EXHIBIT 10.07
CONSENT TO SUBLEASE
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Master Lessor hereby acknowledges receipt of a copy of the Sublease between
Rogue Wave Software, Inc., Sublessor and Onsale, Inc., Sublessee, signed by
Xxxxxx Xxxxxxx, CFO for Rogue Wave Software, Inc. on October 19, 1996. Master
Lessor hereby consents to this Sublease, based solely upon a general
consideration of whether the proposed Sublessee intends to occupy the premises
in a lawful and orderly fashion, consistent with uses appropriate to the overall
project. By this consent, Master Lessor shall not be deemed in any way to have
entered into the Sublease, to have agreed to be bound by any provision of the
Sublease, or to have consented to any further assignment or sublease. Master
Xxxxxx's consent hereunder shall not constitute either (i) a waiver of Master
Xxxxxx's rights under the Master Lease, or (ii) a voluntary surrender of either
the Master Lease or any Sublease. This approval expires October 31, 1997.
LANDMARK INVESTMENTS, LIMITED,
A CALIFORNIA LIMITED PARTNERSHIP
BY: THRUST IV, INC., A CALIFORNIA
CORPORATION, ITS GENERAL PARTNER
By: /s/ Xxxx X. Xxxxx
______________________________
Xxxx X. Xxxxx, President
SUBLEASE AGREEMENT
1. PARTIES: This Sublease Agreement is entered into by and between Rogue Wave
Software, Inc., 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000,
("Sublessor"), and OnSale, Inc. -1953 Landings Drive, Mountain View,
California 94043 ("Sublessee"), as a sublease under the lease dated April 22,
1996, entered into by Landmark Investments, Limited, as Lessor and Rogue Wave
Software, Inc., as Lessee, a copy of the lease is attached and designated
Exhibit A.
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2. PROVISIONS CONCERNING SUBLEASE.
(a) This sublease is subject to all of the terms and conditions of the
master lease at Exhibit A and Sublessee shall assume and perform the obligations
of Sublessor and lessee in said lease, to the extent said terms and conditions
are applicable to the premises subleased pursuant to this sublease. Sublessee
shall not commit or permit to be committed on the subleased premises any act or
omission which shall violate any term or condition of the lease. In the event of
the termination of Sublessor's interest as lessee under the lease for any
reason, then this sublease shall terminate coincidentally therewith without any
liability of Sublessor to Sublessee.
(b) All of the terms and conditions contained in the master lease at
Exhibit A, are incorporated herein except for paragraphs
l,2,3,4.l,4.2,5,28,29.B,30, 31, 32, as terms and conditions of this sublease
(with each reference therein to lessor and lessee to be deemed to refer to
Sublessor and Sublessee) and along with all of the following paragraphs set
out in this sublease, shall be the complete terms and conditions of this
sublease. With respect to Section 25.3, Notices, of the lease, for notices
between Sublessor and Sublessee, as of the date of execution of this sublease,
the addresses of Sublessor and Sublessee are as specified above.
(c) This sublease is subject to the written consent of lessor.
3. PREMISES. Sublessor leases to Sublessee and Sublessee hires from said
Sublessor the following described premises together with the appurtenances,
located at 0000 Xxxxxxxx Xxxxx in the City of Mountain View, County of Santa
Xxxxx, State of California: Approximately 6,408 rentable square feet as
indicated on Exhibit B attached hereto.
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Sublessor warrants that to the best of Sublessor's knowledge, Sublessor is
unaware of any toxic materials which are located in, or about the premises,
parking areas, storage area or other parts of the project. Furthermore,
Sublessor warrants that to the best of Sublessor's knowledge, the interior and
exterior of the premises do not violate any ordinance, rule, code or regulation
of any governmental agency and Sublessor has not received any notice of possible
violation. In all other aspects, the premises are delivered "as is."
4. RENT AND OTHER CHARGES.
(a) Sublessee shall pay to Sublessor without deduction, setoff, prior
notice or demand, as rental, the sum of fourteen thousand seven hundred thirty-
eight dollars and 40/100 ($14,738.40) per month in advance on the 1st day of
each month in lawful money of the United States of America throughout the
balance of the term. Monthly rental for any partial month shall be prorated at
the rate of 1/30th of monthly rental per day. Rent shall be paid to Sublessor at
0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, or at such other place or
places as Sublessor may from time to time direct.
(b) Receipt of $14,738.40 is hereby acknowledged for rental for the first
month, and the additional amount of $7,369.20 as a security deposit. In the
event Sublessee has performed all of the terms and conditions of this sublease
throughout the term, upon Sublessee vacating the premises, and returning the
premises to their condition upon delivery to Sublessee, normal wear and tear
expected, the amount paid as security deposit shall be returned to Sublessee
after first deducting any sums owed to Sublessor.
5. Term.
(a) The term of this sublease shall commence on the first day of November,
1996 and shall continue for a period of twelve (12) months.
(b) In the event Sublessor is unable to deliver possession of the premises
at the commencement of the term, Sublessor shall not be liable for any damage
caused thereby, nor shall this sublease be void or voidable but Sublessee shall
not be liable for rent until such time as Sublessor offers to deliver possession
of the premises to Sublessee. If Sublessee, with Xxxxxxxxx's consent, takes
possession prior to the commencement of the term, Sublessee shall do so subject
to all of the covenants and conditions hereof and shall pay rent for the first
month of the term, prorated at a rate of 1/30th thereof per day.
7. BROKERAGE. Sublessee warrants that it has only dealt with Xxxxxxx & Xxxxx
Commercial as its own broker and Catalyst Real Estate Group as Sublessor's
broker, concerning the premises. The only commissions to be paid under this
sublease are those paid by Rogue Wave Software, Inc. to Catalyst Real Estate
Group, which will share the commission payment by separate agreement.
ROGUE WAVE SOFTWARE, INC. ONSALE, INC.
("Sublessor") ("Sublessee")
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx Xxxxxx
_________________________________ _________________________________
Xxxxxx Xxxxxxx
Chief Financial Officer Print Name: Xxxxxx Xxxxxxx Xxxxxx
___________________________
Date: 10/19/96 Title: CSO
________________________________ ________________________________
Date: 10/15/96
_________________________________
CONSENT OF LESSOR
Landmark Investments, Limited hereby consents to the sublease dated August
______, 1996, between Rogue Wave Software, Inc. and OnSale, Inc. being entered
into.
For Landmark Investments, Limited:
___________________________________________
Name:______________________________________
Title:_____________________________________
Date:______________________________________
LEASE AGREEMENT
between
THE LANDMARK
and
ROGUE WAVE SOFTWARE, INC.
for
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Dated: April 22, 1996
LANDMARK BUILDING LEASE
1. PARTIES. This Lease dated, for reference purposes only, April 22, 1996,
by and between LANDMARK INVESTMENTS, LIMITED ("Landlord") and ROGUE WAVE
SOFTWARE, INC. ("Tenant"), who agree as follows:
2. PREMISES. Landlord leases to Tenant, and Tenant leases from Landlord the
office space located in Mountain View, California, 94043, described as 0000
Xxxxxxxx Xxxxx, xxxxxxxx in Exhibit "A" ("Premises"). Premises have an agreed
area of Twelve Thousand Eight Hundred Sixteen (12,816) rentable square feet.
3. TERM. The term of this Lease shall be for Three (3) years commencing on
October 1, 1996 and ending on September 30, 1999.
4. RENT AND TENANT IMPROVEMENT COST REIMBURSEMENT.
4.1. Tenant shall pay to Landlord as rent for the Premises, without demand,
deduction, or off-set, the sum of Twenty Four Thousand Three Hundred Fifty
Dollars and 40/100 ($24,350.40) on or before the first day of each and every
month of the term of this Lease, the first monthly payment to be made
concurrently with the execution hereof. If the commencement date is not the
first day of a month or if the Lease termination date is not the last day of a
month, the rent payable hereunder shall be prorated, based upon a thirty day
month, at the current rate for the fractional month during which this Lease
commences and/or terminates. Any rent payable for a partial month directly
following the commencement date shall be payable on the first day of the first
full calendar month of the term. Rent shall be paid to Landmark Investments,
Limited, at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000.
4.2. The base rent provided for in 4.1. above shall increase three percent
(3%) per year on the anniversary date of the commencement of the term of the
Lease stated in 3. above.
4.3. Late Charges. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Landlord by
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or of a sum due from
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Tenant shall not be received by Landlord or Landlord's designees by 12:00 noon
on the fifth (5th) day of each month of the term hereof, then Tenant shall pay
to Landlord a late charge equal to five percent (5%) of such overdue amount.
The parties hereby agree that such late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by reason of the late
payment by Xxxxxx. Acceptance of such late charges by the Landlord shall in no
event constitute a waiver of Tenant's default with respect to such overdue
amount, nor prevent Landlord from exercising any of the other rights and
remedies granted hereunder.
5. SECURITY DEPOSIT. On execution of this Lease, Tenant shall increase its
security deposit with Landlord by $19,850.40 to a total of $24,350.40 for the
performance by Tenant of the provisions of this Lease. If Tenant is in default,
Landlord can use the security deposit, or any portion of it, to cure the default
or to compensate Landlord for all damage sustained by Landlord resulting from
Xxxxxx's default. Tenant shall immediately on demand pay to Landlord a sum
equal to the portion of the security deposit expended or applied by Landlord as
provided in this paragraph so as to maintain the security deposit in the sum
initially deposited with Landlord. If Tenant is not in default at the
expiration or termination of this Lease, Landlord shall, no later than fourteen
(14) days after lease expiration or termination, return to Tenant (or at
Landlord's option, to the last assignee of Xxxxxx's interest hereunder), the
balance of the security deposit. Landlord shall not be required to keep this
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit.
6. POSSESSION.
6.1. If Landlord, for any reason cannot deliver possession of the Premises to
Tenant at the commencement of the term hereof, this Lease shall not be void or
voidable nor shall Landlord be liable to Tenant for any loss or damage resulting
therefrom, nor shall the expiration date of the above term be extended, but, in
that event, all rent shall be abated during the period between the commencement
of said term and the time when Landlord delivers possession.
6.2. In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be subject to
all of the provisions of this Lease and said early possession shall not advance
the termination date hereinabove provided. Rent shall be prorated and prepaid
for early occupancy at the current rate.
7. USE.
7.1 Use. The Premises shall be used and occupied by Tenant
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for general office purposes and for no other purpose without the prior written
consent of the Landlord.
7.2 Uses Prohibited.
a. Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will increase the existing rate or
affect any fire or other insurance upon the building or any of its contents, or
cause a cancellation of any insurance policy covering said building or any part
thereof or any of its contents, nor shall Tenant sell or permit to be kept used
or sold in or about said Premises any articles or substances, inflammable or
otherwise, which may be prohibited by a standard form policy of fire insurance.
b. Tenant shall not do or permit anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other tenants of
the building or injure or annoy them or use or allow the Premises to be used for
any unlawful or objectionable purpose.
c. Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law now in force or which
may hereafter be enacted. Tenant shall at its cost promptly comply with all
laws now in force or which may hereafter be in force and with the requirements
of any board of fire underwriters or other similar body relating to Tenant's
improvements or acts.
8. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow any alterations,
additions or improvements of or to the Premises without Landlord's prior written
consent. Any such alterations, additions or improvements, including, but not
limited to, wallcovering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall become a part of the realty, shall
belong to the Landlord and shall be surrendered with the Premises at expiration
or termination of the Lease. If Landlord consents to any such alterations,
additions or improvements by Tenant, they shall be made by Tenant at Tenant's
cost, and any contractor or person selected by Tenant to perform the work shall
first be approved of, in writing, by Landlord. Upon expiration, or sooner
termination of the term hereof, Tenant shall, upon written demand by Landlord
promptly remove any alterations, additions or improvements made by Tenant and
designated by Landlord to be removed. Such removal and repair of any damage to
the premises caused by such removal shall be at Tenant's cost.
9. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or
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obligations incurred by Tenant. Landlord may require Tenant to provide
Landlord, at Tenant's cost, a lien and completion bond in an amount equal to
one and one-half (1-1/2) times the estimated cost of any improvements,
additions, or alterations by Xxxxxx, to insure Landlord against liability for
mechanic's and materialmen's liens and to insure completion for the work.
10. REPAIRS AND MAINTENANCE. By taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises as being in good sanitary order,
condition and repair. Tenant shall at Tenant's cost, keep the premises and
every part thereof in good condition and repair except for damages from causes
beyond the control of Tenant and ordinary wear and tear. Tenant shall upon the
expiration or sooner termination of this Lease surrender the Premises to the
Landlord in good condition, ordinary wear and tear and damage from causes beyond
the reasonable control of the Tenant excepted. Unless specifically provided in
an addendum to this Lease, Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof and the
parties hereto affirm that Landlord has made no representations to Tenant
respecting the condition of the premises or the building except as specifically
herein set forth. Notwithstanding the above provisions, Landlord shall repair
and maintain the structural portions of the building, including the standard
plumbing, air conditioning, heating and electrical systems furnished by
Landlord, unless such maintenance and repairs are caused in part or in whole by
the act, neglect, fault or omission of any duty by the Tenant, its agents,
employees or invitees, in which case Tenant shall pay to Landlord the reasonable
cost of such maintenance and repairs. Tenant shall give Landlord written notice
of any required repairs or maintenance. Landlord shall not be liable for any
failure to repair or to perform any maintenance unless such failure shall
persist for an unreasonable time after written notice. Any repairs or
maintenance to supplemental cooling equipment required for Tenant's special
needs are the responsibility of Tenant. Except as specifically herein set
forth, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Xxxxxx's business arising from the
making of any repairs, alterations or improvements to any portion of the
building or the Premises or to fixtures, appurtenances and equipment therein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
11. ASSIGNMENTS AND SUBLETTING. Tenant shall not, voluntarily or by operation
of law, assign, transfer, or encumber its interest under this Lease or in the
Premises nor sublease all or any part of the premises or allow any other person
or entity (except Tenant's employees, agents
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agents and invitees) to occupy or use all or any part of the premises without
the prior written consent of Landlord. Xxxxxxxx's consent shall not be
unreasonably withheld. Any such consent shall not release Tenant from
liability hereunder, and a consent to one assignment, subletting, occupation
or use shall not be deemed a consent to any subsequent assignment, subletting,
occupation or use. Any such purported assignment, subletting, or permission to
occupy or use without such consent from Landlord shall be void and shall, at
the option of Landlord, constitute a default under this Lease. Tenant
immediately and irrevocably assigns to Landlord, as security for Tenant's
obligations under this Lease, all rent from any subletting of all or a part of
the Premises as permitted by this Lease, and Landlord, as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of an act of default by
Tenant, Tenant shall have the right to collect such rent.
12. HOLD HARMLESS. Except as to claims based on the sole negligence or
willful misconduct of Landlord, its agents or employees, Tenant shall hold
Landlord harmless from any claims arising from Tenant's use of the premises or
from any activity permitted by Tenant in or about the Premises, and any claims
arising from any breach or default in Tenant's performance of any obligation
under the terms of this Lease. If any action or proceeding is brought by reason
of any such claim in which Landlord is named as a party, Tenant shall defend
Landlord therein at Tenant's expense by counsel reasonably satisfactory to
Landlord. Landlord and its agents shall not be liable for any damage to
property entrusted to employees of the building, nor for loss or damage to any
property by theft or otherwise, nor from any injury to or damage to persons or
property resulting from any cause whatsoever, unless caused by or due to the
sole negligence or willful misconduct of Landlord, its agents, or employees.
Landlord shall not be liable for any latent defect in the Premises or in the
building of which they are a part. Tenant shall give prompt notice to Landlord
in case of fire or accidents in the Premises or in the building or of alleged
defects in the building, fixtures or equipment.
13. INSURANCE.
13.1 Coverage. Tenant shall assume the risk of damage to any fixtures, goods,
inventory, merchandise, equipment, furniture and leasehold improvements, and
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom relative to such damage. Tenant shall, at all times during the
term of this Lease, and at its own cost, procure and continue in force the
following insurance coverage.
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a. Comprehensive public liability insurance, insuring Landlord and Tenant
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto.
13.2. Insurance Policies. The limits of said insurance policies shall not,
however, limit the liability of the Tenant hereunder. Tenant may carry said
insurance under a blanket policy, providing, however, said insurance by Tenant
shall name Landlord as an additional insured. If Tenant shall fail to procure
and maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Insurance required hereunder
shall be in companies that rate B+ or better in "Best's Insurance Guide".
Tenant shall deliver to Landlord prior to occupancy of the premises copies of
policies of insurance required herein or certificates evidencing the existence
and amounts of such insurance with loss payable clauses, satisfactory to
Landlord. No policy shall be cancellable or subject to reduction of coverage
except after fifteen (15) days prior written notice to Landlord. The minimum
acceptable amount of comprehensive liability insurance is $1,000,000 against
claims in any occurrence, and property damage insurance in an amount of not less
than $100,000 per occurrence, or combined single limit of $1,000,000
comprehensive liability and property damage insurance.
13.3. Waiver of Subrogation. As long as their respective insurers so permit,
Landlord and Tenant each hereby waive any and all rights of recovery against the
other for any loss or damage occasioned to such waiving party or its property of
others under its control to the extent that such loss or damage is insured
against under any fire or extended coverage insurance policy which either may
have in force at the time of such loss or damage. Each party shall obtain any
special endorsement, if required by their insurer, to evidence compliance with
the aforementioned waiver.
14. SERVICE AND UTILITIES.
14.1 Landlord's Obligations. Xxxxxxxx agrees to furnish to the Premises during
reasonable hours of generally recognized business days to be determined by
Landlord, and subject to the Rules and Regulations of the building, electricity
for normal lighting and fractional horsepower office machines, heat and air
conditioning required in Landlord's judgment for the comfortable use and
occupancy of the Premises, janitorial, window washing and elevator service.
Landlord shall also maintain and keep lighted the common stairs, gallerias,
entries and toilet rooms in the building. Landlord shall not be liable for and
Tenant shall not be entitled to any reduction of rental by reason of Landlord's
6
failure to furnish any of the foregoing when such failure is caused by accident,
breakage, repairs, strikes, lockouts or other labor disturbances or labor
disputes of any character, or by any other cause, similar or dissimilar, beyond
the reasonable control of Landlord.
14.2 Tenant's Obligation. Tenant shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly required to be
paid by Landlord, which may be furnished to or used in, on or about the Premises
during the term of this Lease. Tenant will not, without the prior written
consent of Landlord and subject to any conditions which Landlord may impose, use
any apparatus or device in the Premises which will in any way increase the
amount of electricity or water usually furnished for use of the Premises as
general office space. If Tenant shall require water or electric current in
excess of that usually furnished or supplied for use of the Premises as general
office space, Tenant shall first procure the consent of Landlord. Wherever heat
generating machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost of installation, operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Landlord shall not be liable for Landlord's failure to furnish any of
the foregoing when such failure is caused by any cause beyond the reasonable
control of Landlord. Landlord shall not be liable under any circumstances for
loss of or injury to property, however occurring, in connection with failure to
furnish any of the foregoing.
15. PROPERTY TAXES. Tenant shall pay before delinquency, all personal
property or similar taxes levied or assessed and which become payable during the
term hereof upon all Tenant's equipment, furniture, fixtures and personal
property located in the Premises. Landlord shall pay all property taxes on the
land and building, except should the California Constitution be changed in a way
that results in a higher or lower tax on the Premises than the annual increases
now a matter of law, any such increase or decrease shall be passed through to
tenant on a prorated basis as an item separate from any CPI adjustments. Tenant
shall pay to Landlord its share of such taxes, if any, within thirty days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the rules and regulations attached as Exhibit "B" to this Lease, as well as such
rules and regulations that Landlord shall from time to time promulgate.
Landlord reserves the right from time to time to make all reasonable
modifications to those rules which shall be binding to Tenant
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upon delivery of a copy of them to Tenant. Landlord shall not be responsible
to Tenant for the nonperformance of any of said rules by any other tenant.
17. HOLDING OVER. If Xxxxxx remains in possession without Xxxxxxxx's consent,
after termination of the Lease, by lapse of time or otherwise, Tenant shall pay
Landlord for each day of such retention one-fifteenth (1/15th) of the amount of
the monthly rental for the last month prior to such termination and Tenant shall
also pay all costs, expenses and damages sustained by Landlord by reason of such
retention, including, without limitation, claims made by a succeeding tenant
resulting from Xxxxxx's failure to surrender the Premises.
18. ENTRY BY LANDLORD. Landlord reserves the right to enter the premises at
any time to inspect the Premises, to provide any service for which Landlord is
obligated hereunder, to submit the Premises to prospective purchasers or
tenants, to post notices of nonresponsibility, and to alter, improve, maintain
or repair the Premises or any portion of the building of which the Premises are
a part that Landlord deems necessary or desirable, all without abatement of
rent. Landlord may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, but shall not
block entrance to the Premises and not interfere with Xxxxxx's business, except
as reasonably required for the particular activity by Landlord. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance, interference with quiet enjoyment, or other damage arising
out of Landlord's entry on the Premises as provided in this paragraph, except
damage, if any, resulting from the negligence or willful misconduct of Landlord
or its authorized representative. Landlord shall retain a key with which to
unlock all doors into, within and about the Premises, excluding Xxxxxx's vaults,
safes and files. In an emergency, Landlord shall have the right to use any
means which Landlord deems reasonably necessary to obtain entry to the Premises,
without liability to Tenant, except for any failure to exercise due care for
Tenant's property. Any such entry to the Premises by Landlord shall not be
construed or deemed to be forcible or unlawful entry into or a detainer of the
Premises or an eviction of Tenant from the Premises or any portion thereof.
19. RECONSTRUCTION. If the Premises or the building of which the Premises are
a part are damaged by fire or other peril covered by extended coverage
insurance, Landlord agrees to make repairs and restorations to the extent and in
the manner possible at a cost not exceeding the proceeds of the insurance
received by Landlord. If the cost of repair and restoration exceeds the amount
of proceeds received from insurance, Landlord may elect to terminate this Lease
by giving notice to Tenant within twenty (20) days after determining that the
cost will exceed such proceeds. If
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Landlord proceeds with repair and restoration, this Lease shall remain in full
force and effect, except that Tenant shall be entitled to a proportionate
reduction of rent while such repairs are being made. The rent reduction shall
be based upon the extent to which repair and restoration activity materially
interferes with Tenant's business at the Premises, provided, however, that if
the damage was occasioned by the fault or neglect of Tenant, its agents or
employees, there shall not be an abatement of rent.
20. DEFAULT; REMEDIES.
20.1 Default. The occurrence of any of the following shall constitute a
default by Tenant:
a. Failure by Tenant to pay the rent or other monies when due, where such
failure continues for three (3) business days after written notice by Landlord
to Tenant.
b. Abandonment of the Premises by Xxxxxx.
c. Failure by Tenant to perform any other provision of this Lease where such
failure to perform is not cured within thirty (30) days after notice has been
given to Tenant; provided, however, that if the nature of the default is such
that the same cannot reasonably be cured within said thirty (30) day period,
Tenant shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to completion.
d. The making by Tenant of any general assignment or general arrangement for
the benefit of creditors; the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, same is dismissed within sixty (60) days; the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
20.2 Remedies. In the event of any such default Landlord may:
Maintain this Lease in full force and effect and recover the rent and other
monetary charges as they become due, without terminating Xxxxxx's right to
possession irrespective of whether Tenant shall have abandoned the Premises. In
the event Landlord elects not to terminate the Lease, Landlord
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shall have the right to attempt to re-let the Premises at such rent and upon
such conditions and for such a term, and to do all acts necessary to maintain
or preserve the Premises as Landlord deems reasonable and necessary without
being deemed to have elected to terminate the Lease, including removal of all
persons and property from the Premises. Such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant. In the event any such reletting occurs, this Lease shall terminate
automatically upon the new tenant taking possession of the Premises.
Notwithstanding that Xxxxxxxx fails to elect to terminate the Lease initially,
Landlord at any time during the term of this Lease may elect to terminate this
Lease by virtue of such previous default of Tenant.
Terminate Xxxxxx's right to possession by any lawful means, in which case this
Lease shall terminate and Tenant shall immediately surrender possession of the
Premises to Landlord. In such event Landlord shall be entitled to recover from
Tenant all damages incurred by Landlord by reason of Tenant's default,
including without limitation thereto, the following: (1) the worth at the time
of award of any unpaid rent which would have been earned at the time of such
termination; plus (2) the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that is proved could have been
reasonably avoided; plus (3) the worth at the time of award of the amount by
which unpaid rent for the balance of the term after the time of award exceeds
the amount of such rental loss that is proved could be reasonably avoided;
plus (4) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Xxxxxx's failure to perform his obligations
under this Lease or which in the ordinary course of events would be likely to
result therefrom; plus (5) at Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time
by applicable law. Upon any such re-entry Landlord shall have the right to
make any reasonable repairs, alterations or modifications to the Premises,
which Landlord in its sole discretion deems reasonable and necessary. As used
in (1) above, the "worth at the time of award" is computed by allowing
interest at the rate of ten percent (l0%) per annum from the date of default.
As used in (2) and (3) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the U.S. Federal Reserve Bank
at the time of award plus one percent (l%).
Remedies of Landlord contained in this Lease shall be construed and held to be
cumulative, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law. No waiver
of any default of Tenant hereunder shall be implied from any acceptance by
Landlord of any rent or other payments
10
due hereunder or any omission by Landlord to take any action on account of
such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or of any act by Tenant requiring Landlord's consent
or approval shall not be deemed to waive or render unnecessary Landlord's
consent or approval to or of any subsequent similar acts by Xxxxxx.
21. EMINENT DOMAIN. If more than twenty-five percent (25%) of the Premises is
taken or appropriated by any public or quasi-public authority under powers of
eminent domain, either party hereto shall have the right at its option, to
terminate this Lease. If less than twenty-five percent (25%) of the Premises is
taken (or neither party elects to terminate as above, provided if more than
twenty-five percent (25%) is taken), the Lease shall continue, but the rental
thereafter to be paid shall be equitably reduced. If any part of the building
of which the Premises are a part is so taken or appropriated, whether or not any
part of the Premises is involved, Landlord shall be entitled to the entire award
and compensation for the taking which is paid or made by the public or quasi-
public agency, and Tenant shall have no claim against said award.
22. STATEMENT TO LENDER. Tenant shall at any time and from time to time, upon
not less than ten (10) days prior written notice from Landlord, execute,
acknowledge, and deliver to Landlord a statement in writing, (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modifications and certifying that this Lease as so modified,
is in full force and effect), and the date to which the rental and other charges
are paid in advance, if any, and (b) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of the Landlord hereunder,
or specifying such defaults if any are claimed. Any such statement may be
relied upon by any prospective purchaser or encumbrancer of all or any portion
of the real property of which the Premises are a part.
23. PARKING. Tenant shall have the right to use, in common with other tenants
or occupants of the building, parking facilities, provided by Landlord for
tenants of The Landmark, subject to the rules and regulations established by
Landlord. Said parking shall be at no expense to the Tenant unless a tax, fee or
levy is imposed directly or indirectly by a Federal, State or local agency or
jurisdiction for parking. If such a tax, fee or levy is imposed tenant agrees to
pay its portion of said fee as reasonably determined by the Landlord.
24. AUTHORITY OF PARTIES.
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24.1 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
24.2 Limited Partnerships. Landlord herein is a limited partnership. It is
understood and agreed that any claims by Xxxxxx on Landlord shall be limited to
the assets of the limited partnership. And furthermore, Xxxxxx expressly waives
any and all rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the extent of
their interest in said limited partnership.
25. GENERAL PROVISIONS.
25.1 Exhibits. Exhibits attached hereto, and addendums initialed by the
parties, are deemed to constitute a part hereof.
25.2 Waiver. The waiver by Landlord of any provision of this Lease shall not
be deemed to be a waiver of any subsequent breach of the same or any other
provisions of this Lease herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any provision of this Lease, other than the failure of the Tenant
to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of the acceptance of such rent.
25.3 Notices. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and
demands by the Landlord to the Tenant shall be sufficient if delivered in person
or sent by first class mail, postage prepaid, addressed to the Tenant at the
Premises or to such other place as Tenant may from time to time designate in a
written notice to the Landlord. All written notices and demands by the Tenant
to the Landlord shall be sufficient if delivered in person or sent by first
class mail, postage prepaid, addressed to the Landlord at the office of the
building or to such other person or place as the Landlord may from time to time
designate in a notice to the Tenant. Any such notice is effective at the time
of delivery or 48 hours after mailing.
25.4 Rentable Area. Rentable square footage, as herein used, is the actual
square footage of the office suite plus a load factor for gallerias, restrooms,
hallways and other common areas. The stated rentable area will not be used as a
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basis for either party making any claim against the other.
25.5 Joint and Several Obligations. If there be more than one Tenant, the
obligations hereunder imposed upon tenants shall be joint and several.
25.6 Captions. The captions of the paragraphs of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
25.7 Time. Time is of the essence hereof.
25.8 Successors and Assigns. The provisions of this Lease, subject to the
provisions as to assignment, apply to and bind the successors and assigns of the
parties hereto.
25.9 Recording. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the prior written consent of the other
party.
25.10 Scope and Amendments. This Lease is and shall be considered to be the
only agreement between the parties hereto. All negotiations and oral agreements
acceptable to both parties are included herein. No amendment or other
modification of this Lease shall be effective unless in a writing signed by
Landlord and by Xxxxxx.
25.11 Legal Fees. In the event of any action brought by either party against
the other under this Lease, the prevailing party shall be entitled to recover
all costs including the fees of its attorneys as the court may adjudge
reasonable.
25.12 Sale. In the event of any sale of the building, Landlord shall be
released of any liability under this Lease, and the purchaser of the Premises
shall be deemed to have assumed and agreed to carry out all of the obligations
of the Landlord under this Lease.
25.13 Lender Requirements. Upon request of the Landlord, Tenant will, in
writing, subordinate its rights hereunder to the lien of any mortgagee, or deed
of trust to any bank, insurance company or other lending institution, now or
hereafter in force against the land and building of which the Premises are a
part, and to all advances made or hereafter to be made upon the security
thereof. If any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deed of trust made by the
Landlord covering the Premises, the Tenant shall recognize such purchaser as the
Landlord under this Lease.
25.14 Name. Tenant shall not use the name of the development in which the
Premises are situated for any purpose other than as an address of the business
to be
13
conducted by the Tenant in the Premises, unless written authorization is
obtained from Landlord.
25.15 Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof.
25.16 Applicable Law. This Lease shall be governed by the laws of the State
of California.
25.17 Toxics. Landlord and Tenant acknowledge that they have been advised
that numerous federal, state, and/or local laws, ordinances and regulations
("law") affect the existence and removal, storage, disposal, leakage of
contamination by materials designated as hazardous or toxic ("Toxics"). Many
materials, some utilized in everyday business activities and property
maintenance, are designated as hazardous or toxic. Some of the Laws require that
Toxics be removed or cleaned up without regard to whether the party required to
pay for the "clean up" caused the contamination, owned the property at the time
the contamination occurred or even knew about the contamination. Some items,
such as asbestos or PCB's, which were legal when installed, now are classified
as Toxics, and are subject to removal requirements. Civil lawsuits for damages
resulting from Toxics may be filed by third parties in certain circumstances.
Tenant and Landlord agree to hold the other harmless from any responsibility for
any Toxics which are brought on to the Premises or the project by themselves,
their agents, employees or contractors.
26. ELECTRICAL, COMMUNICATIONS AND ALARM WIRING.
26.1 Tenant shall contact the Landlord prior to installing or relocating any
electrical, telephone, network, LAN, intercom, doorbell, or alarm wiring systems
at the Landmark Office Center.
26.2 All electrical wiring shall be installed by a licensed contractor in
expanded metal tubing in accordance with the most current electrical code, etc.
26.3 All communication cabling shall be installed by a licensed contractor and
shall be plenum rated and shall not be installed as to "lay" on ceiling tile or
t-bar grid systems.
A certificate of compliance shall be provided by contractor to Landlord at time
of completion.
26.4 Landlord shall not be financially responsible for any repair or
replacement of any communication cables, telephone lines, telephone feeders, or
trunk lines beyond the M.P.O. (minimum point of entry) established by Pacific
Bell. If one or more of these lines serve several tenants, the cost of
installation and repair shall be divided among tenants currently being served by
said cable.
14
26.5 Not all existing telephone rooms/punchdown boards are permanent. Tenant
and his contractor must verify location of termination points with the Landlord
prior to installation.
26.6 No audible alarm systems will be permitted. Landlord will not assume any
financial responsibility for any alarms attributable to its employees,
contractors, including janitors, guards, or service personnel.
26.7 Any work requiring access to adjoining tenant spaces shall be prearranged
so that Landlord can obtain permission for the intrusion/interruption of the
space. Tenant shall reasonably cooperate in arranging access to contractors for
adjoining tenant when requested by Landlord.
26.8 Upon request of Landlord, Tenant shall remove all communication cable
that Tenant has installed in the Premises upon expiration of this Lease and
repair all damage caused by said removal.
27. AMERICANS WITH DISABILITIES ACT. Xxxxxxxx believes the Premises complies
with the "Americans With Disabilities Act" (ADA), but no independent
investigation has been made to ensure compliance with the "Americans With
Disabilities Act" (ADA). This Act may require a variety of changes to a
facility, including potential removal of barriers to access by disabled persons
and provision of auxiliary aids and services for hearing, vision or speech
impaired persons, some of which would be the Landlord's responsibility and some
would be the Tenant's responsibility. Landlord urges all parties to obtain
independent legal and technical advice with respect to the physical and
environmental conditions and ADA compliance of the Property. The Parties agree
that it will rely solely on their own investigations and/or that of a licensed
professional specializing in these areas, and not on the investigation,
assurances or opinion of Landlord or Broker, if any.
28. BROKERS. Tenant warrants that it has had no dealing with any real estate
broker or agent in connection with the negotiation of this Lease excepting only
Xxxx Xxxxx of Catalyst Real Estate Group, and it knows of no other real estate
broker or agent who is entitled to a commission in connection with this Lease.
Commissions shall be paid to Broker(s) on the following schedule: 6%, 5%, 4%,
3%, 2%. No commissions shall be paid on Tenant Improvement Amortizations, CPI
Increases or any other rent adjustment covered in section 4.2 herein.
29. TENANT IMPROVEMENTS.
a. Landlord shall, at its expense replace the carpet and paint the walls.
No rent will be charged to
15
Tenant for the Premises during this time (approximately five days).
b. Xxxxxxxx is also willing to construct 15 private offices on the 2nd
floor at Tenant's sole cost which may be paid in one lump sum or
amortized over the 36 months at an 8 1/2 % per annum interest rate.
Tenant shall be responsible for the rent on 1861 Landings Drive during
the construction of these improvements and Tenant may pay this in one
lump sum or amortized over the 36 months at an 8 1/2 % per annum
interest rate.
30. HOLD OVER IN SUITES 2065 & 2073. Tenant shall remain in possession of
their existing Premises and at their existing rate until the Tenant Improvements
requested above are complete.
31. OPTION TO EXTEND TERM. Provided Tenant is not in default hereunder at the
expiration of the term herein provided for and has fully and faithfully
performed all of Tenant's obligations under the Lease during said term, then
Tenant shall have the option to extend the term for one additional three year
term, commencing immediately upon expiration of the initial term. Tenant shall
give Landlord written notice of exercise of the option at least 180 days before
the expiration of the initial term. Lease payments for said extension period
shall be at rate to be negotiated between Tenant and Landlord at the time the
lease extension notice is given. If a lease modification extending the term and
including a new lease rate is not agreed to in writing within 30 days of the
extension notice being given, this option to extend shall become void.
32. BUILDING SIGNAGE. Landlord shall provide Tenant a sign consistent with
the other signs on the project for full building users. Landlord shall also at
Tenant's sole cost place a standard Tenant identification sign on the corner of
Charleston Road and the entry driveway.
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The parties hereto have executed this Lease on the dates specified immediately
adjacent to their respective signatures.
LANDLORD: INVESTMENTS, LIMITED
By: THRUST IV, INC., General Partner
By: /s/ Xxxx X. Xxxxx Date: 19 June 96
______________________________ _____________________
Xxxx X. Xxxxxx President
TENANT: ROGUE WAVE SOFTWARE, INC.
By: /s/ Xxxxxx Xxxxxxx Date: June 10, 1996
______________________________ _____________________
(SIGNATURE)
Xxxxxx Xxxxxxx
______________________________ Tax ID# 00-0000000
(PRINT NAME) (TITLE) __________
17
[MAP OF BUILDING DESIGNATIONS]
EXHIBIT A
PAGE 2 OF 3
[SITE PLAN OF SUITE 1861]
EXHIBIT B
Rules and Regulations
---------------------
1. Keys are issued, in a reasonable number, by Landlord to Tenant at no
charge.
2. Access cards, used to open the electronic lock of the front entry door of a
particular building after normal business hours, are assigned to individual
people pursuant to a list submitted by Tenant to Landlord. A $15.00 deposit per
card is charged upon issuance and refundable upon return. When a card holder is
no longer entitled to a card (left employment, etc.) Tenant shall notify
Landlord of a new holder, or if the card has been taken or lost. By so
notifying Landlord, a particular card code can be removed from the authorized
list, so that it no longer will activate the lock.
3. No sign or notice shall be displayed by Tenant outside of its office space
without written consent of Landlord which may be unreasonably withheld. If
approval is not given, Landlord shall have the right to remove such sign or
notice without notice to and at expense of the Tenant. All signs on access
doors to the Premises shall be approved by Landlord. The original standard
company sign on the main door to the Premises will be installed at Landlord's
expense. Tenant may, at its expense, install a different sign, after written
design approval by Landlord. Design criteria should be obtained from Landlord
in advance.
Tenant shall not place anything within the Premises which may appear unsightly
from outside of the Premises.
Tenant shall not install any curtains, blinds , shades, or screens on any
windows or doors of the Premises without Landlord's consent which may be
unreasonably withheld.
4. Sidewalks, halls, passages, exits, entrances, elevators, and stairways shall
not be obstructed by any of the tenants, or used by them for any purpose other
than for ingress or egress from their respected offices.
5. Tenant shall not alter any lock or install any new or additional locks or
bolts on any doors or windows without the written consent of Landlord. All such
alterations shall be done by Xxxxxxxx's agents at Tenant's cost.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than for which they were installed.
7. Tenant shall not overload the floor of the office
complex. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork, or plaster or in any way deface the Premises, except for
hanging of small items such as pictures with nail type of hangers, without
Landlord's approval. If Tenant hangs any other furniture, equipment,
whiteboards etc. Tenant shall be responsible for the removal and repair of all
damages to the Premises.
8. No unusually large or heavy equipment shall be brought into the complex
without prior notice to Landlord and all moving of the same into or out of the
office complex shall be done at such time and such a manner as Landlord shall
designate.
All damage done to the office complex by moving or maintaining any such
equipment shall be repaired at the expense of Tenant.
9. Tenant shall not use the office complex in a manner offensive or
objectionable to the Landlord or other occupants by reason of noise, odors,
and/or vibrations, or interfere in any way with other tenants or those having
business herein, nor shall any animals or birds be brought in or about the
office complex.
10. No lodging, washing clothes, cooking, excluding use of coffee makers and
microwave ovens, shall be done or permitted by any Tenant on the Premises.
11. Tenant shall not use or keep on the Premises any foul or noxious gas,
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
12. Landlord shall direct electricians as to where and how telephone wires are
to be installed. No changing of wires will be allowed without the consent of
the Landlord which may be unreasonably withheld. The location of the
telephones, call boxes and other office equipment affixed to the office complex
shall be subject to the approval of Landlord.
13. No aerial satellite dish or other item shall be erected on the roof or
exterior walls of the complex, or on the grounds, without in each instance, the
written consent of the Landlord which may be unreasonably withheld. Any such
item so installed without such written consent shall be subject to removal
without notice at any time.
14. No loud speakers, televisions, radios or other devices shall be used in a
manner so as to be heard or seen outside of the Premises without prior written
consent of the Landlord.
15. On Saturdays, Sundays, legal holidays, and on other days between the hours
of 5:00 P.M. and 8:00 A.M. the following
day, access to the office complex, or to the Premises may be refused unless
the person seeking entry is known to the person or employee of the office
complex in charge or is properly identified. The Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the office complex of any person.
16. Any person whose presence on the Premises may in the judgment of the
Landlord be prejudicial to the safety, character, reputation and interest of the
office complex or of its tenants may be denied access to the office complex or
may be ejected therefrom.
17. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
18. Tenant shall not disturb, solicit, or canvass any occupant of the office
complex and shall cooperate to prevent the same.
19. Landlord shall control and operate the public portions of the office
complex, in such manner as it deems best for the benefit of the tenants
generally.
20. All windows and entrance doors in the office complex shall be left locked
when the Premises are not in use, and all doors opening to public corridors
shall be kept closed except for normal ingress and egress from the office
complex.
21. In case of invasions, mob riot, public excitement, or other emergency, the
Landlord reserves the right to prevent access to the office complex during the
continuance of the same by closing of the doors or otherwise, for the safety of
the tenants and protection of property in the office complex. Landlord will also
direct tenants as necessary in an emergency and will not assume any liability
for damages suffered by tenants as the result of such directions.
