applying the Rent received from the reletting, as provided in
this Paragraph 14.
F. Landlord, at any time after Tenant commits a default, can cure the
default at Tenant's cost. If Landlord at any time, by reason of
Tenant's default, pays any sum or does any act that requires the
payment of any sum, then the sum paid by Landlord shall be due
immediately from Tenant to Landlord at the time the sum is paid and,
if paid at a later date, shall bear interest at the Interest Rate from
the date the sum is paid by Landlord until Landlord is reimbursed by
Tenant. The sum, together with interest on it, shall be Additional
Rent.
G. Any Rent not paid when due shall bear interest at a rate equal to the
"Reference Rate" then being charged by Bank of America, NT&SA, plus
four percent (4%) per annum (the "Interest Rate") from the date due
until paid and shall be subject to the late charge set forth in
subparagraph 3.A above.
15. Destruction. If the Premises are destroyed, in whole or in part, from any
-----------
cause, Landlord shall, at its option, either:
A. Rebuild or restore the Premises to their condition prior to the damage
or destruction; or
B. Terminate this Lease.
If Landlord does not give Tenant notice in writing within sixty (60) days
from the destruction of the Premises of its election to either rebuild and
restore the Premises, or to terminate this Lease, and provided that
insurance proceeds actually available to Landlord for the purpose of
rebuilding or restoring the Premises are sufficient to rebuild or restore
the Premises, then Landlord shall be deemed to have elected to rebuild or
restore the Premises, in which event Landlord agrees, at its expense,
promptly to rebuild or restore the Premises to the condition prior to the
damage or destruction.
If Landlord does not. complete the rebuilding or restoration within one
hundred eighty (180) days following the date of destruction (such period of
time to be extended for delays caused by the fault or neglect of Tenant, or
because of acts of God, acts of public agencies, labor disputes, strikes,
fires, freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, acts of contractors or subcontractors, or
delay of the contractors or subcontractors due to such causes or other
contingencies beyond the control of Landlord), then Tenant shall have the
right to terminate this Lease by giving written notice to Landlord within
fifteen (15) days of the expiration of such period.
Landlord's obligation to rebuild or restore the Premises shall not include
restoration of Tenant's trade fixtures, equipment or merchandise, or any
improvements, alterations or additions made by Tenant to the Premises.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives
the provisions of Section 1932, Subdivision 2, and Section 1933,
Subdivision 4, of the California Civil Code.
In case of destruction or damage caused by a risk not covered by Tenant's
business interruption insurance described in Paragraph 8, there shall be an
abatement or reduction of Rent between the date of destruction and the date
of substantial completion of restoration, based on the extent to which the
destruction interferes with Tenant's use of the Premises.
If the Building is damaged or destroyed to the extent of not less than
thirty three and one third percent (33 1/3%) of the replacement cost
thereof, then Landlord may elect to terminate this Lease, whether the
Premises are injured or not, provided that Landlord terminates the leases
of all other tenants in the Building similarly situated in terms of damage
or destruction to their respective premises.
16. Condemnation. if any part of the Premises shall be taken for any public or
------------
quasi-public use, under any statute or by right of eminent domain, or
private purchase in lieu thereof, and a part thereof remains which is
susceptible of occupancy hereunder, then this Lease shall, as to the part
so taken, terminate as of the date title vests in the condemnor or
purchaser, and the Rent payable hereunder shall be adjusted so that Tenant
shall be required to pay for the remainder of the term only such portion of
the Rent as the value of the part remaining after such taking bears to the
value of the entire Premises prior to such taking. Landlord shall have the
right to terminate this Lease in the event that such taking causes a
reduction in Rent payable hereunder by twenty-five percent (25%) or more.
If all of the Premises or such part thereof is taken so that there does not
remain a portion
11
susceptible for occupancy hereunder, as reasonably necessary for Tenant's
conduct of its business as contemplated in this Lease, then this Lease
shall thereupon terminate. If a part or all of the Premises is taken, then
all compensation awarded upon such taking shall go to Landlord and Tenant
shall have no claim thereto, and Tenant hereby irrevocably assigns and
transfers to Landlord any right to compensation or damages to which Tenant
may become entitled during the term hereof by reason of the purchase or
condemnation of all or a part of the Premises. Tenant shall have the right
to separately petition and to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately
awarded or recoverable by Tenant in Tenant's own right on account of any
and all damage to Tenant's business, including without limitation the loss
of goodwill by reason of any appropriation, and for or on account of any
cost or loss to which Tenant might be put in removing and relocating
Tenant's merchandise, furniture, moveable trade fixtures and equipment. In
no event, however, shall the loss of goodwill include any diminution in the
value of the leasehold or the bonus value of this Lease. Each party waives
the provisions of Code of Civil Procedure, Section 1265.130, allowing
either party to petition the Superior Court to terminate this Lease in the
event of a partial taking of the Premises.
17. Free from Liens. Tenant shall (i) pay for all labor and services performed
---------------
or materials used by or furnished to Tenant or any contractor employed by
Tenant with respect to the Premises, and (ii) indemnify, defend and hold
Landlord and the Premises harmless and free from any liens, claims,
demands, encumbrances or judgments created or suffered by reason of any
labor or services performed or materials used by or furnished by Tenant or
any contractor employed by Tenant with respect to the Premises.
18. Compliance with Laws. Tenant shall, at its own cost, comply with and
--------------------
observe all requirements of all municipal, county, state and federal
authority now in force, or which may hereafter be in force, pertaining to
the use and occupancy of the Premises.
19. Subordination. Tenant agrees that this Lease shall, at the option of
-------------
Landlord, be subject and subordinate to any mortgage, deed of trust or
other instrument of security which has been or shall be placed on the
Property and the Building, and this subordination is hereby made effective
without any further act of Tenant or Landlord. Tenant shall, at any time
hereinafter, on demand, execute any instruments, releases or other
documents that may be required by a mortgagee, mortgagor, trustor or
beneficiary under any deed of trust, for the purpose of subjecting or
subordinating this Lease to the lien of any such mortgage, deed of trust or
other instrument of security. If Tenant fails to execute and deliver any
such documents or instruments, such failure shall, at Landlord's option,
constitute a default by Tenant under this Lease. Landlord agrees to use its
best efforts to have any beneficiary, mortgagee, mortgagor or trustee
execute a non-disturbance agreement providing that Tenant shall be allowed
quiet enjoyment of the Premises so long as Tenant is not in default under
the terms of this Lease.
If this Lease is or becomes subordinate to any encumbrance now of record or
any encumbrance recorded after this date affecting the Premises, then
Tenant agrees to attorn to any purchaser at any foreclosure sale, or to any
grantee or transferee designated in any deed given in lieu of foreclosure.
In such event, Tenant shall execute, at Landlord's or the lender's request,
such recognition and attornment agreement as the lender, at its option, may
require.
20. Abandonment. Tenant shall not vacate nor abandon the Premises at any time
-----------
during the term of this Lease; and if Tenant shall abandon, vacate or
surrender said Premises, or be dispossessed by process of law, or
otherwise, then any personal property belonging to Tenant and left on the
Premises shall be deemed to be abandoned, at the option of Landlord, except
such property as may be mortgaged to Landlord.
21. Assignment and Subletting.
-------------------------
A. Landlord's Consent Required. Tenant shall not, either voluntarily or
---------------------------
by operation of law, sell, encumber, pledge or otherwise transfer all
or any part of Tenant's leasehold estate hereunder or permit the
Premises to be occupied by anyone other than Tenant or Tenant's
employees, or sublet the Premises or any portion thereof, without
Landlord's prior written consent in each instance, which consent may
not unreasonably be withheld by Landlord. In exercising its reasonable
discretion, Landlord may consider all commercially relevant factors
involved in the leasing, subleasing or assignment of the space,
including, but not limited to, the following: (i) the creditworthiness
and financial stability of the prospective assignee or sublessee; (ii)
the compatibility of the prospective assignee or sublessee with other
tenants in the Building; (iii) the references from prior landlords of
such prospective sublessee or assignee; (iv) the past history of such
sublessee or assignee with respect to involvement in litigation and
bankruptcy proceedings; (v) whether the proposed use of the Premises
by the prospective sublessee or assignee falls within the use
permitted under Paragraph 5; (vi) whether the proposed use is suitable
and in keeping with the ambiance and tone of the Building; (vii) the
impact of said sublessee or assignee and the proposed use of the
Premises on pedestrian and vehicular traffic and parking facilities;
and (viii) the anticipated use, storage, generation, treatment and
disposal of Hazardous Materials by such prospective sublessee or
assignee. The presence of one negative factor enumerated above
12
shall be deemed reasonable justification for Landlord's withholding
consent. Tenant shall provide Landlord with prior notice of any
proposed assignment or sublease as provided in subparagraph 21.B,
below. Consent by Landlord to one or more assignments of this Lease or
to one or more subletting of the Premises shall not operate to exhaust
Landlord's rights under this Paragraph 21. If Tenant is a corporation,
unincorporated association, or partnership, the transfer, assignment,
or hypothecation of any stock or ownership interest in such
corporation, unincorporated association or partnership in excess of
twenty, five percent (25%) shall be deemed an assignment within the
meaning and provision of this Paragraph 21 provided that this sentence
shall not apply at such time that Tenant offers its share at an
initial public offering (IPO) or subsequent public offering. The
voluntary or other surrender of this Lease by Tenant or a mutual
cancellation hereof shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subleases or subtenancies.
All Rent received by Tenant from its subtenants in excess of the Rent
payable by Tenant to Landlord under this Lease shall be paid to
Landlord, and any sums to be paid by an assignee to Tenant in
consideration of the assignment of this Lease shall be paid to
Landlord. Any sublease or assignment permitted herein, shall, at
Landlord's reasonable election, automatically terminate Tenant's
option(s), if any, to extend the term of this Lease and, in such
event, any such Options shall not be available to any assignee,
sublessee or other transferee except that if such assignee is the
acquiring entity of Tenant, then the option shall remain in effect.
B. Notice to Landlord. If Tenant desires at any time to assign this Lease
------------------
or to sublet the Premises or any portion thereof, it shall first
notify Landlord of its desire to do so and shall submit in writing to
Landlord (i) the name of the proposed sublessee or assignee; (ii) the
nature of the proposed sublessee's or assignee's business to be carded
on in the Premises; (iii) the material business terms of the proposed
sublease or assignment; and (iv) such reasonable Financial information
concerning the proposed sublessee or assignee as Landlord may need to
make a prudent and considered decision. Tenant shall also provide to
Landlord a copy of the sublease or assignment after such document has
been fully executed.
C. Tenant Not Released. No subletting or assignment, even with the
-------------------
written consent of Landlord, shall relieve Tenant of its obligation to
pay the Rent and perform all of the other obligations to be performed
by Tenant hereunder. Tenant shall indemnify and hold Landlord harmless
from any and all claims, damages, liability and expenses, including
reasonable attorneys' fees and costs, arising out of any claims by
brokers or others for commissions or finder's fees with respect to any
subletting or assignment by Tenant. The acceptance of Rent by Landlord
from any other person shall not be deemed to be a waiver by Landlord
of any provision of this Lease or to be a consent to any assignment or
subletting. Tenant immediately and irrevocably assigns to Landlord, as
security for Tenant's obligations under this Lease, all Rent from any
subletting, and Landlord may collect such Rent and apply it toward
Tenant's obligations under this Lease, except that, until the
occurrence of any act of default by Tenant, Tenant shall have the
right to collect such Rent.
D. Involuntary Assignment. No interest of Tenant in this Lease shall be
----------------------
assignable by operation of law. Without limiting the foregoing, each
of the following acts shall be considered an involuntary assignment:
(i) Transfer of this Lease by testacy or intestacy;
(ii) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes a
proceeding under the Bankruptcy Act in which Tenant is the
bankrupt; or, if Tenant is a partnership or consists of more
than one person or entity, if any general partner of the
partnership or other person or entity is or becomes bankrupt
or insolvent, or makes an assignment for the benefit of
creditors;
(iii) 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 interests in this Lease, where possession is
not restored to Tenant within thirty (30) days; or
(iv) 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 seizure is not
discharged within thirty (30) days.
An involuntary assignment shall constitute a default by Tenant under
this Lease, and in such event Landlord shall have the right to elect
to terminate this Lease, in which case this Lease shall not be treated
as an asset of Tenant.
E. Tenant to Reimburse Landlord for Expenses. Tenant agrees to reimburse
-----------------------------------------
Landlord, as Additional Rent, upon demand, for Landlord's reasonable
costs and attorney's fees, incurred
13
in conjunction with the processing, investigation and documentation
of any requested assignment, subletting, transfer, change of
ownership or hypothecation of this Lease or Tenant's interest in
and to the Premises, regardless of whether any request actually
results in a permitted assignment, sublease or other transfer.
22. Parking. Any parking charges, surcharges or any other cost hereafter levied
-------
or assessed by local, state or federal governmental agencies in connection
with the use of the parking facilities serving the Premises, including,
without limitation, any parking surcharge imposed by or under the authority
of the Federal Environmental Protection Agency, shall be included in
Operating Expenses as defined in Paragraph 3, above.
Each tenant, its agents, officers, employees and invitees, shall have the
non-exclusive right (in conjunction with the use of the part of the
Building leased to such tenant) to make reasonable use of any driveways,
sidewalks and parking area located on the Property, except such parking
areas as may from time to time be leased for exclusive use by other
tenant(s). Tenant's reasonable use of the parking area shall not exceed
that percent of the total parking area which is equal to Tenant's
proportionate share of Operating Expenses and Taxes set forth in
subparagraph 3.C, above.
23. Insolvency or Bankruptcy. Any of (i) the appointment of a receiver to take
------------------------
possession of all or substantially all of the assets of Tenant, and such
possession is not fully restored to Tenant within thirty (30) days, or (ii)
a general assignment by Tenant for the benefit of creditors, or (iii) any
action taken or suffered by Tenant under any insolvency or bankruptcy act
shall constitute a breach of this Lease by Tenant. Upon the happening of
any such event, this Lease shall terminate ten (10) days after written
notice of termination from Landlord to Tenant The provisions of this
Paragraph 23 are to be applied consistent with applicable state and federal
law in effect at the time such event occurs.
24. Landlord Loan or Sale. Tenant agrees, promptly following request by
---------------------
Landlord, to execute and deliver to Landlord any documents, including
estoppel certificates presented to Tenant by Landlord, (i) certifying that
this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease, as
so modified, is in full force and effect) and the date to which the Rent
and other charges are paid in advance, if any; (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder (or, if there are any such uncured defaults, stating the
nature of any such default[s]); and (iii) evidencing the status of the
Lease as may be required either by a lender making a loan to Landlord, to
be secured by deed of trust or mortgage covering the Premises, or a
purchase of the Property, the Building or the Premises from Landlord.
Tenant's failure to deliver an estoppel certificate within three (3) days
following such request shall constitute a default under this Lease and
shall be conclusive upon Tenant that this Lease is in full force and effect
and has not been modified except as may be represented by Landlord, and
that there are no uncured defaults in Landlord's performance. In addition,
if requested by Landlord, Tenant shall deliver to any prospective lender or
purchaser of the Property and/or the Building, audited financial statements
of Tenant covering the two (2) fiscal years immediately preceding the
request, certified by an independent certified public accountant (or, if
such statements are not normally prepared, audited and certified by an
independent public accountant, then certified by the chief financial
officer or a principal of Tenant).
25. Surrender of Lease. The voluntary or other surrender of this Lease by
------------------
Tenant, or a mutual cancellation thereof, shall not work a merger nor
relieve Tenant of any of Tenant's obligations under this Lease, and shall,
at the option of Landlord, either terminate all or any existing subleases
or subtenancies, or operate as an assignment to Landlord of any or all such
subleases or subtenancies.
26. Attorneys' Fees. If, for any reason, any action or other proceeding is
---------------
initiated to enforce or interpret any provision of this Lease, the
prevailing party shall be entitled to legal costs, expert witnesses
expenses and reasonable attorneys' fees as fixed by the court regardless of
whether the matter proceeds to trial or arbitration.
27. Notices. All notices to be given to either party shall be given in writing,
-------
personally or by depositing the same in the United States mail, postage
prepaid, or by commercial overnight courier, telecopy, or facsimile and
addressed to Tenant at the said Premises, whether or not Tenant has
departed from, abandoned or vacated the Premises, as well as to the address
set forth below, or to such other address as Tenant may specify by notice
given in accordance with the provisions of this Paragraph 27. Any notice
Lease to be given to Landlord shall be addressed to Landlord at the address
set forth below, or at such other address as it may have theretofore
specified by notice delivered in accordance herewith:
Landlord: MARINERS ISLAND, LTD.
--------
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tenant: ACTUATE SOFTWARE CORPORATION
------
000 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxx, XX 00000
14
28. Waiver. The waiver by Landlord or Tenant of any xxxxxx of any term,
------
covenant or condition herein contained shall not be deemed to be a
subsequent waiver of such term, covenant or condition. The subsequent
acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver
of any preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular Rent so
accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent.
29. Holding Over. Any holding over by Tenant after the expiration of the term
------------
of this Lease or any extension hereof, the consent of Landlord, shall be
construed to be a tenancy from month-to-month, at a Basic Rent of one and
one-half (1-1/2) times the monthly Basic Rent in effect during the last
month of the Lease term, or any extension thereof, and shall otherwise be
on the terms and conditions herein specified, so far as applicable, with
Landlords consent, the Basic Rent shall remain the same for the initial
thirty (30) days following the expiration of the Lease Term, thereafter,
the basic Rent shall be one hundred ten percent (110%) of the Basic Rent
paid in the last month of the Term. This holdover shall be a month to month
tenancy.
30. Covenants. Conditions and Restrictions. The parties by this reference
---------
incorporate herein as if set out in full, all Covenants, Conditions and
Restrictions ("CC&R's") pertaining to the Building and/or to the Property.
As a condition to this Lease, Tenant agrees to abide by all of said CC&Rs.
Moreover, such reasonable rules and regulations as may be hereafter adopted
by Landlord for the safety, care and cleanliness of the Building and/or
Premises and the preservation of good order thereon, are hereby expressly
made a part hereof, and Tenant agrees to obey all such rules and
regulations. At this time, there are no CC&R's.
31. Limitation on Landlord's Liability. If Landlord is in default of this
----------------------------------
Lease, and as a consequence Tenant recovers a money judgment against
Landlord, any such judgment shall be satisfied only out of the proceeds of
sale received on execution of the judgment and levy against the right,
title and interest of Landlord in the Premises, or in the Building, other
improvements and the Property, and out of Rent or other income from such
real property receivable by Landlord, or out of the consideration received
by Landlord from the sale or other disposition of all or any part of
Landlord's right, title and interest in the Premises or in the Building,
other improvements and the Property. Neither Landlord nor any Of the
partners comprising the partnership or officers of the corporation
designated as Landlord shall be personally liable for any deficiency.
32. Sale or Transfer of Premises. If Landlord sells or transfers all or any
----------------------------
portion of the Premises, the Building or the Property, then Landlord, on
consummation of the sale or transfer, shall be released from any liability
thereafter accruing under this Lease. If any security deposit or prepaid
Rent has been paid by Tenant, Landlord agrees to transfer the security
deposit or prepaid Rent to Landlord's successor, other than any portion of
the security deposit applied or retained to compensate Landlord for any
loss or damage which Landlord may have suffered as a result of Tenant's
default, and thereupon Landlord shall be discharged from any further
liability in reference thereto.
33. Landlord's Right to Perform. All terms, covenants and conditions of this
---------------------------
Lease to be performed or observed by Tenant shall be performed or observed
by Tenant, at Tenant's sole cost and expense, and without any reduction of
Rent. If Tenant fails to pay any sum of money required to be paid by it
hereunder or fails to perform or observe any other term hereunder on its
part to be performed or observed, then Landlord may, at its option, without
waiving or releasing Tenant from any obligation of Tenant hereunder, make
any such payment, or perform or observe any such other term or act on
Tenant's part to be performed or observed. All sums so paid by Landlord and
all reasonably necessary costs of such performance or observation by
Landlord together with interest thereon from the date incurred at the
Interest Rate, shall be paid by Tenant to Landlord as Additional Rent, on
demand, in which event and as to the same Landlord shall have the same
rights and remedies against Tenant as in the case of nonpayment of Rent
hereunder.
34. Landlord's Right of Entry. Landlord (and/or its representatives) shall have
-------------------------
the right upon reasonable notice to Tenant, at all reasonable times, to
enter the Premises in order to post notices; to improve, or alter the
Building; to inspect or repair the Premises or the Building; and to erect
scaffolding and other necessary structures in or near the Premises
(provided the same do not unreasonably impair access to the Premises), the
Building and the Property; and to post "For Sale" signs with respect to the
Building or the Property. During the last six (6) months of the then
current term of this Lease, Landlord (and/or its representatives) shall
have the right, at all reasonable times, to enter the Premises to place
"For Lease" signs on the Premises. Landlord and any purchaser, lessee or
encumbrancer may enter the Premises, at all reasonable times, with respect
to any existing or prospective sale, lease or encumbrance. Landlord shall
also have the right to enter the Premises at any time, without prior
notice, in those emergency situations which could involve potential injury
to persons or loss of property. All of the above shall be without abatement
of Rent and any such entry shall not be construed as a forcible or unlawful
entry, or a detainer, or an actual or constructive eviction of Tenant from
the Premises. Landlord shall perform all of Landlord's activities described
in Section 34 of the Lease in a manner designed to cause the lest possible
interruption to Tenant and Tenant's use of the Premises.
15
35. Signs. Other than the existing Suite sign to be relocated to Tenant's
-----
Premises, no sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed on or to any part of the outside
of the Premises, or any exterior windows of the Premises, or any interior
windows visible from common areas of the Building, without the prior
written consent of Landlord (which consent may be granted in Landlord's
absolute discretion) and Landlord shall have the right to remove the same
without notice to and at the expense of Tenant. If Tenant is allowed to
display a sign on or about the Premises, then, at Landlord's option, upon
expiration or other sooner termination of this Lease, Tenant shall, at
Tenant's sole cost remove such sign, repair all damage caused thereby and
restore the appearance of the Premises to its condition prior to the
placement of said sign. All approved signs (or lettering on outside doors)
shall be done at the expense of Tenant by a person approved by Landlord.
36. Force Majeure. Subject to the provisions of Paragraphs 15 and 16 of this
-------------
Lease, neither Landlord nor Tenant shall be deemed in default of their
respective obligations under this Lease if performance thereof is delayed
or becomes impossible because the fault or neglect of the other party, or
because of acts of God, war (whether declared or undeclared), earthquake,
fire, labor dispute, strike, acts of public agencies, embargoes, rainy,
stormy or other adverse weather, riot, civil commotion, insurrection,
blockade, inability to obtain materials, supplies or fuels, acts and delays
of subcontractors or contractors, and such other contingencies beyond the
control of the performing party. Upon such an event, the time for
performance shall be reasonably extended, but in no event shall such
extension be longer than sixty (60) days beyond the original date for
performance, in which case the party to whom the obligation is owed may
terminate this Lease by giving notice to the other party. This Paragraph 36
shall not be applicable to the payment of Rent or other monetary sums under
this Lease.
37. Exercise Facility. By its execution of this Lease, Tenant acknowledges that
-----------------
it is aware that the Building may contain an exercise facility. Tenant and
its employees over the age of eighteen (18) years may reasonably use the
exercise facility and its equipment; provided, however, that Tenant, its
employees, agents, or invitees shall not use the exercise facility or its
equipment unless he/she has signed a waiver and release in the form
attached hereto as Exhibit E and made a part hereof, and the original of
such executed waiver and release has been delivered to Landlord. In
consideration for the right to use the exercise facility, Tenant agrees to
faithfully enforce the provision of this Paragraph 37, and to indemnify and
hold Landlord harmless from any claims or damages, including attorneys'
fees, incurred as a result of the use of the exercise facility and its
equipment pursuant to use by its employees, agents, or invitees in this
Paragraph 37.
38. Quiet Enjoyment. Landlord covenants that if, and so long as, Tenant keeps
---------------
and performs each and every covenant, agreement, term, provision and
condition herein contained on the part and on behalf of Tenant to be kept
and performed, Tenant shall quietly enjoy the Premises from and against the
claims of all persons.
39. Miscellaneous.
-------------
A. Time is of the essence of this Lease, and each and all of its
provisions.
B. The term "Building" shall mean the building in which the Premises are
situated.
C. The term "Property" shall mean the real property on which the Building
is situated.
D. The term "assign" shall include the term "transfer".
E. The invalidity or unenforceability of any provision of this Lease
shall not affect the validity or enforceability of the remainder of
this Lease.
F. The headings and titles to 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 thereof.
G. Landlord has made no representation(s) whatsoever to Tenant (express
or implied) except as may be expressly stated in writing in this
Lease.
H. This instrument contains all of the agreements and conditions between
the parties hereto with respect to the Premises, and may not be
modified orally or in any other manner than by agreement in writing,
signed by all of the parties hereto or their respective successors in
interest.
I. It is understood and agreed that the remedies herein given to Landlord
shall be cumulative, and the exercise of any one remedy by Landlord
shall not be to the exclusion of any other remedy.
J. The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties hereto.
16
K. This Lease has been negotiated jointly by the parties hereto, and the
language hereof shall not be construed for or against either party.
L. All exhibits to which reference is made in this Lease are deemed
incorporated into this Lease, whether or not actually attached.
M. All provisions of this Lease, whether covenants or conditions,
applicable to Tenant shall be deemed to be both covenants and
conditions
N. This Lease shall in all respects be governed, by, and construed and
enforced in accordance. with the laws of the State of California.
O. As used in this Lease, the term "Effective Date" shall mean the latest
date set forth below.
P. Time is of the essence.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
date first above written.
LANDLORD
--------
MARINERS ISLAND, LTD.
a California Limited Partnership
BY: XXXXX WAY, INC.
ITS: GENERAL PARTNER
/s/ Xxxxxxx X. Xxxxx, Xx.
By -------------------------
Xxxxxxx X. Xxxxx, Xx.
Its President
-------------
Date 3/27/95
--------
TENANT
------
ACTUATE SOFTWARE CORPORATION
a California Corporation
/s/ Xxxxxxxx Xxxxxxxxxx
By -----------------------
Xxxxxxxx Xxxxxxxxxx
Its President
----------
Date 3/29/95
--------
17
ADDENDUM
TO THAT CERTAIN LEASE DATED MARCH 27, 1995, BY AND BETWEEN MARINERS ISLAND,
LTD., A CALIFORNIA LIMITED PARTNERSHIP ("LANDLORD") AND ACTUATE SOFTWARE
CORPORATION, A CALIFORNIA CORPORATION ("TENANT").
47. Option to Extend. Tenant shall have the option to renew the term of this
----------------
lease for between six (6) and eighteen (18) months, subject to a minimum of
one hundred twenty (120) days advance written notice; which notice shall
state the term of the option period (i.e.: not less than six (6) months,
but not more than eighteen (18) months) ("Extension Notice"). The option
rent shall be Eight Thousand Eight Hundred and Seventy-Seven and No/100ths
Dollars ($8,877.00); the Base Operating Expenses and Taxes shall remain the
same provided in Section 3.C.
This option shall be void, at Landlord's option, if Tenant is in default
for any time subsequent to Tenant giving timely notice up to commencement
of the option term. TIME IS OF THE ESSENCE.
48. Tenant's Right of First Refusal.
-------------------------------
a. Right of Tenant. Provided that Tenant is not then in default under
---------------
the terms of this Lease, Tenant shall have a right of first refusal
("Refusal Right") to lease adjacent space which is available for lease on
the third floor of the Building (collectively, the "Available Space") as
specified in Landlord's written notice to Tenant ("Landlord's Notice").
b. Commencement of Right. Landlord hereby covenants and agrees with
---------------------
Tenant that during the Term of the Term of the Lease (i) Landlord shall
provide Tenant with written notice ("Landlord's Notice") at any time that
Landlord intends to lease Available Space to any bona-fide third party
tenant, except in the event that such leasing of Available Space is in
connection with ally tenant of the Building's exercise of any option in its
lease to expand its premises or renew the term of its lease to expand its
premises or renew the term of its lease, in which case Tenant's Refusal
Right shall not apply. Such Landlord's Notice shall contain all material
business terms on which Landlord intends to lease the Available Space in
question and (ii) Landlord shall not lease said Available Space to anyone
other than Tenant without first providing Tenant the opportunity to lease
the Available Space specified in Landlord's Notice upon the same terms and
conditions specified in the Landlord's Notice.
c. Exercise of Right. Tenant shall have three (3) business days after
-----------------
Landlord's delivery of Landlord's Notice to notify Landlord of Tenant's
agreement to lease the Available Space on the terms set forth in the
Landlord's Notice. Tenant shall exercise the Refusal Right, if at all, as
to all the Available Space described in the Landlord's Notice and, at
Tenant's sole discretion, any other Available Space which is then available
for lease. If Tenant does not notify Landlord within the applicable period
that Tenant desires to Lease the Available Space on the terms set forth in
the Landlord's Notice, with the remainder of the terms to be those set
forth in tiffs Lease, Landlord shall have the right to lease the Available
space specified in the Landlord's Notice to bona-fide third party tenant
other than Tenant, subject to the terms of Section 48d below.
d. Continuing Right. In no event shall Tenant's failure to exercise
----------------
its Refusal Right be deemed a waiver or relinquishment by Tenant of: (i)
Tenant's Refusal Right should the Available Space be offered for lease to
any party for a rent that is less than ninety-five percent (95%) of the
rent specified ha the Landlord's Notice, (it) Tenant's Refusal Right if the
Available Space specified in the Landlord's Notice is still not leased
within ninety (90) days from the date of the Landlord's Notice, (iii)
Tenant's Refusal right as to the space specified in Landlord's Notice
should it become available for lease again during the Term of the Lease, or
(iv) Tenant's Refusal Right as to any other Available Space that is not
specified ha the Landlord's Notice and that comes available for lease in
the Project during the Term of the Lease.
18
Actuate Addendum
Page 2
March 27, 1995
e. Amendment to Lease. Landlord and Tenant hereby agree to execute an
------------------
amendment to this Lease ("Lease Amendment") prior to Tenant's occupancy Of
the Available Space in question. The Lease Amendment shall specify, among
other things, the Rent, date of occupancy and square footage of the
Available Space taken in connection with Tenant's exercise of Tenant's
Refusal right.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LANDLORD TENANT
MARINERS ISLAND, LTD. ACTUATE SOFTWARE CORPORATION
a California limited partnership a California corporation
By Xxxxx Way, Inc.
Its General Partner
/s/ Xxxxxxx X.Xxxxx, Xx. /s/ Xxxxxxxx Xxxxxxxxxx
By: ------------------------ By: ----------------------------
Xxxxxxx X. Xxxxx, Xx. Xxxxxxxx Xxxxxxxxxx
President President
Date: 3/27/95 Date: 3/29/95
----------------------- ---------------------------
19
EXHIBIT A
Description of Premises, including description of Property on which the Premises
are located:
20
EXHIBIT "A"
[FLOOR PLAN APPEARS HERE]
FLOOR THREE
EXHIBIT B
[Date]
ACTUATE SOFTWARE CORPORATION
000 XXXXX XXX, XXXXX 000
XXX XXXXX, XX 00000
Re: Commencement Date under Lease dated March 27, 1995 Between Mariners Island,
Ltd., a California limited partnership as Landlord, and Actuate Software
Corporation, a California corporation as Tenant.
Dear Tenant:
Pursuant to Paragraph 2 of the above-mentioned Lease, you are hereby
informed of the following:
Commencement Date of the term of the Lease: _______
Expiration Date of the term of the Lease: _______
Very truly yours,
MARINERS ISLAND, LTD.
By Xxxxx Way, Inc.
Its General Partner
Xxxxxxx X. Xxxxx, Xx.
President
RRD/vc
CONFIRMED:
---------
______________,
a ____________
By:___________
Its:__________
Date:_________
EXHIBIT C
Improvements
------------
[To be inserted]
EXHIBIT "C"
[FLOOR PLAN APPEARS HERE]
FLOOR THREE
EXHIBIT "D"
-----------
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services shall apply to the Building.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto at any time as Landlord, in its sole discretion, deems
advisable.
A. On the Commencement Date through the date the Lease terminates, during usual
business hours (and at other times for a reasonable additional charge to be
fixed by Landlord), Landlord shall ventilate the Premises and furnish air-
conditioning or heating on such days and hours, when in the judgment of
Landlord it may be required for the comfortable occupancy of the Premises.
The air-conditioning system achieves maximum cooling when the window
coverings are closed. Landlord shall not be responsible for room
temperatures if Tenant does not keep all window coverings in the Premises
closed whenever the system is in operation. Tenant agrees to cooperate fully
at all times with Landlord, and to abide by all regulations and requirements
which Landlord may prescribe for the proper functioning and protection of
said air-conditioning system. Tenant agrees not to connect any apparatus,
device, conduit or pipe to the Building air-conditioning supply lines.
Tenant further agrees that neither Tenant nor its servants, employees,
agents, visitors, licensees or contractors shall at any time enter
mechanical installations or facilities of the Building or adjust, tamper
with, touch or otherwise in any manner affect said installations or
facilities.
B. The Landlord shall furnish to the Premises during the usual business hours,
electric current as required by the Building's standard office lighting and
fractional horsepower office lighting and fractional horsepower office
business machines in the amount of approximately three (3) xxxxx per square
foot. The Tenant agrees, should its electrical installation or electrical
consumption be in excess of the aforesaid quantity or extend beyond normal
business hours, to reimburse Landlord monthly on the date Basic Rent is due
for the measured consumption at the terms, classifications and rates charged
similar consumers by said public utility serving the neighborhood in which
the Building is located. If a separate meter is not installed at Tenant's
cost, such excess cost will be established by an estimate agreed upon by
Landlord and Tenant, and if the parties fail to agree, as established by an
independent licensed engineer, selected by Landlord and approved by Tenant.
Tenant agrees not to use any apparatus or device in, or upon, or about the
Premises which may in any way increase the amount of such services usually
furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other
means by which such services are supplied, for the purpose of using
additional or unusual amounts of such services without the prior written
consent of Landlord. Should Tenant use the same to excess, Tenant shall pay
to Landlord, upon demand, the amount established by Landlord for such excess
usage. At all times Tenant's use of electric current shall never exceed the
capacity of the feeders to the Building or the risers or wiring installation
and Tenant shall not install or use or permit the installation or use of any
computer or electronic data processing equipment in the Premises without the
prior written consent of Landlord.
C. Water will be available in public areas for drinking and lavatory purposes
only, but if, in Landlord's sole determination, Tenant requires, uses or
consumes water for any purpose in addition to ordinary drinking and lavatory
purposes, Landlord may install a water meter and thereby measure Tenant's
water consumption for all purposes. Tenant shall pay Landlord, upon demand,
for the cost of the meter and the cost of the installation thereof and
throughout the duration of Tenant's occupancy Tenant shall keep said meter
and installation equipment in good working order and repair at Tenant's own
cost and expense. If Tenant is in default of its obligations to keep the
meter and equipment in good repair, then Landlord, in addition to all other
remedies for breach in this Lease and at law, may cause such meter and
equipment to be replaced or repaired and collect the cost thereof from
Tenant. Tenant agrees to pay for water consumed, as shown on said meter, as
and when bills are rendered, and on default in making such payment, Landlord
may, in addition to all other remedies for breach in this Lease and at law,
pay such charges and collect the same from Tenant.
D. The Landlord shall provide janitorial services on the Premises, provided the
same are used exclusively as offices and are kept reasonably in order by
Tenant. If the Premises are not used exclusively as offices, they shall be
kept clean and in order by Tenant, at Tenant's expense, and to the
satisfaction of Landlord, and by persons approved by Landlord. Tenant shall
pay to Landlord, upon demand, the cost of removal of Tenant's refuse and
rubbish, to the extent that the same exceeds the refuse and rubbish usually
attendant upon the use of the Premises as offices.
E. "Holidays" for purposes of this Lease, shall be defined as holidays observed
by the United States Post Office. "Usual business hours" for purposes of
this Lease, are from 8:00 a.m. until 5:30 p.m., Monday through Friday,
except holidays.
Landlord reserves the right to stop service of the elevator, plumbing,,
ventilation, air-conditioning and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to be
made, until said repairs, alterations or improvements shall have been
completed. Landlord's obligations to provide utilities and services
hereunder shall also be subject to and limited by the Force Majeure
provisions of the Lease. Any failure to supply utilities or services,
whether caused by a Force Majeure described in the Lease or by reason of
accident, emergency, repair, alteration or improvement, shall not be
construed as an eviction of Tenant, whether actual or constructive, and
shall not cause an abatement of Rent, either in whole or in part.
Landlord shall have no obligation whatsoever to supply utilities and
services to the Premises if Tenant is in default of any term, covenant, or
condition of this Lease.
Any costs or expenses incurred by Landlord with respect to Tenant's default
hereunder and all payments to be made by Tenant to Landlord pursuant to the
above provisions, as stated herein or as may be later modified, shall be
deemed to be Additional Rent under the Lease and Landlord shall have all
its rights and remedies under the Lease and at law with respect to the same
including but not limited to the right to late fees and interest upon
default.
F. Tenant shall have the right, upon advance notice to Landlord no later than
3:00 p.m. on the day in question, to request heating/air-conditioning
during other than normal business hours and maintenance and cleaning
services in addition to those set forth above. Tenant shall reimburse
Landlord for the actual costs of any such after-hours additional heating,
air- conditioning, maintenance and cleaning services. The cost for the
after hours heating/air-conditioning shall be $35.00 per hour for the
primary term, and $40.00 per hour during the option term.
AMENDMENT NUMBER ONE
TO THAT CERTAIN LEASE DATED MARCH 27, 1995 ("LEASE") BY AND BETWEEN MARINER'S
ISLAND, LTD. ("LANDLORD") AND ACTUATE SOFTWARE CORPORATION, A CALIFORNIA
CORPORATION ("TENANT").
Landlord and Tenant agree to amend the Lease as follows:
Premises In addition to the Premises defined in the Lease, Tenant hereby leases
--------
Suite 260 on the second floor comprised Of approximately 1,150 usable
square feet plus a load factor of fifteen percent (15 %) for an
approximate rentable square footage of 1,322 ("Expansion Area");
see Exhibit A-1 attached hereto and made part hereof. Therefore, the
total area leased by Tenant is approximately 5,088 usable square feet
plus a load factor of fifteen percent (15%) for a total approximate
rentable square footage of 5,851; see Exhibit A-2 attached hereto and
made part hereof.
Deposit 0500
Rent ????
Entered ????
Basic Rent
----------
Original Expansion Total Monthly
Months Xxxxx 000 Xxxxx 000 Basis Rent
------ --------- --------- ----------
October 1, 1995 -March 31, 1996 $8,379 ($1.85/rsf) $2,777 ($2.10/rsf) $11,156
April 1, 1996 - October 31, 1996 $8,605 ($1.90/rsf) $2,777 ($2.10/rsf) $11,382
Basic Rent shall be due without notice on or before the first day of each and
every successive month of the Term of the Lease. Basic Rent on Expansion Area in
Option Term shall be $2856/month (*2.16/FSP)
Tenant's proportionate share of Operating Expenses and Taxes is increased to
nine and 7/10 the percent (9.7 %).
Security Deposit Security Deposit is increased from $8,500 to $11,000. Said
----------------
increase of $2,500 shall be payable on or before October 1,
1995 by Tenant to Landlord.
Improvements Tenant shall take the Expansion Area "as-is".
------------
Except as provided herein, all terms and conditions of the Lease shall remain in
full force and effect.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
MARINERS ISLAND, LTD. ACTUATE SOFTWARE CORP.
("LANDLORD") ("TENANT")
a California Limited Partnership a California Corporation
by Xxxxx Way, Inc.
Its General Partner
/s/ Xxxxxxx X. Xxxxx, Xx. Date 9/25/95 /s/ Xxxxxxxx Xxxxxxxxxx Date 9/25/95
-------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxx, Xx. Xxxxxxxx Xxxxxxxxxx
President President
EXHIBIT A-1
[FLOOR PLAN APPEARS HERE]
FLOOR TWO
EXHIBIT A-2, PAGE 1 OF 2
[FLOOR PLAN APPEARS HERE]
FLOOR THREE
AMENDMENT NUMBER THREE
TO THAT CERTAIN LEASE DATED MARCH 27, 1995 ("LEASE"), LATER AMENDED ON SEPTEMBER
25, 1995 ("AMENDMENT NUMBER ONE"), AND LATER AMENDED ON APRIL 17, 1996
("AMENDMENT NUMBER TWO") BY AND BETWEEN MARINER'S ISLAND, LTD. ("LANDLORD") AND
ACTUATE SOFTWARE CORPORATION, A CALIFORNIA CORPORATION ("TENANT").
Landlord and Tenant agree to amend the Lease as follows:
PREMISES: In addition to the Premises defined in the Lease and in Amendment
---------
Number One and Amendment Number Two, Tenant hereby leases Suite 301
on the third floor comprised of approximately 1,120 usable square
feet plus a load factor of fifteen percent (15%)for an approximate
rentable square footage of 1,288 ("Expansion Area"); see Xxxxxxx X-
0 attached hereto and made part hereof. Therefore, the total area
leased by Tenant is approximately 7,485 usable square feet plus a
load factor of fifteen percent (15%) for a total approximate
rentable square footage of 8,608; see Exhibit A-2 attached hereto
and made part hereof.
BASIC RENT:
-----------
Amend. #1 Amend. #2 Sub-Total Amend. #3
Original Expansion Expansion Monthly Expansion Grand
Months Xxxxx 000 Xxxxx 000 Xxxxx 000 Basic Rent Suite 301 Total
------ --------- --------- --------- ---------- --------- -----
6/1/96 - 11/30/96 $8,605 ($1.90/rsf) $2,777 (2.10/rsf) $3,305 ($2.25) $14,687 N/A $14,687
12/1/96* - 11/30/97 $8,605 ($1.90/rsf) $2,777 (2.10/rsf) $3,305 ($2.25) $14,687 $3,542 ($2.75/rsf) $18,229
12/1/97 - 5/31/98 $8,605 ($1.90/rsf) $2,777 (2.10/rsf) $3,305 ($2.25) $14,687 $3,607 ($2.80/rsf) $18,293
* The rent of $3,542 shall commence upon existing tenant ("Castle Group")
vacating the Premises. Should the commence date occur before or after 12/1/96,
then the rent of $3,542 shall be prorated accordingly.
Basic Rent shall be due without notice on or before the first day of each and
every successive month of the Term of the Lease.
Tenant's proportionate share of Operating Expenses and Taxes is increased to
fourteen and seven-tenths percent (14.7%) effective on the Commencement Date.
Actuate - Amendment Number Three
August 7, 1996
Page 2
Improvements: Tenant shall take the Expansion Area "as-is".
-------------
Expiration Date: May 31, 1998.
---------------
Commencement
Date of Suite 301
Expansion Area: This Amendment Number Three commences upon the Castle Group
---------------
vacating the Premises.
Except as provided herein, all terms and conditions of the Lease shall remain in
full force and effect.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
MARINERS ISLAND, LTD. ACTUATE SOFTWARE CORP.
("LANDLORD") ("TENANT")
a California Limited Partnership a California Corporation
by Xxxxx Way, Inc.
Its General Partner
/s/ Xxxxxxx X. Xxxxx Date 8/7/96 /s/ Xxxxxxxx Xxxxxxxxxx Date 8/12/96
--------------------------------- ------------------------------------
Xxxxxxx X. Xxxxx, Xx. Xxxxxxxx Xxxxxxxxxx
President President
EXHIBIT "A"
[FLOOR PLAN APPEARS HERE]
FLOOR ONE
AMENDMENT NUMBER FOUR
TO THAT CERTAIN LEASE DATED MARCH 27, 1995 ("LEASE"), LATER AMENDED ON SEPTEMBER
25, 1995 ("AMENDMENT NUMBER ONE"), LATER AMENED ON APRIL 17, 1996 ("AMENDMENT
NUMBER TWO"), LATER AMENDED ON AUGUST 12, 1996, AND REVISED SEPTEMBER 3, 1996
("AMENDMENT NUMBER THREE"), LATER AMENDED ON APRIL. 11, 1997 ("AMENDMENT NUMBER
FOUR") BY AND BETWEEN 999 BW CORPORATION, A DELAWARE CORPORATION, SUCCESSOR IN
INTEREST TO MARINER'S ISLAND, LTD. ("LANDLORD") AND ACTUATE SOFTWARE
CORPORATION, A CALIFORNIA CORPORATION ("TENANT").
Landlord and Tenant agree to amend the Lease as follows:
PREMISES: In addition to the Premises defined in the Lease and in Amendment
---------
Number One, Amendment Number Two and Amendment Number Three, Tenant
hereby leases Suite 110 on the first floor comprised of
approximately 972 rentable square feet ("Expansion Area A"); see
Exhibit "A" attached hereto and made a part hereof. Therefore, the
total area leased by Tenant is approximately 9,580 rentable square
feet.
As of December 1, 1997, Tenant hereby leases Suite 270 on the
second floor comprised of approximately 2,793 rentable square feet
("Expansion Area B"); see Exhibit "B" attached hereto and made a
part hereof. Therefore, the total area leased by Tenant is
approximately 12,373 rentable square feet.
BASIC RENT:
-----------
Period Suites Sq.Footage Rate Rent
----- ----------- ---------- ---- ----------
May 1, 1997- Nov. 30, 1997 110 972 $2.75 $ 2,673.00
Dec. 1, 1997 - May 31, 1998 110 & 270 3,765 $2.75 $10,353.75
June 1, 1998 - May 31, 2000 110, 240,260, 12,373 $2.85 $35,263.05
270, 301,330
June 1, 2000 - May 31, 2002 110, 240,260, 12,373 $2.95 $36,500.35
270, 301,330
Basic Rent shall be due without notice on or before the first day of each and
every successive month of the term of the Lease.
Effective May 1, 1997, Tenant's proportionate share of Operating Expenses and
Taxes shall increase to fifteen and forty-five hundredths percent (15.45%).
Effective December 1, 1997, Tenant's proportionate share of Operating Expenses
and Taxes shall increase to nineteen and ninety-six hundredths percent (19.96%).
IMPROVEMENTS: Landlord, at its sole cost and expense, shall paint Suite 110
-------------
with Building Standard paint. Landlord shall provide Tenant a
$5,000 tenant improvement allowance for Suite 270. Other than
the above, the Premises shall be accepted on an "as is"
basis.
AMENDMENT
NUMBER FOUR
COMMENCEMENT
DATE: This Amendment Number Four commences May 1, 1997.
-----
Exhibit "A"
[Partial Floor Plan Appears Here]
Right of First
--------------
Offer: Provided that Tenant is not in breach or default under any
------
of the terms, covenants or conditions in the Lease on
Tenant's part to observe or perform on the date that
additional space becomes available on the second floor,
Suites 200 (5,235 rsf), 290 (1,043 rsf) and on the third
floor, Suite 305 (1,523 rsf), Landlord shall endeavor to
notify Tenant of such space availability and the particular
terms (including rent, term, base year and concessions)
under which Landlord would consider leasing the additional
premises to Tenant. Rental rates per square foot for
additional space leased by Tenant shall be at the same
basic rental rates in effect during the same time periods
as stated on page 1 of Amendment Number Four. This in no
way binds Landlord to establish a lease with the Tenant but
provides for notification, only and is subject to any
existing tenant right in the Building.
Except as provided herein, all terms and conditions of the Lease shall remain in
full force and effect.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
999 BW CORPORATION ACTUATE SOFTWARE CORP.
("LANDLORD") ("TENANT")
a Delaware Corporation A California Corporation
By:/s/ Xxxxxx X. Xxxxx Date 4/28/97 By:/s/ Xxx Xxxxxxxx Date 4/29/97
------------------- ------- ---------------- -------
Xxxxxx X. Xxxxx Xxx Xxxxxxxx
Vice President Vice President, Finance and
Administration
Chief Financial Officer
By:/s/ Xxxxxxx X. Xxxxx Date 4/29/97
-------------------- -------
Xxxxxxx X. Xxxxx
President
AMENDMENT NUMBER FIVE
TO THAT CERTAIN LEASE DATED MARCH 27, 1995 ("LEASE"), LATER AMENDED ON SEPTEMBER
25, 1995 ("AMENDMENT NUMBER ONE"), LATER AMENDED ON APRIL 17, 1996 ("AMENDMENT
NUMBER TWO"), LATER AMENDED ON AUGUST 12, 1996, AND REVISED SEPTEMBER 3, 1996
("AMENDMENT NUMBER THREE"), LATER AMENDED ON APRIL 11, 1997 ("AMENDMENT NUMBER
FOUR"), LATER AMENDED ON DECEMBER 22, 1997 ("AMENDMENT NUMBER FIVE") BY AND
BETWEEN 999 BW CORPORATION, A DELAWARE CORPORATION, SUCCESSOR IN INTEREST TO
MARINER'S ISLAND, LTD. ("LANDLORD") AND ACTUATE SOFTWARE CORPORATION, A
CALIFORNIA CORPORATION ("TENANT").
Landlord and Tenant agree to amend the Lease as follows:
Premises: In addition to the Premises defined in the Lease and in Amendment
---------
Number One, Amendment Number Two, Amendment Number Three, and
Amendment Number Four, Tenant hereby leases Suite 305 on the third
floor comprised of approximately 1,523 rentable square feet
("Expansion Area A"); see Exhibit "A" attached hereto and made a
part hereof. Therefore, the total area leased by Tenant is
approximately 13,896 rentable square feet.
Basic Rent:
-----------
Period Suite Sq.Footage Rate Rent
------ ----- ---------- ---- ----
June 1, 1998 - May 31, 2000 305 1,523 $2.85 $4,340.55
June l, 2000 - May 31, 2002 305 1,523 $2.95 $4,492.85
Basic Rent shall be due without notice on or before the first day of each and
every successive month of the term of the Lease.
Effective June 1, 1998, Tenant's proportionate share of Operating Expenses and
Taxes shall increase to twenty-two and ten hundredths percent (22.10%).
Amendment Number
Five Commencement
Date: This Amendment Number Five commences June 1, 1998.
-----
Expiration Date: Max, 3l, 2002
----------------
Except as provided herein, all terms and conditions of the Lease shall remain in
full force and effect.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
999 BW CORPORATION ACTUATE SOFTWARE CORP.
("LANDLORD") ("TENANT")
a Delaware Corporation a California Corporation
By:/s/ Xxxxxx X. Xxxxx Date: 1/17/98 By: /s/ Xxx Xxxxxxxx Date: 1/15/98
------------------- ------- ----------------- -------
Xxxxxx X. Xxxxx Xxx Xxxxxxxx
Vice President Vice President, Finance and
Administration
Chief Financial Officer
By: /s/ Xxxxxxx X. Xxxxxxx Date: 2/4/98
---------------------- ------
Xxxxxxx X. Xxxxxxx
Vice President
