EXHIBIT 10.12
TERMINATION OF LEASE AGREEMENT
This agreement is made on June 6, 1996, between Landmark Investments, Limited,
("Landlord), and Post Modern Computing ("Tenant", who agree as follows:
1. Existing Lease. Landlord and Tenant entered into a written Lease
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Agreement dated January 18, 1996 in which Landlord leased to Tenant, and Tenant
leased from Landlord, premises located in the City of Mountain View, California,
commonly known as 0000 Xxxxxxxx Xxxxx.
2. Termination. The parties agree to terminate the Lease Agreement so
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that Landlord may lease said premises to SmartPatents, Inc., and Tenant may be
released and discharged from further performance of the Lease Agreement's
provisions all under the terms contained herein.
3. Effective Date. The effective date of the Lease Agreement's
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termination shall be July 31, 1996.
4. Conditions To Termination. This termination is conditioned on all of
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the following:
i) Landlord has received a signed Lease Agreement from SmartPatents,
Inc., for 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx on or before June 24,
1996, and
ii) That Landlord has received a check on or before June 24, 1996 in
the amount of $11,565.85 from SmartPatents, Inc., for the remaining unamortized
commissions, and
iii) Tenant vacates the Premises no later than 5:00 pm, Saturday July
30, 1996 and leaves same in a clean and undamaged
5. Release of Liability. Conditioned on all provisions of this
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modification being satisfied in a timely manner, Landlord and Tenant shall be
fully and unconditionally released and discharged from their respective
obligations arising from or connected with the provisions of the Lease Agreement
dated January 18, 1996.
LANDLORD: LANDMARK INVESTMENTS, LIMITED
Thrust IV, Inc., General Partner
By: ---------------------------- Date: -----------------
TENANT: VISIGENIC SOFTWARE INC. SUCCESSOR
TO POST MODERN COMPUTING
By: --------------------------- Date: --------------
--------------------------- Tax ID# ------------
(Print Name) (Title)
SUBLEASE AGREEMENT
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This Sublease Agreement (the "Sublease"), dated as of January 1, 1996, is
entered into by and between Visigenic Software, Inc., a Delaware Corporation,
("Sublessor") and AT Systems, a California Corporation (the "Sublessee").
WITNESSETH
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WHEREAS, by Lease dated March 7, 1993 as amended December 20, 1995 (the
"Base Lease"), Sublessor leases from San Mateo Offices Limited, a California
Limited Partnership, (the "Landlord") certain premises at 000 Xxxxxxx'x Xxxxxx
Xxxx. (the "Base Lease Premises") (to the extent that the Base Lease Premises
are part of a larger structure, shall be referred to herein as the "Building");
and
WHEREAS, Sublessor is willing to Sublease to Sublessee and Sublessee is
willing to Sublease from Sublessor, a portion of the Base Lease Premises (as may
be applicable), as more fully described herein, on the terms and conditions set
forth herein.
NOW, THEREFORE, Sublessor and Sublessee agree as follows:
1. Premises. Sublessor hereby Subleases to Sublessee and Sublessee hereby
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Subleases and takes from Sublessor approximately 3,928 rentable square feet of
space in the Base Lease Premises, such Base Lease Premises being known as suite
430, with such subleased space located substantially as shown on Exhibit "A"
attached hereto and made a part hereof(the "Demised Premises").
2. Term. The term of this Sublease shall commerce on February 1, 1996, and
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shall expire on January 31, 1997, unless terminated sooner pursuant to the
provisions hereof.
3. Base Lease Incorporated.
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A. Except as set forth herein, this subletting shall be on the same
terms and conditions as are contained in the Base Lease, as set forth on Exhibit
"B" attached hereto. Further, Sublessee acknowledges and agrees that this
Sublease shall be in all respects subject and subordinate to the Base Lease.
Nothing contained in this Sublease shall be deemed to confer upon Sublessee any
rights which are in conflict with the Base Lease. Sublessee shall not do or
permit to be done any act or thing which would contravene the terms of the Base
Lease, and the Base Lease shall govern in the event of a conflict with this
Sublease. In the event that the Base Lease is cancelled or terminated for any
reason, the term of this Sublease shall automatically terminate simultaneously
therewith.
B. Sublessor represents that the Base Lease is in full force and
effect, without default to the knowledge of Sublessor on the part of either
party thereto. Sublessor shall perform all obligations of the tenant under the
Master Lease not made the responsibility of Sublessee by this Sublease.
Sublessor shall use its best efforts to
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enforce the obligations of Landlord under the Base Lease for the benefit of
Sublessee, including the obligation to provide utilities and services to the
Demised Premises.
4. Use. During the term hereof, Sublessee shall use and occupy the
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Demised Premises for general office use and related services, and for no other
purpose.
5. Rent.
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A. Rent. As rental for the Demised Premises, Sublessee shall pay
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Landlord a base rental of Eight Thousand Six Hundred Forty Two Dollars
($8,642.00) per month from commencement through January 31, 1997, without
set-off or deduction, due and payable in advance on the first day of each month
during the term hereof. In the event this Sublease commences or terminates on
other than the last day of any particular month, all rentals hereunder shall be
prorated.
B. Additional Rent: Increased in Operating Costs and Taxes.
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(1) Definitions. For purposes of this Sublease the following
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terms shall be defined as follows:
(a) "Base Operating Costs and Taxes" means the Gross
Operating Costs and Taxes incurred for the calendar year 1995 (excluding,
therefrom, however, any gross operating costs of a nature that would not be
ordinarily and regularly incurred in each and every calendar year);
(b) "Operating Costs" means the total Gross Operating
Costs for any calendar year divided by the number of rentable square feet of
office space in the Building. Operating Costs for any year during which average
occupancy of the Building is less than one hundred percent (100%) shall be
calculated based upon the Gross Operating Costs that would have been incurred if
the Building were so occupied during the entire calendar year. Sublessee's
Share of Operating Costs shall not be reduced as a result of Sublessee's
performing for itself any of the services that Landlord provides for the
Property or the tenants of the Property.
(c) "Taxes" means the total Gross Taxes for any calendar
year divided by the number of rentable square feet in the building. Taxes for
any year during which average occupancy of the Building is less than one hundred
percent (100%) shall be calculated based upon the Gross Taxes that would have
been incurred if the Building were so occupied during the entire calendar year.
(d) "Sublessee's Share" means an amount equal to the
number of rentable square feet of office space in the Premises multiplied
by any increases in Operating Costs and Taxes over Base Operating Costs and
Taxes.
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(2) Additional Rent. If Operating Costs and Taxes for any calendar year
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during the term of this Sublease exceed Base Operating Costs and Taxes,
Sublessee shall pay Landlord as "Additional Rent", Sublessee's Share of such
increase in Operating Costs and Taxes (whether such increase, in the case of
Taxes, is caused by changes in valuation, rate or other factors or
circumstances).
C. Security Deposit. Upon full execution of this Sublease, Sublessee will
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pay to Sublessor the sum of Eight Thousand Six Hundred Forty-Two ($8,642.00), as
security for the full and faithful performance of every provision of this
Sublease to be performed by Sublessee.
If Sublessee defaults with respect to any provisions of this Sublease,
including but not limited to the provisions relating to the payment of rent,
repair or damage to the premises caused by Sublessee and/or cleaning the
Premises upon termination of this Sublease, Sublessor may use, apply or retain
all or any part of this security deposit for the payment of any rent, or any
other sum in default, the repair of such damage to the premises, to the cost of
such cleaning or for the payment of any other amount which Sublessor may spend
or become obligated to spend by reason of Sublessee's default or to compensate
Sublessor for any other loss or damage which Sublessor may suffer by reason of
Sublessee's default to the full extent permitted by law.
If any portion of said deposit is so used or applied, Sublessee shall
within ten (10) days after written demand therefor, deposit cash with Sublessor
in the amount sufficient to restore the security deposit to its original amount
and Sublessee's failure to do so shall be a material breach of this Sublease.
Sublessor shall not be required to keep this security deposit separate from its
general funds, and Sublessee shall not be entitled to interest on such deposit.
The security deposit, or so much thereof as has not been properly applied
to cure any default by Sublessee hereunder, shall be returned to Sublessee at
the expiration of the Sublease.
6. Suite Improvements. Sublessor will deliver and Sublessee accepts the
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premises in it's existing condition.
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7. Right of Entry. Sublessor shall have the right to enter the
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Demised Premises for any reasonable purpose during business (hours) and upon
reasonable notice (except in the event of an emergency), including to gain
access to and egress from those portions of the Base Lease Premises or the
Building not leased to Sublessee hereunder and to perform such functions as may
be necessary or convenient for the maintenance and operation thereof and
including to show the space to other prospective Sublessees. Prior to the
exercising its right of entry, Sublessor shall provide reasonable advance
notice to Sublessee of such intended entry, and shall comply while in the
Demised Premises with all reasonable safety and security measures instituted by
Sublessee.
8. Compliance with Law. Sublessee shall comply with all applicable
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statutes, ordinances, rules, regulations, orders and directives of any
governmental authority applicable to the Demised Premises or to Sublessee's use
or occupancy thereof and shall perform, at its own expenses, all obligations
imposed thereby.
9. Release and Indemnity.
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A. Release. Sublessee hereby agrees that Sublessor shall not be
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liable for any loss or any damage to any property (including the property of
Sublessee, its officers, directors, employees, agents, customers,
concessionaires, vendors, contractors or invitees) or the death or injury of any
persons (including Sublessee, its officers; directors, employees, agents,
customers, concessionaires, vendors, contractors or invitees) occasioned by
theft, fire, acts of God, public enemy, injunction, governmental body or
authority, by other Sublessees of the Base Lease Premises or the Building or any
other matter beyond the control of Sublessor, or for any injury or damage or
inconvenience which may arise through repair or alteration of any part of the
Demised Premises or the Base Lease Premises or the Building, or failure to make
repairs, or for any cause whatsoever, except the negligence or willful
misconduct of Sublessor, or its officers, directors, employees, or agents or a
breach of the obligations of Sublessor hereunder.
B. Indemnity. Sublessee hereby releases and will defend indemnify
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and hold harmless Sublessor and the Landlord, their respective officers,
directors, employees, agents, concessionaires, vendors and contractors (the
"Indemnified Parties") from and against any and all liability, claims,
penalties, fines, causes of action, suits, liens, losses, loss of use, damages,
costs and expenses of any kind (including legal fees and litigation costs) which
may be suffered by, accrued against, charged to or recoverable from the
Indemnified Parties by reason of (i) any occurrence in, upon, or at the Demised
Premises, including, occurrences caused, in whole or in part, by the negligence
or misconduct of Sublessee, its officers, directors, employees, agents,
customers, concessionaires, vendors, contractors or invitees; or (ii) any
occupancy, use, or misuse of the Demised Premises, or the areas, surrounding the
Demised Premises, or the service areas, parking areas, pedestrian areas,
pedestrian walks or driveways in or around the Demised Premises, by Sublessee,
its officers, directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees; or (iii) any occurrence elsewhere in the Base Lease
Premises or the Building occasioned in whole or in part by the act or omission
of Sublessee; or (iv) any occurrence occasioned by the violation of any law,
regulation or ordinance by Sublessee or its employees,
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officers, directors, employees, agents, customers, concessionaires,
vendors, contractors or invitees. The foregoing indemnification shall not apply
to any such claim or liability resulting solely from the negligence or willful
misconduct of Sublessor, or its respective officers, directors, employees or
agents.
10. Insurance
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A. Coverage. During the term of this Sublease, Sublessee, at its
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own cost and expense, shall maintain with insurers reasonably acceptable to
Sublessor, the following coverage: (i) Comprehensive General Liability Insurance
coverages in an amount not less than $1,000,000 for bodily injury and property
damage combined single limit per occurrence, and (ii) all risk property
insurance covering loss of or damage to property of the Sublessee in an amount
at least equal to the replacement value of such property. Sublessee shall also
maintain Workers' Compensation coverage as may be required by law and Employer's
Liability coverage with a combined single limit of not less than $1,000,000 to
cover employees.
B. Form and Certificates. The liability policies shall: (i)
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name Sublessor and the Landlord as additional insureds to the extent of
Sublessee's indemnity obligation hereunder; (ii) specifically insure the
liability assumed by Sublessee hereunder; (iii) be primary without right of
contribution from any insurance carried by Sublessor or the Landlord hereunder;
and (iv) provide for thirty (30) days written notice to Sublessor and the
Landlord prior to cancellation or material change. Certificates evidencing the
above coverages and special endorsements shall be provided to Sublessor and the
Landlord on or before the date Sublessee takes possession of the Demised
Premises.
C. Waiver of Subrogation. Sublessee, Sublessor and Landlord on
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behalf of themselves and their respective insurers, each hereby waives any claim
or right of recovery from each other, their officers, directors, employees,
agents, concessionaires and contractors, for loss of or damage to its property
or the property of others under its control, to the extent that such loss or
damage is covered by valid insurance policies or is of the type which would be
covered by "all risk" extended casualty coverage. Each party shall provide
notice of this waiver of subrogation to its insurers.
11. Defaults. The occurrence of any of the following shall constitute a
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default by Sublessee under this Sublease:
(i) Sublessee fails to pay any sum as required hereunder and
such failure continues for ten (10) days following receipt of notice;
(ii) Sublessee (i) fails to pay its bills to Sublessor or
Landlord when due without just cause; or (ii) takes any steps leading to its
cessation as a going concern or ceases or suspends operations for reasons other
than a strike; or (iii) becomes insolvent or makes transfers in fraud of
creditors or makes an assignment for the benefit of creditors; or (iv) files a
petition for protection under any state or federal bankruptcy act or a trustee
or receiver is appointed for all or substantially all of Sublessee's assets.
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12. Remedies Upon Default. Upon the occurrence of an event of default
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hereunder, Sublessor may take any one or more of the following actions:
(i) Maintain this Sublease in full force and effect and recover any and
all rent and other monetary charges as they become due, without terminating
Sublessee's right to possession, regardless of whether Sublessee shall have
abandoned the Demised Premises. If Sublessor elects not to terminate this
Sublease, Sublessor shall have the right to attempt to relet the Premises on
behalf of Sublessee upon such conditions and for such a term and to do all acts
necessary to maintain or preserve the Demised Premises as Sublessor deems
reasonable and necessary, including the removal of all persons and property from
the Demised premises, without being deemed to have elected to terminate this
Sublease. Any property so removed may be disposed of or stored in a public
warehouse or elsewhere, at Sublessor's election, at the cost of and for the
account of Sublessee. Notwithstanding that Sublessor's fails to elect to
terminate this Sublease initially, Sublessor at any time thereafter may elect to
terminate this Sublease as a result of such previous and then existing default
of Sublessee;
(ii) Terminate this Sublease by written notice to Sublessee, in which
event this Sublease shall be ended as to Sublessee and all persons holding under
Sublessee, and all of Sublessee's rights shall be forfeited and lapsed, as
fully as if this Sublease had expired by lapse of time. In such event, Sublessee
shall be required to vacate the Demised Premises immediately and surrender same
to Sublessor. If Sublessee fails to surrender the Demised Premises immediately
to Sublessor, Sublessor, without prejudice to any other remedy, may enter upon
and take possession of the Demised Premises and expel or remove Sublessee and
any part thereof, without being liable for prosecution or any other claim of
damages. In the event of termination in accordance with this provision, the
rental or any other sums payable by Sublessee pursuant to this Sublease that
have accrued hereunder but are unpaid shall be immediately due and payable by
Sublessee to Sublessor. In addition, Sublessee agrees to pay to Sublessor upon
demand the amount of all loss and damages which Sublessor may suffer by reason
of such termination, whether through inability to relet the premises on
satisfactory terms or otherwise, including reasonable court costs and attorney's
fees, in recovering possession of the Demised Premises or enforcing Sublessor
rights under this Sublease; (ii) all costs and charges for care of the Demised
Premises while vacant; (iii) all costs of restoring the Demised Premises to a
good condition; and (iv) all reasonable costs associated with Sublessor's
efforts to relet the Demised premises. In the event Sublessor relets the
Demised Premises for any portion of the remaining term of this Sublease,
Sublessee's rental payment obligation hereunder shall then be limited to the
difference between the rental payment Sublessor receives under such relet, if
any, and the rental amount Sublessee would have paid to Sublessor had this
Sublease not been terminated. The failure of Sublessor to relet the Demised
Premises or any part or parts thereof shall not release or effect Sublessee's
liability for damages hereunder;
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(iii) Cure the default on the behalf of the Sublessee, in which event
the Sublessee shall, upon demand by Sublessor, pay all sums expended by
Sublessor in accomplishing such cure;
(iv) Exercise any right available to Sublessor in law or in equity.
13. Cumulative rights. Sublessor's rights and remedies hereunder shall
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be cumulative and shall not be exclusive of one another, and Sublessor shall
have the right to pursue any one or more of them. Sublessor's acceptance of any
rent or other payments due hereunder or Sublessor's failure to take any action
on account of a default if such default persists or is repeated, shall not be
deemed a waiver of any default. Sublessor's consent to any act by Sublessee
requiring Sublessor's consent or approval shall not be deemed to waive or render
unnecessary Sublessor's consent or approval to any subsequent or similar acts by
Sublessee.
14. Surrender of Premises/Holding Over. At the expiration or earlier
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termination of this Sublease, Sublessee shall surrender the Demised Premises to
Sublessor in good condition, broom clean, reasonable wear and tear excepted. In
the event that Sublessee remains in possession after the expiration of or
termination of this Sublease without a written agreement, or without Sublessee
being engaged in active negotiations with Sublessor in good faith to renew or
extend the term, the tenancy shall be deemed to be a month-to-month tenancy at a
monthly equal to one and one-half (1-1/2) times the sum of the Base Rent and
Additional Rent(s) payable during the last month of the Term. In the event
Sublessee is actively negotiating with Sublessor to renew or extend the term,
the month-to-month tenancy shall be at a rent equal to Sublessee's prorata share
of the Base Rent and Additional Rent(s) then payable by Sublessor to Landlord;
such tenancy shall be subject to all terms and conditions of this Sublease.
15. Assignment and Sublease. Sublessee shall not assign this Sublease or
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any right hereunder or sublet the Demised Premises during the term of this
Sublease, without the prior written consent of Sublessor. In the event of an
assignment or sublease, Sublessor shall be entitled to receive fifty percent
(50%) of the excess of the rent and other sums payable by the Subtenant over the
amount of Rent payable hereunder for the Subleased Space. Sublessor's
acceptance of rent from any person other than Sublessee shall not be deemed to
be a waiver of this provision. Consent to one assignment or subletting shall
not be deemed to be consent to any subsequent assignment or subletting.
16. Accord and Satisfaction. No payment or receipt by Sublessor of a
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lesser amount than the rent or other charges herein stipulated shall be deemed
to be other than on account of the rent or such charges. Further, no
endorsement or statement on any check or any letter accompanying any check shall
be deemed to be an accord and satisfaction. Sublessor may accept such check or
payment without prejudice to Sublessor's right to recover the balance of such
rent or other charges or pursue any other remedy provided in this Sublease.
17. Entire Agreement. This Sublease constitutes the complete agreement of
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the parties with respect to the subject matter hereof and supersedes all
previous agreements, representations and understandings concerning the same,
whether written
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or oral. The provisions of the Sublease may be modified, amended or waived only
by a written instrument, executed by Sublessor and Sublessee.
18. Approval by Landlord. This Sublease is conditional upon written
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consent being obtained from the Landlord. In the event the Landlord does not
give its consent, either the undersigned parties may, at its option, rescind
its signature and this Sublease shall thereafter be of no force or effect.
19. Brokers. Sublessee warrants and represents to Sublessor and
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Landlord that in the negotiating or making of this Lease neither Sublessee nor
anyone acting on its behalf has dealt with any real estate broker or finder who
might be entitled to a fee or commission for this Lease. Sublessee agrees to
indemnify and hold Sublessor and Landlord harmless from any claim or claims,
including costs, expenses and attorney's fee incurred by Sublessor asserted by
any broker or finder for a fee or commission based upon any dealings with or
statements made by Sublessee or its Representatives.
20. Notices. Any notice required or sent hereunder shall be in
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writing and shall be sent as follows:
When to Sublessor: When to Sublessee:
Visigenic Software, Inc. A T Systems
000 Xxxxxxx'x Xxxxxx Xxxx., Xxxxx 000 000 Xxxxxxx'x Xxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Overnight Delivery Address: Overnight Delivery Address:
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Same as above. Same as above.
Either party from time to time, may change its address by written notice to the
other party. Notices hereunder shall be deemed effective when delivered by hand
delivery or overnight courier, or three days after deposit in the United States
mail, first class, postage prepaid.
21. Binding Effect. Subject to prohibitions against assignment, this
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Sublease shall be binding upon the parties, their personal representatives,
successors and assigns.
22. Approvals. Whenever in this Sublease, the written approval of either
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Sublessor or Sublessee is required, the parties hereto agree that such approval
shall not be unreasonably withheld.
WITNESS the signatures of the parties as of the date first written above.
Sublessee: Sublessor:
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A T Systems, a California Corporation, Visigenic Software, Inc.
By: By:
----------------------------------- --------------------------
Name: Name:
--------------------------------- ------------------------
Title: Title:
-------------------------------- -----------------------
Title:
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Agreed to by Landlord this ______ the Day of__________, 1996
By:
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Name:
---------------------------------
Title:
--------------------------------
9
XXXX 0
0XX XXXXX XXXX
XXX XXXXX XXX XXXXXX
XXXXXXX PARTNERS
(000)000-0000
00
Xxx Xxxxx
Xxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx
LEASE
VERY VISUAL SOFTWARE, INC.
A Delaware Corporation.
BASIC LEASE INFORMATION
OFFICE LEASE
Lease Date: March 7, 1993
Landlord: SAN MATEO OFFICE LIMITED
A California Limited Partnership
Address of Landlord 000 Xxxxxxx'x Xxxxxx Xxxxxxxxx, Xxxxx #000
Xxx Xxxxx, XX 00000
Tenant: VERY VISUAL
A Delaware Corporation
Address of Tenant: 000 Xxxxxxx'x Xxxxxx Xxxxxxxxx, Xxxxx #000
Xxx Xxxxx, XX 00000
Contact: Xx. Xxxxx Xxxxx Telephone:
Chief Executive Officer
Premises: Approximately 2,177 sq. ft. of rentable area on the third floor and
6,871 sq. ft. of rentable area on the fourth floor of San Mateo
Bay Center, 951 Mariner's Island Boulevard, San Mateo.
Scheduled Term Commencement Date: April 1, 1993 - Suite #370
Scheduled Length of Term: 24 Months
Scheduled Term Expiration Date: March 31, 1995
Security Deposit: $3,701 ($1.70 x 2,177 sqft)
To be increased to $11,681 upon occupancy of Suite #460
Tenant's Proportionate Share: Xxxxx #000 0.00%
Xxxxx #000 5.81%
Permitted Use: General Office
Occupancy Density: 4/1,000 sqft
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above set forth and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
LANDLORD: TENANT:
SAN MATEO OFFICE LIMITED VERY VISUAL SOFTWARE INC.
A California Limited Partnership A Delaware Corporation
By ----------------------------- By ---------------------------
Xxxxxx X Xxxxxxxxx Xxxxx Xxxxx
Its General Partner Its Chief Executive Officer
Date: Date:
-------------------------------- ------------------------------
-1-
LEASE
TABLE OF CONTENTS
Page
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1. Premises................................................................. 3
2. Occupancy................................................................ 3
3. Terms And Possession..................................................... 3
4. Rent..................................................................... 3
5. Restrictions On Use...................................................... 3
6. Compliance With Laws..................................................... 3
7. Alterations.............................................................. 3
8. Repairs.................................................................. 3
9. Liens.................................................................... 4
10. Assignments And Subletting............................................... 4
11. Insurance And Indemnification............................................ 4
12. Waiver Of Subrogation.................................................... 5
13. Service And Utilities.................................................... 5
14. Estoppel Certificate..................................................... 5
15. Security Deposit......................................................... 6
16. Substitution............................................................. 6
17. Holding Over............................................................. 6
18. Subordination............................................................ 6
19. Rules And Regulations.................................................... 6
20. Re-Entry By Landlord..................................................... 6
21. Default By Tenant........................................................ 6
22. Damage By Fire, Etc...................................................... 7
23. Eminent Domain........................................................... 8
24. Sale By Landlord And Tenant's Remedies................................... 8
25. Right Of Landlord To Perform............................................. 8
26. Surrender Of Premises.................................................... 8
27. Waiver................................................................... 8
28. Notices.................................................................. 8
29. Rental Adjustments....................................................... 9
30. Taxes Payable By Tenant................................................. 10
31. Successors And Assigns.................................................. 10
32. Attorneys' Fees......................................................... 10
33. Light And Air........................................................... 10
34. Public Transportation Information....................................... 10
35. Miscellaneous........................................................... 10
36. Lease Effective Date.................................................... 10
Signatures................................................................... 10
EXHIBIT "A"............................................... Rules and Regulations
EXHIBIT "B" & B-1........................................... Outline of Premises
EXHIBIT "C" & C-1......................................... Improvement Agreement
EXHIBIT "D".......................................... Form of Tenant Certificate
2
LEASE
THIS LEASE is made as of this 7th day of March, 1993,
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between SAN MATEO OFFICE LIMITED, A CALIF. LIMITED
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PARTNERSHIP (called "Landlord") and VERY VISUAL SOFTWARE
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INC., A DELAWARE CORPORATION (hereinafter called
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"Tenant").
PREMISES 1. Landlord leases to Tenant and Tenant leases from
Landlord those premises (hereinafter called "Premises")
outlined in red on Exhibit B attached hereto and made a
part hereof, specified in the Basic Lease Information
attached hereto (the "Building").
OCCUPANCY 2. Tenant shall use the Premises for the Permitted
Use and for no other use or purpose without the prior
written consent of Landlord. No increase in occupant
density of the Leased Premises shall be made which shall
add to the burden of such use of the Building as
determined by Landlord without the prior written consent
of Landlord.
TERM AND 3. (a) The parties project that the term shall
POSSESSION commence on the Scheduled Term Commencement Date and,
except as otherwise provided herein or in any exhibit or
addendum hereto, shall continue in full force until the
Term Expiration Date. If the Premises are not delivered by
Landlord by the Scheduled Term Commencement Date for any
reason, Landlord shall not be liable to Tenant for any
loss or damage resulting from such delay. The Term
Commencement Date shall be the first day of the calendar
month next following the earlier of (i) the day when the
Premises are substantially complete, or (ii) the date
on which Tenant takes possession of, or commences the
operation of its business in some or all of the Premises.
See Addendum #11, attached hereto and made a part hereof.
RENT 4. Tenant shall pay to Landlord throughout the Term
Rent as specified in *See Addendum #1 attached hereto and
made a part hereof, payable in equal monthly installments
in advance on the first day of each calendar month during
every year of the Term in lawful money of the United
States, without deduction or offset whatsoever, to
Landlord at the address specified in the Basic Lease
Information or to such other firm or to such other place
as Landlord may from time to time designate in writing by
notice given as herein provided. Rent for the first month
of the Term shall be paid by Tenant upon execution of this
Lease. If the obligation for payment of Rent commences on
other than the first day of a month as provided in
paragraph 3(a), then Rent provided for such partial month
shall be prorated and the prorated installment shall be
paid on the first day of the calendar month next
succeeding the Term Commencement Date. If the Term
terminates on other than the last day of a calendar
month, then the Rent provided for such partial month shall
be prorated and the prorated installment shall be paid on
the first day of the calendar month next preceding the
date of termination.
RESTRICTIONS 5. Tenant shall not do or permit anything to be done
ON USE in or about the Premises which will in anyway obstruct
or interfere with the rights of other tenants or occupants
of the Building or injure or annoy them, nor use or allow
the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause
or maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer the commission
of any waste in, on or about the Premises.
COMPLIANCE 6. Tenant shall not use the Premises or permit anything
WITH LAWS to be done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation now in force or which may hereafter be
enacted or promulgated. Tenant shall not do or permit
anything to be done on or about the Premises or bring or
keep anything therein which will in any way increase the
rate of any insurance upon the Building or any of its
contents or cause a cancellation of said insurance or
otherwise affect said insurance in any manner, and Tenant
shall at its sole cost and expense promptly comply with
all laws, statutes, ordinances and governmental rules,
regulations or requirements now in force or which may
hereafter be in force and with the requirements of any
board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the
condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by
alterations or improvements made by or for Tenant or
Tenant's acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in any actions
against Tenant, whether Landlord be a party thereto or
not, that Tenant has so violated any such law, statute,
ordinance, rule, regulation or requirement, shall be
conclusive of such violation as between Landlord and
Tenant.
ALTERATIONS 7. Tenant shall not make or suffer to be made any
alterations, additions or improvements in, on or to the
Premises or any part thereof without the prior written
consent of Landlord; and any such alterations, additions
or improvements in, on or to said Premises, except for
Tenant's movable furniture and equipment, shall
immediately become Landlord's property and, at the end of
the Term, shall remain on the Premises without
compensation to Tenant. In the event Landlord consents to
the making of any such alteration, addition or improvement
by Tenant, the same shall be made by Tenant, at Tenant's
sole cost and expense, in accordance with plans and
specifications approved by Landlord, and any contractor
or person selected by Tenant to make the same must first
be approved in writing by Landlord.
Notwithstanding the foregoing, at Landlord's option, all
or any portion of the alteration, addition or improvement,
work shall be performed by Landlord for Tenant's account
and Tenant shall pay Landlord's estimate of the cost
thereof (including a reasonable charge for Landlord's
overhead and profit) prior to commencement of the work
Overhead and profit allowances shall total fifteen percent
(15%). Upon the expiration or sooner termination of the
Term, Tenant shall upon demand by Landlord, at Tenant's
sole cost and expense, with all due diligence remove all
those alterations, additions or improvements made by or
for the account of Tenant, designated by Landlord to be
removed, and Tenant shall with all due diligence, at its
sole cost and expense, repair and restore the Premises to
their original condition. At Landlord's election and
notwithstanding the foregoing, however, Tenant shall pay
to Landlord the cost of removing any such alterations,
additions or improvements and restoring the Premises to
their original condition such cost to include a reasonable
charge for Landlord's overhead and profit as provided
above, and such amount may be deducted from the Security
Deposit or any other sums or amounts held by Landlord
under this Lease.
REPAIRS 8. By taking posession of the Premises, Tenant accepts
the Premises as being in the condition in which Landlord
is obligated to deliver them and otherwise in good order
condition and repair. At all
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times during the Term Tenant shall, at Tenant's sole cost
and expense, keep the Premises and every part thereof in
good order, condition and repair, excepting damage thereto
by fire, earthquake, act of God or the elements. Tenant
waives all right it may have under Section 1942 of the
Civil Code of the State of California and any similar law,
statute or ordinance now or hereafter in effect (to the
full extent that such waiver may lawfully be given)
authorizing or purporting to authorize Tenant to make
repairs to or for the account of Landlord. Tenant shall
upon the expiration or sooner termination of the Term
hereof, unless Landlord demands otherwise pursuant to
LIENS paragraph 7 hereof, surrender to Landlord the Premises and
all repairs, changes, alterations. additions and
improvements thereto in the same condition as when
received or when first installed, damage by fire,
earthquake, act of God, ordinary wear and tear or the
elements excepted. Landlord has no obligation to alter,
remodel, improve, repair, decorate or paint the Premises
or any part thereof, except as specified in the Office
Lease Improvement Agreement and no representations
respecting the condition of the Premises or the Building
have been made by Landlord to Tenant, except as
specifically set forth herein or in Exhibit C and C-1.
9. Tenant shall keep the Premises free from liens arising
out of or related to work performed, materials or supplies
furnished or obligations incurred by Tenant or in
connection with work made, suffered or done by Tenant in
Premises or Building. In the event that Tenant shall not,
within ten (10) days following the imposition of any such
lien, cause the same to be released of record by payment
ASSIGNMENT AND or posting of a proper bond, Landlord shall have, in
SUBLETTING addition to all remedies provided herein and by law, the
right but no obligation, to cause the same to be released
by such means as it shall deem proper, including payment
of the claim giving rise to such lien. Landlord shall have
the right at all times to post and keep posted on the
Premises any notices permitted or required by law, or
which Landlord shall deem proper, for the protection of
Landlord, the Premises, the Building and any other
party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not
less than ten (10) business days prior written notice of
the commencement of any work in the Building or Premises
which could lawfully give rise to a claim for mechanics'
or materialmen's lien.
10. Tenant shall not sell, assign, encumber or otherwise
transfer this Lease or any interest therein (by operation
of law or otherwise), sublet the Premises or any part
thereof or suffer any other person to occupy or use the
Premises or any portion thereof, nor shall Tenant permit
any lien to be placed on Tenant's interest under this
Lease by operation of law except in accordance with the
provisions of this paragraph 10. For purposes hereof,
sales, transfers or assignments of or of (ii) the general
partnership interests sufficient to control management
decisions if Tenant is a partnership or of (iii) the
majority or controlling underlying beneficial interest, if
Tenant is any other form of business entity, shall
constitute an assignment subject to the terms of this
paragraph 10.
(a) In the event that Tenant should desire to sublet the
Premises or any part thereof, Tenant shall provide
Landlord with written notice of such desire at least
thirty (30) in advance of the date on which Tenant desires
to make such sublease. Landlord shall then have a period
of thirty (30) days following receipt of such notice
within which to notify Tenant in writng that Landlord
elects either (i) to terminate this lease as to the space
so affected as of the date so specified by Tenant, in
which event Tenant shall be relieved of all further
obligations hereunder as to such space from and after that
date, or (ii) to permit Tenant to sublet such space,
subject, however, to the prior written approval of the
proposed sublessee by Landlord which said consent shall
not be unreasonably withheld. If Landlord should fail to
notify Tenant in writing of its election within said
thirty (30) day period, Landlord shall be deemed to have
waived option (i) above, but written approval of the
proposed sublessee shall not constitute a termination of
this Lease. In exercising its right of consent to a
sublessee it shall be reasonable for Landlord to withhold
consent to any sublessee who (aa) does not agree to assume
the obligations of the Lease with respect to the space to
be so sublet, (bb) does not agree to utilize the space so
sublet for the Permitted Use, (cc) is of unsound financial
condition as determined by Landlord, or (dd) will, in
Landlord's opinion increase the occupant density in the
Leased Premises. If Tenant proposes to sublease less than
all of the Premises, election by Landlord of termination
of this Lease with respect to the remainder of the space,
the Rent and Tenant's Proportionate Share of Operating
Expenses and taxes shall be adjusted on a pro rata basis
to reflect the reduction in Net Rentable Area of the
Premises as retained by Tenant. This Lease as so amended
shall continue thereafter in full force and effect and
reference herein to the Premises shall mean that portion
thereof as to which the Lease has not been terminated.
(b) Tenant shall not enter into any other transaction
subject to this paragraph 10 without Landlord's prior
written consent which said consent shall not be
unreasonably withheld. It shall be reasonable for Landlord
to withhold consent to any proposed transaction described
in this paragraph 10 on any of the grounds specified in
paragraph 10(a) with respect to sublessees or any other
reasonable grounds.
(c) Any rent or other consideration realized by Tenant
under any such sublease or assignment to which Landlord
has consented hereunder, in excess of the Rent payable
hereunder, after amortization of the reasonable cost of
the improvements over the remainder of the Term for which
Tenant has paid and reasonable subletting and assignments
costs, shall be divided and paid fifty percent (50%) to
Tenant.
(d) Any subletting hereunder by Tenant shall not result in
Tenant being released or discharged from any liability
under this lease. Any purported assignment, subletting or
other transaction to which paragraph 10 applies, which
occurs contrary to the provisions hereof, shall be void.
Landlord's consent to any assignment, subletting or other
transaction to which this paragraph 10 applies shall not
release Tenant from any of Tenant's obligations hereunder
or constitute a consent with respect to any subsequent
transaction to which this paragraph applies.
INSURANCE AND 11. (a) Landlord shall not be liable to Tenant and Tenant
INDEMNIFICATION hereby waives all claims against Landlord for any injury
or damage to any person or property in or about the
Premises by or from any cause whatsoever, (other than
Landlord's gross negligence or willful misconduct) and,
without limiting the generality of the foregoing, whether
caused by water leakage of any character from the roof,
walls, basement or other portion of the Premises or the
Building, or caused by gas, fire, oil or electricity in,
on or about the Premises or the Building.
(b) Tenant shall hold Landlord harmless from and defend
Landlord against any and all claims or liability for any
injury or damage to any person or property whatsoever:
(i) occurring in, on or about the
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Premises or any part thereof, or (ii) occurring in, on or
about any facilities (including, without prejudice to the
generality of the term "facilities", elevators, stairways,
lobbies, health clubs, passageways or hallways), the use of
which Tenant may have in conjunction with other tenants of the
Building, when such injury or damage shall be caused in part
or in whole by the act, neglect, fault of or omission of any
duty with respect to the same by Tenant, its agents, servants,
employees or invitees. Tenant shall further indemnify and save
harmless Landlord against and from 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 save Landlord
harmless against and from any and all claims arising from any
breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be
performed pursuant to the terms of this Lease or arising from
any act or negligence of Tenant, or any of its agents,
contractors, servants, employees or licensees, and from and
against all costs, counsel fees, expenses and liabilities
incurred in connection with any such claim or action or
proceeding brought thereon. In case any action or proceeding
is brought against Landlord by reason of any claims or
liability within the limits of the foregoing indemnity, Tenant
shall defend such action or proceeding at Tenant's sole
expense by counsel reasonably satisfactory to Landlord.
(c) Landlord shall hold tenant harmless from and defend Tenant
against any and all claims or liability for any injury or
damage to any person or property occurring in or about any
facilities (including without prejudice to the generality of
the term "facilities", elevators, stairways, passageways or
hallways) the use of which Tenant may have in conjunction with
other tenants of the building, when such injury or damage
shall be caused in whole or in part by the act, neglect, fault
of or omission of any duty with respect to the same by
Landlord, its agents, servants, employees or invitees.
Landlord shall further indemnify and save harmless Tenant
against and from 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 Landlord in
or about, or from transactions of Landlord concerning, the
Premises where such work is not being done for the account of
Tenant; and Landlord will further indemnify and save Tenant
harmless against and from any and all claims arising from any
breach or default on the part of Landlord in the performance
of any covenant or agreement on the part of Landlord to be
performed pursuant to the terms of this Lease or arising from
any act or negligence of Landlord, or any of its agents
contractors, servants, employees or licensees, and from and
against all costs, counsel fees, expenses and liabilities
incurred in connection with any such claim or action or
proceeding brought thereon,. In case any action or proceeding
is brought against Tenant by reason of any claims or liability
within the limits of the foregoing indemnity, Landlord shall
defend such action or proceeding at Landlord's sole expense by
counsel reasonable satisfactory to Tenant.
(d) The provisions of paragraph 11(b) and 11(c) shall survive
the expiration or termination of this Lease with respect to
any claims or liability occurring prior to such expiration or
termination.
(e) Tenant shall purchase at its own expense and keep in force
during the Term of this Lease a policy or policies of workers'
compensation and comprehensive liability insurance, including
personal injury and property damage, in the amount of Five
Hundred Thousand Dollars ($500,000.00) for property damage and
Two Million Dollars ($2,000,000.00) per occurrence for
personal injuries or deaths of persons occurring in or about
the Premises. The foregoing limits shall be increased in
proportion to increases during the Term in the United States
Department of Labor, Bureau of Labor Statistics, Cost of
Living Index, All Urban Consumers (1967=100) for the region in
which the Leased Premises are located. Said policies shall:
(i) name Landlord and any party holding an interest to which
this Lease may be subordinated under paragraph 18 hereof, as
additional insureds and insure Landlord's contingent
liability under this Lease; (ii) be issued by an insurance
company acceptable to Landlord and licensed to do business in
the State of California; and (iii) provide that said insurance
shall not be cancelled unless ten (10) days prior written
notice shall have been given to Landlord. Said policy or
policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the term of this Lease
and upon each renewal of said insurance.
WAIVER OF
SUBROGATION 12. To the extent permitted by law and without affecting the
coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover
against the other (i) damages for injury to or death of
persons, (ii) damages to property, (iii) damage to the
Premises or any part thereof, (iv) damage to the Building or
any part thereof, or (v) claims arising by reason of the
foregoing, but only to the extent that any of the foregoing
damages and/or claims referred to above are covered (and only
to the extent of such coverage) by insurance actually carried
by either Landlord or Tenant. This provision is intended to
waive fully, and for the benefit of each party, any rights
and/or claims which might give rise to a right of subrogation
on any insurance carrier. The coverage obtained by each party
pursuant to this Lease shall include, but without limitation,
a waiver of subrogation by the carrier which conforms to the
provisions of this paragraph.
SERVICES AND
UTILITIES 13. (a) Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, corridors and
restrooms, the windows in the Building, the mechanical,
plumbing and electrical equipment serving the Building, and
the structure itself, in reasonably good order and condition
except for damage occasioned by the act of Tenant, which
damage shall be repaired by Landlord at Tenant's expense.
(b) Provided Tenant shall not be in default hereunder, and
subject to the provisions elsewhere herein contained and to
the rules and regulations of the Building, Landlord shall
furnish to the Premises during ordinary business hours of
generally recognized business days, to be determined by
Landlord (but exclusive, in any event, of Saturdays, Sundays
and legal holidays), water and electricity suitable for the
Permitted Uses of the Premises, heat and air conditioning
required in Landlord's judgment for the comfortable use and
occupation of the Premises for the Permitted Uses, janitorial
services during the times and in the manner that such services
are, in Landlord's judgment, customarily furnished in
comparable office buildings in the immediate market area, and
elevator service which shall mean service either by
nonattended automatic elevators or elevators with attendants
or both, at the option of Landlord. Landlord shall have no
obligation to provide additional or after-hours heating or air
conditioning, but if Landlord elects to provide such services
at Tenant's request, Tenant shall pay to Landlord a reasonable
charge for such services as determined by Landlord. Tenant
agrees to keep and cause to be kept closed all window covering
when necessary because of the sun's position, and Tenant also
agrees at all times to cooperate fully with Landlord and to
abide by all the regulations and requirements which Landlord
may prescribe for the proper functioning and protection of
heating,
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ventilating and air conditioning systems. Wherever heat-
generating machines, excess lighting or equipment are used
in the Premises which affect the temperature otherwise
maintained by the air conditioning system, Landlord
reserves the right to install supplementary air
conditioning units in the Premises, and the cost thereof
including the cost of installation and the cost of
operation and maintenance thereof, shall be paid by Tenant
to Landlord upon demand by Landlord. See Addendum #6
attached hereto and made a part hereof.
(c) Tenant shall not without the written consent of
Landlord use any apparatus or device in the Premises,
including without limitation, electronics data processing
machines, punch card machines, and machines using excess
lighting or using current in excess of that which is
determined by Landlord as reasonable and normal for the
Permitted Use or which will in any way increase the amount
of electricity or water usually furnished or supplied for
the Permitted Uses of the Premises; nor connect with
electric current except through existing electrical
outlets in the Premises or water pipes, any apparatus or
device for the purposes of using electrical current or
water. If Tenant shall require water or electric current
or any other resource in excess of that usually furnished
or supplied for the Permitted Use of the Premises, Tenant
shall first procure the consent of Landlord which Landlord
may refuse, to the use thereof, and Landlord may cause a
special meter to be installed in the Premises so as to
measure the amount of water, electrical current or other
resource consumed for any such other use. Tenant shall pay
directly to Landlord as an addition to and separate from
payment of Basic Operating Cost the cost of all such
energy, utility service and meters (and of installation,
maintenance and repair thereof). Landlord may add to the
metered charge a recovery of additional expense incurred
in keeping account of the water, electric current or other
resource so consumed. Landlord shall not be liable for any
damages directly or indirectly resulting from, nor shall
the Rent herein reserved be abated by reason of (i) the
installation, use or interruption of use of any equipment
in connection with the furnishing of any of the foregoing
utilities and services, (ii) failure to furnish or delay
in furnishing any such utilities or services when such
failure or delay is caused by acts of God or the elements,
labor disturbances of any character, any other accident or
other conditions beyond the reasonable control of
Landlord, or by the making of repairs or improvements to
the Premises or to the Building, or (iii) the limitation,
curtailment, rationing or restriction on use of water,
electricity, gas or any other form of energy or any other
service or utility whatsoever serving the Premises or the
Building. Landlord shall be entitled to cooperate
voluntarily and in a reasonable manner with the efforts of
national, state or local governmental agencies or utility
suppliers in reducing energy or other resource
consumption. The obligation to make services available
hereunder shall be subject to the limitations of any such
voluntary, reasonable program.
(d) Any sums payable under this paragraph 13 shall
constitute Additional Rent hereunder.
ESTOPPEL 14. Within ten (10) days following any written request
CERTIFICATE which Landlord may make from time to time, Tenant shall
execute and deliver to Landlord a certificate
substantially in the form attached hereto as Exhibit D and
made a part hereof, indicating thereon any exceptions
thereto which may exist at that time. Failure by Tenant to
execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant
that the statements included in Exhibit D are true and
correct without exception. Landlord and tenant intend that
any statements included in Exhibit D are true and correct
without exception. Landlord and Tenant intend that any
statement delivered pursuant to this paragraph may be
relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest
therein. Landlord shall have the right to substitute for
the attached exhibit D a certificate in form required by
Landlord's mortgagee or provider of financing.
SECURITY
DEPOSIT 15. Concurrently with execution hereof, Tenant has paid to
Landlord the Security Deposit in the amount stated on the
Basic Lease Information sheet as security for the full and
faithful performance of Tenant's obligations under this
Lease. Upon expiration of the Term or earlier termination
hereof, the Security Deposit shall be returned to Tenant,
reduced by such amounts as may be required by Landlord to
remedy defaults on the part of Tenant in the payment of
Rent, to repair damages to the Premises caused by Tenant
and to clean the Premises. Landlord shall hold the
Security Deposit for the foregoing purposes in accordance
with the provisions of all applicable law.
SUBSTITUTION
16. At any time after execution of this Lease, Landlord may
substitute for the Premises other premises in the Building
(the "New Premises") upon not less than ninety (90) days
prior written notice, in which event the new Premises
shall be deemed to be the Premises for all purposes
hereunder, provided, however, that:
(a) The Net Rentable Area in the Premises is less than
five thousand (5,000) square feet;
(b) The New Premises shall be similar in area and in
appropriateness for Tenant's purposes;
(c) Any such substitution is effected for the purpose of
accommodating a tenant who will occupy all or a
substantial portion of the Net Rentable Area of the floor
on which the Premises are located; and
(d) If Tenant is occupying the Premises at the time of
such substitution, Landlord shall pay the expense of
moving Tenant, its property and equipment to the New
Premises and shall, at its sole cost, improve the New
Premises with improvements substantially similar to those
Landlord has committed to provide or has provided in the
HOLDING OVER Premises.
17. If Tenant shall retain possession of the Premises or
any part thereof without Landlord's consent following the
expiration of the Term or sooner termination of this Lease
for any reason, then Tenant shall pay to Landlord for each
day of such retention double the amount of the daily
rental for the last period prior to the date of such
expiration or termination. Tenant shall also indemnify and
hold Landlord harmless from any loss or liability
resulting from delay by Tenant in surrendering the
Premises, including, without limitation, any claims made
by any succeeding tenant founded on such delay.
Alternatively, if Landlord gives notice to Tenant of
Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month
to month whichever shall be specified in such notice.
Acceptance of Rent by Landlord following expiration or
termination shall not constitute a renewal of this Lease,
and nothing contained in this paragraph shall waive
Landlord's right of reentry or any other right. Unless
Landlord exercises the option hereby given to it, Tenant
shall be only a Tenant at sufferance, whether or not
Landlord accepts any Rent from Tenant while Tenant is
SUBORDINATION holding over without Landlord's written consent.
18. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and subordinate
at all times to: (a) all ground leases or underlying
leases which may now exist or hereafter be executed
affecting the Building or the land upon which the Building
is situated or both, and (b) the lien of any mortgage or
deed of trust which
may now exist or hereafter be executed in any amount for which
said Building, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items, is
specified as security. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated
any such ground leases or underlying leases or any such liens
to this Lease. In the event that any ground lease or underlying
lease terminates for any reason or any mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor
in interest to Landlord at the option of such successor in
interest. Tenant shall execute and deliver, upon demand by
Landlord and in the form requested by Landlord, any additional
documents evidencing the priority or subordination of this
Lease with respect to any such ground leases or underlying
leases or the lien of any such mortgage or deed of trust.
Tenant hereby irrevocably appoints Landlord as attorney-in-
fact of Tenant to execute, deliver and record any such
documents in the name and on behalf of Tenant. At the request
of Landlord, Tenant shall provide to Landlord its current
financial statement or other information disclosing financial
worth which Landlord shall use solely for purposes of this
Lease and in connection with the ownership, management and
disposition of the property subject hereto.
RULES AND 19. Tenant shall faithfully observe and comply with the rules
REGULATIONS and regulations printed on or annexed to this Lease and all
reasonable modifications thereof and additions thereto from
time to time put into effect by Landlord. Landlord shall not be
responsible to Tenant for the non-compliance by any other
tenant or occupant of the Building with any of the rules and
regulations.
RE-ENTRY BY 20. Landlord reserves and shall with reasonable advance notice
LANDLORD except in emergencies have the right to reenter the premises to
inspect the same, to supply janitor service and any other
service to be provided by Landlord to Tenant hereunder, to show
the Premises to prospective purchasers, mortgagees or tenants,
to post notices of nonresponsibility and to alter, improve or
repair the Premises and any portion of the Building, without
abatement of Rent, and may for that purpose erect, use and
maintain scaffolding, pipes, conduits and other necessary
structures in and through the Premises where reasonably
required by the character of the work to be performed: provided
that entrance to the Premises shall not be blocked thereby, and
further provided that the business of Tenant shall not be
interfered with unreasonably. Tenant waives any claim for
damages for any injury or inconveniences to or interference
with Tenant's business, any loss of occupancy or quiet
enjoyment of the Premises, and any other loss occasioned
thereby, 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 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 portion of the Premises, and any
entry to the Premises or portions thereof obtained by Landlord
by any of said means, or otherwise, shall not be construed to
be a forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction, actual or constructive, of Tenant
from the Premises or any portions thereof. Landlord shall also
have the right at any time, without the same constituting an
actual or constructive eviction and without incurring any
liability to Tenant thereof, 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 to change the name, number or designation by
which the Building is commonly known.
DEFAULT BY
TENANT 21.(a) Events of Default: The occurrence of any of the following
shall constitute an event of default on the part of Tenant:
(1) Abandonment. Abandonment of the Premises for a continuous
period in excess of five (5) business days. Tenant waives
any right to notice Tenant may have under Section 1951.3
of the Civil Code of the State of California, the terms of
this subsection (a) being deemed such notice to Tenant as
required by said Section 1951.3:
(2) Nonpayment of Rent. Failure to pay any installment of Rent
due and payable hereunder (or failure to pay any other
amount required to be paid hereunder, all such obligations
to be construed as the equivalent of obligations for
payment of Rent) upon the date when said payment is due,
such failure continuing without cure by payment of the
delinquent Rent and late charges for a period of five (5)
business days after written notice and demand; provided,
however, that except as expressly otherwise provided
herein, Landlord shall not be required to provide such
notice more than twice during the Term, the third such
non-payment constituting default for all purposes hereof
without requirement of notice. For purposes of
subparagraph 21(e), such failure shall constitute a
default without requirement of notice.
(3) Other Obligations. Failure to perform any obligations,
agreement or covenant under this Lease other than those
matters specified in subparagraphs (1) and (2) of this
subparagraph (a), such failure continuing for fifteen (15)
business days after written notice of such failure (or
such longer period as Landlord determines to be necessary
to remedy such default, provided that Tenant shall
continuously and diligently pursue such remedy at all time
until such default is cured);
(4) General Assignment. A general assignment by Tenant for the
Benefit of creditors:
(5) Bankruptcy. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary
petition by Tenant's creditors, which involuntary petition
remains undischarged for a period of thirty (30) days. In
the event that under applicable law the trustee in
bankruptcy or Tenant has the right to affirm this Lease
and continue to perform the obligations of Tenant
hereunder, such trustee or Tenant shall, in such time
period as may be permitted by the bankruptcy court having
jurisdiction, cure all defaults of Tenant hereunder
outstanding as of the date of the affirmance of this Lease
and provide to Landlord such adequate assurances as may be
necessary to ensure Landlord of the continued performance
of Tenant's obligations under this Lease;
(6) Receivership. The employment of a receiver to take
possession of substantially all of the Tenant's assets or
the Premises, if such receivership remains indissolved for
a period of ten (10) business days after creation thereof;
(7) Attachment. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or the
Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10) business
days after the levy thereof;
(8) Insolvency. The admission by Tenant in writing of its
inability to pay its debts as they become due, the filing by
Tenant of a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or
regulation, the filing by Tenant of an answer admitting or
failing timely to contest a material allegation of a petition
filed against Tenant in any such proceeding or, if within
thirty (30) days after the commencement of any proceeding
against Tenant seeking any reorganization or arrangement,
composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or
regulation, such proceeding shall not have been dismissed.
(b) Remedies Upon Default.
(1) Rent. All failures to pay any monetary obligation to be paid
by Tenant under this lease shall be construed as obligations
for payment of rent.
(2) Termination. In the event of the occurrence of any event of
default, Landlord shall have the right, with or without
notice or demand, immediately to terminate this lease, and at
any time thereafter recover possession of the Premises or any
part thereof and expel and remove therefrom Tenant and any
other person occupying the same, by any lawful means, and
again repossess and enjoy the Premises without prejudice to
any of the remedies that Landlord may have under this lease.
or at law or equity by reason of Tenant's default or of such
termination.
(3) Continuation After Default. Even though Tenant has breached
this Lease and/or abandoned the Premises, this Lease shall
continue in effect for so long as Landlord does not terminate
Tenant's right to possession under paragraph 21 (b)(2)
hereof, and Landlord may enforce all its right and remedies
under this lease, including (but without limitation) the
right to recover Rent as it becomes due; and Landlord,
without terminating this Lease, may exercise all of the
rights and remedies of a landlord under Section 1951.4 of the
Civil Code of the State of California or any successor code
section. Acts of maintenance, preservation or efforts to
lease the Premises or the appointment of receiver upon
application of Landlord to protect Landlord's interests under
this Lease shall not constitute an election to terminate
Tenant's right to possession.
(c) Damages Upon Termination. Should Landlord terminate this
Lease pursuant to the provisions of paragraph 21 (b)(2)
hereof, Landlord shall have all the rights and remedies of a
landlord provided by Section 1951.2 of the Civil Code of the
State of California, or successor code section. Upon such
termination, in addition to any other rights and remedies to
which Landlord may be entitled under applicable law, Landlord
shall be entitled to recover from Tenant: (i) the worth at
the time of award of the unpaid Rent and other amounts which
had been earned at the time of termination; (ii) the worth at
the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time
of award exceeds the amount of such Rent loss that the Tenant
proves could have been reasonably avoided; (iii) the worth
at the time of award of the amount by which the unpaid Rent
for the balance of the Term after the time of award exceeds
the amount of such Rent loss that the Tenant proves could be
reasonably avoided; and (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under this
Lease or which, in the ordinary course of things, would be
likely to result therefrom. The "worth at the time of award"
of the amounts referred to in (i) and (ii) shall be computed
with interest at the lesser of eighteen percent (18%) per
annum or the maximum rate allowed by law. The "worth at the
time of award" of the amount referred to in (iii) shall be
computed by reference to competent appraisal evidence or the
formula prescribed by using the lowest discount rate
permitted under applicable law.
(d) Computation Of Rent For Purposes Of Default.
For purposes of computing unpaid Rent which would have
accrued and become payable under this Lease pursuant to the
provisions of paragraph 21(c) unpaid Rent shall consist of the
sum of
(1) the total Basic Rent for the balance of the Term then
remaining (with the amount of Basic Rent to be determined by
reference to fair rental value being the subject of proof by
competent evidence), plus
(2) a computation of the excess of Gross Rent (the term "Gross
Rent" meaning the sum of (i) rental adjustments payable
pursuant to paragraph 29 and (ii) Basic Rent) over Basic Rent
for the balance of the Term then remaining ("Excess Gross
Rental"), the assumed excess Gross Rental for the calendar
year of the default and each future calendar year in the Term
to be equal to the Excess Gross Rental for the calendar year
prior to the year in which default occurs compounded at a per
annum rate equal to the mean average rate of inflation for
the preceding five (5) calendar years as determined by the
United States Department of Labor, Bureau of Labor Statistics
Consumer Price Index (All Urban Consumers) for the
Metropolitan Area or Region of which San Francisco,
California is a part.
(e) Late Charge. In addition to its other remedies, Landlord
shall have the right without notice or demand to add to the
amount of any payment required to be made by Tenant hereunder,
and which is not paid on or before the date the same is due, an
amount equal to five percent (5%) of the delinquency for each
month or portion thereof that the delinquency remains outstanding
to compensate Landlord for the loss of the use of the amount not
paid and the administrative costs caused by the delinquency, the
parties agreeing that Landlord's damage by virtue of such
delinquencies would be difficult to compute and the amount stated
herein represents a reasonable estimate thereof.
(f) Remedies Cumulative. All right, privileges and elections or
remedies of the parties are cumulative and not alternative to the
extent permitted by law and except as otherwise provided herein.
-6-
DAMAGED BY 22. If the Premises or the Building are damaged by fire or
FIRE, ETC. other casualty, Landlord shall forthwith repair the
same, provided such repairs can be made within one
See Addendum hundred eighty (180) days from the date of such damage
#7 attached under the laws and regulations of the federal, state and
hereto and made local governmental authorities having jurisdiction
a part hereof. thereof. In such event, this Lease shall remain in full
force and effect except that Tenant shall be entitled to
a proportionate reduction of Rent while such repairs to
be made hereunder by Landlord are being made. Said
proportionate reduction shall be based upon the extent
to which the making of such repairs to be made hereunder
by Landlord shall interfere with the business carried on
by Tenant in the Premises. Within twenty (20) days from
the date of such damage, Landlord shall notify Tenant
whether or not such repairs can be made within one
hundred eighty (180) days from the date of such damage
and Landlord's determination thereof shall be binding on
Tenant. If such repairs cannot be made within one
hundred eighty (180) days from the date of such damage,
Landlord shall have the option within thirty (30) days
of the date of such damage either to: (a) notify Tenant
of Landlord's intention to repair such damage and
diligently prosecute such repairs, in which event this
Lease shall continue in full force and effect and the
Rent shall be reduced as provided herein; or (b) notify
Tenant of Landlord's election to terminate this Lease as
of a date specified in such notice, which date shall be
not less than thirty (30) nor more than sixty (60) days
after notice is given. In the event such notice to
terminate is given by Landlord this Lease shall
terminate on the date specified in such notice. In case
of termination by either event, the Rent shall be
reduced by a proportionate amount based upon the extent
to which said damage interfered with the business
carried on by Tenant in the Premises, and Tenant shall
pay such reduced Rent Up to the date of termination.
Landlord agrees to refund to Tenant any Rent previously
paid for any period of time subsequent to such date of
termination. The repairs be made hereunder by Landlord
shall not include, and Landlord shall not be required to
repair, any damage by fire or other cause to the
property of Tenant or any repairs or replacements of any
paneling, decorations, railings, floor coverings or any
alterations, additions fixtures or improvements
installed on the premises by or at the expense of
Tenant. The provisions of Section 1942, subdivision 2,
and Section 1933, subdivision 4, of the Civil Code of
California are superseded by the foregoing.
EMINENT
DOMAIN 23. If any part of the Premises shall be taken or
appropriated under the power of eminent domain or conveyed in
lieu thereof, either party shall have the right to terminate
this Lease at its option. If any part of the Building shall
be taken or appropriated under power of eminent domain or
conveyed in lieu thereof, Landlord may terminate this Lease
at its option. In either of such events, Landlord shall
receive (and Tenant shall assign to Landlord upon demand from
Landlord) any income, rent, award or any interest therein
which may be paid in connection with the exercise of such
power of eminent domain, and Tenant shall have no claim
against Landlord for any part of the sums paid by virtue of
such proceedings, whether or not attributable to the value of
the unexpired Term. If a part of the Premises shall be so
taken or appropriated or conveyed and neither party hereto
shall elect to terminate this Lease and the Premises have
been damaged as a consequence of such partial taking or
appropriation or conveyance, Landlord shall restore the
Premises continuing under this Lease at Landlord's cost and
expense; provided, however, that Landlord shall not be
required to repair or restore any injury or damage to the
property of Tenant or to make any repairs or restoration of
any alterations, additions, fixtures or improvements
installed on the Premises by or at the expense of Tenant.
Thereafter, the Rent for the remainder of the Term shall be
proportionately reduced, such reduction to be based upon the
extent to which the partial taking or appropriation or
conveyance shall interfere with the business carried on by
Tenant in the Premises. Notwithstanding anything to the
contrary contained in this paragraph, if the temporary use or
occupancy of any part of the Premises shall be taken or
appropriated under power of eminent domain during the Term,
this Lease shall be and remain unaffected by such taking or
appropriation and Tenant shall continue to pay in full all
Rent payable hereunder by Tenant during the Term; in the
event of any such temporary appropriation or taking, Tenant
shall be entitled to receive that portion of any award which
represents compensation for the use of or occupancy of the
Premises during the Term, and Landlord shall be entitled to
receive that portion of any award which represents the cost
of restoration of the Premises and the use and occupancy of
the Premises after the end of the Term. SALE BY LANDLORD AND
24. In the event of a sale or conveyance by Landlord of the
TENANT'S Building, the same shall operate to release Landlord
from any REMEDIES future liability upon any of the convenants
or conditions, express or implied, herein contained in favor
of Tenant, and in such event Tenant agrees to look solely to
the responsibility of the successor in interest of Landlord
in and to this Lease. This Lease shall not be affected by any
such sale and Tenant agrees to attorn to the purchaser or
assignee. Tenant shall look solely to Landlord's interest in
the Building for recovery of any judgment from Landlord.
Landlord, or if Landlord is a partnership, its partners
whether general or limited, or if Landlord is a corporation,
its directors, officers or shareholders, shall never be
personally liable for any such judgment.
RIGHT OF
LANDLORD TO 25. All convenants and agreements to be performed by
PERFORM Tenant under any of the terms of this Lease shall be
performed by Tenant at Tenant's sole cost and expense and
without any abatement of Rent. If Tenant shall fail to pay
any sum of money, other than Rent, required to be paid by it
hereunder or shall fail to perform any other act on its part
to be performed hereunder, and such failure shall continue
for ten (10) days after notice thereof by Landlord, Landlord
may, but shall not be obligated to do so, and without waiving
or releasing Tenant from any obligations of the Tenant, make
any such payment or perform any such act on the Tenant's part
to be made or performed. All sums so paid by Landlord and all
necessary incidental costs together with interest thereon at
the rate of eighteen percent (18%) per annum or the maximum
rate permitted by law, whichever is less per annum from the
date of such payment by the Landlord shall be payable as
Additional Rent to Landlord on demand, and Tenant covenants
to pay such sums, and Landlord shall have, in addition to any
other right or remedy of Landlord, the same right and
remedies in the event of the nonpayment thereof by Tenant as
SURRENDER OF in the case of default by Tenant in the payment of the Rent.
PREMISES
26. (a) Tenant shall, at least ninety (90) days before the last
day of the Term, give to Landlord a written notice of
intention to surrender the Premises on that date, but nothing
contained herein shall be construed as an extension of the
Term or as consent of Landlord to any holding over by Tenant.
(b) At the end of the term or any renewal thereof or other
sooner termination of this Lease, Tenant shall peaceably
deliver up to Landlord possession of the Premises, together
with all improvements, fixtures or ordinary wear additions
thereto by whomsoever made, in the same condition as
received, or first installed, damage by fire, earthquake, act
of God, ordinary wear and tear or the elements alone
excepted. Tenant may, upon the termination of this Lease,
remove all movable furniture and equipment belonging to
Tenant, at Tenant's sole cost, title to which shall be in
Tenant until such termination, repairing any damage caused by
such removal. Property not so removed shall be deemed
abandoned by the Tenant, and title to the same shall
thereupon pass to Landlord.
(c) The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, shall not work a merger and
shall, at the option of Landlord, terminate all or any
WAIVER existing subleases or subtenancies or may, at the option of
Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
27. If either Landlord or Tenant waives the performance of
any term, covenant or condition contained in this Lease, such
waiver shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition
contained herein. The acceptance of Rent by Landlord shall
not constitute a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, convenants or conditions of this Lease for
any length of time shall not be deemed to waive or to
decrease the right of Landlord to insist thereafter upon
strict performance by Tenant. Waiver by Landlord of any term,
covenant or condition contained in this lease may only be
made by a written document signed by Landlord.
NOTICES
28. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All
notices and demand by Landlord to Tenant shall be sent by United
States certified or registered mail, postage prepaid, addressed to
Tenant at the Premises, or to such other place as Tenant may from
time to time designate in a notice to Landlord. All notices and
demands by Tenant to Landlord shall be sent by United States
certified or registered mail, postage prepaid, addressed to
Landlord at the address specified in the Basic Lease Information,
or to such other firm or to such other place as Landlord may from
time to time designate in a notice to Tenant.
RENTAL 29. In addition to Basic Rent provided to be paid hereunder, Tenant
ADJUSTMENT shall pay as Rent Tenant's Proportionate Share of Basic Operating
Cost in the manner set forth below.
See (a) Definition: For purposes hereof, the terms used in this
Addendum #1 paragraph 29 shall have the following meanings:
attached (b) "Basic Operating Cost" shall mean all expenses and costs of
hereto every kind and nature which Landlord shall pay or become obligated
and made a to pay because of or in connection with the ownership and operation
part hereof of the Building and supporting facilities of the Building, and such
additional facilities now and in subsequent years as may be
determined by Landlord to be necessary to the Building, including,
but not limited to the following:
(i) Wages, salaries and related expenses and benefits of all on-
site and off-site employees engaged directly in the operation,
management, maintenance, engineering and security of the Building,
and the costs of an office in the Building: provided, however, that
Basic Operating Cost shall not include leasing commissions paid to
any real estate broker, salesperson of agent.
(ii) Supplies, materials and rental of equipment used in the
operation, management and maintenance of the Building.
(iii) Utilities, including water and power, heating, lighting, air
conditioning and ventilating of the Building.
(iv) All maintenance, janitorial and service agreements for the
Building and the equipment therein, including, without limitation,
alarm services, window cleaning and elevator maintenance.
(v) A management cost recovery determined by Landlord equal to
three percent (3%) of Gross Rent derived from the Building.
(vi) Legal expenses and the cost of audits by certified public
accountant; provided, however, that legal expenses chargeable as
Basic Operating Cost shall not include the cost of negotiating
leases, collecting rents, evicting tenants nor shall it include
costs incurred in legal proceedings with or against any tenant or
to enforce the provisions of any lease.
(vii) All insurance premiums and costs, including but not limited
to, the premiums and cost of fire, casualty and liability coverage
and rental abatement and earthquake insurance (if Landlord elects
to provide such coverage) applicable to the Building and
Landlord's personal property used in connection therewith.
(viii) Repair, replacements and general maintenance (excluding
repairs and general maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations attributable solely
to tenants of the Building other than Tenant).
(ix) All maintenance costs relating to public and service areas of
the Building, including (but without limitation) sidewalks,
landscaping, service areas, mechanical rooms and building
exteriors.
(x) All taxes, service payments in lieu of taxes, annual or
periodic license or use fees, fees, real estate taxes, impositions
or charges imposed upon or levied in connection with use of the
Building to raise funds for public transit, housing or other
environmental, sociological or fiscal effects of the Building or
land use, assessments whether general or special, ordinary and
extraordinary, unforseen as well as foreseen, of any kind which are
assessed, levied, charged, confirmed or imposed by any public
authority upon the Building, the land upon which it is located,
Building operations or Rent payable under this Lease (or any
portion or component thereof), excepting only inheritance of estate
taxes imposed upon or assessed against the interest of any person
in the Building or any part thereof of interest therein, and taxes
computed upon the basis of the net income of the owners of the
Building or any part thereof or interest therein.
(xi) Amortization (together with reasonable financing charges) of
capital improvement made to the Building subsequent to the Term
Commencement Date which will improve the operating efficiency of
the Building or which may be required to comply with the laws,
ordinances, rules or regulations promulgated, adopted or enforced
after completion of the initial construction of the Building and
improvements of the Premises pursuant to Exhibit C and C-!.
Notwithstanding anything to the contrary herein contained, Basic
Operating Cost shall not include (aa) the initial construction cost
of the Building; (bb) depreciation on the initial construction of
the Building; (cc) the cost of providing Tenant improvements to
tenant or any other tenant: (dd) debt service (including, but
without limitation, interest, principal and any impound payments)
required to be made on any mortgage or deed of trust recorded with
respect to the Building and/or the real property on which the
Building is located other than debt service and financing charges
imposed pursuant to paragraph 29(a)(1)(xi) above; and (ee) the cost
of special services, goods or materials provided to any tenant. In
the event that the building is not fully occupied during any fiscal
year of the Term as determined by Landlord, an adjustment shall be
made in computing the Basic Operating Cost for such year so that
Basic Operating Cost shall be computed as though the Building had
been one hundred percent (100%) occupied; provided, however, that
in no event shall Landlord be entitled to collect in excess of one
hundred percent (100%) of the total Basic Operating Cost from all
of the tenants in the Building including Tenant. All costs and
expenses shall be determined in accordance with generally accepted
accounting principles which shall be consistently applied (with
accruals appropriate to Landlord's business). Basic Operating Cost
shall not include specific costs incurred for the account of,
separately billed to and paid by specific tenants.
-9-
(2) "Estimated Basic Operating Cost" for any particular
year shall mean Landlord's estimate of the Basic
Operating Cost for such calendar year made prior to
commencement of such calendar year as hereinafter
provided. Landlord shall have the right from time to time
to revise its fiscal year and interim accounting periods
so long as the periods as so revised are reconciled with
prior periods in accordance with generally accepted
accounting principles applied in a consistent manner.
(3) "Basic Operating Cost Adjustment" shall mean the
difference between Basic Operating Cost and Estimated
Basic Operating Cost for any calendar year determined as
hereinafter provided.
(B) Payment Of Estimated Operating Cost.
During December of each calendar year during the
Term, or as soon thereafter as practicable, Landlord
shall give Tenant written notice of the Estimated Basic
Operating Cost for the ensuing calendar year. The
Estimated Basic Operating Cost for the calendar year in
which the Scheduled Term Commencement Date falls is set
forth in the Basic Lease information sheet. Tenant shall
pay Tenant's Proportionate Share of the Estimated Basic
Operating Costs with Installments of Basic Rent required
to be paid pursuant to paragraph 3 above for the calendar
year to which the estimate applies in monthly
installments on the first day of each calendar month
during such year, in advance. Such payment shall be
construed to be Rent for all purposes hereof. If at any
time during the course of a calendar year, Landlord
determines that Basic Operating Cost will apparently vary
from the then Estimated Basic Operating Cost by more than
five percent (5%), Landlord may, by written notice to
Tenant, revise the Estimated Basic Operating Cost for the
balance of such calendar year and Tenant shall pay Tenant
Proportionate Share of the Estimated Basic Operating Cost
as so revised for the balance of the then current
calendar year on the first day of each calendar month
thereafter, such revised installment amounts to be Rent
for all purposes hereof.
(C) Computation Of Basic Operating Cost Adjustment.
Within one hundred twenty (120) days after the
end of each fiscal year as determined by Landlord or as
soon thereafter as practicable, Landlord shall deliver to
Tenant a statement of Basic Operating Cost for the fiscal
year just ended, accompanied by a computation of Basic
Operating Cost Adjustment. If such statement shows that
Tenant's payment based upon Estimated Basic Operating
Cost is less than Tenant's Proportionate Share of Basic
Operating Cost, then Tenant shall pay the difference
within twenty (20) days after receipt of such statement,
such payment to constitute additional rent hereunder. If
such statement shows that Tenant's payments of Estimated
Basic Operating Cost exceed Tenant's Proportionate Share
of Basic Operating Costs, then (provide that Tenant is
not in default under this Lease), Tenant shall receive a
credit for the amount of such payment against Tenant's
obligation for payment of Tenant's Proportionate Share of
Estimated Basic Operating Cost next becoming due
hereunder. If this Lease has been terminated or the Term
hereof has expired prior to the date of such statement,
then the Basic Operating Cost Adjustment shall be paid by
the appropriate party within twenty (20) days after the
date of delivery of the statement.
(D) Net Lease. This shall be a net lease and Base Rent
shall be paid to Landlord absolutely net of all costs and
expenses. The provisions for payment of Basic Operating
Cost by means of periodic payments of Tenant's
Proportionate Share of Estimated Basic Operating Cost and
the Basic Operating Cost Adjustment are intended to pass
on to Tenant and reimburse Landlord for all cost and
expenses of the nature described in paragraph 29(a)(1)
above incurred in connection with ownership and operation
of the Building and such additional facilities now and in
subsequent years as may be determined by Landlord to be
necessary to the Building.
(e) Tenant Audit. Tenant shall have the right, at
Tenant's expense and upon not less than forty-eight (48)
hours prior written notice to Landlord to review at
reasonable times Landlord's books and records for any
calendar year a portion of which falls within the Term
for purposes of verifying Landlord's calculation of Basic
Operating cost and Basic Operating Cost Adjustment. In
the event that Tenant shall dispute the amount set forth
in any statement provided by Landlord under paragraph
2g(c) above, Tenant shall have the right not later than
twenty (20) days following the receipt of such statement,
and upon condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's
books and records with respect to such calendar year to
be audited by certified public accountants selected by
Tenant subject to Landlord's reasonable right of
approval. The Basic Operating Cost Adjustment shall be
appropriately adjusted on the basis of such audit. If
such audit discloses a liability for a refund or credit
by Landlord to Tenant in excess of ten Percent (10%) of
Tenant's Proportionate Share of the Basic Operating cost
Adjustment previously reported, the cost of such audit
shall be borne by Landlord. Otherwise the cost of such
audit shall be paid by Tenant. If Tenant shall not
request an audit in accordance with the provisions of
this paragraph 29(e) within twenty (20) days of receipt
of Landlord's statement provided pursuant to paragraph
29(d), such statement shall be final and binding for all
purposes hereof.
TAXES 30. (a) Tenant shall pay before delinquency any and all taxes
PAYABLE BY levied or assessed and which become payable by Landlord
TENANT (or Tenant) during the Term of this Lease, whether or not
now customary or within the contemplation of the parties
hereto, which are based upon, measured by or otherwise
calculated with respect to: (a) the value of Tenant's
equipment, furniture, fixtures or other personal property
located in the Premises; (b) the value of any leasehold
improvements, alterations, or additions made in or to the
Premises, regardless of whether title to such
improvements, alterations or additions shall be in Tenant
or Landlord; or (c) this transaction or any document to
which Tenant is a party creating or transferring an
interest or an estate in the Premises. (b) In the event
that it shall not be lawful for Tenant so to reimburse
Landlord, the Rent shall be revised to net Landlord the
same net rent after imposition of any such tax upon
Landlord as would have been payable to Landlord prior to
the imposition of any such tax. All taxes payable by
Tenant under this Paragraph 30 shall be additional
rental.
--10--
SUCCESSORS 31. Subject to the provisions of paragraph 10 hereof, the
AND ASSIGNS terms, covenants and conditions contained herein shall be
binding upon and inure to the benefit of the heirs, successors,
executors, administrators and assigns of the parties hereto.
ATTORNEYS' 32. In the event that any action or proceeding is brought to
FEES enforce any term, covenant or condition of this lease on the
part of Landlord or Tenant, the prevailing party in such
litigation shall be entitled to reasonable attorneys' fees to
be fixed by the court in such action or proceeding.
LIGHT AND AIR 33. No diminution of light, air or view by any structure
which may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of Rent, result in any
liability of Landlord to Tenant, or in any other way affect
this Lease or Tenant's obligations hereunder.
PUBLIC TRANS- 34. Tenant shall establish and maintain during the Term
PORTATION hereof a program to encourage maximum use of public
INFORMATION transportation by personnel of Tenant employed on the Premises,
including without limitation the distribution to such employees
of written materials explaining the convenience and
availability of public transportation facilities adjacent to
the Building, staggering working hours of employees, and
encouraging use of such facilities, all at Tenant's sole
reasonable cost and expense.
MISCELLANEOUS 35.(a) The term "Premises" shall be deemed to include
(except where such meaning would be clearly repugnant to the
context) the office space demised and improvements now or at
any time hereinafter comprising or built in the space hereby
demised.
(b) The paragraph headings herein are for convenience of
reference and shall in no way define, increase, limit or
describe the scope or intent of any provision of this lease.
(c) The term "Landlord" in these presents shall include the
Landlord, its successors and assigns. In any case where this
Lease is signed by more than one person, the obligation
hereinunder shall be joint and several.
(d) The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or corporations,
and their and each of their respective successors, executors,
administrators and permitted assigns, according to the context
hereof.
(e) Time is of the essence of this Lease and all of its
provisions.
(f) This Lease shall in all respects be governed by the laws of
the State of California.
(g) This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous
negotiations.
(h) There have been no representations made by the Landlord or
understandings made between the parties other than those set
forth in the Lease and its exhibits.
(i) This Lease may not be modified except by a written
instrument by the parties hereto.
(j) If for any reason whatsoever any of the provisions hereof
shall be enforceable or ineffective, all of the other
provisions shall be and remain in full force and effect.
LEASE EFFECTIVE (k) See Addenda #1-11 attached hereto and made a part hereof.
DATE
36. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation or option
for lease, and it is not effective as a lease or otherwise
until execution and delivery by both Landlord and Tenant.
IN WITNESS WHEREOF. the parties hereto have executed
this Lease the day and year first above written.
"LANDLORD"
SAN MATEO OFFICE LIMITED
A California Limited Partnership
Date By
--------------------- --------------------------
Xxxxxx X. Xxxxxxxxx
Its General Partner
"TENANT"
VERY VISUAL SOFTWARE
A DELAWARE CORPORATION
Date By
--------------------- --------------------------
Xxxxx Xxxxx
Its Chief Executive Office
Rules and Regulations
Exhibit A.
1. Sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by Tenants or
used by them for any purposes other than for ingress to and
egress from their respective premises. The halls, passages,exits
entrances, elevators 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 judgement 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 employees 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 leased 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.
4. No curtains draperies, blinds, shutters, 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 prior written consent of Landlord. In any
event with the prior written consent of Landlord, all such items
shall be installed inboard of Landlords window covering and shall
in no way be visible from exterior of the Building. No articles
shall be placed or kept on the window xxxxx so as to be visible
from the exterior of the Building. No articles shall be placed
against glass partition s or doors which might appear unsightly
from outside Tenants Premises.
5. Landlord reserves the right to exclude from the Building between
the hours of 6 pm and 6 am 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 for 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 continuances 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 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 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. No Tenant shall obtain for use upon its premises ice, drinking
water, food, beverage, towel or other similar services except
through facilities provided by Landlord (and maintained by Tenant)
and under regulations fixed by Landlord, or accept barbering or
bootblacking services in its premises except from persons
authorized by Landlord.
8. Each Tenant shall see that all 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 likewise be carefully shut off, so as to prevent
waste or damage, and for any default or carelessness 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 or egress.
9. As more specifically provided in the Tenant's Lease of the
Prenuses, 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 heating and air-
conditioning, and shall refrain from attempting to adjust any
controls other than room thermostats installed for Tenant's use.
10. No Tenant shall after any lock or access device or install a new
additional lock or access device or any bolt on any door of its
premises without the prior written consent of Landlord. If
Landlord shall give its consent, the Tenant shall in each case
furnish Landlord with a key for any such lock.
11. No Tenant shall make or have made 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
EXHIBIT "A" Page 1
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, urinal, wash bowls and other
apparatus shall not be used for any purpose other than
that 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 of 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 or 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 occupies or used
in a manner offensive or objectionable to landlord or
other occupants of the Building by reason of noise,
odors and/or vibrations or interfere in any way with
other Tenants of 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
it premises (except that use by the Tenant of
Underwriters' 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 federal, state and city
laws, codes, ordinances, rules and regulations), nor
shall premises be used for lodging. microwave accepted.
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 or accommodation of
occupants of any other portion of the Building, nor
shall the premises of any Tenant 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 Xxxxxxx'x 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, telegraph and electrical wires are to be
introduced or installed. No boring ar 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 written approval of
Landlord.
19. No Tenant shall install any radio or television antenna,
loudspeaker or any other device on the exterior walls or
the roof of the Building. Tenant shall not interfere
with radio or television broadcasting or reception from
or in the Building or elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or an other
floor covering so that the same shall be affixed to the
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. 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.
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 properly 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.
Business machines and mechanical equipment
belonging to Tenant which cause noise or vibration that
may be transmitted to the structure of the Building or
to an space therein to such a degree as to be
objectionable to Landlord or to an tenants in the
building shall be placed and maintained by Tenant, at
Xxxxxxx'x expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration. The
persons employed to move such equipment in or out of the
Building must be acceptable to Landlord.
22. 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, screw or
drill into, the partitions, woodwork or plaster or in
any way deface such premises or any part thereof.
23. No Tenant shall install, maintain or operate upon the
Premises any vending machine without the written consent
of Landlord.
24. 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.
EXHIBIT "A"
18. Landlord will direct
25. 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 elevators provided
for such purposes and at such times as Landlord shall
designate.
26. 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.
27. Landlord shall have the right, exercisable without
liability to any Tenant, to change the name and address
of the Building.
28. 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.
29. 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.
30. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by
Landlord or any governmental agency.
31. 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.
32. 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.
33. 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, nor prevent
Landlord from thereafter enforcing any such Rules and
Regulations against any or all Tenants of the Building.
34. Landlord reserves the right to make such other and
reasonable rules and regulations as in its judgement 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. Tenant agrees to
abide by all such Rules and Regulations hereinabove
stated and any additional rules and regulations which
are adopted.
35. Landlord reserves the right to designate the use of the
parking spaces on the premises.
36. Tenant shall use carpet protector under all desk chairs.
37. Tenant agrees to keep balcony doors closed at all times,
except during ingress and egress.
38. Tenant Or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking
spaces with one car. Vehicles in violation of the above
shall be subject to tow-away, at vehicle owner's
expense.
39. Vehicles parked on premises overnight without prior
written consent of the Landlord shall be deemed
abandoned and shall be subject to tow-away at vehicle
owner's expense.
40. Tenant shall be responsible for the observance of all of
the foregoing Rules and Regulations by Tenant's
employees, agents, clients, customers, invitees and
guests.
41. The 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. The
word "Building" as used herein means the building of
which the premises are part.
EXHIBIT "A" Page 3
XXXX. 0
0XX XXXXX XXXX
XXX XXXXX XXX CENTER
XXXXXXX PARTNERS
(000) 000-0000
EXHIBIT X-0
Xxxxx 000 2,177 Sq. Ft.
San Mateo BayCenter
000 Xxxxxxx'x Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX
Tenant to accept the premises in "as is" condition
EXHIBIT C - Interior Improvements
XXXXXX XXXXX
XXXXX XXXX.
XXXXX 000
6871 RSF
SAN MATEO BAY CENTER
000/000 XXXXXXX'X XXXXXX XXXX.
XXX XXXXX, XXXXXXXXXX
XXXXXXX PARTNERS
Tenant to accept the premises in "as is" condition except Landlord shall, at
Landlord's sole cost and expense, provide the following interior improvements:
1. Repaint all walls, color to be selected by tenant.
2. Landlord shall replace the existing carpet with building standard carpet,
color to be selected by tenant.
3. 3 - 3' sidelights (location to be selected by tenant).
4. 3'x5' window on wall separating Reception/Training Rooms.
5. Mini-blinds to be installed on new 3'x5' window.
Form of Tenant Certificate
--------------
EXHIBIT D
--------------
------------------------------
------------------------------
------------------------------
------------------------------
RE:
Gentlemen:
The undersigned, as Tenant under that certain lease (the "Lease") dated
________________ 19__, made with __________________________ as Landlord
(the "Landlord"), does hereby certify:
1. That the copy of the Lease attached hereto as Exhibit A is a true and
complete copy of the Lease, and there are no amendments, modifications
or extensions of or to the Lease and the Lease is now in full force
and effect.
2. That its leased premises at the above location have been completed in
accordance with the terms of the Lease, that it has accepted
possession of said premises, and that it now occupies the same.
3. That it began paying rent on __________________, 19__, and that, save
only as may be required by the terms of the Lease, no rental has been
paid in advance, nor has the undersigned deposited any sums with the
Landlord as security.
4. That there exist no defenses or offsets to enforcement of the Lease by
the Landlord and, so far as is known to the undersigned, the Landlord
is not, as of the date hereof, in default in the performance of the
Lease, nor has the Landlord committed any breach thereof, nor has any
event occurred which, with the passage of time or the giving of
notice, or both, would constitute a default or breach by the Landlord.
The undersigned acknowledges that you are relying on the above
representation of the undersigned in (advancing funds to purchase the
existing first mortgage Xxxx covering the building in which the
leased premises are located)(in purchasing the building in which the
leased premises are located) and does hereby warrant and affirm to and
for your benefit, and that of your successors and assigns, that each
of the foregoing representations is true, correct and complete as of
the date hereof.
Dated:
-------------------------------------------------
By
Its:
----------------------------------------------------
EXHIBIT "D"
ADDENDA TO LEASE
000 Xxxxxxx'x Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx
LEASE DATE: March 7, 1993
LANDLORD: SAN MATEO OFFICE LIMITED
a California Limited Partnership
TENANT: VERY VISUAL SOFTWARE, INC.
A California Company
ADDENDUM #1 RENT
Rent for the Premises shall be as follows:
Months 1-2.5 (4/1/93 - 6/14/93)
Suite #370 (2,177 sqft)
Base Rent $ 2,373
Estimated Basic
Operating Costs 1,328
-----
(Calendar Year 1993)
$ 3,701 per month
Months 2.5-3 (6/15/93 - 6/30/93)
Suite #460 (6,871 sqft)
Base Rent $ 7,489
Estimated Basic
Operating Costs 4,191
-----
(Calendar Year 1993)
$ 11,680 per month
Months 3-24 (7/1/93 - 3/31/95)
Suite #460 (6,871 sqft)
Base Rent $ 7,489
Estimated Basic
Operating Costs 4,191
-----
(Calendar Year 1993)
$ 11,680 per month
ADDENDUM #2 TENANT IMPROVEMENTS
Landlord shall deliver Suite #370 in "AS IS" condition as built per attached
Exhibit C. Landlord shall provide to Suite #460 Tenant Improvements as
described in Exhibit C-1.
ADDENDUM #3 OPTION TO RE-RELEASE
Providing Tenant is not, and has not been, in default of any terms and
conditions of this Lease, Tenant shall have one three (3) year option to release
the Premises in as is condition at the then current market rate for San Mateo
BayCenter. In no event will the monthly rental be less than the rental for the
last month of the previous term.
Tenant shall give landlord written notice of its intent to exercise its option
at least one hundred twenty (120) days prior to the expiration of the current
lease term. Within fifteen (15) days after Landlord receives notice of such
intent, Landlord will provide Tenant with the current market rental, as
determined by Landlord as well as terms and conditions for the extended term.
Tenant shall have thirty (30) days from notification by Landlord of option rent
and terms and conditions to accept Landlord's current market rent, terms and
conditions and thereby exercises its option to re-lease. If Tenant does not
accept Landlord's rental figure and terms and conditions within the thirty (30)
day period, this option shall be null and void and Landlord shall have no
further obligation to Tenant and Landlord may enter into a lease for the
Premises with a third party.
ADDENDA TO LEASE
VERY VISUAL SOFTWARE, INC.
Page -2-
Notwithstanding anything to the contrary set forth in this Lease, the Option to
Re-Lease shall apply only to the Primary tenant and not to any assignee or
subtenant of Very Visual Software, Inc.
ADDENDUM #4 PRIOR RIGHT OF REFUSAL
----------------------------------
Provided Tenant is not, and has not been, in default of any terms and conditions
of this Lease, tenant shall have a Prior Right of Refusal during the term of the
lease, to lease up to an additional 4,800 square feet of contiguous space on the
fourth floor of the building. Landlord shall, before leasing the same to any
party other than Tenant, first offers to lease the same to Tenant. Such offer
shall specify the rental rate, lease term, amount of tenant improvement
allowance, and other terms on which Tenant is entitled to lease the space, which
terms shall be at the sole discretion of Landlord. Tenant shall exercise its
rights to lease the space, if at all, within ten (10) business days after the
receipt from Landlord of the Offer Terms, by written notice, thereof to
Landlord. If Tenant exercises its Prior Right to Lease in the manner described,
Tenant shall immediately deliver to Landlord payment for the first month's rent
for the adjacent space. If Tenant does not so exercise such right to lease
within said ten (10) day period, Landlord shall be entitled thereafter to lease
said Option Space to any third party Landlord desires, provided that if Landlord
has not received a letter of intent or entered into Lease negotiations on the
Option Space with any third party within ninety (90) days after expiration of
said ten (10) day period, Landlord shall once again offer to lease said space to
Tenant pursuant to the provisions of this paragraph. Should Landlord enter into
Lease negotiation with a third party, Landlord agrees that the effective rental
rate offered to the third party is within 85% of that offered to said Tenant
(VVSI) at the rent set forth in the original Offer Terms.
ADDENDUM #5 COMPLIANCE WITH LAWS
--------------------------------
Landlord warrants, to the best of its knowledge, that the Building does conform
or that Landlord will cause it to conform to applicable requirements of law or
duly constituted authority or of any Board of Fire Underwriters, rating bureau
of similar organization, or the requirements of the carriers of Landlord's
insurance on or relating to the Building. The Tenant shall comply with all
applicable statutes, ordinances, rules and regulations of federal, state, and
municipal governments and all applicable rules and regulations of the Board of
Fire Underwriters as such statutes, ordinances, rules and regulations pertain to
Tenant's use of the demised Premises.
ADDENDUM #6 SERVICES AND UTILITIES
----------------------------------
Tenant shall be charged a fee of $30.00 per hour for after-hours HVAC use.
Normal building hours are Monday through Friday from 8:00 a.m. to 6:00 p.m.
Landlord reserves the right to adjust the hourly charge to reflect any increase
or decrease set by the local utility company.
ADDENDUM #7 DAMAGE BY FIRE. ETC.
--------------------------------
Notwithstanding the provisions of Paragraph 22, Tenant shall have the right to
terminate this Lease if such repairs cannot be made within one hundred eighty
(180) days from the date of such damage if such damage occurs within the last
six (6) months of the lease term.
ADDENDUM #8 PARKING
-------------------
Tenant shall have the non-exclusive use of no more than 4 on-site parking spaces
per every 1,000 square feet of leased office space.
ADDENDA TO LEASE
VERY VISUAL SOFTWARE, INC.
Page -3-
ADDENDUM #9 SIGNAGE
-------------------
Tenant shall be entitled to building standard signage located at the following
locations: entrance to the suite, elevator floor directory and main lobby
directory.
ADDENDUM #10 BASIC OPERATING COSTS
----------------------------------
Notwithstanding the provisions of Paragraph 29 of the Lease Agreement, Tenant's
Proportionate Share of Basic Operating Costs which are within Landlord's Control
shall not increase by more than ten percent (10%) over the previous year's cost.
Basic Operating costs which are not within Landlord's control include, but are
not limited to, utilities, taxes and insurance.
ADDENDUM #11 TERM AND POSSESSION
--------------------------------
Notwithstanding the provisions of Paragraph 3(a) of the Lease Agreement,
Landlord will use its best efforts to deliver to Tenant 6,871 rentable square
feet located on the 4th floor of 000 Xxxxxxx'x Xxxxxx Xxxxxxxxx known as Suite
#460 on or before June 15, 1993. Should Landlord be unable to deliver said
space, 6,871 rentable square feet, on or before July 15, 1993, Landlord agrees
to offer to Tenant one day free base rent and operating expenses for each day
Tenant must occupy 2,177 square feet of rentable space on the third floor
thereafter. If Landlord is unable to deliver said space, 6,871 rentable square
feet, on or before September 30, 1993, Tenant shall have the right to terminate
this Lease.
LANDLORD:
XXXXXXX-XXXXXXXXX #68, LTD. PARTNERSHIP
A California Limited Partnership
By:
---------------------------------
Xxxxxx X. Xxxxxxxxx
Its: General Partner
Date:
---------------------------------
TENANT:
VERY VISUAL SOFTWARE, INC.
A Delaware Corporation
By:
---------------------------------
Xxxxx Xxxxx
Its: Chief Executive Officer
By:
---------------------------------
LEASE AMENDMENT
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: May 25, 1993
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited
Partnership
TENANT: VERY VISUAL SOFTWARE, INC.
A California Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. RENTAL
Rent for the Premises shall be as follows:
Months 1 - 2.5 (4/1/93 - 6/17/93)
Suite #370 *2,177 sqft)
Base Rent $ 2,373
Operating Costs 1,328
-------
(1993 estimate)
$ 3,701 per month
Months 2.5 - 3 (6/18/93 - 6/30-93)
Suite #460 (6,871 sqft)
Base Rent $ 7,489
Operating Costs 4,191
-------
(1993 estimate)
$11,680 per month
Months 0 - 00 (0/0/00 - 0/00/00)
Xxxxx #000 (6,871 sqft)
Base Rent $ 7,489
Operating Costs 4,191
-------
(1993 estimate)
$11,680 per month
2. All other terms and conditions of the original Lease Agreement shall
apply to this Lease Amendment.
Agreed to this 25th day of May, 1993.
---- ----
VERY VISUAL SOFTWARE, INC.
Lease Amendment 5/25/93
Page -2-
LANDLORD:
SAN MATEO OFFICE LIMITED
A California Limited Partnership
By: ----------------------------------
Xxxxxx X. Xxxxxxxxx
Its: General Partner
Date: ----------------------------------
TENANT:
VERY VISUAL SOFTWARE, INC.
A Delaware Corporation
By: ----------------------------------
Xxxxx Xxxxx
Its: Chief Executive Officer
Date: ---------------------------------
LEASE AMENDMENT #2
------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: October 6, 1994
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT: VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. TERM
----
11/01/94 - 04/30/96
2. Premises
--------
Approximately 981 square feet of leasable space on the fourth floor of San
Mateo BayCenter, Phase I shall be incorporated into the original Lease
Agreement. Total square footage shall increase from 6,871 to 7,852 square
feet leasable.
3. Rental
------
11/01/94 - 03/31/95
Base Rent $ 8,559.00
Op. Exp.(est.'94) $ 4,790.00
----------
Total Rent $13,349.00
04/01/95 - 04/30/97
Base Rent $ 8,951.00
Op. Exp. (est '94) $ 4,790.00
----------
Total Rent $13,741.00
4. Proportionate Share
-------------------
Tenants proportionate share shall increase from 5.81% to 6.64%.
5. Security Deposit
----------------
Security Deposit shall increase from $11,681.00 to $13,349.00.
All other terms and conditions of the original Lease Agreement shall apply to
this Lease Amendment #2 Agreed to this________________day of__________________,
1994.
LANDLORD:
SAN MATEO OFFICE LIMITED
A California Limited Partnership
By: ---------------------------------
Xxxxx X. Xxxxxxx
Its: Agent for Owner
Date: ---------------------------------
TENANT:
VERY VISUAL SOFTWARE, INC.
A Delaware Corporation
By: ---------------------------------
Xxxxx Xxxxx
Its: Vice President of Finance
Date: ---------------------------------
LEASE AMENDMENT #3
------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: November 3, 1994
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. Rental
------
11/01/94 - 03/31/95
Base Rent $ 8,559.00
Op. Exp. (est. '94) $ 4,790.00
----------
Total Rent $13,349.00
04/01/95 - 04/30/96 Base Rent $ 8,951.00
Op. Exp. (est. '94) $ 4,790.00
----------
Total Rent $13,741.00
All other terms and conditions of the original Lease Agreement shall apply to
this Lease Amendment #3 Agreed to this ______ day of ________________, 1994.
LANDLORD:
SAN MATEO OFFICE LIMITED
A California Limited Partnership
By: _____________________________
Xxxxx X. Xxxxxxx
Its: Agent for Owner
Date: _____________________________
TENANT:
VERY VISUAL SOFTWARE, INC.
A Delaware Corporation
By: _____________________________
Xxxxx Xxxxx
Its: Vice President of Finance
Date: _____________________________
LEASE AMENDMENT 24
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: February 15, 1995
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT: VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. Term
----
03/01/95 - 04/30/96
2. Premises
--------
Approximately 1,677 square feet of leasable space on the third floor of San
Mateo BayCenter, Phase I shall be incorporated into the original Lease
Agreement. Total square footage shall increase from 7,852 to 9,529 square
feet leasable.
3. Rental
03/01/95 - 03/31/95
Base Rent $10,773.00
Op. Exp. (est. '95) $6,004.00
----------
Total Rent $16,777.00
04/01/95 - 04/30/96 Base Rent $11,165.00
Op. Exp. (est '95) $6,004.00
----------
Total Rent $17,169.00
4. Proportionate Share
-------------------
Tenants proportionate share shall increase from 6.64% to 8.05%.
5. Security Deposit
----------------
Security Deposit shall increase from $13,349 to $17,168.00.
All other terms and conditions of the original Lease Agreement shall apply to
this Lease Amendment #4 Agreed to this day of , 1995.
---- -------------
LANDLORD:
SAN MATEO OFFICE LIMITED
A California Limited Partnership
By: --------------------------------------
Xxxxx X. Xxxxxxx as Attorney-In-Fact
for Xxxxxx X. Xxxxxxxxx, General Partner
Date:
--------------------------------------
TENANT:
VERY VISUAL SOFTWARE, INC.
A Delaware Corporation
By:
--------------------------------------
Xxxxx Xxxxx
Its: Vice President of Finance
Date:
----------------------------
XXXX. 0
0XX XXXXX XXXX
XXX XXXXX XXX CENTER
XXXXXXX PARTNERS
(000) 000-0000
REVISED LEASE AMENDMENT #5
--------------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: June 28, 1995
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT: VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. Term
----
08/01/95 - 07/31/2000
2. Premises
--------
Effective August 1, 1995 approximately 3,305 square feet of rentable
space on the fourth floor (Suite 400) of San Mateo BayCenter, Phase I,
shall be incorporated into the original Lease Agreement. Total square
footage shall increase from 9,529 to 12,834 rentable. Effective May 1,
1996 approximately 1,495 square feet of rentable space on the fourth
floor (Suite 420) of San Mateo BayCenter, Phase I, shall be incorporated
into the original Lease Agreement. Total square footage shall increase
from 12,834 to 14,329.
3. Rental
------
08/01/95 - 04/30/96
(12,834 rsf) Base Rent $14.888.00
Op. Exp. (est. '95) $ 8,085.00
-----------
Total Rent $22,973.00
05/01/96 - 11/30/97
(14,329 rsf) Base Rent $19,631.00
Op. Exp. (est. '95) $ 9,027.00
----------
Total Rent $28,658.00
12/01/97 - 07/31/99
(14,329 rsf) Base Rent $20,777.00
Op. Exp. (est. '95) $ 9,027.00
----------
Total Rent $29,804.00
08/01/99 - 07/31/2000
(14,329 rsf) Base Rent $21,207.00
Op. Exp. (est. '95) $ 9,027.00
----------
Total Rent $30,234.00
4. Proportionate Share
-------------------
Tenant's proportionate share shall increase from 8.05% to 10.85%. Effective May
1, 1996, Tenant's proportionate share shall increase from 10.85% to 12.11%.
5. Security Deposit
----------------
Security Deposit shall increase from $17,168.00 to $28,658.00.
6.
LEASE AMENDMENT #10
-------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: June 11, 1996
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT: VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. PREMISES
--------
The Premises of the Lease as defined per the Basic Lease Information and as
previously amended, shall be amended such that effective July 1, 1996,
approximately 2,674 square feet of rentable space on the first floor of San
Mateo BayCenter, known as Suite #120 within the Phase I building, shall be
incorporated into the Original Lease Agreement. Total square footage shall
increase from 22,476 to 25,150 rentable square feet. Effective August 1, 2000,
approximately 16,506 square feet of rentable space on the third and fourth
floors known as Suites 360, 370, 400, 420, & 460 within the Phase I building,
shall be reduced from the Original Lease Agreement. Total square footage shall
decrease from 25,150 to 8,644 rentable square feet. Effective February 1, 2001,
approximately 5,970 square feet of rentable space on the second and third floors
known as Suites 230 & 430 within the Phase 1 building, shall be reduced from the
Original Lease Agreement. Total square footage shall decrease from 8,644 to
2,674 rentable square feet.
2. TERM
----
The term of the Lease shall be extended so that the Scheduled Term
Expiration Date, as defined per the Basic Lease Information within the Original
Lease Agreement, shall be June 30, 2001.
3. RENTAL TOTAL
------ AMOUNT
DUE:
Additional Existing
07/01/96 - 04/30/97 2,674 rsf. 22,476 rsf. 25,150 rsf.
-------------------------------------------------------------------------------
Base Rent $ 4,706.00 $31,540.00 $36,246.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
--------- ---------- ----------
Total Rent $ 6,417.00 $45,925.00 $52,342.00
Additional Existing
05/01/97 - 06/30/97 2,674 rsf. 22,476 rsf. 25,150 rsf.
--------------------------------------------------------------------------------
Base Rent $ 4,706.00 $31,663.00 $36,369.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
---------- ---------- ----------
Total Rent $ 6,417.00 $46,048.00 $52,465.00
Additional Existing
07/01/97 - 11/30/97 2,674 rsf. 22,476 rsf. 25,150 rsf.
-------------------------------------------------------------------------------
Base Rent $ 4,893.00 $31,663.00 $36,556.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
---------- ---------- ----------
Total Rent $ 6,604.00 $46,048.00 $52,652.00
Additional Existing
12/01/97 - 06/30/98 2,674 rsf. 22,476 rsf. 25,150 rsf.
-------------------------------------------------------------------------------
Base Rent $ 4,893.00 $33,223.00 $38,116.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
---------- ---------- ----------
Total Rent $ 6,604.00 $47,608.00 $54,212.00
Visigenic Software
Lease Amendment #10
6/11/96
Page 2
RENTAL (Continued)
Additional Existing
07/01/98-04/30/99 2,674 rsf. 22,476 rsf. 25,150 rsf.
----------------------------------------------------------------------------------------------------------
Base Rent $ 5,081.00 $33,223.00 $38,304.00
Op. Exp. (est '96) $ 1.71 1.00 $14,385.00 $16,096.00
Total Rent $ 6,792.00 $47,608.00 $54,400.00
Additional Existing
05/01/99 - 06/30/99 2,674 rsf. 22,476 rsf. 25,150 rsf.
----------------------------------------------------------------------------------------------------------
Base Rent $ 5,081.00 $33,407.00 $38,488.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
Total Rent $ 6,792.00 $47,792.00 $54,584.00
Additional Existing
07/01/99 - 07/31/99 2,674 rsf. 22,476 rsf. 25,150 rsf.
----------------------------------------------------------------------------------------------------------
Base Rent $ 5,295.00 $33,407.00 $38,702.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
Total Rent $ 7,006.00 $47,792.00 $54,798.00
Additional Existing
08/01/99 - 06/30/00 2,674 rsf. 22,476 rsf. 25,150 rsf.
----------------------------------------------------------------------------------------------------------
Base Rent $ 5,295.00 $34,448.00 $39,743.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
Total Rent $ 7,006.00 $48,833.00 $55,839.00
Additional Existing
07/01/00 - 07/31/00 2,674 rsf. 22,476 rsf. 25,150 rsf.
----------------------------------------------------------------------------------------------------------
Base Rent $ 5,508.00 $34,448.00 $39,956.00
Op. Exp. (est '96) $ 1,711.00 $14,385.00 $16,096.00
Total Rent $ 7,219.00 $48,833.00 $56,052.00
Additional Existing
08/01/00 - 01/31/01 2,674 rsf. 5,970 rsf. 8,644 rsf.
----------------------------------------------------------------------------------------------------------
Base Rent $ 5,508.00 $ 9,714.00 $15,222.00
Op. Exp. (est '96) $ 1,711.00 $ 3,821.00 $ 5,532.00
Total Rent $ 7,219.00 $13,535.00 $20,754.00
Additional
02/01/01 - 06/30/01 2,674 rsf.
Base Rent $ 5,508.00
Op. Exp. (est '96) $ 1,711.00
Total Rent $ 7,219.00
4. PROPORTIONATE SHARE
-------------------
Tenant's Proportionate Share, as defined per the Basic Lease Information
within the Original Lease Agreement and as amended shall increase effective
July 1, 1996 from 18.99% to 21.25%. Effective August 1, 2000 Tenant's
Proportionate Share shall decrease from 21.25% to 7.31%. Effective February
1, 2001 Tenant's Proportionate Share shall decrease from 7.31% to 2.26%.
5. SECURITY DEPOSIT
----------------
Security Deposit shall increase $6,500.00. Total Security Deposit to be
$52,500.00.
6. TENANT IMPROVEMENTS
-------------------
Landlord, at Landlords sole cost and expense shall provide the following
tenant improvements to Suite #120:
. Purchase and Install building standard carpet throughout Suite #120.
Color to be selected by Tenant.
Visigenic Software
Lease Amendment #10
6/11/96
Page 3
TENANT IMPROVEMENTS (Continued)
-------------------------------
* Paint entire Suite with building standard material. Color to be selected
by Tenant.
* Demo existing work area and storage room as highlighted in yellow on the
attached exhibit A-1.
* Purchase and Install mini-blinds on existing glass door as highlighted
in blue on the attached Exhibit A-1.
In addition, Landlord agrees to contribute an additional tenant
improvement allowance of one thousand five hundred dollars ($1,500.00) to
be applied towards the interior improvements as highlighted in yellow on
the attached exhibit A-2. Landlord will act as General Contractor to
perform all work as required provided, however, that Landlord not
withstanding anything to the contrary contained in the Original Lease
Agreement, shall not charge Tenant any construction supervisory fee or
similar such fee in connection with said improvements.
7. RIGHT TO TERMINATE
------------------
It is hereby agreed and understood that the Right to Terminate as provided
for in Lease Amendment #5, dated June 28, 1995 shall not apply to the
additional 2,674 rentable square feet as provided for in this Lease
Amendment #10 nor the 2,042 rentable square feet as provided for in this
Lease Amendment #9, dated March 25, 1996 nor the 3,928 rentable square feet
as provided for in Lease Amendment #7, dated December 20, 1995. Should
Tenant exercise its Right to Terminate as outlined in Lease Amendment #5,
dated June 28, 1995 and as amended to include 2,177 remitable square feet
in Lease Amendment #6, dated July 25, 1995, it shall only apply to 16,506
rentable square feet known as Suites 360, 370, 400, 420 & 460 located at
000 Xxxxxxx'x Xxxxxx Xxxx., Xxx Xxxxx, XX 00000.
All other terms amid conditions of the original Lease Agreement amid Lease
Amendments 1 - 9 shall apply to this Lease Amendment #10. Agreed to this
---
day of June, 1996.
---------
LANDLORD:
SAN MATEO OFFICE LIMITED
a California Limited Partnership
By: Xxxxxxx-Xxxxxxxxx 1168 Limited Partnership
a California Limited Partnership,
its General Partner
By:
-------------------------------------
Xxxxx X. Xxxxxxx, as Attorney-In-Fact
for Xxxxxx X. Xxxxxxxxx,
General Partner
Date:
------------------------------------
TENANT:
VISIGENIC SOFTWARE, INC.
A Delaware Corporation
By:
------------------------------------
Its: Vice President of Finance
-----------------------------------
Date:
-----------------------------------
[ART APPEARS HERE]
"Exhibit A-2"
[ART APPEARS HERE]
LEASE AMENDMENT #11
-------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: June 26, 1996
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT: VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. PREMISES
--------
The Premises of Lease as defined per the Basic Lease Information and
as previously amended, shall be amended such that effective July 15, 1996,
approximately 3,786 square feet of rentable space on the first floor of San
Mateo BayCenter, known as Suite # 150 within the Phase I building, shall be
incorporated into the Original Lease Agreement. Total square footage shall
increase from 25,150 to 28,936 rentable square feet. Effective August 1,
2000, approximately 16,506 square feet of rentable space on the third and
fourth floors known as Xxxxxx 000, 000, 000, 000, & 000 xxxxxx the Phase 1
building, shall be reduced from the Original Lease Agreement. Total square
footage shall decrease from 28,936 to 12,430 rentable square feet.
Effective February 1, 2001, approximately 5,970 square feet of rentable
space on the second and third floors known as Suites 230 & 430 within the
Phase I building, shall be reduced from the Original Lease Agreement. Total
square footage shall decrease from 12,430 to 6,460 rentable square feet.
Effective July 1, 2001, approximately 2,974 square feet of rentable space
on the first floor known as Suites 120 within the Phase I building, shall
be reduced from the Original Lease Agreement. Total square footage shall
decrease from 6,460 to 3,786 rentable square feet.
2. TERM
----
The term of the Lease shall be extended so that the Scheduled Term
Expiration Date, as defined per the Basic Lease Information within the
Original Lease Agreement, shall be January 31, 2002.
3. RENTAL
------
TOTAL
AMOUNT
DUE:
Additional Existing
07/01/96 - 07/31/96 3,786 rsf. 25,150 rsf. 28,936 rsf.
---------------------------------------------------------------
Base Rent $ 2,818.00 $36,246.00 $39,064.00
Op. Exp. (est '96) $ 1,373.00 $16.096.00 $17,469.00
---------- ---------- ----------
Total Rent $ 4,191.00 $52,342.00 $56,533.00
Additional Existing
08/01/96 - 01/31/97 3.786 rsf. 25.150 rsf. 28,.936 RSF.
----------------------- ---------- ----------- ------------
Base Rent $ 5,149.00 $36,246.00 $41,395.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 7,572.00 $52,342.00 $59,914.00
Additional Existing
02/01/97 - 04/30/97 3.786 rsf. 25.150 rsf. 28,936 RSF.
----------------------- ---------- ----------- ------------
Base Rent $ 6,663.00 $36,246.00 $42,909.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
Total Rent $ 9,086.00 $52,342.00 $61,428.00
Additional Existing
05/01/97 - 06/30/97 3.786 rsf. 25.150 rsf. 28,936 RSF.
----------------------- ---------- ----------- ------------
Base Rent $ 6,663.00 $36,369.00 $43,032.00
Op. Exp. (est '96) $ 2.423,00 $16,096.00 $18,519.00
Total Rent $ 9,086.00 $52,465.00 $61,551.00
Visigenic Software
Lease Amendment #11
6/26/96
Page 2
RENTAL (Continued)
------------------
Additional Existing
07/01/97-11/30/97 3,786 rsf. 25,150 rsf. 28,936 RSF.
---------------------------------------------------------------
Base Rent $ 6,663.00 $36,556.00 $43,219.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,086.00 $52,652.00 $61,738.00
----------
Additional Existing
12/01/97 - 06/30/98 3,786 rsf. 25,150 rsf. 28,936 RSF.
---------------------------------------------------------------
Base Rent $ 6,966.00 $38,116.00 $45,082.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,389.00 $54,212.00 $63,601.00
Additional Existing
07/01/98-04/30/99 3,786 rsf. 25,150 rsf. 28,936 RSF.
---------------------------------------------------------------
Base Rent $ 6,966.00 $38,304.00 $45,270.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,389.00 $54,400.00 $63,789.00
Additional Existing
05/01/99-06/30/99 3,786 rsf. 25,150 rsf. 28,936 RSF.
---------------------------------------------------------------
Base Rent $ 6,966.00 $38,488.00 $45,454.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,389.00 $54,584.00 $63,973.00
Additional Existing
07/01/99-07/31/99 3,786 rsf. 25,150 rsf. 28,936 RSF.
---------------------------------------------------------------
Base Rent $ 7,307.00 $38,702.00 $46,009.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,730.00 $54,798.00 $64,528.00
Additional Existing
08/01/99-06/30/00 3,786 rsf. 25,150 rsf. 28,936 RSF.
--------------------------------------------------------------
Base Rent $ 7,307.00 $39,743.00 $47,050.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,730.00 $55,839.00 $65,569.00
Additional Existing
07/01/00 - 07/31/00 3,786 rsf 25,150 rsf. 28,936 RSF.
---------------------------------------------------------------
Base Rent $ 7,307.00 $39,956.00 $47,263.00
Op. Exp. (est '96) $ 2,423.00 $16,096.00 $18,519.00
---------- ---------- ----------
Total Rent $ 9,730.00 $56,052.00 $65,782.00
Additional Existing
08/01/00 - 01/31/01 3,786 rsf. 8,644 rsf. 12.430 RSF.
---------------------------------------------------------------
Base Rent $ 7,648.00 $15,222.00 $22,870.00
Op. Exp. (est '96) $ 2,423.00 $ 5,532.00 $ 7.955,00
---------- ---------- ----------
Total Rent $10,071.00 $20,754.00 $30,825.00
Additional Existing
02/01/01 - 06/30/01 3,786 rsf. 2,674 rsf 6,460 RSF.
--------------------------------------------------------------
Base Rent $ 7,648.00 $ 5,508.00 $13,156.00
Op. Exp. (est '96) $ 2,423.00 $ 1,711.00 $ 4,134.00
---------- ---------- ----------
Total Rent $10,071.00 $ 7,219.00 $17,290.00
Additional
07/01/01 - 01/31/02 3,786 rsf.
--------------------------------------------------------------
Base Rent $ 7,988.00
Op. Exp. (est '96) $ 2,423.00
----------
Total Rent $10,411.00
Visigenic Software
Lease Amendment 1111
6/26/96
Page 3
4. PROPORTIONATE SHARE
-------------------
Tenant's Proportionate Share, as defined per the Basic Lease Information
within the Original Lease Agreement and as amended shall increase effective
July 15, 1996 from 21.25% to 24.45%. Effective August 1, 2000 Tenant's
Proportionate Share shall decrease from 24.45% to 10.50%. Effective
February 1, 2001 Tenant's Proportionate Share shall decrease from 10.5% to
5.46%. Effective July 1, 2001 Tenant's Proportionate Share shall decrease
from 5.46% to 3.21%.
5. SECURITY DEPOSIT
----------------
Security Deposit shall increase $4,500.00. Total Security Deposit to be
$57,000.00.
6. TENANT IMPROVEMENTS
-------------------
Landlord to deliver Suite #150 as drawn per the attached Exhibit A which
includes the construction of a private office as shown iii yellow on the
attached Exhibit A. In addition, Landlord shall paint the entire Suite with
building standard material. Color to be selected by Tenant.
7. RIGHT TO TERMINATE
------------------
It is hereby agreed and understood that the Right to Terminate as provided
for in Lease Amendment #5, dated June 28, 1995 shall not apply to the
additional 3,786 rentable square feet as provided for in this Lease
Amendment #11 nor 2,674 rentable square feet as provided for in Lease
Amendment #10 nor the 2,042 rentable square feet as provided for in Lease
Amendment #9, dated March 25, I 996 nor the 3,928 rentable square feet as
provided for in Lease Amendment #7, dated December 20, 1995. Should Tenant
exercise its Right to Terminate as outlined in Lease Amendment #5, dated
June 28, 1995 and as amended to include 2,177 rentable square feet in Lease
Amendment #6, dated July 25, 1995, it shall only apply to 16,506 rentable
square feet known as Suites 360, 370, 400, 420 & 460 located at 000
Xxxxxxx'x Xxxxxx Xxxx., Xxx Xxxxx, XX 00000.
All other terms and conditions of the original Lease Agreement and Lease
Amendments 1 - 10 shall
apply to this Lease Amendment #11. Agreed to this 27th day of______June, 1996.
LANDLORD:
SAN MATEO OFFICE LIMITED
a California Limited Partnership
By: Xxxxxxx-Xxxxxxxxx #68 Limited Partnership
a California Limited Partnership,
its General Partner
By XXXXX X. XXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxx, as Attorney-In-Fact
for Xxxxxx X. Xxxxxxxxx,
General Partner
Date: 7/11/96
---------------
TENANT:
VISIGENIC SOFTWARE INC.
A Delaware Corporation
By XXXXX XXXXX
----------------------------------------
Xxxxx Xxxxx
Its: Vice President of Finance
---------------------------------
Date: 6/27/96
--------------
[PLAN APPEARS HERE]
EXHIBIT "A"
LEASE AMENDMENT #12
-------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: July 22, 1996
LANDLORD: SAN MATEO OFFICE LIMITED
A California Limited Partnership
TENANT: VISIGENIC SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. PREMISES
--------
The Premises of the Lease as defined per the Basic Lease Information and as
previously amended, shall be amended such that effective August 1, 1996
approximately 1,472 square feet of rentable space on the third floor of San
Mateo BayCenter, known as Suite #330 within the Phase I building, shall be
incorporated into the Original Lease Agreement. Total square footage shall
increase from 28,936 to 30,408 rentable square feet. Effective August 1,
2000, approximately 16,506 square feet of rentable space on the third and
fourth floors known as Suites 360, 370, 400, 420, & 460 within the Phase I
building, shall be reduced from the Original Lease Agreement. Total square
footage shall decrease from 30,408 to 13,902 rentable square feet.
Effective February 1, 2001, approximately 5,970 square feet of rentable
space on the second and third floors known as Suites 230 & 430 within the
Phase I building, shall be reduced from the Original Lease Agreement. Total
square footage shall decrease from 13,902 to 7,932 rentable square feet.
Effective July 1, 2001, approximately 2,674 square feet of rentable space
on the first floor known as Suite 120 within the Phase I building, shall be
reduced from the Original Lease Agreement. Total square footage shall
decrease from 7,932 to 5,258 rentable square feet. Effective August 1, 2001
approximately 1,472 rentable space on the third floor known as Suite 330
within the Phase I building shall be reduced from the Original Lease
Agreement. Total square footage shall decrease from 5,258 to 3,486 rentable
square feet.
2. RENTAL
------
TOTAL
AMOUNT
DUE:
Additional Existing
08/01/96 - 01/31/97 1,472 rsf. 28,936 rsf. 30,408 RSF
----------------------------------------------------------------
Base Rent $2,591.00 $41,395.00 $43,986.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,533.00 $59,914.00 $63,447.00
Additional Existing
02/01/97 - 04/30/97 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------
Base Rent $2,591.00 $42,909.00 $45,500.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,533.00 $61,428.00 $64,961.00
Additional Existing
05/01/97 - 06/30/97 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------
Base Rent $2,591.00 $43,032.00 $45,623.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,533.00 $61,551.00 $65,084.00
Additional Existing
07/01/97 - 11/30/97 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------
Base Rent $2,591.00 $43,219.00 $45,810.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,533.00 $61,738.00 $65,271.00
Visigenic Software
Lease Amendment #11
7/22/96
Page 2
RENTAL (Continued)
------------------
Additional Existing
12/01/97 - 06/30/98 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------------
Base Rent $2,723.00 $45,082.00 $47,805.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,665.00 $63,601.00 $67,266.00
Additional Existing
07/01/98-04/30/99 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------------
Base Rent $2,723.00 $45,270.00 $47,993.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,665.00 $63,789.00 $67,454.00
Additional Existing
05/01/99-06/30/99 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------------
Base Rent $2,723.00 $45,454.00 $48,177.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,665.00 $63,973.00 $67,638.00
Additional Existing
07/01/99-07/31/99 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------------
Base Rent $2,841.00 $46,009.00 $48,850.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,783.00 $64,528.00 $68,311.00
Additional Existing
08/01/99-06/30/00 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------------
Base Rent $2,841.00 $47,050.00 $49,891.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,783.00 $65,569.00 $69,352.00
Additional Existing
07/01/00 - 07/31/00 1,472 rsf. 28,936 rsf. 30,408 RSF.
----------------------------------------------------------------------
Base Rent $2,841.00 $47,263.00 $50,104.00
Op. Exp. (est. '96) $ 942.00 $18,519.00 $19,461.00
--------- ---------- ----------
Total Rent $3,783.00 $65,782.00 $69,565.00
Additional Existing
08/01/00 - 01/31/01 1,472 rsf. 12.430 rsf. 13,902 RSF.
----------------------------------------------------------------------
Base Rent $2,973.00 $22,870.00 $25,843.00
Op. Exp. (est. '96) $ 942.00 $ 7,955.00 $ 8,897.00
--------- ---------- ----------
Total Rent $3,915.00 $30,825.00 $34,740.00
Additional Existing
02/01/01 - 06/30/01 1,472 rsf. 6.460 rsf 7,932 RSF.
---------------------------------------------------------------------
Base Rent $2,973.00 $13,156.00 $16,129.00
Op. Exp. (est. '96) $ 942.00 $ 4,134.00 $ 5,076.00
--------- ---------- ----------
$3,915.00 $17,290.00 $21,205.00
Additional Existing
07/01/01 - 07/31/01 1,472 rsf. 3,786 rsf 5,258 RSF.
---------------------------------------------------------------------
Base Rent $2,973.00 $ 7,988.00 $10,961.00
Op. Exp. (est. '96) $ 942.00 $ 2,423.00 $ 3,365.00
--------- ---------- ----------
$3,915.00 $10,411.00 $14,326.00
Existing
08/01/01 - 01/31/02 3.786 rsf. 3,786 RSF
---------------------------------------------------------------------------
Base Rent $ 7,988.00 $ 7,988.00
Op. Exp. (est. '96) $ 2,423.00 $ 2,423.00
---------- ----------
Total Rent $10,411.00 $10,411.00
Visigenic Software
Lease Amendment #11
7/22/96
Page 3
3. PROPORTIONATE SHARE
-------------------
Tenant's Proportionate Share, as defined per the Basic Lease Information
within the Original Lease Agreement and as amended shall increase effective
August 1, 1996 from 24.45% to 25.70%. Effective August 1, 2000 Tenant's
Proportionate Share shall decrease from 25.70% to 11.75%. Effective
February 1, 2001 Tenant's Proportionate Share shall decrease from 11.75% to
6.70%. Effective July 1, 2001 Tenant's Proportionate Share shall decrease
from 6.70% to 4.44%. Effective August 1, 2001 Tenant's Proportionate Share
shall decrease from 4.44% to 3.21%.
4. SECURITY DEPOSIT
----------------
Security Deposit shall increase $7,000.00. Total Security Deposit to be
$64,000.00.
5. TENANT IMPROVEMENTS
-------------------
Landlord to deliver Suite #330 as drawn per the attached Exhibit A however,
Landlord agrees to remove existing wallcovering, prep walls as needed and
repaint entire suite. In addition, Landlord to purchase and install new
building standard carpet throughout suite, other than the storage area in
which the existing V.C.T. floorcovering shall remain. Color of carpet, base
and paint to be selected by Tenant.
6. RIGHT TO TERMINATE
------------------
It is hereby agreed and understood that the Right to Terminate as provided
for in Lease Amendment #5, dated June 28, 1995 shall not apply to the
additional 1,472 rentable square feet as provided for in this Lease
Amendment #12 nor the 3,786 rentable square feet as provided for in Lease
Amendment #11 nor the 2,674 rentable square feet as provided for in Lease
Amendment #10 nor the 2,042 rentable square feet as provided for in Lease
Amendment #9, dated March 25, 1996 nor the 3,928 rentable square feet as
provided for in Lease Amendment #7, dated December 20, 1995. Should Tenant
exercise its Right to Terminate as outlined in Lease Amendment #5, dated
June 28, 1995 and as amended to include 2,177 rentable square feet in Lease
Amendment #6, dated July 25, 1995, it shall only apply to 16,506 rentable
square feet known as Suites 360, 370, 400, 420 & 460 located at 000
Xxxxxxx'x Xxxxxx Xxxx., Xxx Xxxxx, XX 00000.
All other terms and conditions of the original Lease Agreement and Lease
Amendments 1 - 11 shall apply to this Lease Amendment #12. Agreed to this 24th
day of July, 1996.
LANDLORD:
SAN MATEO OFFICE LIMITED
a California Limited Partnership
By: Xxxxxxx-Xxxxxxxxx #68 Limited Partnership
a California Limited Partnership,
its General Partner
By /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx, as Attorney-In-Fact
for Xxxxxx X. Xxxxxxxxx,
General Partner
Date: 7/29/96
------------------
TENANT:
VISIGENIC SOFTWARE INC.
A Delaware Corporation
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
Its: Vice President
------------------------------
Date: 7/24/96
--------------------
[PLAN APPEARS HERE]
Suite 330 1,472 Sq. Ft.
San Mateo BayCenter
000 Xxxxxxx'x Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX
EXHIBIT "A"
LEASE AMENDMENT #13
-------------------
ORIGINAL LEASE DATE: March 7, 1993
LEASE AMENDMENT DATE: September 4, 1996
LANDLORD: SAN MATEO OFFICE LIMITED
A California limited partnership
TENANT: VERY VISUAL SOFTWARE, INC.
A Delaware Corporation
Landlord and Tenant, by executing this Lease Amendment as provided do hereby
amend the Original Lease referred to above as follows:
1. Tenant
------
Tenant Name shall be revised, effective December 1, 1993, to the following:
VISIGENIC SOFTWARE, INC.
A DELAWARE CORPORATION
All other terms and conditions of the original Lease Agreement and Lease
Amendments #1 - #12 shall apply to this Lease Amendment #13. Agreed to this 16TH
day of SEPTEMBER , 1996.
-----------
LANDLORD:
SAN MATEO OFFICE LIMITED
a California Limited Partnership
By: Xxxxxxx-Xxxxxxxxx #68 Limited Partnership
a California Limited Partnership,
its General Partner
By /s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx, as Attorney-In-Fact
for Xxxxxx X. Xxxxxxxxx,
General Partner
Date: 9/21/96
----------------
TENANT:
VISIGENIC SOFTWARE INC.
A Delaware Corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
Its: CFO
-------------------------
Date: 9/11/96
----------------
