Exhibit 10.19
NOV 12 1999
LEASE
THIS LEASE is made on the 5th day of November, 1999, by and between Xxxxxxxx
Properties, a tenancy in common (hereinafter called "Lessor") and Segue
Software, Inc., a Delaware corporation (hereinafter called "Lessee").
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES AGREE AS
FOLLOWS:
1. Premises. Lessor leases to Lessee, and Lessee leases from Lessor, upon
the terms and conditions herein set forth, those certain Premises
("Premises") situated in the Town of Los Gatos, County of Santa Clara,
California, as outlined in Exhibit "A" attached hereto and described as
follows: approximately 15,600 square feet known as 00 Xxxxxxxx Xxx, Xxx
Xxxxx, Xxxxxxxxxx, and the related parking areas. Lessee shall have the
use on an additional five parking spaces adjacent to the Premises as
shown on Exhibit "A" which are located on the adjacent property owned
by an affiliate of Lessor.
2. Term. The term of this Lease shall be for five (5) years, commencing on
January 15, 2000 and ending on January 14, 2005, unless sooner
terminated pursuant to any provision hereof. Lessee and its contractors
shall have access to the Premises sixty (60) days prior to the
Commencement for the purposes of installing furniture, cabling, phone
systems and other functions necessary for its business, provided that
such early access does not interfere with Lessor's completion of the
improvements specified in Section 7 below.
3. Rent. Lessee shall pay to Lessor rent for the Premises Thirty-Seven
Thousand Four Hundred Forty and 00/100 Dollars ($37,440.00) per month
in lawful money of the United States of America, subject to adjustment
as provided below. Rent shall be paid without deduction or offset,
prior notice, or demand, at such place as may be designated from time
to time by Lessor as follows: $37,440.00 shall be paid upon execution
of the Lease, which sum represents the amount of the first month's
rent. A deposit of $112,320.00 as a Security Deposit shall be made by
Lessee and held by Lessor pursuant to Paragraph 5 of this Lease, and
shall be paid upon execution of the Lease. Monthly rent shall be paid
in advance on the first (1st) day of each calendar month as follows:
Period Monthly Rent/NNN
------ ----------------
1/15/00 - 1/14/01 $37,440.00
1/15/01 - 1/14/02 $38,563.00
1/15/02 - 1/14/03 $39,720.00
1/15/03 - 1/14/04 $40,912.00
1/15/04 - 1/15/05 $42,139.00
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.
Lessee acknowledges that late payment by Lessee to Lessor of rent or
any other payment due Lessor will cause Lessor 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 Lessor 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 Lessee is not received by
Lessor within five (5) days following the date it is due and payable,
Lessee shall pay to Lessor an additional sum of ten percent (10%) of
the overdue amount as a late charge. Notwithstanding anything contained
in this paragraph, if Lessee is delinquent in the payment of Rent and
is subject to a late charge, Lessor agrees to waive the late charge if
the Rent or Additional Rent due is paid within five (5) days of
Lessor's written notice to Lessee of the delinquent amount owed and
provided Lessee has not been delinquent in its payment of Rent or
Additional Rent owed under this Lease during the twelve (12) month
period preceding the rent delinquency in question. However, Lessor
shall only be obligated to notify Lessee once of its intent to assess a
late charge in any twelve (12) month period. The parties agree that
this late charge represents a fair and reasonable estimate of the costs
that Lessor will incur by reason of late payment by Lessee. Acceptance
of any late charge shall not constitute a waiver of Lessee's default
with respect to the overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies available to Lessor.
If, for any reason whatsoever, Lessor cannot deliver
possession of the Premises on the commencement date set forth in
Paragraph 2 above, this Lease shall not be void or voidable, nor shall
Lessor be liable to Lessee for any loss or damage resulting therefrom;
but in such event, Lessee shall not be obligated to pay rent until
possession of the Premises is tendered to Lessee and the commencement
and termination dates of this Lease shall be revised to conform to the
date of Lessor's delivery of possession. In the event that Lessor shall
permit Lessee to occupy the Premises prior to the commencement date of
the term, such occupancy shall be subject to all of the provisions of
this Lease, with the exception of the obligation to pay rent at the
same monthly rate as that prescribed for the first month of the Lease
term. See also the provision in Section 7 below for a rent abatement in
the event of delay in completion of certain improvements.
A. All taxes, insurance premiums, Outside Area Charges, late charges,
costs and expenses which Lessee is required to pay hereunder,
together with all interest and
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penalties that may accrue thereon in the event of Lessee's
failure to pay such amounts, and all reasonable damages,
costs, and attorney's fees and expenses which Lessor may incur
by reason of any default of Lessee or failure on Lessee's part
to comply with the terms of this Lease, shall be deemed to be
additional rent (hereinafter, "Additional Rent"), and, in the
event of non-payment by Lessee, Lessor shall have all of the
rights and remedies with respect thereto as Lessor has for the
non-payment of monthly installment of rent.
4. Option to Extend Term.
A. Lessee shall have the option to extend the term on all the
provisions contained in this Lease for one three-year periods
("extended term(s)") at an adjusted rental calculated as
provided in Subparagraph B below on the condition that:
(a) Lessee has given to Lessor written notice of exercise
of that option ("option notice") at least six (6)
months but no more than twelve (12) months before
expiration of the initial term or extended term(s),
as the case may be.
(b) Lessee is not in default in the performance of any of
the terms and conditions of the Lease on the date of
giving the option notice, and Lessee is not in
default on the date that the extended term is to
commence.
B. Monthly rent for the extended term shall be the then
prevailing market rent for similar buildings in the immediate
area.
C. In no event shall the monthly rent for any extended term(s) be
less than the Monthly Rent paid immediately prior to such
extended term(s). The option to extend shall be personal to
Lessee, and shall not be transferable or assignable to any
other person or entity. If Lessee has exercised its option to
extend, the phrase "Lease term" as used in this Lease shall
mean the initial term of the Lease and the extended term(s).
5. Security Deposit. Lessor acknowledges that Lessee has deposited with
Lessor a Security Deposit in the sum of $112,320.00, in the form of
cash or an irrevocable letter of credit in form acceptable to Lessor,
to secure the full and faithful performance by Lessee of each term,
covenant, and condition of this Lease. If Lessee shall at any time fail
to make any payment or fail to keep or perform any term, covenant, or
condition on its part to be made or performed or kept under this Lease,
Lessor may, but shall not be obligated to and without waiving or
releasing Lessee from any obligation under this Lease, use, apply, or
retain the whole or any part of said Security Deposit (a) to the extent
of any sum due to
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Lessor; or (b) to compensate Lessor for any loss, damage, attorneys'
fees or expense sustained by Lessor due to Lessee's default. In such
event, Lessee shall, within five (5) days of written demand by Lessor,
remit to Lessor sufficient funds to restore the Security Deposit to its
original sum. No interest shall accrue on the Security Deposit. Should
Lessee comply with all the terms, covenants, and conditions of this
Lease and, at the end of the term of this Lease, leave the Premises in
the condition required by this Lease, then said Security Deposit or any
balance thereof, less any sums owing to Lessor, shall be returned to
Lessee within fifteen (15) days after the termination of this Lease and
vacancy of the Premises by Lessee. Lessor can maintain the Security
Deposit separate and apart from Lessor's general funds, or can
co-mingle the Security Deposit with the Lessor's general and other
funds.
6. Use of the Premises. The Premises shall be used exclusively for the
purpose of general office and research and development of computer
related products.
Lessee shall not use or permit the Premises, or any part
thereof, to be used for any purpose or purposes other than the purpose
for which the Premises are hereby leased; and no use shall be made or
permitted to be made of the Premises, nor acts done, which will
increase the existing rate of insurance upon the building in which the
Premises are located, or cause a cancellation of any insurance policy
covering said building, or any part thereof, nor shall Lessee 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. Lessee 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 disturb the quiet enjoyment of any other tenant in the
building in which the premises are located; nor, without limiting the
generality of the foregoing, shall Lessee allow the Premises to be used
for any improper, immoral, unlawful, or objectionable purpose.
Lessee shall not place any harmful liquids in the drainage
system of the Premises or of the building of which the Premises form a
part. No waste materials or refuse shall be dumped upon or permitted to
remain upon any part of the Premises outside of the building proper
except in trash containers placed inside exterior enclosures designated
for that purpose by Lessor, or inside the building proper where
designated by Lessor. No materials, supplies, equipment, finished or
semi-finished products, raw materials, or articles of any nature shall
be stored upon or permitted to remain on any portion of the Premises
outside of the building proper. Lessee shall comply with all the
covenants, conditions, and/or restrictions ("C.C. & R.'s") affecting
the Premises
Lessor represents and warrants to Lessee that to the best of
its knowledge there are no Toxic or Hazardous materials present on, at
or under the Premises, which shall be deemed to include underlying land
and groundwater, at the time of Lessee's occupancy.
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Lessor shall indemnify, defend and hold harmless Lessee, its partners,
directors, officers, employees, lenders, and successors against all
claims, obligations, liabilities, demands, damages, judgements, and
costs, including reasonable attorneys' fees arising from or in
connection with any prior Toxic or Hazardous materials that existed
prior to Lessee's occupancy of the Premises.
Lessee in turn represents to Lessor that it does not now and
will not in the future permit the use or storage on the Premises of
Toxic or Hazardous materials, excluding, however basic janitorial,
maintenance and office supplies, and materials commonly used in
connection with Lessee's business as described in paragraph 6 hereof.
For purposes of this paragraph 6 "Toxic or Hazardous Materials" shall
mean any product, substance, chemical, material or waste whose
presence, nature, quality and/or intensity or existence, use,
manufacture, disposal, transportation, spill, release or effect, either
by itself or in combination with other materials expected to be on the
leased premises, is either (i) potentially injurious to the public
health, safety or welfare, the environment, or the leased premises;
(ii) regulated or monitored by any governmental authority; or (iii) a
basis for potential liability of Lessee and Lessor to any governmental
agency or third party under any applicable statute or common law
theory. "Toxic or Hazardous Materials" shall include, but not be
limited to, hydrocarbons, petroleum, gasoline, crude oil or any
products or by-products thereof.
Lessee hereunder shall be responsible for and indemnify, and
hold Lessor and its partners, directors, officers, employees, lenders,
successors and assigns harmless from all claims, obligations,
liabilities, demands, damages, judgments and costs, including
reasonable attorneys' fees arising at any time during or in connection
with Lessee's causing or permitting any materials referred to under any
governmental provisions or regulatory scheme as "hazardous" or "toxic"
or which contain petroleum, gasoline, or other petroleum product, to be
brought upon, stored, manufactured, generated, handled, disposed, or
used on, under or about the Premises. Lessee's and Lessor's obligations
hereunder shall survive the termination of this Lease.
If, at any time during the term of this Lease, Lessor suspects
that toxic waste, spillage, or other contaminants may be present on the
Premises, Lessor may order a soils report, or its equivalent, and
Lessee shall pay such costs within fifteen (15) days from the date upon
which it is determined that such contamination was caused by Lessee. If
any such toxic waste, spillage, or other contaminants are found upon
the Premises, and it is determined that such contamination was caused
by Lessee, Lessee shall deposit with Lessor, within fifteen (15) days
of notice from Lessor to Lessee to do so, the amount necessary to
remove the substances and remedy the problem.
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Lessee 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.
7. Improvements:
A. Allowance: Subject to completion of the Initial Improvements, as
defined below, Lessee takes the Premises in "AS IS" condition. Lessor
shall provide Lessee with an allowance of $78,000.00 for building
related improvements (i.e. so-called "hard costs" including, but not
limited to, interior walls, alterations required for code compliance,
painting and carpeting). Said allowance shall not be used for so-called
"soft costs" or tenant specific improvements such as cabling and
moving. In addition, Lessor shall contribute $5,000 towards the cost of
bringing the restrooms to ADA compliance.
B. Plans: The Lessee's architect shall prepare plans for the initial
tenant improvements and specification for finishes (i.e. paint and
carpet) to be made to the Premises by the Lessor (the "Initial
Improvements"). The Initial Improvements shall be performed Lessor's
general contractor. The Initial Improvements shall be divided into two
categories (i) the "Basic Work" shall consist of painting, carpeting
and other basic alterations to prepare the Premises for occupancy, and
(ii) the "Additional Work" shall consist of additional improvements
which may be completed after the Basic Work. The plans of the Initial
Improvements shall be subject to the reasonable approval of the Lessor,
and shall be submitted to Lessor by November 19, 1999.
C. Cost Proposals and Schedule: After the completion and approval of
the plans and specifications for the Initial Improvements, and by
December 10, 1999 at the latest, the Lessor shall cause Lessor's
general contractor to present for review and approval by Lessee a
proposal for execution of the Initial Improvements including specified
prices and estimated completion deadlines. The process of constructing
the Initial Improvements shall be a so-called "open book" process with
Lessee entitled to review and be informed of all components of expenses
incurred, and to review and approve proposed prices and the identity of
all subcontractors. Lessor will make a reasonable effort to provide
multiple proposals from multiple subcontractors for each component of
the Initial Improvements.
D. Construction Deadlines: The deadline for completion of the Basic
Work is the commencement date set forth in Paragraph 2 above.
Notwithstanding anything to the contrary in this Lease, the rent and
Additional Rent payable by Lessee shall be abated on a per diem basis
for any delay in the substantial completion of the Basic Work (which is
not a delay otherwise attributable to Lessee) beyond the commencement
date set forth in Paragraph 2 above, provided that Basic Network is
limited to carpet, paint,
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minor modifications to the stairway, and minor modifications to the
restrooms, none of which require a permit. Lessor shall complete the
Additional Work with reasonable diligence. In any event, if any portion
of the Initial Work is not complete on or before April 1, 2000, the
Lessee shall have the right to have the remaining work completed by a
contractor designated by Lessee, provided that Lessee is not the cause
of the delays. and proposed subcontractor's to complete the Basic Work.
Lessor shall complete the Additional Work with reasonable diligence. In
any event, if any portion of the Initial Work is not complete on or
before April 1, 1999, the Lessee shall have the right to have the
remaining work completed by a contractor designated by Lessee.
E. Reimbursement: The allowances, as described above, shall be applied
by Lessor to the expense of completing the Initial Work. Lessee shall
be responsible for all cost of the Initial Work in excess of the
allowances, as described above, and which is accordance with a price
proposal or change order approved in writing by Lessee. Lessee shall
reimburse Lessor for such excess cost upon substantial completion of
the Initial Work, with an appropriate reserve (not to exceed 10%) held
back for any "punch list" items incomplete at that time. Lessor shall
submit a written request for reimbursement with reasonably adequate
documentation of all expenses incurred in completing the Initial
Improvements.
F. Procedures: Lessor and Lessor's general contractor shall cooperate
with Lessee's architect as a supervisor of the Initial Improvements and
on scheduling matters and change orders. Lessee shall designate a
representative for the construction process. In connection with the
construction of the Initial Improvements, each party agrees that it
will respond within five business days to any written request for
approval and that a failure to respond within ten business days to any
written request for approval shall be deemed an approval of the request
in question.
X. Xxxxxx'x Work: Lessor shall warrant the at the time of occupancy,
the HVAC, electrical, lighting, mechanical and structural components of
the building are in good working order.
8. Taxes and Assessments.
A. Lessee shall pay before delinquency any and all taxes, assessments,
license fees, and public charges levied, assessed, or imposed upon or
against Lessee's fixtures, equipment, furnishings, furniture,
appliances, and personal property installed or located on or within the
Premises. Lessee shall cause said fixtures, equipment, furnishings,
furniture, appliances, and personal property to be assessed and billed
separately from the real property of Lessor. If any of Lessee's said
personal property shall be assessed with Lessor's real property, Lessee
shall pay to Lessor the taxes attributable to Lessee within
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ten (10) days after receipt of a written statement from Lessor setting
forth the taxes applicable to Lessee's property.
B. All property taxes or assessments levied or assessed by or hereafter
levied or assessed by any governmental authority against the Premises
or any portion of such taxes or assessments which becomes due or
accrued during the term of this Lease shall be paid by Lessor. Lessee
shall pay to Lessor Lessee's proportionate share of such taxes or
assessments within ten (10) days of receipt of Lessor's invoice
demanding such payment. Lessee's liability hereunder shall be prorated
to reflect the commencement and termination dates of this Lease.
9. Insurance.
A. Indemnity. During and with respect to the term of this Lease, Lessee
agrees to indemnify, defend and save Lessor against and hold Lessor
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, the condition, use, or
occupancy of the Premises. This Lease is made on the express condition
that Lessor 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 condition, use, or occupancy of the Premises, during and with
respect to the term of this Lease, specifically including, without
limitation, any liability for injury to the person or property of
Lessee, its agents, officers, employees, licensees, and invitees.
B. Liability Insurance. Lessee shall, at its expense, obtain and keep
in force during the term of this Lease a policy of Commercial General
Liability insurance insuring Lessor and Lessee, with cross-liability
endorsements, against any liability arising out of the condition, use,
or occupancy of the Premises and all areas appurtenant thereto,
including parking areas and property insurance to cover Lessee's
personal property, equipment, inventory, fixtures and tenant
improvements on the Premises. Such insurance shall be in an amount
satisfactory to Lessor of not less than one million dollars
($1,000,000) for each occurrence for bodily injury and physical damage
to the property and two million dollars ($2,000,000) general aggregate
limit. The insurance shall be with companies approved by Lessor, which
approval Lessor agrees not to withhold unreasonably. Prior to
possession, Lessee shall deliver to Lessor a certificate of insurance
and endorsement evidencing the existence of the policy which (1) names
Lessor as an additional insured, (2) shall not be canceled or altered
without thirty (30) days' prior written notice to Lessor, (3) insures
performance of the indemnity set forth in Section A of Paragraph 9, and
(4) coverage is primary and any coverage by Lessor is in excess
thereto.
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C. Property Insurance. Lessor shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or
damage to the Premises (which may include earthquake and/or flood
insurance), in the amount of the full replacement value thereof. Lessee
shall pay to Lessor its pro-rata share of the cost of said insurance
within ten (10) days of Lessee's receipt of Lessor's invoice demanding
such payment. Lessee acknowledges that such insurance procured by
Lessor shall contain a deductible which reduces Lessee's cost for such
insurance, and , in the event of loss or damage, Lessee shall be
required to pay to Lessor the amount of such deductible.
D. Notwithstanding anything in this Lease to the contrary, Lessor and
Lessee hereby releases each other and their respective agents,
employees, successors, assignees and sublessees from all liability for
injury to any person or damage to any property that is caused by or
results from a risk which is actually insured against, which is
required to be insured against under this Lease, or which would
normally be covered by "all risk" property insurance, without regard to
the negligence or willful misconduct of the person or entity so
released. All of Lessor's and Lessee's repair and indemnity obligations
under this Lease shall be subject to the waiver and release contained
in this paragraph. Each party shall cause each insurance policy it
obtains to provide that the insurer thereunder waives all recovery by
way of subrogation as required herein in connection with any injury or
damage covered by such policy.
10. Reimbursable Expenses and Utilities. Lessee shall pay its pro-rata
share based on square footage of all water, gas, light, heat, power,
electricity, telephone, trash removal, landscaping, sewer charges, and
all other services, including normal and customary property management
fees, supplied to or consumed on the Premises. In the event that any
such services are billed directly to Lessor, then Lessee shall pay
Lessor for such expenses within ten (10) days of Lessee's receipt of
Lessor's invoice demanding payment.
11. Repairs and Maintenance.
A. Subject to provisions of paragraph 15, Lessor shall keep and
maintain in good order, condition and repair the structural
elements of the Premises including the roof, roof membrane,
paving, floor slab, foundation, exterior walls, landscaping,
irrigation and elevators. Lessor shall make such repairs,
replacements, alterations or improvements as Lessor deems
reasonably necessary with respect to such structural elements
and Lessee shall pay to Lessor, within ten days of Lessor's
invoice to Lessee therefor, Lessee's pro-rata share of such
repairs, replacements, alterations or improvements. In the
event that the cost of any replacement or improvement exceeds
$25,000 per occurrence, the amount in excess of $25,000 shall
be amortized over the useful life of such replacements or
improvements. Lessee shall be obligated to pay its pro-rata
share of such excess on a monthly
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basis, as Additional Rent, or as long as the useful life
coincides with the lease term. Notwithstanding the foregoing,
if the reason for any repair, replacement, alteration or
improvement is caused by Lessee or arises because of a breach
of Lessee's obligations under this Lease, then Lessee shall
pay 100% of the cost or expense to remedy the same.
B. Except as expressly provided in Subparagraph A above, Lessee
shall, at its sole cost, keep and maintain the entire Premises
and every part thereof, including, without limitation, the
windows, window frames, plate glass, glazing, truck doors,
doors, all door hardware, interior of the Premises, interior
walls and partitions, and electrical, plumbing, lighting,
heating, and air conditioning systems in good and sanitary
order, condition, and repair. Lessee shall, at all times
during the Lease term and at his expense, have in effect a
service contract for the maintenance of the heating,
ventilating, and air-conditioning (HVAC) equipment with an
HVAC repair and maintenance contractor approved by Lessor
which provides for periodic inspection and servicing at least
once every three (3) months during the term hereof. Lessee
shall further provide Lessor with a copy of such contract and
all periodic service reports.
Should Lessee fail to maintain the Premises or make
repairs required of Lessee hereunder forthwith upon notice
from Lessor, Lessor, in addition to all other remedies
available hereunder or by law, and without waiving any
alternative remedies, may make the same, and in that event,
Lessee shall reimburse Lessor as additional rent for the cost
of such maintenance or repairs on the next date upon which
rent becomes due.
Lessee hereby expressly waives the provision 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 Lessor, as provided in Section 942 of said
Civil Code.
12. Alterations and Additions. Lessee 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 prior written consent of Lessor
and without a valid building permit issued by the appropriate
governmental authority. Lessor retains, at his sole option, the right
to retain a General Contractor of his own choosing to perform all
repairs, alterations, improvements, or additions in, on, about, or to
said Premises or any part thereof. As a condition to giving such
consent, Lessor may require that Lessee 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 improvement to the Premises, shall become the
property of Lessor upon installation, and shall remain upon and be
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surrendered with the Premises at the termination of this Lease. Lessor
can elect, however, within thirty (30) days before expiration of the
term or within five (5) days after termination of the term, to require
Lessee to remove any alterations, additions, or improvements that
Lessee has made to the Premises. If Lessor so elects, Lessee shall
restore the Premises to the condition designated by Lessor in its
election, before the last day of the term, or within thirty (30) days
after notice of election is given, whichever is later. Alterations and
additions which are not to be deemed as trade fixtures include heating,
lighting, electrical systems, air conditioning, partitioning,
electrical signs, carpeting, or any other installation which has become
an integral part of the Premises. In the event that Lessor consents to
Lessee's making any alterations, improvements, or additions, Lessee
shall be responsible for the timely posting of notices of non-
responsibility on Lessor's behalf, which shall remain posted until
completion of the alterations, additions, or improvements. Lessee's
failure to post notices of non- responsibility as required hereunder
shall be a breach of this Lease.
Notwithstanding anything to the contrary herein, if, during
the term hereof, any alteration, addition, or change of any sort
through all or any portion of the Premises or of the building of which
the Premises form a part, is required by law, regulation, ordinance, or
order of any public agency then if such legal requirement is not
imposed because of Lessee's specific use of the Premises and is not
"triggered" by Lessee's alterations or Lessee's application for a
building permit or any other governmental approval (in which instance
Lessee shall be responsible for 100% of the cost of such improvement),
Lessor shall be responsible for constructing such improvement and
Lessee shall be responsible for its proportional share of the cost for
said improvement, amortized over the useful life of such improvement
that coincides with the remaining Lease term including any extensions.
13. Acceptance of the Premises and Covenant to Surrender. By entry and
taking possession of the Premises pursuant to this Lease, Lessee
accepts the Premises as being in good and sanitary order, condition,
and repair, and accepts the Premises in their condition existing as of
date of such entry, and Lessee further accepts any tenant improvements
to be constructed by Lessor, if any, as being completed in accordance
with the plans and specifications for such improvements.
Lessee agrees on the last day of the term hereof, or on 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 Lessor or Lessee, unto Lessor in good and
sanitary order, condition, and repair, excepting for such wear and tear
as would be normal for the period of the Lessee's occupancy. Lessee, on
or before the end of the term or 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
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deemed abandoned by Lessee. Lessee further agrees that at the end of
the term or sooner termination of this Lease, Lessee, at its sole
expense, shall have the carpets steam cleaned, the walls and columns
painted, the flooring waxed, any damaged ceiling tile replaced, the
windows cleaned, the drapes cleaned, and any damaged doors replaced.
If the Premises are not surrendered at the end of the term or
sooner termination of this Lease, Lessee shall indemnify Lessor against
loss or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay.
14. Default. In the event of any breach of this Lease by the Lessee, or an
abandonment of the Premises by the Lessee, the Lessor has the option of
(1.) removing all persons and property from the Premises and
repossessing the Premises, in which case any of the Lessee's property
which the Lessor removes from the Premises may be stored in a public
warehouse or elsewhere at the cost of, and for the account of, Lessee;
or (2.) allowing the Lessee to remain in full possession and control of
the Premises. If the Lessor chooses to repossess the Premises, the
Lease will automatically terminate in accordance with the provisions of
the California Civil Code, Section 1951.2. In the event of such
termination of the Lease, the Lessor may recover from the Lessee: (1.)
the worth at the time of award of the unpaid rent which had been earned
at the time of termination, including interest at the maximum rate an
individual is permitted by law to charge; (2.) the worth at the time of
award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of
such rental loss that the Lessee proves could have been reasonably
avoided, including interest at the maximum rate an individual is
permitted by law to charge; (3.) 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 the Lessee
proves could be reasonably avoided; and (4.) any other amount necessary
to compensate the Lessor for all the detriment proximately caused by
the Lessee's failure to perform his obligations under the Lease or
which, in the ordinary course of things, would be likely to result
therefrom. "The worth at the time of award," as used in (1.) and (2.)
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 award," as used in (3.) 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 award, plus one percent
(1%).
If the Lessor chooses not to repossess the Premises, but
allows the Lessee to remain in full possession and control of the
Premises, then, in accordance with provisions of the California Civil
Code, Section 1951.4, the Lessor may treat the Lease as being in full
force and effect, and may collect from the Lessee all rents as they
become due through the termination date of the Lease, as specified in
the Lease. For the purpose of
12
this paragraph, the following do not constitute a termination of
Lessee's right to possession: (1.) acts of maintenance or preservation,
or efforts to relet the property; (2.) the appointment of a receiver on
the initiative of the Lessor to protect his interest under this Lease.
Lessee shall be liable immediately to Lessor for all costs
Lessor 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. Lessee shall pay to
Lessor the rent due under this Lease on the dates the rent is due, less
the rent Lessor receives from any reletting. No act by Lessor allowed
by this Section shall terminate this Lease unless Lessor notifies
Lessee that Lessor elects to terminate this Lease. After Lessee's
default and for as long as Lessor does not terminate Lessee's right to
possession of the Premises, if Lessee obtains Lessor's consent, Lessee
shall have the right to assign or sublet its interest in this Lease,
but Lessee shall not be released from liability. Lessor's consent to a
proposed assignment or subletting shall not be unreasonably withheld.
If Lessor elects to relet the Premises as provided in this
Paragraph, rent that Lessor receives from reletting shall be applied to
the payment of: (1.) any indebtedness from Lessee to Lessor other than
rent due from Lessee; (2.) all costs, including for maintenance,
incurred by Lessor in reletting; (3.) rent due and unpaid under this
Lease. After deducting the payments referred to in this Paragraph, any
sum remaining from the rent Lessor receives from reletting shall be
held by Lessor and applied in payment of future rent as rent becomes
due under this Lease. In no event shall Lessee by entitled to any
excess rent received by Lessor. If, on the date rent is due under this
Lease, the rent received from reletting is less than the rent due on
that date, Lessee shall pay to Lessor, in addition to the remaining
rent due, all costs, including for maintenance, Lessor incurred in
reletting that remain after applying the rent received from the
reletting, as provided in this Paragraph.
Lessor, at any time after Lessee commits a default, can cure
the default at Lessee's cost. If Lessor at any time, by reason of
Lessee's default, pays any sum or does any act that requires the
payment of any sum, the sum paid by Lessor shall be due immediately
from Lessee to Lessor at the time the sum is paid, and if paid at a
later date shall bear interest at the maximum rate an individual is
permitted by law to charge from the date the sum is paid by Lessor
until Lessor is reimbursed by Lessee. The sum, together with interest
on it, shall be additional rent.
Rent not paid when due shall bear interest at the maximum rate
an individual is permitted by law to charge from the date due until
paid.
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15. Destruction. In the event the Premises are destroyed in whole or in
part from any cause, Lessor shall either, (1.) rebuild or restore the
Premises to their condition prior to the damage or destruction or (2.)
subject to the limitations below, terminate the Lease.
In the event the Premises are substantially destroyed from any
cause, Lessor may, at its option and subject to the limitations below,
terminate the Lease. (As used in the previous sentence substantial
destruction shall be defined as destruction requiring repairs which
cost more than 25% of the replacement cost of the entire building which
includes the Premises.) If Lessor does not give Lessee notice in
writing within thirty (30) days from the destruction of the Premises of
its election either to rebuild and restore the Premises, or to
terminate this Lease, Lessor shall be deemed to have elected to rebuild
or restore them, in which event Lessor agrees, at its expense, promptly
to rebuild or restore the Premises to its condition prior to the damage
or destruction. If Lessor 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 Lessee of 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 control of Lessor), then Lessee shall have the right to
terminate this Lease by giving fifteen (15) days prior written notice
to Lessor. Lessor's obligation to rebuild or restore shall not include
restoration of Lessee's trade fixtures, equipment, merchandise, or any
improvements, alterations, or additions made by Lessee to the Premises.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect. Lessee
hereby expressly waives the provisions of Section 1932, Subdivision 2,
and Section 1933, Subdivision 4, of the California Civil Code.
16. Condemnation. If any part of the Premises shall be taken for any public
or quasi-public use, under any statute of by right of eminent domain,
or private purchase in lieu thereof, and a part thereof remains, which
is susceptible of occupation hereunder, this Lease shall, as to the
part so taken, terminate as of the date title shall vest in the
condemnor or purchaser, and the rent payable hereunder shall be
adjusted so that the Lessee shall be required to pay for the remainder
of the term only such portion of such rent as the value of the part
remaining after taking such bears to the value of the entire Premises
prior to such taking. Lessor shall have the option to terminate this
Lease in the event that such taking causes a reduction in rent payable
hereunder by fifty percent (50%) or more. If all of the Premises or
such part thereof be taken so that there does not remain a portion
susceptible for occupation hereunder, as reasonably necessary for
Lessee's conduct of its business as contemplated in this Lease, this
Lease shall thereupon terminate. If a part of
14
all of the Premises be taken, all compensation awarded upon such taking
shall go to the Lessor, and the Lessee shall have no claim thereto, and
the Lessee hereby irrevocably assigns and transfers to the Lessor any
right to compensation or damages to which the Lessee may become
entitled during the term hereof by reason of the purchase or
condemnation of all or a part of the Premises, except that Lessee shall
have the right to recover its share of any award or consideration for
(1.) moving expenses; (2.) loss or damage to Lessee's trade fixtures,
furnishings, equipment, and other personal property; and (3.) business
goodwill. Each party waives the provisions of the 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. Lessee shall (1.) pay for all labor and services
performed for materials used by or furnished to Lessee, or any
contractor employed by Lessee with respect to the Premises, and (2.)
indemnify, defend, and hold Lessor 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 for materials
used by or furnished to Lessee or any contractor employed by Lessee
with respect to the Premises, and (3.) give notice to Lessor in writing
five (5) days prior to employing any laborer or contractor to perform
services related, or receiving materials for use upon the Premises, and
(4.) shall post, on behalf of Lessor, a notice of non-responsibility in
accordance with the statutory requirements of the California Civil
Code, Section 3904, or any amendment thereof. In the event an
improvement bond with a public agency in connection with the above is
required to be posted, Lessee agrees to include Lessor as an additional
obligee.
18. Compliance with Laws. Lessee 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. Lessee agrees that this Lease shall, at the option of
Lessor, be subjected and subordinated to any mortgage, deed of trust,
or other instrument of security, which has been or shall be placed on
the land and building, or land or building of which the Premises form a
part, and this subordination is hereby made effective without any
further act of Lessee or Lessor. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases, or other
documents that may be required by any 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 Lessee fails to execute and
deliver any such documents or instruments, Lessee irrevocably
constitutes and appoints Lessor as Lessee's special attorney-in-fact to
execute and deliver any such documents or instruments.
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Lessor shall use its best efforts to obtain a non-disturbance
agreement in the Lender's standard format.
20. Abandonment. Lessee shall not vacate or abandon the Premises at any
time during the term; and if Lessee shall abandon, vacate, or surrender
said Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Lessee and left on the Premises shall be
deemed to be abandoned, at the option of Lessor, except such property
as may be mortgaged to Lessor; provided, however, that Lessee shall not
be deemed to have abandoned or vacated the Premises so long as Lessee
continues to pay all rents as and when due, and otherwise performs
pursuant to the terms and conditions of this Lease.
21. Assignment and Subletting.
A. Definitions. For purposes of this Paragraph 21, the following terms
shall be defined as follows:
Sublet. The term "Sublet" shall mean any transfer, sublet,
assignment, license or concession agreement, change of
ownership, mortgage, or hypothecation of this Lease or the
Lessee's interest in the Lease or in and to all or a
portion of the Premises, including, but not limited to,
bonus money payments (in excess of book value) for
Lessee's assets including its trade fixtures, equipment
and other personal property, goodwill, general
intangibles, and any capital stock or other equity
ownership of Lessee.
Subrent. The term "Subrent" shall mean any consideration of any
kind received, or to be received, by Lessee from a
Sublessee if such sums are related to Lessee's interest in
this Lease or in the Premises.
Sublessee. The term "Sublessee" shall mean the person or entity with
whom a Sublet agreement is proposed to be or is made.
Lessor's Consent. Lessee shall not enter into a Sublet without
Lessor's prior written consent, which consent shall not be unreasonably
withheld. Any attempted or purported Sublet without Lessor's prior
written consent shall be void and confer no rights upon any third
person and, at Lessor's election, shall terminate this Lease. In
determining whether or not to consent to a proposed Sublet, Lessor may
consider the following factors, among others, all of which shall be
deemed reasonable; (i) whether the proposed Sublessee has a net worth
equal to or greater than the net worth of Lessee; (ii) whether the
proposed use of the Premises by the proposed Sublessee is consistent
with the permitted use for the Premises set forth in Paragraph 6 of
this Lease; (iii) whether the experience and business reputation of the
proposed Sublessee is equal to or greater than that of Lessee; (iv)
whether the rent payable by the Sublessee under the proposed Sublet
16
reflects the current fair market rent for the subleased Premises as
reasonably determined by Lessor; and (v) whether Lessor's consent will
result in a breach of any other lease or agreement to which Lessor is a
party affecting the Building. Each Sublessee shall agree in writing,
for the benefit of Lessor, to assume, to be bound by, and to perform
the terms and conditions and covenants of this Lease to be performed by
Lessee. Notwithstanding anything contained herein, Lessee shall not be
released from liability for the performance of each term, condition and
covenant of this Lease by reason of Lessor's consent to a Sublet unless
Lessor specifically grants such release in writing. Consent by Lessor
to any Sublet unless Lessor specifically grants such release in
writing. Consent by Lessor to any Sublet shall not be deemed a consent
to any subsequent Sublet. Lessee shall reimburse Lessor for all
reasonable costs and attorneys' fees incurred by Lessor in connection
with the evaluation, processing and/or documentation of any requested
Sublet, whether or not Lessor's consent is granted. Lessor's reasonable
costs shall include the cost of any review or investigation by Lessor
of any hazardous or toxic materials which may be used, stored, or
disposed of at the Premises by the Sublessee, including fees paid to
consultants hired to perform such review or investigation.
Information to be Furnished. If Lessee desires at any time to
Sublet the Premises or any portion thereof, it shall first notify
Lessor of its desire to do so and shall submit in writing to Lessor:
(i) the name and legal composition of the proposed Sublessee, (ii) the
nature of the proposed Sublessee's business to be carried on in the
Premises; (iii) the terms and provisions of the proposed Sublet and a
copy of the proposed Sublet form containing a description of the
subject premises; (iv) a statement of all consideration to be paid by
the Sublessee in connection with the Sublet; (v) a current financial
statement of Lessee; and (vi) such financial information, including
financial statements, as Lessor may reasonably request concerning the
proposed Sublessee.
Lessor's Alternatives. At any time within thirty (30) days
after the Lessor's receipt of the information specified in Paragraph
21.C., Lessor may, by written notice to Lessee, elect: (i) to consent
to the Sublet by Lessee; (ii) to refuse its consent to the Sublet, or
(iii) elect to terminate this Lease, or in the case of a partial
Sublet, terminate this Lease as to the portion of the Premises proposed
to be Sublet. If Lessor consents to the Sublet, Lessee may thereafter
enter into a valid Sublet of the Premises or portion thereof, upon the
terms and conditions and with the proposed Sublessee set forth in the
information furnished by Lessee to Lessor pursuant to Paragraph 21.B.,
subject, however, at Lessor's election, to the condition of any excess
of the Subrent over the Rent required to be paid by Lessee under this
Lease shall be split equally between Lessor and Lessee.
Proration. If a portion of the Premises is Sublet, the pro
rata share of the Rent attributable to such partial area of the
Premises shall be determined by Lessor by dividing the Rent payable by
Lessee hereunder by the total square footage of the Premises and
17
multiplying the resulting quotient (the per square foot rent) by the
number of square feet of the Premises which are Sublet.
Exempt Sublets. Notwithstanding the above, Lessor's prior
written consent shall not be required for an assignment of this Lease
to an entity which controls, is controlled by or under common control
with, Lessee, or an entity into which Lessee merges or consolidates, or
a entity which purchases all or substantially all of Lessee's assets as
a combined and going business, provided that (i) Lessee gives Lessor
prior written notice of the name any such assignee, (ii) at the time of
such assignment, the assignee has net worth that is equal to or greater
than the net worth of Lessee immediately prior to such assignment; and
(iii) the assignee assumes, in writing, for the benefit of Lessor, all
of Lessee's obligations under the Lease. An assignment or other
transfer of this Lease to a purchaser of all or substantially all of
the assets of Lessee shall be deemed a Sublet requiring Lessor's prior
written consent.
22. Parking Charges. Lessee agrees to pay upon demand, based on its percent
of occupancy of the entire Premises, its pro-rata share of 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, parking surcharge imposed by or under the authority of the
Federal Environmental Protection Agency. Lessor represents that at the
time of Lease execution, there are no parking charges imposed on the
Premises.
23. Insolvency or Bankruptcy. Either (1.) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or
(2.) a general assignment by Lessee for the benefit of creditors, or
(3.) any action taken or suffered by Lessee under any insolvency or
bankruptcy act shall constitute a breach of this Lease by Lessee. Upon
the happening of any such event, this Lease shall terminate ten (10)
days after written notice of termination from Lessor to Lessee. This
section is to be applied consistent with the applicable state and
federal law in effect at the time such event occurs.
24. Lessor Loan or Sale. Lessee agrees promptly following request by Lessor
to (1.) execute and deliver to Lessor any documents, including estoppel
certificates presented to Lessee by Lessor, (a.) 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, and (b.)
acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, and (c.) evidencing the
status of the Lease as may be required either by a lender making a loan
to Lessor, to be secured by deed of trust or mortgage covering the
Premises, or a purchaser of the Premises from Lessor, and (2.) to
deliver to Lessor the current financial statements of Lessee with an
18
opinion of a certified public accountant, including a balance sheet and
profit and loss statement, for the current fiscal year and the two
immediately prior fiscal years, all prepared in accordance with
Generally Accepted Accounting Principles consistently applied. Lessee's
failure to deliver an estoppel certificate within five (5) business
days following such request shall constitute a default under this Lease
and shall be conclusive upon Lessee that this Lease is in full force
and effect and has not been modified except as may be represented by
Lessor. If Lessee fails to deliver the estoppel certificates within the
five (5) business days, Lessee irrevocably constitutes and appoints
Lessor as its special attorney-in-fact to execute and deliver the
certificate to any third party.
25. Surrender of Lease. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger nor
relieve Lessee of any of Lessee's obligations under this Lease, and
shall, at the option of Lessor, terminate all or any existing Subleases
or Subtenancies, or may, at the option of Lessor, operate as an
assignment to him of any or all such Subleases or Subtenancies.
26. Attorneys' Fees. If, for any reason, any suit be initiated to enforce
any provision of this Lease, the prevailing party shall be entitled to
legal costs, expert witness expenses, and reasonable attorneys' fees,
as fixed by the court.
27. Notices. All notices to be given to Lessee may be given in writing,
personally, or by depositing the same in the United States mail,
postage prepaid, and addressed to Lessee at the said Premises, whether
or not Lessee has departed from, abandoned, or vacated the Premises.
Any notice or document required or permitted by this Lease to be given
Lessor shall be addressed to Lessor at the address set forth below, or
at such other address as it may have theretofore specified by notice
delivered in accordance herewith:
LESSOR: Xxxxxxxx Properties
000 Xxxxx Xxxx, Xxxxx 00
Xxxx Xxxx, Xxxxxxxxxx 00000
Phone (000) 000-0000
Fax (000) 000-0000
LESSEE: Xxxx Xxxxxxx
Vice President, Administration
Segue Software, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XXXX 00000
Phone (000) 000-0000
Fax (000) 000-0000
19
28. Transfer of Security. If any security be given by Lessee to secure the
faithful performance of all or any of the covenants of this Lease on
the part of Lessee, Lessor may transfer and/or deliver the security, as
such, to the purchaser of the reversion, in the event that the
reversion be sold, and thereupon Lessor shall be discharged from any
further liability in reference thereto, upon the assumption by such
transferee of lessor's obligations under this Lease.
29. Waiver. The waiver by Lessor or Lessee of any breach of any term,
covenant, or condition, herein contained shall not be deemed to be a
waiver of such term, covenant, or condition, or any subsequent breach
of the same or any other term, covenant, or condition herein contained.
The subsequent acceptance of rent hereunder by lessor shall not be
deemed to be a waiver of any preceding breach by Lessee of any term,
covenant, or condition of this Lease, other than the failure of Lessee
to pay the particular rental so accepted, regardless of Lessor's
knowledge of such preceding breach at the time of acceptance of such
rent.
30. Holding Over. Any holding over after the expiration of the term or any
extension thereof, with the consent of lessor, shall be construed to be
a tenancy from month-to-month, at a rental of one and one-half (1 1/2)
times the previous month's rental rate per month, and shall otherwise
be on the terms and conditions herein specified, so far as applicable.
31. Covenants, Conditions, and Restrictions. Not applicable.
32. Limitation on Lessor's Liability. If Lessor is in default of this
Lease, and, as a consequence, Lessee recovers a money judgment against
Lessor, the 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 Lessor in the Premises, or in the building,
other improvements, and land of which the Premises are part, and out of
rent or other income from such real property receivable by Lessor or
out of the consideration received by Lessor from the sale or other
disposition of all or any part of Lessor's right, title, and interest
in the Premises or in the building, other improvements, and land of
which the Premises are part. Neither Lessor nor any of the partners
comprising the partnership designated as Lessor shall be personally
liable for any deficiency.
33. Signage. Lessee shall have the right to install exterior building
signage at its sole cost. Said signage shall be approved by Lessor and
shall comply with all governmental regulations and building standards.
Lessee shall be responsible for removing all signage at the end of the
Lease term and shall restore the affected areas to its original
condition. -
34. Miscellaneous.
20
A. Time is of the essence of this Lease, and of each and all of
its provisions.
B. The term "building" shall mean the building in which the
Premises are situated.
C. If the building is leased to more than one tenant, then each
such 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 areas
located on the parcel of land on which the building is
situated, except such parking areas as may from time to time
be leased for exclusive use by other tenant(s).
D. Lessee's such reasonable use of parking areas shall not exceed
that percent of the total parking areas which is equal to the
ratio which floor space of the Premises bears to floor space
of the building.
E. The term "assign" shall include the term "transfer."
F. The invalidity or unenforceability of any provision of this
Lease shall not affect the validity or enforceability of the
remainder of this Lease.
G. All parties hereto have equally participated in the
preparation of this Lease.
H. 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.
I. Lessor has made no representation(s) whatsoever to Lessee
(express or implied) except as may be expressly stated in
writing in this Lease instrument.
J. This instrument contains all of the agreements and conditions
made between the parties hereto, 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.
K. It is understood and agreed that the remedies herein given to
Lessor shall be cumulative, and the exercise of any one remedy
by Lessor shall not be to the exclusion of any other remedy.
L. The covenants and conditions herein contained shall, subject
to the provisions as to assignment, apply to and bind the
heirs, successors, executors, and administrators, and assigns
of all the parties hereto; and all of the parties hereto shall
jointly and severally be liable hereunder.
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M. This Lease has been negotiated by the parties hereto and the
language hereof shall not be construed for or against either
party.
N. All exhibits to which reference is made are deemed
incorporated into this Lease, whether covenants or conditions,
on the part of Lessee shall be deemed to be both covenants and
conditions.
O. Lessee does hereby warrant and represent to Lessor that Lessee
has full right, power and authority to execute this instrument
and to effect a valid and binding lease as set forth herein;
and the signatory below on behalf of Lessee does hereby
warrant and represent to Lessor that said signatory has been
duly and validly authorized to execute this instrument on
behalf of Lessee.
X. Xxxxxx does hereby warrant and represent to Lessee that it is
the lawful and sole owner of the Premises and that the Lessor
has full right, power and authority to execute this instrument
and to effect a valid and binding lease as set forth herein;
and the signatory below on behalf of Lessor does hereby
warrant and represent to Lessee that said signatory has been
duly and validly authorized to execute this instrument on
behalf of Lessor.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the date first
above-written.
LESSOR: LESSEE:
XXXXXXXX PROPERTIES SEGUE SOFTWARE, INC.
BY: \s\ Xxxxxx X. Xxxxx BY: \s\ Xxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Xxxxxx X. Xxxxx, III Vice President, Human Resources &
Administration
DATE: 11/22/99 DATE: 11/8/99
--------------------------------- -----------------
22
EXHIBIT A
A site plan of the property to be attached.
23
