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EXHIBIT 10.8
AGREEMENT REGARDING SUBLEASE
THIS AGREEMENT REGARDING SUBLEASE (this "Agreement") is entered into
as of the __ day of February, 1998, by and among INFORMIX CORPORATION
("lnformix"), INFORMATICA CORPORATION ("Informatica"), and PALO ALTO BAYSHORE
INVESTORS, LLC ("Owner"), with reference to the following facts:
A. Informix leases certain premises commonly identified as 0000 Xxxx
Xxxxxxxx Xxxx, Xxxx Xxxx, XX (the "Premises") from Owner, pursuant to a certain
Agreement of Lease dated February 22, 1996, as amended March 1, 1996 (the
"Lease").
B. Informatica desires to sublease portions of the Premises from
Informix, pursuant to a Sublease dated January 29,1998 (the "Sublease").
C. Informix has requested Owner's consent to the Sublease pursuant to
the terms and conditions of the Lease, and Owner is willing to provide such
consent, subject to and upon the terms and conditions of this Agreement.
NOW, THEREFORE, the undersigned parties hereby agree as follows:
1. Without relieving Informix from any of its responsibilities,
liabilities and obligations under the Lease, Owner hereby consents to the
execution and delivery of the Sublease and the performance and observance by the
parties thereto of the terms and conditions thereof.
2. Owner agrees that the release and waiver of subrogation provided
in Section 24 of the Lease shall also apply as between Owner and Informatica,
and Informatica agrees that such release and waiver shall also apply as between
Informatica and Owner.
3. Notwithstanding anything in the Sublease to the contrary, the
parties agree that all rents, additional rent, operating expense reimbursements
or other sums payable under the Sublease by Informatica to Informix shall
instead be paid directly to Owner. Such payments shall satisfy the obligations
of Informatica to Informix under the Sublease, and of Informix to Owner under
the Lease, to the extent actually received by Owner. Within fifteen (15) days of
Owner's receipt of such payments by Informatica, Owner shall remit to Informix
such portion of the Informatica payment as is owed to Informix pursuant to the
terms of the Lease.
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4. Notwithstanding anything in the Sublease to the contrary, the
parties agree that the security deposit (the "Security Deposit") being paid by
Informatica to Informix shall be paid to Owner, and retained, reduced,
reimbursed to Informatica, and/or applied by Owner, pursuant to the terms of
Paragraph 13 of the Sublease and in accordance with applicable law. If
Informatica fails to pay "rent" (as defined in the Sublease) or other charges
due under the Sublease, or otherwise defaults with respect to any provision of
the Sublease, then notwithstanding anything to the contrary contained in this
Agreement, the Lease or the Sublease, the Security Deposit funds shall be
applied by Owner in the following order of priority:
A. First, to satisfy all monthly base rent, additional rent
and any other monetary obligations due and payable by Informix to Owner under
the Lease, but excluding any excess rent due and payable in connection with the
Sublease pursuant to Paragraph 5.B of the Lease.
B. Second, to reimburse Informix for all out-of-pocket costs
and expenses incurred by Informix as a result of any default by Informatica
under the Sublease, including without limitation, attorneys' fees, court costs
and other costs of suit, costs incurred in curing any defaults by Informatica,
and costs incurred by Informix in resubletting the Premises (including without
limitation, brokerage commissions, attorneys' fees and tenant improvement
costs). The reimbursement of such costs and expenses shall be made by Owner
within ten (10) days after its receipt of a written request from Informix (which
request shall include invoices, receipts and any other available supporting
documentation reasonably requested by Owner).
C. Third, any Security Deposit funds remaining after the first
to occur of (i) the releasing and occupancy of all of the Premises by a
replacement subtenant or subtenants, or (ii) the termination of the Master
Lease, shall be applied to reimburse Owner and Informix for any unmitigated
damages (including, without limitation, the loss of any excess rent as
determined under Paragraph 5B of the Lease) each has suffered as a result of
Informatica's default under the Sublease. If any remaining Security Deposit
funds are insufficient to pay all such unmitigated damages, then the remainder
shall be shared by Owner and Informix in proportion to the damage each has
suffered.
5. In consideration of Owner's review of the Sublease and negotiation
and preparation of this Agreement, Informix shall pay Owner the sum of One
Thousand Five Hundred Dollars ($1,500) upon execution of this Agreement by all
parties.
6. The consent of Owner to the Sublease, as provided in this
Agreement shall not be deemed effective until this Agreement has been fully
executed, an original copy and the Sublease have been delivered to Owner, and
Owner has received (i) the first mouth's rent payment from Informatica in the
amount of One Hundred Twenty-Three Thousand Seven Hundred Fifty Dollars
($123,750), (ii) the security deposit in the amount of Three
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Hundred Fifty-four Thousand Dollars ($354,000), and the Sublease review fee of
One Thousand Five Hundred Dollars ($1,5OO).
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the day and year first above written.
INFORMIX:
INFORMIX CORPORATION
By: [SIGNATURE}
---------------------------------
Its:
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INFORMATICA:
INFORMATICA CORPORATION
By: [SIGNATURE]
---------------------------------
Its: CEO
---------------------------------
OWNER:
PALO ALTO BAYSHORE INVESTORS, LLC
a California limited liability company
By: Xxxxxxxx Real Estate Equities, Inc.
Its Manager
By: [SIGNATURE]
--------------------------------
Its: [TITLE]
--------------------------------
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SUBLEASE
1. PARTIES. This sublease (this "Sublease") is entered into as of January
29th, 1998 by and between Informix Software, Inc., a Delaware
corporation ("Sublessor") and Informatica Corporation, a California
corporation ("Sublessee").
2. SUBLEASE.
(a) Sublessor hereby subleases to Sublessee, and Sublessee hereby
subleases from Sublessor, for the term, at the rental and upon
all of the conditions set forth herein, the Premises described
below. This Sublease is and shall at all times be subject and
subordinate to the terms and conditions of the Agreement of
Lease dated February 22, 1996, as amended by that certain
Amendment to Lease dated March 1, 1996, between Palo Alto
Bayshore Investors, LLC, successor in interest to Menlo Palo
Alto Investors, as landlord ("Landlord"), and Sublessor, as
tenant (the "Master Lease"). A copy of the Master Lease is
attached hereto as Exhibit A.
(b) Except to the extent set forth below, the terms, conditions and
respective obligations of Sublessor and Sublessee to each other
under this Sublease shall be the terms and conditions of the
Master Lease, and such terms are incorporated into this Sublease
as if fully set forth herein, except for those provisions of the
Master Lease that are directly contradicted by this Sublease, in
which event the terms and conditions of this Sublease shall
control over the Master Lease, and except that: (i) each
reference in such incorporated sections to "Lease" shall be
deemed a reference to "Sublease"; (ii) each reference to the
"Premises" shall be deemed a reference to the Premises then
being subleased hereunder; (iii) each reference to "Landlord"
and "Tenant" shall be deemed a reference to "Sublessor" and
"Sublessee", respectively, except as otherwise expressly set
forth herein; (iv) with respect to work, services, repairs,
restoration, insurance, indemnities, representations, warranties
or the performance of any other obligation of Landlord under the
Master Lease, except as set forth in Section 9 hereof, the sole
obligation of Sublessor shall be to request the same in writing
from Landlord as and when requested to do so by Sublessee, and
to use Sublessor's reasonable efforts (not including the payment
of money, the incurring of liabilities or the filing of legal
proceedings) to obtain Landlord's performance; (v) with respect
to any obligation of Sublessee to be performed under this
Sublease, wherever the Master Lease grants to Sublessor a
specified number of days to perform its obligations under the
Lease, except as otherwise provided herein, Sublessee shall have
one-half of the specified number of days to perform the
obligation, including, without limitation, curing any defaults,
unless the specified number of days is seven (7) or less, in
which case Sublessee shall have three (3) fewer days to perform
the obligation; (vi) with respect to any approval required to be
obtained from the "Landlord" under the Master Lease, such
consent must be obtained from both Landlord and Sublessor, and
the approval of Sublessor may be withheld if Landlord's consent
is not obtained; (vii) in any case where the "Landlord" reserves
or is granted the right to manage, supervise, control, repair,
alter, regulate the use of, enter or use the Premises or any
areas beneath, above or adjacent thereto, such reservation or
grant of right of entry shall be deemed to be for the benefit of
both Landlord and Sublessor; (viii) in an case where "Tenant" is
to indemnify, release or waive claims against "Landlord", such
indemnity, release or waiver shall be deemed to run from
Sublessee to both Landlord and Sublessor; and (ix) in any case
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where "Tenant" is to execute and deliver certain documents or
notices to "Landlord", such obligation shall be deemed to run
from Sublessee to both Landlord and Sublessor.
Notwithstanding the foregoing, (a) the following provisions of
the Master Lease shall not be incorporated herein: introductory
paragraph, Sections 1-3, 12, 21 (the last sentence of the first
paragraph only), 22 (the last sentence of subsection (A) and (B)
only), 34, 36 (the first sentence only), 39 (the balance of the
first sentence after the first comma only), 42-47, Exhibit B and
the Amendment to Lease; (b) references in the following
provisions to "Landlord" shall mean Landlord only: Sections
4(B)(i)(the last sentence only), 6(A), 8 (except the first
sentence of subsection (A) and subsection (E)), 9 (except the
fifth and eleventh sentences), 11 (the eighth sentence only),
21(D)(2), 23, 32 (the second and third sentences only) and 36
(the second sentence only); (c) references in the following
provisions to "Landlord" shall mean Landlord and Sublessor:
Sections 5(D), 5(F) (the reference in the eighteenth line only),
8(A)(the first sentence only), 8(E), 9 (the eleventh sentence
only), 11 (the ninth sentence only) and 28; (d) references in
the following provisions to "Landlord" shall mean Landlord or
Sublessor: Sections 5(F) (the reference in the eleventh line
only), 11 (the sixth sentence only), 18, 19 (all but the second
to last reference in the second sentence), 21(D)(1), 22(A), 29,
30 and 37; (e) the "excess" rent under Section 5(B) shall be
payable 50% to Sublessor and 50% to Sublessee, after first
paying to Landlord all amounts due Landlord under the Master
Lease as a result of any sublease by Sublessee (as determined by
Sublessor in its sole discretion); (f) as incorporated herein,
"Tenant's Share of estimated Project Taxes and Expenses" shall
be equal to a fraction, the numerator of which is the square
footage of those portions of the Premises then being subleased
under this Sublease and the denominator of which is the total
square footage of the Building; (g) the subordination in Section
22(A) shall only be subject to Sublessee obtaining
nondisturbance agreements in favor of Sublessee for liens placed
on the Premises by Sublessor, provided Sublessor has obtained a
nondisturbance agreement from Landlord's lender or lessor which
will adequately protect Sublessee's interest in the event of
foreclosure or lease termination; (h) references in Section 24
to insurance shall only apply to property insurance; and (i) in
Section 4(B)(ii), lines 27-29 shall be deleted and replaced with
"including attorneys' fees and costs, to the extent due to
Sublessor's release or emission".
(c) Sublessor does hereby expressly assume and agree to perform and
comply with, for the benefit of Sublessor and Landlord, each and
every obligation of Sublessor under the Master Lease with
respect to the premises then being subleased by Sublessee
hereunder, except to the extent set forth in subsection (b)
hereof. This Sublease is and at all times shall be subject and
subordinate to the Master Lease and the rights of Landlord
thereunder. In the event of a conflict between the provisions of
this Sublease and the Master Lease, as between Sublessor and
Sublessee, the provisions of this Sublease shall control.
3. PREMISES. The "Premises" are in the City of Palo Alto, State of
California, located at 0000 Xxxx Xxxxxxxx Xxxx ("Building"), and consist
of the following premises: (a) the second floor of the Building,
consisting of approximately 30,000 rentable square feet, as outlined on
the floor plan attached as Exhibit B-1 hereto (the "Second Floor
Premises"); (b) the eastern portion of the first floor of the of the
Building consisting of approximately 15,000 rentable square feet, as
outlined on the floor plan attached hereto as Exhibit B-2 hereto (the
"East First Floor Premises"); and (c) the western portion of the first
floor
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of the Building consisting of approximately 15,000 rentable square feet,
as outlined on the floor plan attached hereto ad Exhibit B-3 (the "West
First Floor Premises"). The Second Floor Premises and the East First
Floor Premises shall be collectively referred to herein as the "Initial
Premises".
4. TERM.
(a) The term of this Sublease (the "Term") and the duty to pay rent
as to the Initial Premises shall both commence on the later of
(i) January 21, 1998, (ii) the fifth business day after the date
Landlord delivers its written consent to this Sublease and (iii)
the date Sublessor has delivered the keys for the Initial
Premises to Sublessee and removed Sublessor's personal property
from the Initial Premises (the "Commencement Date"). The Term
and the duty to pay rent shall both commence as to the West
First Floor Premises on the later of (i) July 1, 1999 and (ii)
the date Sublessor has delivered the keys for the West First
Floor Premises to Sublessee and removed Sublessor's personal
property from the West First Floor Premises. The Term as to the
entire Premises shall end on January 31, 2001, unless sooner
terminated pursuant to any provision hereof.
(b) If Sublessor permits Sublessee to occupy any Premises prior to
the Commencement Date, such occupancy (i) shall be subject to
all of the provisions of this Sublease, except for the
obligation to pay rent; and (ii) shall not advance the
expiration date of this Sublease.
(c) If Sublessor fails to deliver possession of any of the Premises
to Sublessee for any reason on the dates set forth in subsection
(a) hereof, Sublessor shall not be subject to any liability
therefor, nor shall such failure affect the validity of this
Sublease or the obligations of Sublessee hereunder or extend the
term hereof. However, Sublessee shall not be obligated to pay
any rent until possession of the Premises is offered to
Sublessee. By taking possession of the Premises, Sublessee
conclusively shall be deemed to have accepted the Premises in
their as-is, then-existing condition, without any warranty
whatsoever of Sublessor with respect thereto, except as
expressly set forth in this Sublease. Notwithstanding the
foregoing, if the Initial Premises are not delivered to
Sublessee by March 15, 1998, Sublessee may terminate this
Sublease by giving written notice of termination to Sublessor at
any time prior to such delivery.
5. BASE RENT.
(a) Sublessee shall pay to Sublessor base rent for the Premises ("Base
Rent") in the following amounts, in equal monthly installments, in
advance, on the first day of each month during the Term:
APPROXIMATE SQUARE
PERIOD FOOTAGE OF PREMISES MONTHLY RENT
------ ------------------- ------------
To 1/31/99 45,000 $123,750
2/1/99-6/30/99 45,000 $128,250
7/1/99-1/31/00 60,000 $171,000
2/1/00-1/31/01 60,000 $177,000
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Base Rent for any period during the Term which is for less than one
month shall be a pro rata portion of the monthly installment. Base
Rent shall be payable without notice or demand and without any
deduction, offset, or abatement, in lawful money of the United State
of America to Sublessor at the Sublessor's address stated herein or
at such other place as Sublessor may designate in writing. In
addition, Sublessee shall be liable for, and shall pay when due, all
additional costs and expenses required of Sublessor with respect to
the Premises then subleased under this Sublease under the Master
Lease. During the period prior to the commencement of the Term of the
West First Floor Premises, Sublessee shall be responsible for a pro
rata portion of the total expenses payable by Sublessor under the
Master Lease equal to a fraction, the numerator of which is the
square footage of the Premises then subleased under this Sublease and
the denominator of which is the total square footage of the premises
leased by Sublessor under the Master Lease. Sublessee shall reimburse
Sublessor for its pro rata share of maintenance, janitorial costs,
insurance expenses, security costs and other services which are
incurred by Sublessor for the Common Areas or for operation of the
building in which the Premises are located. All such costs and
expenses shall be deemed "Additional Rent," which together with the
Base Rent is referred to herein as "rent."
(b) Upon execution hereof by Sublessee, Sublessee shall pay to
Sublessor the sum of One Hundred Twenty-Three Thousand Seven
Hundred Fifty Dollars ($123,750), which shall constitute Base
Rent for the first month of the Term.
6. IMPROVEMENTS.
(a) As of the date hereof, to Sublessor's actual knowledge, the roof
of the Building is in water-tight condition. As of the
Commencement Date, the electrical, plumbing, lighting and
heating, ventilating and air conditioning systems serving the
Premises shall be in good, working condition. The parties
acknowledge and agree that Sublessee is subleasing the Premises
on an "as is" basis, and that Sublessor has made no
representations or warranties with respect to the condition of
the Premises except as set forth in this paragraph. Except as
expressly set forth in this Sublease, Sublessor shall have no
obligation whatsoever to make or pay the cost of any
alterations, improvements or repairs to the Premises, including,
without limitation, any improvement or repair required to comply
with any law, regulation, building code or ordinance (including
the Americans with Disabilities Act of 1990). Sublessee shall
look solely to Landlord for performance of any repairs required
to be performed by Landlord under the terms of the Master Lease.
In no event shall Sublessee be responsible for performing
structural repairs to the Premises except to the extent set
forth in Section 6(A) of the Master Lease (as incorporated
herein).
(b) All Sublessee improvements are subject to the prior written
approval of Landlord and Sublessor and shall be performed by
Sublessee in accordance with the provisions of the Master Lease.
Sublessee shall, subject to the terms of the Master Lease, be
responsible for any restoration costs to the Premises, to the
extent such costs are attributable to Sublessee's improvements.
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7. INDEMNIFICATION.
(a) Sublessee shall indemnify, defend, protect and hold Sublessor
and Landlord harmless against all losses, costs, liabilities,
damages, claims and the expense of defending the same, to the
extent resulting from the act, failure to act, negligence or
other fault of Sublessee or its agents, employees, contractors,
licensees or invitees. Sublessee further agrees to indemnify,
defend, protect and hold harmless Sublessor and Landlord against
any and all losses, costs, liabilities, damages and claims by or
on behalf of any persons, firm or corporation arising from the
conduct or management of any work done by Sublessee in or about
the Premises or from any transaction of Sublessee concerning the
Premises, and will further indemnify, defend, protect and hold
Sublessor and Landlord harmless against and from any and all
losses, costs, liabilities, damages and claims to the extent
arising from any breach or default on the part of Sublessee
under this Sublease.
(b) Sublessor shall indemnify, defend, protect and hold Sublessee
harmless against all losses, costs, liabilities, damages, claims
and the expense of defending the same, to the extent arising
from any breach or default on the part of the Sublessor under
this Sublease.
(c) The indemnifications in this section shall survive termination
of this Sublease.
8. PARKING. Sublessee may use a pro rata portion of the parking spaces
allocated to Sublessor under the Master Lease equal to a fraction, the
numerator of which is the square footage of the Premises then Subleased
by Sublessee under this Sublease, the denominator of which is the square
footage of the premises leased by Sublessor under the Master Lease.
9. REPAIRS AND MAINTENANCE. During the Term, Sublessor shall use
commercially reasonable efforts to cause Landlord to perform all of its
maintenance, repair and replacement responsibilities under the Master
Lease. Such reasonable efforts shall include, without limitation: (a)
upon Sublessee's written request, promptly notifying Landlord of its
nonperformance under the Master Lease, and requesting that Landlord
perform its obligations under the Master Lease; and (b) if Landlord's
failure to perform materially interferes with Sublessee's use of the
Premises and the commencement of legal proceedings is necessary under
the circumstances (as determined in Sublessor's reasonable discretion),
the commencement and prosecution of legal proceedings in the name of
Sublessor or otherwise against Landlord, with counsel reasonably
satisfactory to Sublessee. Sublessor shall coordinate any such
enforcement proceedings with Sublessee, but control of such proceedings
shall be with Sublessor. Sublessee shall pay all costs incurred by
Sublessor in connection with its efforts to obtain Landlord's
performance, and shall indemnify, defend, protect and hold harmless
Sublessor from all costs, claims, liabilities and damages (including
reasonable attorneys' fees) associated therewith. Sublessee shall be
responsible for all the maintenance and repair of the Premises as
required of the "Tenant" under the Master Lease.
10. DEFAULT BY SUBLESSEE.
(a) Notwithstanding any conflicting terms of the Master Lease, the
occurrence of any one or more of the following matters, in
addition to the terms stated in Section 14(A) of the Master
Lease,
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as incorporated herein, shall also constitute a default by
Sublessee under this Sublease (an "Event of Default"):
(i) Sublessee's failure to pay rent within three (3) business
days after receipt of written notice of such failure to pay on
the due date, provided however, if Sublessor has given Sublessee
notice three (3) times, no further notice shall be required of
rent not paid on the due date;
(ii) Sublessee's failure to observe or perform any other
covenant, agreement, condition or provision of this Sublease or
the Master Lease, if such failure shall continue for twenty (20)
days after receipt of written notice from Sublessor to
Sublessee, except that if such default cannot be cured within
such twenty (20) day period, it shall not be considered a
default if Sublessee commences to cure such default within five
(5) days after such notice is given, gives Sublessor a weekly
report of Sublessee's actions to cure the default and proceeds
diligently to effect such cure.
(iii) Sublessee's assignment of this Sublease or sublet of any
portion of the Premises without the prior written consent of
Sublessor and Landlord.
(iv) If Sublessee shall be dispossessed by or under authority
other than Sublessor, or if Sublessee shall file a voluntary
petition in bankruptcy, or file any petition or institute any
proceeding under any insolvency or bankruptcy act, or if a
receiver or trustee shall be appointed for the assets of
Sublessee or the Premises, or if any action shall be filed for
the reorganization of Sublessee.
(b) If an Event of Default by Sublessee occurs, Sublessor shall have
all the rights and remedies described in Section 14(B) of the
Master Lease with respect to Sublessee, Sublessee's occupancy of
the Premises and this Sublease and by applicable law.
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11. NOTICES. Any notice by either party to the other shall be in writing and
shall be deemed to be duly given only if delivered personally or sent by
registered or certified mail, return receipt requested, or overnight
delivery service, to the following address:
If to Sublessee: If to Sublessor:
Informatica Corporation Informix Software, Inc.
0000 Xxxx Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attn.: Chief Financial Officer Attn.: General Counsel
and to:
Informix Software, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn.: Director, Real Estate &
Facilities
(Two Separate Notices Required)
Notice shall be deemed to have been given on the date received, if
delivered personally or by overnight delivery service, or, if mailed,
three (3) business days after the date marked. Unless at least five (5)
days' prior written notice is given in the manner set forth in this
paragraph, the address of each party for all purposes connected with
this Sublease shall be the address set forth above. All notices given to
Landlord shall be considered received only when delivered in accordance
with the Master Lease.
12. BROKER'S FEES. The Parties represent to each other that they are each
represented by agents as follows: Sublessor by Xxxxxxx & Xxxxxxxxx and
Sublessee by BT Commercial. Each party agrees to hold the other party
harmless from and against all claims for brokerage commissions, finder's
fees or other compensation made by any other agent, broker, salesman or
finder as a consequence of said party's actions or dealings with such
agent, broker, salesman, or finder.
13. SECURITY DEPOSIT. Sublessee shall pay to Sublessor, upon execution of
this Sublease, the sum of Three Hundred Fifty-Four Thousand Dollars
($354,000), in cash or in the form of a letter of credit in form and
from a bank reasonably acceptable to Sublessor, which shall be held as a
security deposit under this Sublease (the "Security Deposit"). If
Sublessee fails to pay rent or other charges due hereunder or otherwise
defaults with respect to any provision of this Sublease, then Sublessor
may draw upon, use, apply or retain all or any portion of the Security
Deposit for the payment of any rent or other charge in default, for the
payment of any other sum which Sublessor has become obligated to pay by
reason of Sublessee's default, or to compensate Sublessor for any loss
or damage which Sublessor has suffered thereby. If Sublessor so uses or
applies all or any portion of the Security Deposit, then Sublessee,
within ten (10) days after demand therefor, shall deposit cash with
Sublessor in the amount required to restore the Security Deposit to the
full amount stated above. In the event that Sublessee defaults under
this Sublease, Sublessee shall immediately thereafter deposit and
maintain the Security Deposit in cash. Provided Sublessee has not
defaulted under this Sublease, the amount of the Security Deposit
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shall be reduced to One Hundred Seventy-Seven Thousand Dollars
($177,000) upon Sublessee's presentation of evidence reasonably
satisfactory to Sublessor that Sublessee has experienced a profit in two
(2) consecutive fiscal quarters, including, without limitation,
financial statements certified by the Chief Financial Officer of
Sublessee and, if audited financial statements are available, certified
by an independent certified public accountant. Notwithstanding the
foregoing, if audited financial statements are not available at the time
Sublessee receives a reduction in its Security Deposit as set forth
herein, Sublessee shall deliver to Sublessor financial statements for
the applicable period certified by an independent certified public
accountant as soon as audited financial statements are available. If
such audited financial statements do not show that Sublessee experienced
a profit in two (2) consecutive fiscal quarters, the amount of the
Security Deposit shall immediately be returned to Three Hundred
Fifty-Four Thousand Dollars ($354,000) and Sublessee shall promptly
deposit with Sublessor funds adequate to restore the amount of the
Security Deposit to Three Hundred Fifty-Four Thousand Dollars
($354,000).
14. USE. Sublessee shall not use, store, transport or dispose of any Toxic
Materials (as defined in the Master Lease) in or about the Premises
except for standard office products in amounts normally found in general
offices.
15. SIGNAGE. Subject to the prior written consent of Sublessor (which
consent shall not be unreasonably withheld) and Landlord and compliance
with the provisions of Section 45 of the Master Lease, Sublessee shall
have the right to display its corporate name and logo near the entrance
to the Premises on a monument sign and on the Building facade in a
manner similar to Sublessor's existing signage.
16. OPTION TO EXTEND.
(a) Sublessor hereby grants to Sublessee one (1) option (the
"Option") to extend the Term, for an additional term of two (2)
years and four (4) months (or the earlier termination of the
Master Lease), commencing when the current Term expires, upon
the terms and conditions set forth in this section. Provided
Sublessee is not in default under this Sublease and has not
defaulted under this Sublease more than three (3) times in the
previous twelve (12) month period, Sublessee may exercise such
option by giving Sublessor written notice of its intention not
less than one hundred fifty (150) days prior to the expiration
of the current Term of this Sublease. If this Option is
exercised, the Base Rent for the Premises shall be as follows:
APPROXIMATE SQUARE
PERIOD FOOTAGE OF PREMISES MONTHLY RENT
------ ------------------- ------------
2/1/01-1/31/02 60,000 $183,000
2/1/02-5/23/03 60,000 $189,000
All other terms and conditions contained in this Sublease, as
the same may be amended from time to time by the parties in
accordance with the provisions of this Sublease, shall remain in
full force and effect and shall apply during the Option term.
The extension of the Term contained herein shall be exercisable
only to all of the Premises subleased under this Sublease.
(b) Notwithstanding any of the foregoing, Sublessor shall have the
right to terminate Sublessee's
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right to exercise the foregoing Option by delivering to
Sublessee written notice of its intent to terminate such Option
no later than one hundred eighty (180) days prior to the
expiration of the current Term.
17. EFFECT OF CONVEYANCE. As used in this Sublease, the term "Sublessor"
means the holder of the tenants interest under the Master Lease. In the
event of any assignment, transfer or termination of the tenant's
interest under the Master Lease, which assignment, transfer or
termination may occur at any time during the Term hereof in Sublessor's
sole discretion, and provided the transferee has assumed Sublessor's
obligations hereunder in writing, Sublessor shall be and hereby is
entirely relieved of all covenants and obligations of Sublessor
hereunder, and it shall be deemed and construed, without further
agreement between the parties, that any transferee has assumed and shall
carry out all covenants and obligations thereafter to be performed by
Sublessor hereunder. Sublessor may transfer and deliver any security of
Sublessee to the transferee of the tenant s interest under the Master
Lease, and thereupon Sublessor shall be discharged from any further
liability with respect thereto.
18. CONSENT OF LANDLORD. This Sublease and Sublessor's and Sublessee's
obligations hereunder are conditioned upon (i) the written consent of
Landlord and (ii) Landlord's agreement to waive subrogation rights for
the benefit of Sublessee consistent with the waiver in Section 24 of the
Master Lease. If Sublessor fails to obtain Landlord's consent and waiver
by March 9, 1998 then Sublessor or Sublessee may terminate this Sublease
by giving the other party written notice thereof, and Sublessor shall
return to Sublessee its payment of the first month's Base Rent paid by
Sublessee and the Security Deposit. If requested by Landlord, Sublessee
shall promptly agree to waive subrogation rights against Landlord as set
forth in Section 24 hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Sublease as of the date above written.
INFORMIX SOFTWARE, INC., INFORMATICA CORPORATION,
a Delaware corporation a California corporation
By: [SIGNATURE] By: [SIGNATURE]
---------------------------- --------------------------------------
Title: Title: VICE PRESIDENT, FINANCE
------------------------- -----------------------------------
Date: Date: JAN 29, 1998
-------------------------- ------------------------------------
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EXHIBIT A
MASTER LEASE
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AGREEMENT OF LEASE
THIS LEASE is entered into as of February 22, 1996, between MENLO
PALO ALTO INVESTORS, a general partnership ("Landlord") and INFORMIX SOFTWARE,
INC., a Delaware corporation ("Tenant").
PREMISES
1. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, upon
the terms and conditions hereinafter set forth, those premises (hereinafter
"Premises") comprised of the entire building, which includes approximately
60,000 rentable square feet as shown on Exhibit A attached hereto, known as 0000
Xxxx Xxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter "the Building").
The Building is located on that real property commonly known as PALO ALTO PLACE
(hereinafter "the Project"), which includes one building, adjacent parking
areas, landscaping and related improvements.
LEASE TERM
2. A. TERM. The term of this Lease shall be seven (7) years commencing on
the Commencement Date, as defined below.
B. COMMENCEMENT DATE. The Commencement Date of this Lease shall be the
earlier to occur of the following:
(i) Substantial completion of the Tenant Improvements and other work
to be constructed or installed by Tenant pursuant to Exhibit B ("Tenant
Improvements");
(ii) Ninety (90) days after execution and delivery of this Lease by
the parties hereto; or
(iii) the date Tenant commences business operations from the
Premises.
C. COMMENCEMENT DATE MEMORANDUM. When the actual Commencement Date is
determined, the parties shall execute a Commencement Date Memorandum setting
forth such date in the form attached hereto as Exhibit C.
RENT
3. Tenant agrees to pay to Landlord as monthly base rent for the Premises during
the initial seven (7) years of the lease term the amount of $96,000 per month.
Monthly rent shall be payable in advance on the first day of the term of this
Lease and on the first day of each calendar month thereafter during the term,
except that if the first day of the term shall not be the first day of the
month, the rental for any partial months at the beginning and the end of the
term shall be appropriately prorated. All installments of rent shall be paid at
the office of Landlord, or at such other place as may be designated in writing
from time to time by Landlord, in lawful money of the United States and without
deduction or offset for any cause whatsoever. The first month's rent due
hereunder shall be paid to Landlord upon execution of this Lease.
All other sums which are to be paid to Landlord by Tenant pursuant to the terms
of this Lease shall be deemed additional rent, and shall be paid by Tenant to
Landlord within 10 days after receipt by Tenant of a billing, therefor or at
such other time as is specifically provided in this Lease. As additional rent,
Tenant shall pay Tenant's Share of Project Taxes and Operating Expenses as
provided in Paragraph 21 hereof.
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USE
4. A. TENANT USE. The Premises are to be used for general office
purposes and for other incidental and legal uses appropriate for Tenant to
conduct its business (provided, however, that Tenant conforms to all applicable
city, county, state, and federal laws, regulations and ordinances in connection
with Tenant's particular business and use and occupancy of the Premises), and
for no other business or purpose without the written consent of Landlord.
B. COMPLIANCE.
(i) Tenant shall not use the Premises or suffer or permit
anything to be done in or about the Premises which will in any way conflict with
any law, statute, zoning restriction, ordinance or governmental law, rule,
regulation or requirement of duly constituted public authorities now in force or
which may hereafter be in force, or the requirements of the Board of Fire
Underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Premises. Tenant shall not
commit any public or private nuisance or any other act or thing which might or
would disturb the quiet enjoyment of any other tenant of Landlord or any
occupancy of nearby property. Tenant shall place no loads upon the floors, walls
or ceilings in excess of the maximum designed load determined by Landlord or
which endanger the structure; nor place any harmful liquids in the drainage
systems; nor dump or store waste materials or refuse or allow such to remain
outside the Building proper, except in the enclosed trash areas provided. Tenant
shall not store or permit to be stored or otherwise placed any other materials
of any nature whatsoever outside the Building. Tenant shall, at its own cost and
expense, promptly and properly observe and comply with, including the making by
Tenant of any Alteration (as defined in Paragraph 6 below) to the Premises or
any change to the Tenant Improvements, all present and future orders,
regulations, directions, rules, laws, ordinances, and requirements of all
governmental authorities (including, without limitation, state, municipal,
county and federal governments and their departments, bureaus, boards and
officials) arising from the use or occupancy of, or applicable to, the Premises
or privileges appurtenant to or in connection with the enjoyment of the
Premises. Notwithstanding the foregoing, except for alterations, improvements,
costs, expenses and liabilities arising out of Tenant's specific business or use
of the Premises or arising out of Tenant's installations, alterations or
improvements to the Premises, which shall be at Tenant's sole cost, Landlord
shall bear the cost of compliance with the requirements of the Americans with
Disabilities Act, Title 24, seismic code and any other applicable building code
applicable to (a) the foundation, floor slab, roof, and structural components of
the Premises, and (b) the portions of the Building retained for future
multi-tenant common use of restrooms, lobby and common corridors; provided,
however, that Landlord shall only be obligated to bear such costs to the extent
such costs exceed the amount to be borne by Tenant for the Common Improvements,
as provided in Exhibit B hereto.
(ii) In particular, Tenant, at its sole cost, shall comply with
all laws relating to the storage, use, generation, transportation, disposal and
release of hazardous, toxic or radioactive matter and asbestos, including those
materials identified in Sections 66680 through 66685 of Title 22 of the
California Administrative Code, Division 4, Chapter 30 ("Title 22"), as they
may be amended from time to time (collectively, "Toxic Materials"). If Tenant
does store, use, generate, transport or dispose of any Toxic Materials, Tenant
shall notify Landlord in writing at least ten (10) days prior to their first
appearance on the Premises. Tenant shall defend, indemnify and hold Landlord and
its Agents harmless from and against all claims, costs and liabilities,
including attorneys' fees and costs, arising out of or in connection with
Tenant's storage, use, generation, transportation, disposal or release of Toxic
Materials, including without limitation, any such claims, costs, damages and
liabilities, including attorneys' fees and costs, arising out of or in
connection with any investigation, testing, removal, clean-up and/or restoration
services, work, materials and equipment necessary to return the Premises and any
other property of whatever nature to their condition existing prior to
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Tenant's or its Agents' use, storage, generation, transport, disposal or release
of the Toxic Materials in, on or around the Premises or the Project, and to
otherwise satisfactorily investigate and remediate the contamination arising
therefrom. Tenant's obligations hereunder shall survive the termination of this
Lease. If at any time during or after the term of this Lease, as it may be
extended, Tenant becomes aware of any inquiry, investigation, administrative
proceeding, or judicial proceeding by any governmental agency regarding the
storage, use or disposition of any Toxic Materials by Tenant or its Agents on or
about the Premises or the Project, Tenant shall within five (5) days after first
learning of such inquiry, investigation or proceeding give Landlord written
notice advising Landlord of same. Landlord shall defend, indemnify and hold
Tenant and its Agents harmless from and against all claims, costs and
liabilities, including attorneys' fees and costs, arising out of the presence of
Toxic Materials existing in, on or about the Premises or the Building prior to
the date of this Lease, or in connection with Landlord's storage, use,
generation, transportation, disposal or release of Toxic Materials, including
without limitation any such claims, costs, damages and liabilities, including
attorneys' fees and costs, arising out of or in connection with any
investigation, testing, removal, cleanup and/or restoration services, work,
materials and equipment necessary to return the Premises to their condition
existing prior to Landlord's use, storage, generation, transport, disposal or
release of Toxic Materials in, on or around the Premises or the Project.
ASSIGNMENT AND SUBLETTING
5. A. Tenant shall not sell, assign, mortgage, encumber or transfer (herein
collectively called "assign") this Lease, sublet the Premises or any part
thereof, or allow any other person (excepting Tenant's agents and employees) to
occupy the Premises or any portion thereof, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant shall give
Landlord advance written notice of any assignment or subletting to one of its
subsidiary or affiliated corporations (meaning any corporation which controls,
is controlled by, or is under common control with Tenant), and provided that any
such assignee or sublessee assumes, in full, the obligations of Tenant under
this Lease pursuant to a written instrument reasonably acceptable to Landlord,
Landlord's consent shall not be required to such an assignment or subletting. If
Tenant desires to assign this Lease or to sublet any part or all of the Premises
for any part of the term hereof, Tenant shall so advise Landlord by written
notice to Landlord. Said notice shall state the proposed commencement date of
the desired assignment or subletting (which shall not be less than twenty (20)
days nor more than ninety (90) days after the date of Tenant's notice), all
material terms of the proposed sublease or assignment, the name and address of
the proposed assignee or subtenant, and Tenant shall deliver to Landlord with
said notice a true and complete copy of all agreements relating to the proposed
assignment or sublease (including the proposed assignment or sublease agreement)
together with current complete financial statements of the proposed assignee or
subtenant. Thereafter, Tenant shall immediately furnish Landlord with any other
information concerning the proposed assignee or subtenant as Landlord shall
request. Landlord may grant its consent on reasonable conditions, including but
not limited to a condition that rentals and other payments under sublease shall
be paid directly to Landlord.
B. To the extent that rent payable under any sublease exceeds the rent
payable by Tenant hereunder, such excess shall be shared equally between
Landlord and Tenant, after deducting Landlord's and Tenant's reasonable costs
and expenses incurred in connection with such subletting.
C. Any assignment or subletting hereunder by Tenant shall not result in
Tenant being released or discharged from any liability under this Lease. As a
condition to Landlord's prior written consent as provided for in this paragraph,
the assignee or subtenant or subtenants shall agree in writing to comply with
and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease, and Tenant shall deliver to Landlord, promptly after
execution, an executed copy of each sublease and an agreement of said compliance
by each assignee or sublessee.
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D. If Landlord consents to any such subletting or assignment, Tenant
shall pay to Landlord the amount of all Landlord's actual costs of processing
such proposed assignments or subletting (including, without limitation, the
costs of attorney's and other professional fees and administrative, accounting
and clerical time), and the amount of any and all direct and indirect expense
incurred by Landlord arising from the assignee or sublessee taking occupancy
(including without limitation freight elevator operation for moving of
furnishings and trade fixtures).
E. Any sale, assignment, mortgage, transfer of this Lease or subletting
which does not comply with the provisions of this paragraph shall be void and,
at the option of Landlord, shall terminate this Lease.
F. Without limiting the other instances in which it may be reasonable for
Landlord to withhold Landlord's consent to an assignment or subletting, Landlord
and Tenant acknowledge that it shall be reasonable for Landlord to withhold
Landlord's consent in the following instances: the use of the Premises by such
proposed assignee or subtenant would not be a permitted use under Paragraph 4
hereof; the proposed assignee or subtenant is not in compliance with Paragraph
35 hereof (Financial Covenants)(which provisions shall be applicable to such
assignee or subtenant as though such entity were tenant hereunder); the proposed
assignee or subtenant is a governmental agency; the proposed assignee or
subtenant does not have a good reputation as a tenant of property; the proposed
assignee or subtenant is a corporation, partnership, etc. with whom Landlord is
negotiating to lease space in the Building; the assignment or subletting would
entail any alterations which would lessen the value of the leasehold
improvements in the Premises; or Tenant is in default of any obligation of
Tenant under the Lease (beyond the applicable cure period for cure of the
default specified in Paragraph 14 hereof), or Tenant has defaulted under
economic terms of the Lease on three (3) or more occasions during the twelve
(12) months preceding the date that Tenant shall request consent. Any assignment
or subletting of the Premises shall also be subject to the prior written consent
of Landlord's first lien mortgagee, currently Aetna Life Insurance Company
("Lender").
G. If Tenant is a corporation, a transfer of corporate shares by sale,
assignment, bequest, inheritance, operation of law or other disposition
(including such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings), so as to result in a change in the
present control of such corporation or any of its parent corporations by the
person or persons owning a majority of said corporate shares, shall constitute
an assignment for purposes of the Lease.
H. If Tenant is a partnership, joint venture or other incorporated
business form, a transfer of the interest of persons, firms or entities
responsible for managerial control of Tenant by sale, assignment, bequest,
inheritance, operation of law or other disposition, so as to result in a change
in the present control of said entity and/or a change in the identity of the
persons responsible for the general credit obligations of said entity shall
constitute an assignment for all purposes of this Lease.
REPAIRS, MAINTENANCE AND ALTERATIONS
6. A. LANDLORD'S OBLIGATIONS. Landlord, at Landlord's expense, shall keep
in good order, condition and repair the structural parts of the Building, which
structural parts include only the foundation, exterior walls (excluding the
interior of all walls and the exterior and interior of all windows, doors,
plateglass, showcases and interior ceiling), exterior painting, roof and
subflooring of the Building, except for any damage thereto caused by the
negligence or willful acts or omissions of Tenants or its Agents, or by reason
of the failure of Tenant to perform or comply with any terms, conditions or
covenants in this Lease, or caused by Alterations made by Tenant or its Agents.
B. TENANT'S OBLIGATIONS. Tenant agrees by taking possession of the
Premises as herein set forth that such Premises are then in a tenantable and
good condition and conform with the requirements of this Lease, that Tenant will
repair and maintain the
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Premises, including without limitation, all plumbing and sewage facilities
within the Premises, fixtures, interior walls, floors, ceilings, windows, store
front, doors, entrances, plateglass, showcases, skylights, all electrical
facilities and equipment, including lighting fixtures, lamps, heating,
ventilation and air conditioning equipment, fans and any exhaust equipment and
systems, any automatic fire extinguisher equipment within the Premises,
electrical motors and all other appliances and equipment of every kind and
nature located in, upon or about the Premises. All glass, both interior and
exterior, is at the sole risk of Tenant, and any broken glass shall promptly be
replaced by Tenant and at Tenant's expense with glass of the same kind, size and
quality. If any condition arises in the Premises or the Project which may be
unsafe or dangerous to persons or property in the Project, Tenant shall
immediately notify Landlord of such condition, regardless of whether the
obligation to repair such condition is Tenant's obligation or Landlord's
obligation. Tenant shall, at its own expense, provide, install and maintain in
good condition all of its trade fixtures, furniture, equipment and other
personal property ("Tenant's Personal Property") required in the conduct of its
business in the Premises. As part of the consideration for rental hereunder,
Tenant agrees that all alterations, improvements, repairs or maintenance of the
Premises shall, except as otherwise herein agreed, be made either by or under
the direction of Landlord but at the expense of Tenant (including a reasonable
charge for Landlord's overhead and administration, not to exceed an amount equal
to four percent (4%) of the cost of the subject work) and Tenant hereby waives
the provisions of Subdivision (1) of Section 1932 and of Sections 1941 and
1941.1 of the Civil Code of California, and all rights to make repairs at
Landlord's expense under the provisions of Section 1942 and 1942.1 of said Civil
Code or any other provision of law. In addition, Tenant agrees that it shall not
be permitted to make any structural, exterior alterations, improvements, repairs
or maintenance to the Premises without the prior written consent of Lender,
which consent Lender has represented to Tenant shall not be unreasonably
withheld or delayed. Unless otherwise provided by written agreement, all
alterations, improvements and changes that may be permitted by Landlord shall at
the termination of the Lease become the property of Landlord, and shall remain
upon and be surrendered with the Premises, provided however, that at Landlord's
option Tenant shall, at Tenant's expense, when surrendering the Premises,
restore the same to their original condition at the commencement of this Lease,
provided that Landlord has stipulated at the time of approval that such
restoration is required at the expiration or earlier termination of the Lease.
Tenant shall not be obligated by this provision to remove the initial
improvements made to the Premises in accordance with Exhibit B hereof. Tenant
shall, at the termination of this Lease, by the expiration of time or otherwise,
surrender and deliver up the Premises to Landlord in as good condition as when
received by Tenant from Landlord, reasonable wear and tear excepted. Tenant
shall pay for all damage to the Building, the Project, or appurtenant areas or
equipment, as well as all damage to tenants or occupants thereof or their
property caused by Tenant or by any person who may be in or around the Premises
with the consent of Tenant.
TRADE FIXTURES
7. Subject to the provisions of Paragraphs 4 and 6 hereof, Tenant may
install and maintain its trade fixtures on the Premises, provided that such
fixtures, by reason of the manner in which they are affixed, do not become an
integral part of the Building or Premises. Tenant, if not in default hereunder,
may at any time or from time to time during the term hereof, or upon the
expiration or termination of this Lease, alter or remove any such trade fixtures
so installed by Tenant. If not so removed by Tenant on or before the expiration
or termination of this Lease, Tenant, upon the request of Landlord, shall remove
the same. Any damage to the Premises caused by any such installation, alteration
or removal of such trade fixtures shall be promptly repaired at the expense of
Tenant.
DESTRUCTION
8. A. GENERAL. If the Premises or the Building should be damaged or
destroyed by fire or other casualty, Tenant shall give immediate written notice
thereof to
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Landlord. Within thirty (30) days after Landlord's receipt of such notice,
Landlord shall notify Tenant whether in Landlord's reasonable opinion repairs to
or rebuilding of the Premises or the Building, as the case may be, can
reasonably be completed either: (1) within ninety (90) days; (2) in more than
ninety (90) days but in less than one hundred eighty (180) days; or (3) in more
than one hundred eighty (180) days from the date of such notice. Landlord's
determination shall be binding on Tenant.
B. LESS THAN 90 DAYS. If the Premises or the Building should be damaged
by fire or other casualty but only to such extent that rebuilding or repairs can
in Landlord's estimation be reasonably completed within ninety (90) days after
the date of such notice, this Lease shall not terminate, and provided that
insurance proceeds are available to fully repair the damage, Landlord shall
proceed to rebuild and repair the Premises to substantially the condition in
which they existed prior to such damage, except that Landlord shall not be
required to rebuild, repair or replace any part of the partitions, fixtures,
additions and other leasehold improvements which may have been placed in, on or
about the Premises. If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the period in which
they are untenantable shall be abated proportionately.
C. GREATER THAN 90 DAYS. If the Premises or the Building should be damaged
by fire or other casualty but only to such extent that rebuilding or repairs can
in Landlord's estimation be reasonably completed in more than ninety (90) days
but in less than one hundred eighty (180) days after the date of such notice,
then Landlord shall have the option of either: (1) terminating the Lease
effective upon the date of the occurrence of such damage, in which event the
Rent payable hereunder shall be abated during the unexpired portion of the
Lease; (2) electing to rebuild or repair the Premises to substantially the
condition in which they existed prior to such damage provided that insurance
proceeds are available to fully repair the damage, except that Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the Premises. If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the period in which
they are untenantable shall be abated proportionately, but only to the extent of
rental abatement insurance proceeds received by Landlord during the time and to
the extent the Premises are unfit for occupancy. In the event that Landlord
should fail to complete such repairs and rebuilding within one hundred eighty
(180) days after the date upon which Landlord is notified by Tenant of such
damage, such period of time to be extended for delays caused by the fault or
neglect of Tenant or because of acts of God, acts of public agencies, labor
disputes, strikes, fires, freight embargoes, rainy or stormy weather, inability
to obtain materials, supplies or fuels, or any other causes or contingencies
beyond the reasonable control of Landlord, Tenant may, at Tenant's option,
within thirty (30) days after the expiration of such one hundred eighty (180)
day period (as such period may be extended), terminate this Lease by delivering
written notice of termination to Landlord as Tenant's exclusive remedy,
whereupon all rights hereunder shall cease and terminate thirty (30) days after
Landlord's receipt of such termination notice.
D. GREATER THAN 180 DAYS. If the Premises or the Building should be so
damaged by fire or other casualty that rebuilding or repairs cannot in
Landlord's estimation be completed within one hundred eighty (180) days after
the date upon which Landlord is notified by Tenant of such damage, this Lease
shall terminate and the Rent payable hereunder shall be abated during the
unexpired portion of this Lease, effective upon the date of the occurrence of
such damage.
E. TENANT'S FAULT. If the Premises or any other portion of the Building is
damaged by fire or other casualty resulting from the fault, negligence, or
breach of this Lease by Tenant or any of Tenant's Parties (as defined in
Paragraph 18 hereof), rent and additional rent payable hereunder shall not be
diminished during the repair of such damage and Tenant shall be liable to
Landlord for the cost and expense of the repair and restoration of the Premises
and/or the Building caused thereby to the extent such cost and expense is not
covered by insurance proceeds.
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F. UNINSURED CASUALTY. Notwithstanding anything herein to the contrary, in
the event that the Premises or the Building are materially damaged or destroyed
and are not fully covered by the insurance proceeds received by Landlord or in
the event that the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that the insurance proceeds be applied to
such indebtedness, then in either case Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within thirty (30) days after the date of notice to Landlord that said damage or
destruction is not fully covered by insurance or such requirement is made by any
such holder, as the case may be, whereupon all rights and obligations hereunder
shall terminate.
G. LOSS DURING LAST PART OF TERM. If the Premises or the Building are
damaged by fire or other casualty during the last one (1) year of the term of
this Lease, either Landlord or Tenant may terminate this Lease by giving notice
to the other within thirty (30) days after the occurrence of the fire or other
casualty.
H. WAIVER. Except as otherwise provided in this Paragraph 8 and to the
extent allowed by law, Tenant hereby waives the provisions of Section
1932,1933(4), 1941 and 1942 of the Civil Code of California.
SERVICES
9. Landlord shall furnish the Premises, during reasonable and usual
business hours as determined by Landlord and subject to the regulations of the
Project, with a reasonable amount of water and electricity suitable for general
office uses including a normal complement of electrical office equipment, daily
janitor service (subject to Tenant's right to provide its own janitorial
services as provided below) except on Saturdays, Sundays and public holidays,
window washing with reasonable frequency, replacement of fluorescent tubes and
light bulbs, toilet room supplies, and elevator service consisting of
non-attended automatic elevators. Such heat and air-conditioning as may be
required for the comfortable occupation of the Premises will be provided during
the hours of 8:00 AM to 5:30 PM daily except Saturdays, Sundays and public
holidays. With respect to heating, air conditioning and electricity used by
Tenant during other hours, Landlord shall install separate meters showing
Tenant's utility usage during other hours. The cost of installing such meters
shall be a Tenant Improvement cost, as described in Exhibit B. Tenant, upon
presentation of a xxxx therefor, shall pay Landlord a reasonable hourly rate for
such heating and air conditioning and shall pay actual electrical usage based on
the average unit cost per month. Notwithstanding, the foregoing, so long as
Informix Software, Inc. leases and occupies the entire Building hereunder and
has not exercised any right to terminate this Lease as to all or any portion of
the Premises (including its early termination rights under Paragraph 43), then
Tenant shall have the right to set the hours of operation for the heating,
ventilation and air conditioning equipment, and to contract for and provide its
own janitorial services. If Tenant elects to provide its own janitorial
services, Tenant shall give Landlord no less than thirty (30) days' written
notice of such election, in which case Landlord shall be excused from any
obligations hereunder to provide such services to Tenant. Tenant shall be solely
responsible for the provision of such services and shall indemnify and protect
Landlord from and against all claims, losses, liabilities, damages and injury,
to the full extent provided by Tenant's indemnity set forth in Paragraph 10, in
connection with such services. If the provision of such janitorial services by
Tenant's contractor causes any loss, injury or damage to persons or property on
or about the Project, then, by written notice to Tenant, Landlord shall have the
right to require Tenant to terminate such contract.
Landlord shall not be liable for failure to furnish any of the foregoing
services when such failure is caused by accidents or conditions beyond the
control of Landlord, or by repairs, labor disturbances, or labor disputes of any
character, whether resulting from or caused by acts of Landlord, or otherwise,
provided, however, that in any of such events Landlord shall make a prompt and
diligent effort to cause the resumption of such services.
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Landlord shall not be liable under any circumstances for loss of or injury to
person or property, or loss of business, however occurring, through or in
connection with or incidental to the furnishing of any of the foregoing, nor
shall any such failure relieve Tenant from the duty to pay the full amount of
rent herein reserved, or constitute or be construed as a constructive or other
eviction of Tenant. Landlord's obligations hereunder are subject to adoption by
Landlord of energy conservation measures required or requested by any
governmental entity or reasonably determined by Landlord, and Tenant shall
cooperate fully in effectuating such energy conservation measures upon request
of Landlord including without limitation those measures specified in the Project
Rules and Regulations.
HOLD HARMLESS AND NON-LIABILITY OF LANDLORD
10. Except insofar as such injury or damage may result from the sole
negligence or willful misconduct of Landlord or its employees, Landlord shall
not be liable to Tenant for any death or injury or damage that may result to any
person or property in or about the Premises, or the Project, from any cause
whatsoever, including but not limited to injury or damage resulting from any
defects in the Project or any equipment located therein, or from fire, water,
gas, oil, electricity or other cause or any failure in the supply of same, or
from the acts or omissions of any persons, including co-tenants, or any acts or
omissions of Landlord.
Tenant agrees to Indemnify and hold Landlord harmless against all claims, and
the expense of defending against claims, for death or for injury or damage to
persons or property occurring in or about the Premises or occurring outside the
Premises but resulting in whole in the part by the act, failure to act,
negligence or other fault of Tenant or its agents, employees, contractors,
licensees or invitees. Tenant further agrees to indemnify and hold harmless
Landlord against any and all claims by or on behalf of any person, firm or
corporation arising from the conduct or management of any work or thing
whatsoever done by Tenant in or about or from transactions of Tenant concerning
the Premises, and will further indemnify and hold Landlord harmless against and
from any and all claims arising from any breach or default on the part of the
Tenant to be performed pursuant to the terms of this Lease. Tenant shall also
indemnify and hold harmless Landlord against all cost, counsel fees, expenses
and liabilities incurred in connection with any such claims or actions or
proceedings brought thereon. If any action or proceeding is brought against
Landlord by reason of any such claims or liability, Tenant agrees to defend such
action or proceeding at Tenant's sole expense by counsel reasonably satisfactory
to Landlord. The provisions of this Paragraph 10 shall survive the expiration or
termination of this Lease.
INSURANCE
11. Notwithstanding any other provision of this Lease, Tenant at its expense
shall maintain adequate worker's compensation insurance, adequate rental or
business interruption insurance, adequate comprehensive general liability with
"extended liability" endorsement and adequate all risk property damage insurance
(including without limitation plate glass coverage) in a form equivalent to the
current Insurance Services Office "all risk" form, and issued by an insurer
reasonable satisfactory to Landlord, with a combined single liability limit for
bodily injury and property damage of not less than Three Million Dollars
($3,000,000) insuring against all liability of Tenant and its authorized
representatives arising out of and in connection with Tenant's use or occupancy
of the Premises. In the event Tenant's insurance contains a split limit of
liability, the liability limit shall not be less than Three Million Dollars
($3,000,000) for bodily injury and One Million Dollars ($1,000,000) for
property damage. Tenant shall insure all personal property and fixtures of
Tenant and all of Tenant's improvements to the Premises. Tenant's property
policies shall not provide for deductible amounts in excess of $5,000 without
the prior written consent of Landlord. Landlord and all parties holding
interests to which this Lease subordinate (including, without limitation,
Lender) shall be named as additional insureds with Tenant on such liability
policy, and such policy shall include cross-liability endorsements. Tenant's
liability policy of
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insurance shall be primary and noncontributory to any insurance carried by
Landlord. Landlord may, without diminishing or affecting in any way Tenant's
obligations to maintain insurance as herein provided, maintain any insurance
coverage on the Building, the Project or the Premises deemed appropriate by
Landlord in its sole discretion, including without limitation lessor's risk or
comprehensive general liability insurance, xxxxxxx'x compensation insurance,
extended coverage, fire or casualty insurance with replacement cost riders,
flood or earthquake insurance rental or business interruption insurance, and
such insurance may provide for such deductible amounts as deemed appropriate by
Landlord. Landlord shall maintain full replacement cost property insurance on
the building and such other insurance as may be required from time to time by
Landlord's lender. At the commencement of the Lease term, and annually on
renewal of its insurance, Tenant shall deliver to Landlord an original
certificate of such insurance from the insurer, which certificate shall show the
coverages required by this Lease (including, without limitation, that Tenant's
insurance is primary and noncontributory with respect to any insurance of
Landlord), that Landlord shall be an additional insured, and shall provide that
such policy shall not be canceled without thirty (30) days prior written notice
by the insurer to Landlord, except that the policy may provide for ten (10)
days' notice to Landlord of cancellation for nonpayment of premium. If Tenant
fails to obtain such insurance or to furnish such certificate as required in
this Lease, Landlord may, but shall not be obligated to, obtain such insurance
at the expense of Tenant, and Tenant shall promptly pay such expense to
Landlord.
NOTICES
12. All notices, demands, requests, consents, or approvals ("notices"
hereafter) which are required or authorized to be given by Landlord or Tenant
pursuant to this Lease or by law, or which Landlord or Tenant may desire to give
to the other or to Lender, shall be in writing. All notices to Landlord shall be
addressed to Landlord c/o The Xxxxxxx Company, 0000 Xxxx Xxxx Xxxx, Xxxxx 000,
Xxxxx Xxxx, Xxxxxxxxxx 00000, or such other address as Landlord may from time to
time request, and shall be personally delivered to an employee of The Xxxxxxx
Company or served by mail.
All notices to Tenant shall be addressed to Tenant at the Premises, with a
separate copy to each of:
Informix Software, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Legal Counsel and [separate copy to]
Attention: Real Estate Director
and shall be personally delivered to the Premises or served by mail addressed to
the Premises whether or not Tenant has departed from, abandoned, or vacated the
Premises, or to such other address as Tenant may from time to time designate in
writing. Tenant waives the provisions of Section 1162 of the California Code of
Civil Procedure, provided that any notice to Tenant under Section 1161 of the
California Code of Civil Procedure is given in compliance with this Paragraph.
All notices to Lender shall be addressed to Lender c/o Aetna Investment Group,
Real Estate Investments, 000 Xxxxxxxx Xxxxxx - XX0X, Xxxxxxxx, XX 00000, or such
other address as Lender may from time to time request, and shall be personally
delivered to such address or served by mail.
All notices served by mail shall be deposited in the United States mail, first
class postage prepaid (or, at the option of the party giving notice, may be by
certified or registered mail, postage prepaid), addressed as herein provided,
and shall be effective two days after the day deposited in the mail, as
determined by the postmark, or if there is no postmark then by other competent
evidence. Notices hereunder may also be given
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by reliable overnight mail delivery services, such as Federal Express, in which
case notice so given shall be deemed effective on the date received by the
addressee.
INSOLVENCY OR RECEIVERSHIP
13. Either the appointment of a receiver to take possession of all, or
substantially all, of the assets of Tenant or a general assignment by Tenant for
the benefit of creditors, or any action taken or suffered by Tenant under any
insolvency or bankruptcy or reorganization act, the attachment, execution or
other judicial seizure of Tenant's interest in this Lease or in any substantial
amount of Tenant's assets located on the Premises, which such seizure is not
discharged within thirty (30) days, or failure by Tenant to pay its debts as
they become due, shall constitute a breach of this Lease by Tenant.
DEFAULT
14. A. DEFAULT. Occurrence of any of the following shall constitute a
default by Tenant: (1) failure of Tenant to pay rent or other payments when due
hereunder; (2) assignment, sublease or transfer of Tenant's interest in this
Lease, or any part thereof, either voluntarily or by operation of law, whether
by judgment, execution, death, receivership or other means, without the consent
of Landlord; (3) occurrence of a breach of this Lease under Paragraph 13 or
Paragraph 35 hereof, relating to the financial condition of Tenant; or (4)
failure of Tenant to perform any other covenant, condition, or representation of
Tenant under this Lease. If Tenant's default is a failure to pay rent or other
payments when due hereunder, Tenant shall not be deemed in default and Landlord
shall exercise no remedies provided in subparagraph 14(b) hereof for such
default, unless Tenant fails to cure such default within five (5) business days
after Landlord gives Tenant written notice of such default. If Tenant's default
is a default included in item (4) of the first sentence of this subparagraph
14(a), Tenant shall not be deemed in default and Landlord shall exercise no
remedies provided in subparagraph 14(b) hereof for such default unless Tenant
fails to cure such default within thirty (30) days after Landlord gives Tenant
written notice of such default, provided, however, that such cure period shall
terminate if Tenant fails to do the following: Tenant shall diligently commence
to cure such failure within seven (7) days after such notice is given and shall
give Landlord a weekly report of Tenant's actions to cure such failure each week
until such failure is cured. Any notice by Landlord under this Paragraph shall
be sufficient if it informs Tenant of the general nature of Tenant's failure to
perform Tenant's obligations hereunder.
B. REMEDIES. In the event Tenant is in default under this Lease,
Landlord shall have the following rights and remedies, which shall be
cumulative, and any other remedies provided by law:
Landlord shall have the immediate right of re-entry and may remove all persons
and property from the Premises and may store such property at the cost of and
for the account and risk of Tenant. Should Landlord elect to re-enter as herein
provided, or should Landlord take the possession pursuant to legal proceedings
or pursuant to any notice provided for by law, it may either terminate this
Lease or it may from time to time, without terminating this Lease, as
attorney-in-fact for tenant, sublet the Premises, or any part thereof, for such
term or terms (which may be for a term extending beyond the term of this Lease)
and at such rental or rentals and upon such other terms and conditions as
Landlord, in its sole discretion, may deem advisable, with the right to make
alterations and repairs to the Premises. Upon any such re-entry Landlord may, at
Tenant's expense, take all necessary actions to maintain or preserve the
Premises (including, without limitation, changing the locks on the Premises). No
such re-entry or taking possession of said Premises by Landlord or acts of
maintenance and preservation or subletting shall be construed as a termination
of Tenant's right to possession of the Premises under Section 1951.4 of the
California Civil Code, or any successor law thereto, nor shall any such act be
construed as an election on Landlord's part to
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terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction.
If Landlord elects to sublet the Premises without terminating this Lease, then
upon each such subletting, Tenant shall immediately pay to Landlord (in addition
to any other amounts due hereunder) all costs and expenses of such subletting,
including without limitation reasonable attorneys' fees and any real estate
commissions actually paid or incurred (provided that any commission paid to a
company owned by Landlord shall not exceed the prevailing market rate for such
commissions) and any costs and expenses of such alterations and repairs, and the
present worth of the amount, if any, by which the unpaid rentals and other
amounts due hereunder for any portion of the balance of the term of this Lease
included in the period of such subletting exceed the rental reserved in such
sublease (computing present worth by assuming the legal rate of interest), less
the amount, if any, of said rental loss which Tenant proves could have been
reasonably avoided, with interest on all such sums at the rate herein provided.
Rents received by Landlord from such re-letting shall be applied; first, to the
payment of any unpaid sums due to Landlord from Tenant under the preceding
sentence hereof; second, to the payment of any indebtedness, other than monthly
rent, due hereunder from Tenant to Landlord (including interest on defaulted
payments hereunder); third, to the payment of rent due and unpaid hereunder and
the residue, if any, shall be held by Landlord and applied in payment of future
rent or other obligations as the same may become due and payable hereunder. If
rentals received from such subletting during any month are less than rentals and
other payments to be paid during or prior to that month by Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Any such deficiency shall be
calculated and paid monthly. For purposes of any subletting under this Paragraph
14, and for all related purposes, Landlord is hereby irrevocably appointed
attorney-in-fact for Tenant.
Whether or not Landlord sublets the Premises as permitted above, Landlord may at
any time after Tenant's default, elect to terminate this Lease for such previous
default, in which even Landlord may recover all amounts provided in Section
1951.2 of the California Civil Code (including, without limitation, the costs
and expenses of subletting or re-letting the Premises including reasonable
attorneys' fees and any real estate commissions actually paid or incurred,
provided that any commission paid to a company owned by Landlord shall not
exceed the prevailing market rate for such commission, and any costs and
expenses of repairs or alterations for such sub-letting or re-letting) with
interest thereon at the rate herein provided, and any additional amounts which
may now or hereafter be authorized by law. Any proof by Tenant under this
Paragraph or subparagraph (2) or (3) of subdivision (a) of Section 1951.2 of the
California Civil Code, or any successor law pertaining to mitigation of damages,
as to the amount of rental loss that could have been or could be reasonably
avoided, shall be made in the following manner. Landlord and Tenant shall each
select a licensed real estate broker in the business of renting property of the
same type and use of the leased Premises and in the same geographic vicinity and
such two real estate brokers shall select a third licensed real estate broker
and the three licensed real estate brokers so selected shall determine the
amount of the rental loss that could have been or could be reasonably avoided
from the balance of the term of this Lease after the time of Tenant's default.
The decision of the majority of said licensed real estate brokers shall be final
and binding upon the parties hereto and the fees charged by such brokers for
providing such determination shall be borne by Tenant.
Landlord shall have the right to cure any default of Tenant at Tenant's expense.
Any amount paid or incurred by Landlord in curing any such default shall be
immediately paid by Tenant to Landlord. No such cure by Landlord shall
constitute a waiver by Landlord of the default of Tenant or prevent Landlord
from exercising the other remedies herein provided for default by Tenant.
C. LATE CHARGES. Tenant 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, including without limitation processing and
accounting
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charges, administrative expense and additional interest expense or late charges
to Landlord resulting from late payment by Landlord of payments due on
obligations of Landlord, whether or not secured by an encumbrance on the
Premises. Tenant acknowledges that the Exact amount of such damages would be
extremely difficult and impractical to ascertain, and that the expense of
attempting to ascertain the exact amount of such damages would be an additional
cost not contemplated by this Lease. Accordingly, in the event that Tenant shall
fail to pay any installment of rent or any sum due hereunder on the date such
amount is due, and provided Tenant fails to cure such failure within five (5)
business days after Landlord gives Tenant written notice of such failure, Tenant
shall pay to Landlord as additional rent a late charge equal to the greater of
three percent (3%) of each such installment or other sum, or one hundred
dollars ($100.00), for each such installment or other sum. Landlord and Tenant
agree that the late charge herein provided is a reasonable estimate of the
damages which Landlord shall incur by reason of late payment by Tenant.
Landlord's acceptance of any late charge shall not constitute a waiver of
Tenant's default with respect to the overdue amount if Tenant fails to pay such
amount within any applicable grace period provided in this Lease, nor shall such
acceptance prevent Landlord from exercising any rights or remedies herein
provided for default by Tenant.
D. OTHER. In addition to the foregoing, and regardless of whether
Landlord has exercised any remedies for default hereunder, if Tenant is in
default and such default is not cured within the applicable cure period
specified herein then, unless otherwise agreed by Landlord in writing, Tenant
shall have no right to exercise any right, option, or privilege granted to
Tenant hereunder or in any other agreement relating to the Premises, the
Building or the Project, and any attempt to exercise such a right, option or
privilege shall be void and of no effect whatsoever, provided, however, that
Tenant's right to possession of the Premises, and Tenant's rights to sublet the
Premises or assign its lease pursuant to the provisions of Paragraph 5 hereof,
shall not be deemed terminated unless Landlord terminates the Lease by written
notice as herein provided. Any period provided herein for the exercise by Tenant
of any right, option or privilege hereunder shall not be tolled, extended, or
otherwise affected to the benefit of Tenant by reason of any such disability of
Tenant hereunder regardless of any attempt by Tenant to exercise a right, option
or privilege hereunder while Tenant is in default hereunder. Any defaulted
payments hereunder shall bear interest at 5% per annum plus the greater of (a)
the Federal Reserve Bank rate, specified in Article 15, Section 1 of the
California Constitution, prevailing on the 25th day of the month preceding
execution of this Lease (it being understood that this Lease is not a contract
to make a loan or forbearance), or (b) such Federal Reserve Bank rate prevailing
on the 25th day of the month preceding the date such defaulted payment was due
hereunder, regardless of whether Landlord exercises any remedies hereunder.
Tenant hereby waives all claims for damages that may be caused by Landlord's
re-entering and taking possession of the Premises or removing and storing the
property of Tenant as authorized in this Paragraph and Paragraph 15 hereof, and
will hold Landlord harmless against all loss, costs or damages occasioned
thereby, and no such re-entry shall be considered or construed to be a forcible
entry.
REMOVAL OF PROPERTY
15. Whenever Landlord shall remove any property of Tenant from the Premises
and store the same elsewhere for the account, and at the expense and risk, as
Tenant, as provided in Paragraph 14 hereof, and Tenant shall fail to pay the
cost of storing any such property after it has been stored for a period of
ninety (90) days or more, Landlord may sell any or all such property at public
or private sale, in such manner and at such times and places as Landlord, in its
sole discretion, may deem proper, without notice to or demand upon Tenant, for
the payment of any part of such charges or the removal of any such property, and
shall apply the proceeds of such sale; first, to all costs and expenses of such
sale, including reasonable attorneys' fees actually incurred; second, to the
payment of all costs of or charges for removing or storing any such property;
third, to the payment of any other sums of money which may then or thereafter be
due to
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Landlord from Tenant under any of the terms hereof or otherwise; and fourth, the
balance, if any, to Tenant.
WAIVER
16. No provision of this Lease shall be deemed waived by Landlord except by
a writing signed by Landlord. The waiver by Landlord 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 of any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent acceptance
of rent hereunder by Landlord shall not be deemed to be a wavier of any
preceding breach by Tenant of any term, covenant, or condition of this Lease,
other than the failure of Tenant to pay the particular rental so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. Any consent by Landlord to any act or omission by
Tenant for which Landlord's consent is required hereunder shall not be deemed to
be a consent to any subsequent act or omission of the same or different nature,
nor shall any such consent be deemed to be a waiver of the requirement of
Landlord's consent to any subsequent act or omission of the same or different
nature.
COSTS OF SUIT
17. If Tenant or Landlord shall bring any action for any relief against the
other, declaratory or otherwise, arising out of this Lease or Tenant's occupancy
of the Premises, including any suit by Landlord for the recovery of rent or
possession of the Premises, the losing party shall pay the successful party a
reasonable sum for attorneys' fees in such suit, which may be determined by the
court, and such attorneys' fees shall be deemed to have accrued on the
commencement of such action and shall be paid whether or not such action is
prosecuted to judgment.
LITIGATION AGAINST TENANT
18. Should Landlord, without fault on Landlord's part, be made a party to
any litigation instituted by or against Tenant, or by or against any person
holding under or using the Premises by license of Tenant ("Tenant's Parties"),
or for the foreclosure of any lien for labor or material furnished to or for
Tenant or any such other person or otherwise arising out of or resulting from
any act or transaction of Tenant or any such other person, Tenant shall pay to
Landlord the amount of any judgment rendered against Landlord or the Premises or
any part thereof, and all costs and expenses, including reasonable attorneys'
fees, incurred by Landlord in or in connection with such litigation.
TAXES PAYABLE BY TENANT
19. Tenant shall pay, before delinquency, all taxes levied against, imposed
upon, measured by, or resulting from or with respect to (a) any personal
property or trade fixtures placed by Tenant in or about the Premises; (b) any
improvements ("Special Improvements") to the Premises in excess of Building
standard improvements, whether owned by Landlord or Tenant; (c) the possession,
lease, operation, management, maintenance, alteration, improvement, repair, use
or occupancy of the Premises or any portion thereof; (d) this transaction or any
document to which Tenant is a party creating or transferring any interest or
estate in the Premises; (e) the cost and expenses of contesting the amount or
validity of any of the foregoing taxes. If such taxes are levied against
Landlord or Landlord's property, and if Landlord pays the same, which Landlord
shall have the right to do regardless of the validity of such levy, or if the
assessed value of Landlord's property is increased by the inclusion therein of a
value placed upon such personal property, trade fixtures or Special Improvements
of Tenant, and if Landlord pays the taxes based upon such increased assessment,
which Landlord shall have the right to do regardless of the validity thereof,
Tenant shall, upon demand, repay to Landlord the taxes so levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment, as the case may be. In the event that it
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shall not be lawful for Tenant so to reimburse Landlord, the rent payable to
Landlord under this Lease shall be revised to yield to Landlord the same net
rent from the Premises after imposition of any such tax upon Landlord as would
have been received by Landlord from the Premises prior to the imposition of such
tax. The amount of any tax upon Tenant's personal property attached to the
Premises, trade fixtures or Special Improvements which is included in the
property tax assessment for the Building shall be determined on the basis of the
records of the County Assessor if such records are sufficiently detailed to
allow such determination, and if not, then the amount shall be determined on the
basis of the actual cost of construction or installation thereof. Tenant shall
have the right to contest with the applicable taxing authority the amount and
validity of any of the foregoing taxes, provided that Tenant shall indemnify and
hold Landlord harmless from and against any and all claims, liabilities, costs,
expenses (including reasonable attorneys' fees) arising out of such contest, and
such contest shall not affect Tenant's obligations with respect to Landlord
under this Lease.
LIENS
20. Tenant shall keep the Premises, Building and the Project, free from any
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant.
TENANT'S SHARE OF PROJECT TAXES AND OPERATING EXPENSES
21. In addition to the base monthly rent specified in Paragraph 3 hereof,
Tenant shall pay to Landlord Tenant's Share of Project Taxes and Operating
Expenses, as determined in this Paragraph 21. Tenant's Share of estimated
Project Taxes and Operating Expenses shall be payable monthly in advance on the
same day of the month and in the same manner that Tenant shall pay the base
monthly rent hereunder. As of the Lease commencement date, Tenant's Share of
estimated Project Taxes and Expenses shall be One Hundred percent (100%).
A. Additional rent due hereunder for any fractional month at the
beginning or end of the Lease term shall be appropriately pro-rated. Landlord
shall, as soon as practicable after the start of each calendar year commencing
during the term of this Lease, notify Tenant in writing of the amount which
Landlord estimates will be Tenant's Share of Project Taxes and Operating
Expenses for the full calendar year subject to such notice, and one-twelfth
(1/12th) thereof shall be the additional monthly rental payment required to be
made by Tenant during such calendar year under this Paragraph 21. If during any
calendar year during the term of this Lease it appears in the reasonable
judgment of Landlord that Project Taxes and Operating Expenses payable under
this Paragraph will exceed its estimate, Landlord may, by written notice to
Tenant, revise its estimate for such year, and Tenant's Share of such Project
Taxes and Operating Expenses and the additional monthly rental hereunder shall
be adjusted accordingly. If after any, calendar year it proves that Tenant's
Share of Project Taxes and Operating Expenses for such calendar year is greater
or less than the estimated Share actually billed to and paid for by Tenant, an
adjustment shall be made within sixty (60) days following the commencement of
the next calendar year and Tenant shall forthwith pay Landlord such amount or be
credited accordingly, regardless of whether this Lease is still then in effect.
B. Landlord shall, as soon as practicable after the close of each
calendar year wholly or partially within the Lease term deliver to Tenant a
written statement summarizing actual Project Taxes and Operating Expenses for
such calendar year and showing, Tenant's Share of such Project Taxes and
Operating Expenses. Provided that Tenant is not in default hereunder, if Tenant
disputes the amount set forth in such statement, Tenant shall have the right, by
written request made not later than sixty (60) days following receipt of such
statement, to cause Landlord's books and records with respect to such calendar
year to be audited by independent certified public accountants mutually
acceptable to Landlord and Tenant. Prior to any such audit, Tenant shall pay to
Landlord a deposit equal to the full amount of any unpaid amount in dispute and
a
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sum specified by Landlord's accountant for the estimated fees of Landlord's
accountant in connection with such audit. The amounts payable under Paragraph
21.A by Landlord to Tenant or Tenant to Landlord, as the case may be, shall be
appropriately adjusted on the basis of such audit. If such audit discloses a
liability for further refund by Landlord to Tenant in excess of ten percent of
the amount determined by Landlord pursuant to this subparagraph 21.B hereof as
Tenant's Share of actual Project Taxes and Operating Expenses for such calendar
year, the cost of such audit shall be borne by Landlord. Tenant shall pay all
reasonable expenses of Landlord in connection with any inspection or audit of
Landlord's books and records hereunder (including without limitation accounting
or legal fees incurred by Landlord in connection therewith), unless under the
terms of this subparagraph 21.B Landlord is required to pay the cost of an audit
for the calendar year covered by Tenant's inspection or audit. If Tenant shall
not request an audit in accordance with the provisions of this subparagraph 21.B
within sixty (60) days of receipt of Landlord's statement, such statement shall
be conclusively binding upon Tenant. In addition, upon reasonable request by
Tenant, Landlord shall provide reasonable backup data supporting charges for
Project Taxes and Operating Expenses, and shall, upon reasonable request by
Tenant, and upon notice at least three (3) business days in advance, make
available Landlord's books and records pertaining to such Project Taxes and
Operating Expenses for inspection by Tenant, provided that Tenant shall pay all
reasonable expenses of Landlord in connection with the provision of such backup
data and/or inspection of Landlord's books and records.
C. Tenant's obligation under this Paragraph 21 for any fraction of a
calendar year at the commencement or the end of the Lease term shall be
determined by prorating Tenant's obligation hereunder on the basis which the
number of days in such fractional calendar year in the Lease term bears to 365.
If the Lease term terminates during a calendar year or calendar month,
additional rent payable hereunder, as prorated, shall be due and payable when
determined notwithstanding the termination by Landlord pursuant to the default
provisions of Paragraph 14, Tenant's liability under this Paragraph 21 shall
immediately be due and payable, based upon Landlord's current projection as to
likely excess actual Project Tax and Operating Expense if the same are not yet
then ascertainable with certainty, with any such projection and payment by
Tenant subject to subsequent adjustment if such projection shall thereafter
prove to be less than 95% accurate. For purposes or this Paragraph 21, Project
Taxes and Operating Expenses for any year during which the Project is not
substantially fully occupied shall be calculated by projection as if the Project
were so occupied during the entire calendar year.
D. For the purposes of this Paragraph the following definitions shall
apply:
(1) "Taxes" shall include (a) all real estate taxes, possessory
interest taxes, personal property taxes levied upon, measured by, or assessed to
Landlord in connection with the Project other than taxes covered by Paragraph
19, and any other taxes, charges and assessments (including, without limitation,
any taxes, charges or assessment for public improvements, services or benefits,
whether or not commenced or completed prior to the commencement of the Lease
term or not to be completed during the Lease term, transit development fees,
housing funds, education funds, street highway or traffic fees, environmental
charges, fees or penalties imposed as a means of controlling or abating
environmental degradation or energy use and taxes, charges or assessments upon
or measured by or for parking facilities) which are levied with respect to or in
connection with the Project, and any improvements, fixtures and equipment and
all other property of Landlord, real or personal, located in or around the
Project and used in connection with the operation of the Project; and (b) any
other tax, charge, assessment, fee or governmental imposition or charge of every
kind or nature whatsoever assessed to Landlord in connection with the Project,
any part thereof, or the Premises (other than estate taxes, inheritance taxes,
or net income taxes payable against nonrental as well as rental income) whether
or not in addition to or in lieu of such real estate and possessory interest or
personal property taxes, whether or not now customary or within the
contemplation of the parties hereto, ordinary or extraordinary, foreseen or
unforeseen, or similar or dissimilar to any of the foregoing, including by
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way of illustration but not limitation any and all taxes, impositions, charges,
fees or assessment (i) upon, allocable to, or measured by the area of the
Premises or the Project or on the rent payable hereunder or the rent payable on
the Premises or the Project or any portion thereof, including without limitation
any gross income tax, excise tax or value added tax, levied by any governmental
or quasi-governmental entity with respect to the Project, any part thereof, or
such rent, and (ii) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, energy consumption, use or
occupancy by Landlord or Tenant of the Premises or the Project or any portion
thereof; and (c) the cost and expenses of contesting the amount or validity of
any of the foregoing taxes. In the event that it shall not be lawful for Tenant
to reimburse Landlord for Tenant's Share of any tax, as defined herein, the rent
payable to Landlord under this Lease shall be revised to yield to Landlord the
same net rent from the Premises after imposition of any such tax upon landlord
as would have been received by Landlord hereunder prior to the imposition of
such tax. Notwithstanding the foregoing to the contrary, Tenant shall not be
obligated to pay Tenant's share of any increases in Taxes resulting from the
sale by Landlord of Landlord's fee title interest in the Project.
(2) "Operating Expenses" shall mean all costs and expenses of
ownership, operation and maintenance of the Project (excluding depreciation on
the buildings, all amounts paid on loans of Landlord, real estate brokers'
commissions, and expenses capitalized for federal income tax purposes except as
specified herein) including by way of illustration but not limited to:
utilities; supplies; insurance (including payment of deductibles); business
license, permit, inspection and other authorization fees, charges, exactions and
taxes; special charges or assessments for services provided to the Project,
including without limitation sewer, water, fire or police protection; cost of
services of independent contractors (including without limitation accounting and
legal services and property management fees, provided that if landlord provides
such services landlord may include a reasonable charge for such services in
operating expenses); cost of reasonable market compensation (including
employment taxes and fringe benefits) of all persons who perform regular and
recurring duties connected with day-to-day operation, maintenance and repair of
Project buildings, their equipment and the adjacent walks, malls, parking and
landscaped areas, including without limitation janitorial, scavenger, gardening
and landscaping, security, operating engineer, elevator, painting, plumbing,
electrical, carpentry, heating, ventilation, air conditioning, window washing,
signing and advertising (but excluding persons performing services not uniformly
available to or performed for substantially all Project tenants); maintenance
and repair expenses, including but not limited to capital expenditures required
to meet changed government regulations and governmental regulations for
environmental protection or energy conservation, (whether or not capitalized for
income tax purposes), and rental expenses or a reasonable allowance for
depreciation of personal-property used in the maintenance, operation and repair
of the Project; Landlord's reasonable administration expense; and the cost of
contesting the validity, amount, or applicability of any governmental enactments
or other expenses which may affect Operating Expenses. If Landlord makes capital
improvements which have the effect of reducing operating expenses or which are
required to meet governmental regulations, Landlord may amortize the cost of
such improvements (together with interest thereon at the actual cost of such
funds to Landlord or, if such funds were not borrowed, at the prime rate then in
effect for the Bank of America) as an operating expense in accordance with
reasonable accounting procedures, provided that such amortization shall not be
at a rate which exceeds the anticipated savings in Operating Expenses, or in the
event of a governmentally-required capital improvement, the useful life of the
improvement. Landlord shall be responsible for the professional property
management of the Premises during the term hereof, to be paid for by Tenant. The
management fee and administrative fee shall not exceed four percent of the base
and additional rents payable hereunder. Operating Expenses shall not include
Landlord's share, to the extent provided in Exhibit B, of costs incurred by
Landlord on account of Excess Common Cost, as provided in Exhibit B, including
the remodeling of restrooms to meet current ADA requirements in effect as of the
Commencement Date, painting and remodeling the lobby and painting the exterior
of the Building, or any
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costs incurred by Landlord to deliver the Premises at the Commencement Date with
the existing electrical, mechanical, plumbing systems and roof in good working
order; provided, however, that Landlord shall only be obligated to bear such
costs to the extent such costs exceed the amount to be borne by Tenant for the
Common Improvements, as provided in Exhibit B hereto.
SUBORDINATION
22. A. Tenant agrees that this Lease shall be subject and subordinate to
any mortgage, deed of trust or like encumbrance heretofore or hereafter placed
upon the Project or the Premises by Landlord or its successors in interest to
secure the payment of monies loaned, interest thereon and/or other obligations,
and this Lease also shall be subject and subordinate to any ground lease or
underlying lease hereafter entered into, or a transaction whereby Landlord or
its successors shall sell the Project or any part thereof and lease the Project
or any part thereof back (as lessee) for a term of at least ten (10) years or
the remaining term of this Lease, whichever is shorter, provided that Landlord
obtains from such mortgagor or lessor a written agreement in form acceptable to
such mortgagor or lessor, providing substantially that Tenant's rights under
this Lease shall not be affected by any foreclosure or deed in lieu of
foreclosure, or sale under such encumbrances for so long as Tenant performs its
obligations under this Lease (or, in the case of a ground lease or underlying
lease, Tenant's rights shall not be affected by any termination of such lease
for so long as Tenant performs its obligations under this Lease). Tenant agrees
to execute and deliver, upon demand of Landlord, any and all instruments desired
by Landlord, subordinating in the manner requested by Landlord, this Lease to
such mortgage, deed of trust, like encumbrance, ground lease, or underlying
lease. Landlord shall obtain and provide to Tenant a commercially reasonable
nondisturbance and attornment agreement from all current and future lenders
holding a mortgage, deed of trust or like encumbrance upon the Project or the
Premises.
B. Tenant hereby agrees to execute and deliver to Landlord a Subordination,
Non-Disturbance and Attornment Agreement and a Tenant Estoppel Certificate in
the forms attached hereto as Exhibits E and F, respectively. Tenant's execution
and delivery of the aforementioned documents shall be a condition precedent to
the effectiveness of this Lease.
MORTGAGEE PROTECTION
23. Tenant agrees to give Lender, by registered mail, a copy of any notice
of default served upon Landlord, provided that prior to such notice Tenant has
been notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise) of the address of Lender. Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then Lender shall have an additional sixty (60) days within which to cure
such default or if such default cannot be cured within that time, then such
additional time as may be necessary to cure such default (including, but not
limited to, commencement of foreclosure proceedings, if necessary to effect such
cure), in which event the Lease shall be terminated while such remedies are
being so diligently pursued.
SUBROGATION
24. Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release any and all rights of recovery, claims, actions
or causes of action against each other and their respective partners, officers
and employees for any loss or damage that may occur to the premises, the
Building and personal property within the Premises or the Building by reason of
fire or other causes insured against under any insurance policies maintained or
required to be maintained by the parties hereto, regardless of cause, including,
the act or negligence of a party hereto, or their agents, officers, employees,
contractors or representatives. Landlord and Tenant acknowledge that this
paragraph will preclude assignment of any claim mentioned in it
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by way of subrogation to an insurance company. Each party hereby represents and
warrants to the other that this waiver of subrogation does not invalidate its
insurance coverage.
CONDEMNATION
25. Should the whole or any part of the Premises be condemned and taken by
any competent authority for any public or quasi-public use or purpose, all
awards payable on account of such condemnation and taking shall be payable to
Landlord, and Tenant hereby waives all interest in or claim to said awards, or
any part thereof. Notwithstanding the foregoing, Tenant shall have the right to
appear, claim, prove and receive compensation from the condemning authority for
such compensation as may be separately awarded to Tenant for compensation for
loss of business by Tenant due to such condemnation and for the expenses
incurred by Tenant in connection therewith. If the whole of the Premises shall
be so condemned and taken, then this Lease shall terminate. If a part only of
the Premises is condemned and taken and the remaining portion thereof is not
suitable for the purposes of which Tenant had leased said Premises, Tenant shall
have the right to terminate this Lease. If by such condemnation and taking a
part only of the Premises is taken, and the remaining part thereof is suitable
for the purposes for which Tenant has leased said Premises, this Lease shall
continue, but the rental shall be reduced in an amount proportionate to the
value of the portion taken as it related to the total value of the Premises.
WAIVER OF REDEMPTION BY TENANT; HOLDING OVER
26. Tenant hereby waives for Tenant and all those claiming under tenant, all
right now or hereafter existing to redeem the leased Premises after termination
of Tenant's right of occupancy by notice of such termination by Landlord
pursuant to Paragraph 14 hereof or by order or judgement of any court or by any
legal process or writ. If Tenant holds over after the term hereof, with or
without the express or implied consent of Landlord, such tenancy shall be from
month to month only, and not a renewal hereof or an extension for any further
term, and in such case rental and all other payments provided herein shall be
payable in the amount (as adjusted hereunder) and at the time specified in
Paragraph 3 hereof, and in other provisions hereof, and such month to month
tenancy shall be subject to every other term, covenant, and agreement contained
herein except as to the term of this Lease. The rental payable by Tenant during
any such holdover period shall be one hundred forty percent (140%) of the rental
in effect immediately prior to the expiration of the Lease Term.
ENTRY AND INSPECTION
27. Landlord and its agents shall have the right to enter into and upon the
Premises at all reasonable times with reasonable notice (except in emergencies,
in which case no notice shall be required) for the purpose of inspecting the
same, or for the purpose of showing same to prospective purchasers, mortgagees,
or tenants, or for the purpose of protecting the interest therein of Landlord or
to post notices of non-responsibility, or to make alterations or additions to
the Premises or to any other portion of the Building in which the Premises are
situated, including the erection of scaffolding or other mechanical devices, or
to provide any service provided by Landlord to Tenant hereunder, including
window cleaning and janitor service, without any rebate of rent to Tenant for
any loss of occupancy or quiet enjoyment of the Premises, or damage, inquiry or
inconvenience thereby occasioned. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon, and about the Premises, excluding Tenant's vaults and safes, or
special security areas (designated in a writing signed by Tenant and Landlord
in advance), and Landlord shall have the right to use any and all means which
Landlord may deem necessary or proper to open said doors in an emergency, in
order to obtain entry to any portions of the Premises, and any entry to the
Premises, or portions thereof obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the
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Premises, or an eviction, actual or constructive, of Tenant from the Premises or
any portions thereof.
BUILDING AND PLANNING
28. Landlord shall have the right at any time, without the same constituting
an actual or constructive eviction and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or passageways,
doors and doorways, and corridors, elevators, stairs, toilets, or other public
parts of the Building and the Project, and to change the name, number or
designation by which the Building or the Project is commonly known. Landlord
agrees that so long as Informix Software leases and occupies the entire
Building, and has not exercised an early termination right (including the early
termination right specified in Paragraph 43), Landlord will not exercise any of
the foregoing rights to the extent the same would unreasonably interfere with
the conduct of Tenant's business, except to the extent Landlord is required by
governmental authority to take any such action.
OFFSET STATEMENT
29. Within ten (10) business days after request therefor by Landlord, or in
the event of any sale, assignment or hypothecation of the Premises and/or the
Project or any portion thereof by Landlord, Tenant agrees to deliver in
recordable form a certificate to any proposed mortgagee, trust deed beneficiary
or purchaser, or to Landlord, in form satisfactory to the addressee, certifying
as to (a) the date of this Lease and any amendments thereto, (b) the date upon
which this Lease term commenced and will end, (c) the fact this Lease, as so
amended, is in full force and effect and has not been modified except as stated,
(d) whether any rentals are then prepaid or unpaid hereunder, (e) whether any
defaults then exist hereunder, (f) whether Tenant claims any offsets or defenses
to any obligation imposed hereunder and (g) any other information reasonably
requested of Tenant. If Tenant is provided with a proposed form of such
certificate, and fails to execute same within ten (10) business days after
receipt thereof, Tenant agrees that all statements made in such proposed
certificate shall be deemed true and binding upon Tenant for all purposes.
Tenant acknowledges that any proposed mortgagee, trust deed beneficiary,
purchaser or Landlord, may rely on the truth of statements set forth in such
certificate as executed by Tenant or may rely upon the failure of Tenant to
execute such statement within said ten (10) business day period as conclusive
evidence of the truth thereof.
MANAGER
30. Landlord shall have the right to entrust active management of the
Project to a property management company. In such event Tenant agrees that
Tenant shall conduct all of its dealings with respect to this Lease and the
Premises solely with such property manager and its officers or employees or
such other person or persons who may subsequently be designated in writing by
Landlord as the manager of the Project or Premises, and Tenant shall not
directly communicate with Landlord concerning such matters.
ATTORNMENT
31. In the event of a termination of all or any part of Landlord's interest
in the Building or the Project due to sale or other disposition, or from any
cause whatsoever or in the event of the foreclosure of or exercise of a power of
sale under any mortgage or deed of trust made by Landlord covering the Premises,
Tenant shall attorn to and recognize as Landlord hereunder, Landlord's assignee
or successor in interest or the purchaser at such foreclosure or sale in lieu
thereof, as the case may be. Any such sale, disposition, or other termination of
Landlord's interest in the Premises shall operate to release Landlord from any
future liability under any of the covenants or conditions of this Lease, express
or implied, in favor of Tenant, and in such event Tenant agrees to
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look solely to the responsibility of Landlord's successor in interest under this
Lease, as limited by Paragraph 3.2 hereof.
LIMITATION ON LANDLORD'S LIABILITY
32. In the event of any actual or alleged failure, breach or default by
Landlord hereunder pertaining to the Premises, the Building, or the Project,
Tenant shall give Landlord written notice of such default and Landlord shall not
be deemed in default hereunder unless Landlord fails to diligently commence to
cure such default within thirty (30) days after receipt of such written notice.
In consideration of the benefits accruing to Tenant hereunder, Tenant agrees for
itself and its successors and assigns that in the event of any such failure,
breach or default, or of any damage to Tenant from any act or omission of
Landlord or Landlord's agents pertaining to the Premises or the Project, the
sole and exclusive remedy of Tenant shall be against Landlord's interest in the
Project, that any judgment obtained against Landlord, any person who owns an
interest in the Building or land or any agent of Landlord, or such other person
shall be satisfied solely by execution of the judgement and levy against the
right, title and interest of Landlord or such person in the Project, and rentals
therefrom. Neither Landlord, any person who owns any interest whatsoever in the
Project, nor any agent of Landlord or such person shall be personally liable for
any deficiency after such execution and levy.
SUCCESSORS AND ASSIGNS
33. Subject to the provisions hereof relating to assignment, mortgaging,
pledging and subletting, this Lease is intended to and does bind the heirs,
executors, administrators, successors and assigns of any and all of the parties
hereto.
SECURITY
34. No security deposit shall be required.
FINANCIAL COVENANTS
35. Tenant represents and warrants that all financial information provided by
Tenant to Landlord prior to execution by Landlord of this Lease is true and
complete and fairly represents the actual financial condition of Tenant as of
the date that Tenant executes this Lease. Tenant shall furnish Landlord with all
publicly available financial information concerning Tenant upon Landlord's
request. In addition, upon request by Landlord, Tenant shall deliver to Landlord
a copy of its most recently filed Form 10Q and/or Form 10K as filed with the
Securities and Exchange Commission. If for any reason Tenant is not required to
file a Form 10Q and/or 10K describing its current assets and current
liabilities, then Tenant shall provide Landlord with equivalent financial
information describing in reasonable detail its current assets and liabilities,
upon request. Tenant agrees that any misrepresentation to Landlord as to
Tenant's financial condition, or any failure to provide financial information
required to be provided by Tenant hereunder, shall constitute a default under
this Lease.
PARKING
36. Landlord agrees that Tenant shall have the use of all parking areas
located on the Project at no additional cost. Landlord shall keep the parking
area lighted and in good repair. All parking areas provided by Landlord
hereunder shall be deemed a part of the Premises for purposes of Tenant's
obligations under Paragraphs 10 and 11 hereof.
RULES AND REGULATIONS
37. The rules and regulations attached to this Lease, as well as such
reasonable rules and regulations as may be hereafter adopted by Landlord for the
safety, care and cleanliness of the Premises and the operation of the Project,
and the preservation of good order thereon, are hereby expressly made a part
hereof, and Tenant agrees to
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comply with them. Landlord shall not be liable to any person, including Tenant,
for the failure of any other tenant or person to observe such rules and
regulations.
TIME
38. Time is of the essence of this Lease.
LEASE EXAMINATION AND EXECUTION
39. Tenant acknowledges that submission of this Lease for examination and
signature by Tenant does not constitute a reservation or option for lease, and
that this Lease is not and shall not be effective until (a) Tenant has delivered
to Landlord at least three originals of this Lease, fully executed by Tenant,
accompanied by payment to Landlord of a sum equal to the sum of one month's rent
hereunder, which shall be applied toward Tenant's rental obligations under
Paragraph 3 hereof upon commencement of this Lease; and (b) Landlord has
thereafter delivered to Tenant at least one fully executed original of this
Lease, executed by both Tenant and Landlord. Tenant, and each person executing
this Lease on behalf of Tenant, represent and warrant that this Lease is duly
executed by Tenant, and the persons executing this Lease on behalf of Tenant are
duly authorized so to do and to bind Tenant to the obligations set forth in this
Lease.
MISCELLANEOUS
40. This Lease shall constitute the entire agreement of the parties
pertaining to the Premises and all prior agreements and representations of the
parties (except representations of Tenant concerning its financial condition),
whether written or oral, shall be superseded by this Lease. This Lease may not
be amended or modified except by written agreement duly executed by the parties
hereto. This Lease shall be interpreted as follows: (a) according to the fair
meaning of the language without strict construction against either party; (b)
under the laws of the State of California; (c) by disregarding captions, which
shall have no significance except convenience; (d) by substituting appropriate
gender where required; and (e) by substituting the plural for the singular, and
vice versa, where the context requires. If any provision of this Lease is found
to be unenforceable or otherwise invalid, such unenforceable provision shall be
deemed separable and the remaining provisions of this Lease shall remain in full
force and effect. Tenant's covenants shall survive termination of this Lease
where reasonably appropriate to accomplish the purpose thereof. Neither this
Lease nor any memorandum thereof shall be recorded without the prior written
consent of Landlord.
EXHIBITS
41. Exhibits A-F attached hereto, and any other Exhibit or Addendum which is
initialed or signed by Landlord and Tenant and attached hereto shall be
considered a part of this Lease for all purposes.
OPTION TO EXTEND
42. A. Notice. Landlord hereby grants to Tenant the option to extend the
term of the Lease for one additional term of five (5) years, at a rental rate
equal to the then prevailing Fair Market Rental Rate (as determined under
Paragraph B below), provided that Tenant must give Landlord written notice of
the exercise of this option to extend no later than six (6) months prior to the
expiration of the initial term of this Lease, and provided that Landlord may, at
its option, cancel Tenant's exercise of this option if Tenant fails to cure a
default under this Lease within the applicable cure period provided in this
Lease, where such default occurs or exists at the time that the option is
exercised, or at any time until the commencement date of the extended term
(subject to any applicable cure period specified herein for such default). In no
event, however, shall the monthly base rent during the option term be less than
the monthly base rent
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due and payable during the last month immediately preceding the commencement
date of the option term.
B. Determination of Rent. Landlord shall inform Tenant of its initial
determination of the Fair Market Rental Rate within thirty (30) days after its
receipt of Tenant's notice of its intention to extend the term, whereupon
Landlord and Tenant shall attempt in good faith to agree on the Fair Market
Rental Rate. If the parties are unable to reach agreement within sixty (60) days
after Landlord's receipt of Tenant's notice of its intention to extend the term,
then the Fair Market Rental Rate shall be determined by a commercial real estate
broker with not less than five (5) years experience leasing buildings similar to
the Premises in the geographic market in which the Premises are located
(hereinafter, a "Qualified Broker"), the identity of whom shall be agreed upon
by Landlord and Tenant or, if they fail to so agree, by three (3) such Qualified
Brokers, one of whom shall be chosen by Landlord, one of whom shall be chosen by
Tenant, and the third of whom shall be chosen by the other two Qualified
Brokers. Landlord and Tenant shall each bear one-half of the expenses of a
single Qualified Broker, or the expenses of the Qualified Broker each chooses
and one-half of the expenses of the third Qualified Broker, as the case may be.
In the event the Fair Market Rental Rate is not determined as provided herein
prior to the commencement of the extended term, Tenant shall continue to pay the
same rent being paid hereunder just prior to the commencement of the extended
term until such time as the Fair Market Rental Rate is determined, at which time
Tenant shall be credited or charged, as the case may be, with the difference
between the rent payable hereunder for the extended term, as finally determined
in accordance with this provision, and the amounts actually paid in lieu thereof
pending such determination.
C. Addendum. Promptly upon determination of the rent to be paid for the
renewal term, Landlord shall prepare and deliver to Tenant a lease addendum
setting forth the rent and Tenant shall execute and deliver the same to Landlord
within 10 days after receipt thereof.
D. Termination. The option granted in this Paragraph shall terminate and
be of no further force and effect if, (i) Tenant shall be in default which
remains uncured as specified in Paragraph A above, or (ii) Tenant shall fail to
exercise this option by giving notice to Landlord within the time stated in
Paragraph A. Tenant shall have no right to extend the term of this Lease beyond
the additional term set forth herein.
EARLY TERMINATION RIGHTS
43. Provided that Tenant is not in default of any of its obligations under
this Lease (beyond the applicable cure period specified herein) at the time it
wishes to exercise the right to terminate provided herein or at the intended
effective date thereof, Tenant shall have the right, exercisable by giving
Landlord notice at least six months in advance of the effective date of such
termination, to terminate this Lease as to a portion of the Premises as follows:
(a) as of the end of the sixtieth (60th) month of the Lease term, Tenant
may terminate its lease obligations with respect to up to a maximum of 30,000
contiguous square feet of the Premises; and
(b) as of the end of the seventy-second (72nd) month of the Lease term,
Tenant may terminate its lease obligations with respect to a maximum of an
additional 15,000 contiguous square feet of space.
Tenant may exercise either or both of the foregoing options in (a) or (b). In
any event, Tenant shall continue to perform all of its obligations under this
Lease with respect to the terminated portion of the Premises until the effective
date of such termination, including the payment of all rent and other charges
due with respect thereto. Tenant's notice of termination must be accompanied by
Tenant's payment of an amount equal to three months of rent payable hereunder.
In addition to these payments, Tenant shall be
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responsible for and shall pay on demand the costs of separating the terminated
space from the Premises (including electrical, HVAC and other utility separation
costs and separate utility metering costs) and all costs related to preserving
Tenant's access to the Building. If Tenant does not elect to terminate this
Lease in accordance with the provisions set forth herein, then this early
termination option shall be deemed waived and of no further force and effect.
Tenant acknowledges that if Tenant so elects to terminate its obligations as to
portions of the Premises pursuant to this paragraph, Landlord will suffer
damages due to the fact that Landlord will have incurred expenses based on the
full term of the Lease, including tenant improvement costs and leasing
commissions and Landlord will lose the benefit of the rentals provided for the
balance of the Lease term. The payments specified above shall constitute
compensation for such damages and payment for the privilege of exercising such
termination rights. Such payments shall be made by Tenant's corporate check
supported by good funds with Tenant's written notice of termination, and such
notice of termination shall be of no force or effect unless such notice is
accompanied by such payment. Upon termination of this Lease as to the portion of
the premises specified as provided herein, Landlord and Tenant shall be relieved
of any further obligations hereunder with respect thereto, provided, however,
that this shall not be construed to release Landlord or Tenant from any
liabilities arising out of acts, omissions or events occurring prior to such
termination.
In the event that Tenant exercises either or both of the foregoing options in
(a) or (b), then Landlord shall have the right to terminate this Lease with
respect to the entire Premises by giving written notice to Tenant within thirty
(30) days of Landlord's receipt of Tenant's termination notice, it being
understood that if Landlord gives such notice, Landlord's notice of termination
shall be effective as of the date that Tenant's partial termination would have
been effective (e.g., if Tenant exercises its option pursuant to subparagraph
(a) above and if Landlord gives its notice of election to terminate the Lease as
to the entire premises, then Landlord's notice shall be effective as of the end
of the 60th month of the Lease term).
BROKERS
44. Tenant represents and warrants to Landlord that Tenant has dealt with no
broker in connection with this Lease other than Xxxxxxx & Xxxxxxxxx, and
Landlord represents and warrants to Tenant that Landlord has dealt with no
broker in connection with this Lease other than BT Commercial. Each party agrees
that it shall be liable for and shall pay its own brokerage commissions.
Landlord and Tenant also each (as "Indemnitor") agree to indemnify, defend and
hold harmless the other against and from any claims, demands, liabilities,
costs, and expenses, including without limitation attorneys' fees, arising out
of or resulting from a claim by any person (other than BT Commercial and Xxxxxxx
& Wakefield) that it is entitled to a commission, finder's fee or other
compensation in connection with this Lease transaction based on the acts or
omissions of the Indemnitor or a claim by BT Commercial or Xxxxxxx & Xxxxxxxxx
resulting from a failure by a party to pay its brokerage commissions.
SIGNAGE
45. Tenant, at Tenant's expense, shall be allowed (1) to place appropriate
signage on the monument sign on the Property, and (ii) to place signs on the
exterior of the Premises; provided, however, that the size, exact location and
appearance of all such signage shall be subject to the prior written consent of
Landlord, which consent shall not be unreasonably withheld. All such signage
shall be in compliance with any City of Palo Alto requirements. Tenant, at its
own expense, shall obtain all necessary permits for any such signs, shall
maintain and repair such signs, and shall remove same upon expiration or earlier
termination of this Lease. Landlord shall have the trees in front of the
Building trimmed to Tenant's reasonable satisfaction to improve the visibility
of the
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signage and, if Tenant requests that the tree presently blocking the signage in
front of the Building be removed, then, provided such removal is permissible
under all applicable laws, codes and regulations, Landlord shall have the tree
removed.
COMMUNICATIONS EQUIPMENT
46. Subject to all governmental laws, rules and regulations, Tenant shall
have the right to install, operate and maintain so-called "satellite dishes" or
other similar devices, such as antennae (collectively "Communication
Equipment"), for the purpose of receiving and sending computer, telephone or
other communication signals, at a location on the roof of the Building as
requested by Tenant and approved by Landlord in writing. The installation and
operation of the Communication Equipment shall be governed by the following
terms and conditions:
(a) Tenant's right to operate and maintain the Communication Equipment
shall be subject to all governmental laws, rules and regulations, and Landlord
makes no representations that such laws, rules and regulations permit such
installation and operation;
(b) all costs of installation, operation and maintenance of the
Communication Equipment and any necessary related equipment (including, without
limitation, costs of obtaining any necessary permits) shall be borne by Tenant;
(c) Landlord retains the right to install other Communication Equipment
and to use the roof of the Building for any purpose whatsoever, provided that
Landlord shall not unduly interfere with Tenant's use of the Communication
Equipment, and that Tenant's use of the Communication Equipment shall not
prohibit Landlord from leasing Project space, including roof space, to other
users, including telecommunications providers such as Pacific Xxxx Mobile
Services or Cellular One and the like;
(d) Tenant shall use the Communication Equipment so as not to cause any
interference to other tenants in the Building or with any communication
equipment owned by Landlord or a third party, and not to damage or interfere
with the normal operation of the Building,
(e) Landlord shall not have any obligations with respect to the
Communication Equipment. Landlord makes no representation that the Communication
Equipment will be able to receive or transmit communication signals without
interference or disturbance (whether or not by reason of the installation or use
of similar equipment by others on the roof of the Building), and Tenant agrees
that Landlord shall not be liable to Tenant therefor;
(f) Tenant shall (i) be solely responsible for any damage caused as a
result of the Communication Equipment, (ii) promptly pay any tax, license or
permit fees charged pursuant to any laws or regulations in connection with the
installation, maintenance or use of the Communication Equipment and comply with
all precautions and safeguards recommended by all governmental authorities, and
(iii) pay for all necessary repairs, replacements to or maintenance of the
Communication Equipment; and
(g) if Tenant shall fail to do so, Landlord shall have the right to
remove the Communication Equipment and related equipment at Tenant's sole
expense upon the expiration or sooner termination of this Lease or upon the
imposition of any governmental law or regulation which may require removal and
to repair the Building upon such removal to the extent required due to removal
of the Communication Equipment within thirty (30) days after the expiration or
earlier termination of this Lease. The provisions of this Paragraph shall
survive the expiration or earlier termination of this Lease.
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EARLY OCCUPANCY
47. Tenant desires to occupy approximately 20% to 25% of the Building commencing
as soon as reasonably possible, recognizing that the Tenant Improvement work to
be performed in accordance with Exhibit B is unlikely to be completed and is
likely to be on-going, with the associated disruptions and interferences
associated with construction. It is understood that any delay in the Substantial
Completion of the Tenant Improvements occasioned by interference due to such
early occupancy shall not delay Tenant's obligation to commence paying rent
hereunder, which shall commence as provided below in part (3), upon occupancy of
any portion of the Premises. The parties have agreed that such early occupancy
shall be upon the following terms and conditions:
(1) Lease Terms Applicable. Tenant agrees that any such early occupancy
shall be subject to all of the terms and conditions of this Lease.
(2) Utility Charges. Tenant agrees to pay to Landlord on request all
utility charges reasonably allocated to Tenant by Landlord as a result of
Tenant's early entry upon and occupancy of the Premises.
(3) Rent. Commencing upon the date takes occupancy of any portion of the
Premises, Tenant shall be charged its prorated share of the rent and its pro
rata share of Project Taxes and Operating Expenses on a pro rata basis for the
portion(s) of the Premises so utilized.
(4) Insurance. Prior to any entry upon or occupancy of any portion of
the Premises, Tenant shall provide to Landlord certificates evidencing the
existence and amounts of insurance carried by Tenant, which coverage shall
comply with the provisions of the Lease relating to insurance.
(5) Laws. Tenant shall comply with all applicable laws, regulations,
permits and other approvals required in connection with such early entry and
occupancy of the Premises.
(6) Indemnity. Tenant shall indemnify and save Landlord and the Premises
harmless from and against any and all liens, liabilities, losses, damages,
costs, expenses, demands, actions, causes of action and claims (including,
without limitation, attorneys, fees and legal costs) arising out of the use or
occupancy of the Premises and arising from or relating to such early entry
and/or occupancy, or arising from any work in the Premises performed by Tenant
(with any such work being subject to the provisions of this Lease pertaining to
improvements, alterations, installations, repairs and maintenance by Tenant).
CONSENT OF LENDER
48. This Lease may not be amended without the prior consent of Lender, which
consent Lender has represented to Tenant shall not be unreasonably withheld.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
LANDLORD: TENANT:
MENLO PALO ALTO INVESTORS INFORMIX SOFTWARE, INC.
a Delaware corporation
By: [SIG] By: [SIG]
------------------------ ------------------------
General Partner Title:
---------------------
By: [SIG]
------------------------
General Partner
25
39
EXHIBIT A
[Description Of Premises]
40
EXHIBIT B-2
East First Floor Premises
41
EXHIBIT B
Tenant Improvements
(a) Improvements. The parties have agreed that Tenant shall bear the cost of the
improvements to the Premises as described herein, and for expediency and
efficiency, the parties have further agreed that Landlord shall not require that
Landlord's contractor be used, or that Landlord be paid a construction
management fee. Instead, Tenant shall, through its contractor (who shall be
subject to Landlord's reasonable approval), cause to be constructed improvements
to the Premises and the common areas of the Project in accordance with plans and
specifications approved by Landlord and Tenant. The Premises shall be delivered
to Tenant in their present condition and Tenant shall bear all costs (except as
provided below) pertaining to improvements to the Premises to make the Premises
suitable for Tenant's use (collectively, all of the work to be performed to the
interior and to the common areas shall be referred to in the Lease as hereby
amended as the "Tenant Improvements"), including certain common area work
("Common Improvements") for (a) remodeling restrooms in compliance with current
requirements of the Americans with Disabilities Act, (b) painting and remodeling
the lobby, and (c) painting the exterior of the Building. The Tenant
Improvements and the Common Improvements shall be made in accordance with plans
and specifications approved by Landlord and Tenant, and completed by Tenant
through a contractor who shall be subject to Landlord's reasonable approval, in
a good and workmanlike manner and in accordance with all applicable laws, rules
and regulations. Tenant shall not be required to pay to Landlord a construction
management fee, but shall reimburse Landlord for the actual cost (without
xxxx-up) of professional services rendered to Landlord by Landlord's architect
and/or contractor (collectively "Landlord's Consultant") to review and approve
the plans and specifications for the above-described work on Landlord's behalf.
Landlord shall not be liable for the costs or construction of any improvements
or alterations to the Premises or the Project, except as provided hereinbelow.
In the event the actual cost of construction of the Common Improvements exceeds
$150,000, Tenant shall be reimbursed such excess amount (the "Excess Common
Cost"). The Excess Common Cost shall be reimbursed to Tenant upon completion of
the Tenant Improvements in accordance with the Final Plans, and Landlord's
receipt of (i) a certificate of occupancy from the City of Menlo Park, (ii)
unconditional lien waivers from all contractors and subcontractors, and (iii)
copies of all invoices pertaining to the work. Landlord's Consultant shall in
good faith determine the costs allocable to the Tenant Improvements and to the
Common Improvements. Should Tenant disagree with the determination by Landlord's
Consultant ("Landlord's Determination"), Tenant shall have the right to dispute
such determination by providing written notice within five (5) days after
receipt of Landlord's Determination that Tenant elects to have such dispute
arbitrated. If Tenant fails to give such notice, Tenant shall be deemed to have
accepted Landlord's Determination. If Tenant elects to have the matter
arbitrated, the matter shall be arbitrated in accordance with Paragraph (e)
below. Notwithstanding the foregoing, Landlord shall not be responsible for any,
and Tenant shall bear the responsibility for all costs associated with,
alterations and improvements required due to Tenant's particular business or
particular use of the Premises. Upon completion of the Tenant Improvements,
Tenant shall provide to Landlord a full set of as-built plans depicting all of
the Tenant Improvements. Tenant shall guarantee lien-free completion of all such
improvements.
(b) Plans. Tenant shall prepare and submit to Landlord two (2) sets of final
plans and specifications showing the architectural design of the Premises,
including the basic mechanical system and electrical system within the
Premises, plumbing, partitions and doors, complete fixturing information, and
material selections and finishes. Within five (5) working days after receipt of
such final plans and specifications, Landlord shall approve or suggest
modifications to such final plans and specifications. Tenant may object to any
of the suggested modifications by notice to Landlord within five (5) working
days after receipt of such suggested modifications, and unless Tenant so objects
such suggested modifications shall be deemed approved by Tenant. Tenant
42
shall also submit all proposed change orders in writing (with sufficient detail
to enable Landlord to understand the nature of the proposed change) to Landlord
for Landlord's prior written approval, which shall not be unreasonably refused
or delayed. Any proposed change order shall be deemed approved by Landlord
unless Landlord disapproves same within five (5) business days after the
proposed change order is submitted to Landlord, provided that Tenant's notice
requesting approval of such change order clearly notifies Landlord that the
proposed change order shall be deemed approved if not disapproved within five
(5) business days. Tenant shall bear the cost of all change orders (including
labor and material costs required thereby) at its sole cost. While Landlord has
the right to approve the plans and specifications, Landlord's sole interest in
doing so is to protect the Building and Landlord's interests. Accordingly,
Tenant shall not rely on Landlord's approvals and Landlord shall not be the
guarantor of, nor in any way responsible for, the accuracy or correctness of any
such plans and specifications, and Landlord shall incur no liability of any kind
by reason of granting any such approvals.
(c) Delays. Notwithstanding the provisions of Paragraph 2 of this Lease, the
commencement of the term of this Lease shall not be delayed, and the
Commencement Date shall be advanced to the date it would have been but for the
delay, if substantial completion is delayed because: (1) construction to be
furnished hereunder has not been completed if such construction has been delayed
at the instruction of or due to the act or neglect of Tenant, its employees or
its contractors; (2) construction has been delayed by Tenant's failure to
promptly approve plans, or to accommodate the installation of Tenant's trade
fixtures, equipment or improvements; or (3) Tenant has ordered additional
improvements not shown in preliminary plans reviewed at the time of the
execution of this Lease, or has made changes to the plans after approval thereof
by Landlord. Substantial completion of the Premises shall occur when the work to
be done in accordance with the approved plans and specifications is
substantially completed, notwithstanding that minor details of construction,
mechanical adjustments or decorations which do not materially interfere with the
use of the Premises remain to be performed, and the Premises shall be deemed
substantially complete even though certain portions of the Building, which do
not interfere with Tenant's conduct of its business, have not been fully
completed, and even though Tenant's furniture, telephones, telecopiers,
computers and other office equipment and machines have not been installed, the
purchase and installation of which shall be Tenant's sole responsibility.
(d) Early Access. Upon execution and delivery of this Lease accompanied by
Tenant's payment of its first month's rent hereunder, and provided that Tenant
has in place the insurance required by this Lease, Tenant shall be granted
reasonable access to the Premises for the purpose of installing its fixtures,
communications cabling and the like. Tenant and Landlord shall use their best
efforts to coordinate such installation with the Tenant Improvement work
construction schedules to endeavor to avoid delays or interference in the
construction of the Tenant Improvement work. Any delay in the Substantial
Completion of the Tenant Improvements occasioned by interference due to such
early access shall not delay Tenant's obligation to commence paying rent
hereunder, which shall commence upon the date that Substantial Completion would
have been achieved but for such interference.
(e) Arbitration of Landlord's Determination. In the event Tenant disputes
Landlord's Determination as provided in Paragraph (a) above, Tenant's notice of
its election to submit the matter to arbitration shall be accompanied by
Tenant's determination ("Tenant's Determination") of the cost allocable to the
Tenant Improvements and to the Common Improvements. The parties shall resolve
this disagreement as follows:
(i) Within ten (10) days after Tenant delivers Tenant's Determination to
Landlord, Landlord and Tenant shall, meet by conference call or in person no
less than two (2) times, at a mutually agreeable time and place, to attempt to
resolve the disagreement.
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(ii) If, within such ten-day period, the parties cannot reach an
agreement, they shall select a neutral, mutually agreeable architect to resolve
the dispute. The architect's sole charge shall be to decide which of the two
determinations, Landlord's Determination and Tenant's Determination, more
accurately describes the cost allocable to the Tenant Improvements and to the
Common Improvements. The architect shall be instructed to deliver its decision
within ten (10) days after his or her appointment. The determination by such
neutral architect shall be conclusive and binding on the parties. Each party
shall bear one-half (1/2) the cost, if any, incurred by the architect in
resolving this disagreement.
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EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
LANDLORD: Menlo Palo Alto Investors
TENANT: Informix Software, Inc.
LEASE DATE:
----------------------------
PREMISES:
----------------------------
Pursuant to Paragraph 3 of the above referenced Lease, the Commencement Date is
hereby established as _______________________, 19______.
LANDLORD:
Menlo Palo Alto Investors,
a California limited partnership
By:
----------------------------
General Partner
TENANT:
Informix Software, Inc.
a Delaware corporation
By:
----------------------------
Its:
----------------------------
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EXHIBIT D
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevator and stairways shall
not be obstructed by tenants or used by them for any purpose other than for the
ingress to and egress from their respective premises. The halls, passages,
exits, entrances, elevator and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of Landlord, shall
be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of such tenant's business unless such persons are engaged
in illegal activities. No tenant, and no employee or invitees of any tenant,
shall go upon the roof of the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice visible from the
exterior of any tenant's premises shall be inscribed, painted, affixed,
installed or otherwise displayed by any tenant either on its premises or any
part of the Building without the prior written consent of Landlord, and Landlord
shall have the right to remove any such sign, placard, picture, name,
advertisement, or notice without notice to and at the expense of the tenant. If
Landlord shall have given such consent to any tenant at any time, whether before
or after the execution of the Lease, such consent shall in no way operate as a
waiver or release of any of the provisions hereof or of such Lease, and shall be
deemed to relate only to the particular sign, placard, picture, name,
advertisement or notice so consented to by Landlord and shall not be construed
as dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, picture, name,
advertisement or notice. All approved signs or lettering on doors and walls
shall be printed, painted, affixed or inscribed at the expense of the tenant by
a person approved by Landlord.
3. The bulletin board or directory of the Building will be provided exclusively
for the display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom. Tenant shall have the right to
its share of the directory commensurate with (in proportion to) the square
footage of space leased and occupied by Tenant.
4. No curtains, draperies, blinds, shutters, shades, screens or other coverings,
awnings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with, any window or door on any premises without the prior
written consent of Landlord. In any event, all such items shall be installed
inboard of Landlord's standard window covering and shall in no way be visible
from the exterior of the Building. No articles shall be placed against glass
partitions or doors which might appear unsightly from outside tenant's premises.
5. Landlord reserves the right to exclude from the Building between the hours of
6:00 p.m. and 8:00 p.m. and at all hours on Saturdays, Sundays and holidays, all
persons who are not tenants or their accompanied guests in the Building. Each
tenant shall be responsible for all persons whom it allows to enter the Building
and shall be liable to Landlord for all acts of such persons. Landlord shall in
no case be liable for damages for error with regard to the admission to or
exclusion from the Building of any person. During the continuance of any
invasion, mob, riot, public excitement or other circumstance rendering such
action advisable in Landlord's opinion, Landlord reserves the right to prevent
access to the Building by closing the doors, or otherwise, for the safety of
tenants and protection of the Building and property in the Building.
6. No tenant shall employ any person or persons other than the janitor of
Landlord for the purpose of cleaning Premises unless otherwise agreed to by
Landlord in writing. Except with the written consent of Landlord no person or
persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of
46
cleaning the same. No tenant shall cause any unnecessary labor by reason of such
tenant's carelessness or indifference in the preservation of good order and
cleanliness of the Premises. Landlord shall in no way be responsible to any
tenant for any loss of property on the Premises, however occurring, or for any
damage done to the effects of any tenant by the janitor or any other employee or
any other person.
7. [Deleted]
8. Each tenant shall see that the doors of its Premises are closed and securely
locked and must observe strict care and caution that all water faucets or water
apparatus are entirely shut off before the tenant or its employees leave such
Premises, and that all utilities shall be likewise be carefully shut off, so as
to prevent waste or damage, and for any default or carelessness that the tenant
shall make good all injuries sustained by other tenants or occupants of the
Building or Landlord. On multiple-tenancy floors, all tenants shall keep the
door or doors to the Building corridors closed at all times except for ingress
and egress.
9. As more specifically provided in each tenant's Lease of the Premises, tenant
shall not waste electricity, water or air-conditioning and agrees to cooperate
fully with Landlord to assure the most effective operation of the Building's
HVAC system, and shall refrain from attempting to adjust any controls other than
the room thermostats installed for tenant's use.
10. No tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its Premises without
the prior written consent of Landlord, which shall not unreasonably be withheld.
If Landlord shall give its consent, the tenant shall in each case employ a
contractor approved in writing by Landlord for such work, and shall furnish
Landlord with a key or access code for any such lock or device.
11. Tenant shall have the right to make additional copies of any keys or access
devices provided by Landlord. Each tenant, upon the termination of the tenancy,
shall deliver to Landlord all the keys or access devices for the Building,
offices, rooms and toilet rooms which shall have been furnished the tenant or
which the tenant shall have had made. In the event of the loss of any keys or
access devices so furnished by Landlord, tenant shall pay Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the tenant who, or whose employees or invitees, shall
have caused it.
13. No tenant shall use or keep in its Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material other than limited
quantities necessary for the operation or maintenance of office or office
equipment. No tenant shall use any method of heating or air-conditioning other
than that supplied by Landlord.
14. No tenant shall use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance or permit or suffer such Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odor and/or vibrations or
interference in any way with other tenants or those having business therein, nor
shall any animals or birds be brought or kept in or about any Premises of the
Building.
15. No cooking shall be done or permitted by any tenant on its Premises (except
that use by the tenant of Underwriter's Laboratory approved equipment for the
preparation of coffee, tea, hot chocolate and similar beverages for tenants and
their employees shall be permitted, provided that such equipment and use is in
accordance with all applicable
2
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federal, state and city laws, codes, ordinances, rules and regulations), nor
shall the Premises be used for lodging.
16. Except with the prior written consent of Landlord, no tenant shall sell or
permit the sale at retail, of newspapers, magazines, periodicals, theatre
tickets or any other goods or merchandise in or on any Premises, nor shall
tenant carry on, or permit or allow any employee or other person to carry on,
the business of stenography, typewriting or any similar business in or from any
Premises for the service of accommodation of occupants of any other portion of
the Building, nor shall the Premises of any tenants be used for the storage of
merchandise or for manufacturing of any kind, or the business of a public xxxxxx
shop, beauty parlor, nor shall the Premises of any tenant be used for any
improper, immoral or objectionable purpose, or any business or activity other
than that specifically provided for in such tenant's lease.
17. If tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
18. Landlord will direct electricians as to where and how telephone, telegraphic
and electrical wires are to be introduced or installed. No boring or cutting for
wires will be allowed without the prior written consent of Landlord. The
location of burglar alarms, telephones, call boxes and other office equipment
affixed to all Premises shall be subject to the reasonable written approval of
Landlord.
19. No tenant shall install any radio or television antenna, loudspeaker or any
other devise on the exterior walls or the roof of the Building. Tenant shall not
interfere with radio or television broadcasting or reception for or in the
Building or elsewhere.
20. No tenant shall lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to floor of its Premises in any manner except as
approved in writing by Landlord. The expense of repairing any damage resulting
from a violation of this rule or the removal of any floor covering shall be
borne by the tenant by whom, or by whose contractors, employees or invitees, the
damage shall have been caused.
21. The elevator shall be available for use by all tenants in the Building,
subject to such reasonable scheduling as Landlord in its discretion shall deem
appropriate. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or carried up or
down the elevators except between such hours and in such elevators as shall be
designated by Landlord.
22. Landlord shall have the right to prescribe the weight, size and position of
all safes, furniture or other heavy equipment brought into the Building. Safes
or other heavy objects shall, if considered necessary by Landlord, stand on wood
strips of such thickness as determined by landlord to be necessary to properly
distribute the weight thereof. Landlord will not be responsible for loss of or
damage to any such safe, equipment or property from any cause, and all damage
done to the Building by moving or maintaining any such safe, equipment or
property from any cause, and all damage done to the Building by moving or
maintaining any such safe, equipment or other property shall be repaired at the
expense of tenant.
23. Business machines and other mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to any
tenants in the Building shall be placed and maintained by Tenant, at Tenant's
expense, upon vibration eliminators or other devices sufficient to eliminate
noise or vibration. The persons employed to move equipment in or out of the
Building must be acceptable to Landlord.
24. No tenant shall place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which is
allowed by law. No tenant shall xxxx, or drive nails, screws or drill into, the
partitions, woodwork or plaster or in any way deface such Premises or any part
thereof.
3
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25. [Deleted]
26. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material-handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by any
tenant into or kept in or about the Premises.
27. Each tenant shall store all its trash and garbage within the interior of its
Premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the city
without violation of any law or ordinance governing such disposal. All trash,
garbage and refuse disposal shall be made only through entryways and elevator
provided for such purposes and at such time as Landlord shall designate.
28. Canvassing, soliciting, distribution of handbills or any other written
material, and peddling in the Building are prohibited and each tenant shall
cooperate to prevent the same. No tenant shall make room-to-room solicitation of
business from other tenants in the Building.
29. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building.
30. Landlord reserves the right to exclude or expel from the Building any person
who, in Landlord's judgment, is intoxicated or under the influence of liquor or
drugs or who is in violation of any of the rules and regulations of the
Building.
31. Without the prior written consent of Landlord, tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of tenant except as tenant's address.
32. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
33. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
34. The requirements of tenants will be attended to only upon application at the
office of the Building by an authorized individual. Employees of Landlord shall
not perform any work or do anything outside of their regular duties unless under
special instructions from Landlord, and no employees will admit any person
(tenant or otherwise) to any office without specific instructions from Landlord.
35. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, not prevent Landlord from-thereafter enforcing any such
Rules and Regulations against any or all tenants of the Building.
36. Landlord reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order therein.
37. Tenant shall be responsible for observance of all the foregoing Rules and
Regulations by tenant's employees, agents, clients, customers, invitees and
guests.
38. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms, covenants,
agreements and conditions of any Lease of Premises in the Building.
4
49
39. Landlord reserves the right to designate the use of the parking spaces on
the Premises.
40. Tenant shall use carpet protectors under all desk chairs.
5
50
EXHIBIT E
FORM OF
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(ATTACHED]
1
51
EXHIBIT F
FORM OF
TENANT ESTOPPEL CERTIFICATE
[ATTACHED]
1
52
TENANT ESTOPPEL CERTIFICATE
TO: Aetna Life Insurance Company ("Aetna") and/or whom else it may concern:
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee ("Tenant") under that certain lease dated
___________ 19__ (the "Lease") by and between _______________________ as lessor
("Landlord") and ____________________________ as Tenant covering those certain
premises commonly known and designated as ______________________________________
____________________________________________________ (the "Premises").
2. The Lease is not in default and is valid and in full force and effect on
the date hereof. The Lease is the only Lease or agreement between Tenant and
Landlord affecting or relating to the Premises. The Lease represents the entire
Agreement between Landlord and Tenant with respect to the Premises. The Lease
has not been modified, changed, altered, assigned, supplemented or amended in
any respect, except as indicated below (if none, state "none").
--------------------------------------------------------------------------------
3. Tenant is not entitled to, and has made no agreement(s) with Landlord or
its agents or employees concerning free rent, partial rent, release of rent
payments, credit or offer or deduction in rent, or any other type of rental
concession, including, without limitation, lease support payments or lease
buy-out, except as indicated below (if none, state "none").
--------------------------------------------------------------------------------
4. Tenant has accepted and now occupies the Premises, and is and has been
open for business since ________________ 19__. The Lease term begins ___________
19__. The termination date of the present term of the Lease, excluding
unexercised renewal is ______________ 19__.
5. Tenant's security deposit is $__________. Tenant has paid rent for the
Premises for the period up to and including _________________ 19__. The fixed
minimum rent and any additional rent (including Tenant's shares of tax increases
and cost of living increases) payable by Tenant presently is $________ per
month. No such rent has been paid more than two (2) months in advance of its due
date, except as indicated below (if none, state "none").
--------------------------------------------------------------------------------
6. No event has occurred and no condition exists which, with the giving of
notice or the lapse of time or both, will constitute a default under the Lease.
Tenant has no existing defenses or offsets against the enforcement of this Lease
by Landlord.
7. All conditions under this Lease to be performed by Landlord have been
satisfied. All required contributions by the Landlord to Tenant on account of
Tenant's tenant improvements have been received by Tenant. Tenant has received
or will receive payment or credit for tenant improvement work in the total
amount of $___________ or if other than cash, describe below (if none state,
"none").
--------------------------------------------------------------------------------
8. The Lease contains and Tenant has, no outstanding options or rights of
first refusal to purchase the Premises or any part thereof or all or any part of
the real property of which the Premises are a part, except as described below
(if none, state "none").
--------------------------------------------------------------------------------
9. No actions, whether voluntary or otherwise, are pending against Tenant
or any general partner of Tenant under the bankruptcy laws of the United States
or any sums thereof.
10. No one except Tenant and its employees occupies the Premises. Tenant has
not sublet the Premises to any sublessee and has not assigned any of its rights
under the Lease, except as indicated below (if none, state "none").
--------------------------------------------------------------------------------
11. The address for notices to be sent to Tenant is as set forth in the
Lease.
53
12. To the best of Tenant's knowledge, the use, maintenance or operation of
the Premises complies with, and will at all times comply with, all applicable
federal, state, county or local statutes, laws, rules and regulations of any
governmental authorities relating to environmental, health or safety matters
(being hereinafter collectively referred to as the Environmental Laws).
13. The Premises have not been used and Tenant does not plan to use the
Premises for any activities which, directly or indirectly, involve the use,
generation, treatment, storage, transportation or disposal of any petroleum
product or any toxic or hazardous chemical, material, substance, pollutant or
waste.
14. Tenant has not received any notices, written or oral, of violation of any
Environmental Law or of any allegation which, if true, would contradict
anything contained herein and there are no writs, injunctions, decrees, orders
or judgments outstanding, no lawsuits, claims, proceedings or investigations
pending or threatened, relating to the use, maintenance or operation of the
Premises, nor is Tenant aware of a basis for any such proceeding.
15. [INCLUDE THIS PARAGRAPH FOR LOAN TRANSACTIONS.] Tenant acknowledges that
all the interest of Landlord in and to the Lease is being duly assigned to
Aetna, and that pursuant to the terms thereof, all rent payments under the
Lease shall continue to be paid to Landlord in accordance with the terms of the
Lease unless and until Tenant is notified otherwise in writing by Aetna or its
successors or assigns.
It is particularly noted that:
(a) Under the provisions of this assignment, the Lease cannot be
terminated (either directly or by the exercise of any option which could lead
to termination) or modified in any of its terms, or consent be given to the
release of any party having liability thereon, without the prior written
consent of Aetna or its successors or assigns, and without such consent, no
rent may be collected or accepted more than two (2) months in advance.
(b) The interest of Landlord in the Lease has been assigned to Aetna for
the purposes specified in the assignment. Aetna, or its successors or assigns,
assumed no duty, liability or obligations whatever under the Lease or any
extension or renewal thereof.
(c) Any notices sent to Aetna or its affiliates should be sent by
registered mail and addressed to: c/o Aetna Investment Group, 000 Xxxxxxxx
Xxxxxx (XX0X), Xxxxxxxx, Xxxxxxxxxxx 00000.
16. Tenant agrees to give any Mortgagee and/or Trust Deed Holders
("Mortgagee"), by registered mail, a copy of any notice of default served upon
the Landlord, provided that prior to such notice Tenant has been notified in
writing, (by way of Notice of Assignment of Rents and Leases, or otherwise) of
the address of such Mortgagee. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for in this Lease,
then Mortgagee shall have an additional sixty (60) days within which to cure
such default or if such default cannot be cured within that time, then such
additional time as may be necessary to cure such default shall be granted if
within such sixty (60) days Mortgagee has commenced and is diligently pursuing
the remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event the Lease shall not be terminated while such remedies are being so
diligently pursued.
17. This certification is made to induce Aetna to make certain fundings,
knowing that Aetna relies upon the truth of this certification in disbursing
said funds.
18. The undersigned is authorized to execute this Tenant Estoppel Certificate
on behalf of Tenant.
Dated this ________ day of __________, 19 ___.
___________________ (TENANT)
By: ________________________
Date: _______________________ Its:
The undersigned hereby certifies that the certifications set forth above are
true as of the date hereof.
___________________ (OWNER)(LANDLORD)
By: ________________________
Date: _______________________ Its:
54
AMENDMENT TO LEASE
This is an Amendment to Lease made with reference to that certain
Agreement of Lease dated February 22, 1996 (the "Lease") between Menlo Palo Alto
Investors, a general partnership ("Landlord"), and Informix Software, Inc., a
Delaware corporation ("Tenant"). The provisions of this Amendment shall
supersede any conflicting or inconsistent provisions in the Lease. Landlord and
Tenant have agreed that the Common Improvements, as described in the Lease, are
to be constructed by Tenant at its cost, the cost limitation heretofore
expressed in Exhibit B to the Lease with respect to the Common Improvements is
hereby deleted, and accordingly, the parties have agreed to amend the Lease as
provided herein.
1. Amendment. The parties have agreed that Tenant shall perform all the
work described in Exhibit B to the Lease as the Tenant Improvements and the
Common Improvements, at its sole cost. Accordingly, Exhibit B to the Lease is
amended as follows: (1) the phrase "(except as provided below)" is deleted from
the third sentence of Paragraph (a), (2) the phrase "except as provided
hereinbelow" is deleted from the sixth sentence of Paragraph (a), (3) the
seventh through and including the eleventh sentences are deleted from Paragraph
(a), and (4) Paragraph (e), Arbitration of Landlord's Determination, is deleted
from Exhibit B. The specifications for painting the exterior of the Building
shall be subject to the approval of the parties, as provided in Exhibit B to the
Lease, and shall be of a quality at least equivalent to the recommendations made
in the letter from Xxxxxxx/Xxxxxxxx Architects dated July 18, 1994 to Xxxxx
Xxxxxxxxxxx (a copy of which has been provided to Landlord and Tenant). Tenant
shall provide Landlord at least fifteen (15) days prior notice before commencing
any work at the Premises to permit Landlord to post such notices as Landlord
deems appropriate, including notices of nonresponsibility. Except as amended
hereby, the terms and provisions of the Lease shall govern.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
to Lease as of March 1, 1996.
LANDLORD: TENANT:
MENLO PALO ALTO INVESTORS INFORMIX SOFTWARE, INC.
A Delaware corporation
By: [SIG] By: [SIG]
----------------------- ----------------------
Title:
-------------------
By: [SIG]
-----------------------
55
EXHIBIT B-1
Second Floor Premises
56
EXHIBIT B-3
West First Floor Premises
