FULL SERVICE OFFICE LEASE - MONTEREY
ARTICLE 1. SALIENT LEASE TERMS
THIS LEASE is dated for reference purposes only this 19th day of August _, 1994.
1.1. Rent Payment: KI Monterey Research, Inc.
c/o The Xxxxxx Xxxx Company
P.0. Xxx 000 Xxxxxx, XX 00000
1.2. Parties and Lessor: KI Monterey Research, Inc.
Notice c/o The Xxxxxx Xxxx Company
Addresses: X.X. Xxx 000
Xxxxxx, XX 00000
Lessee: Thinking Tools,. Inc A California Corporation
0 Xxxxx Xxxxxxxx Xxxxx
Xxxx #x-000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
(If more than one, then the obligations
hereunder shall be joint and several.)
(Section 49.12)
1.3. Premises: (A) Name and Location of Complex: Monterey Commerce Center
0 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx 0, Xxxxxxxx, XX 00000.
(B) Leased Premises: Suite #250
(C) Approximately 3.776 Square Feet (Section 3.2)
1.4. Term: (A) Estimated Delivery Date: November 10, 1994
(B) Thirty-Six (36} Months
(Section 4.1)
1.5. Rent: (A) Minimum Monthly Rent: $
Month 01 $ 664,00; $ .1758 per square foot
Months 02-12 $5,664.00: $1.50 per square foot
Months 13-24 $5,852.00; $1.55 per square foot
Months 25-36 $6,041.60; $1.60 per square foot
(Section 7.1)
(B) Advance Rent: Five Thousand Six Hundred Sixty-Four
Dollars ($5,664.00) due the first month of the term
(Section 7.2)
1.6. Initial
Security
Deposit: Five Thousand Four Hundred Seventy-Five Dollars and Twenty
Cents ($5,465.20). (Section 10.1)
1.7. Use: Premises used solely for Software Development and
General Office use. (Section 11.1)
1.8. Initial
Pro Rats %: . 0762 % 3.776 sq.ft./50.031 sq.ft.
(Section 2.1(1))
1.9. Base Operating $ (1) per year for
Costs: Complex Costs
$ (1) per year for
Building Costs (Section 8.2)
1.10. Declaration of Date of Recordation January 31, 1990
Restrictions: Book 6498 Page 035-2-3
Document Number --
(Section 3.5)
1.11. Contents: This Lease consists of:
Pages 1 through 34
Sections 1 through 49.1
Addenda:
Exhibits:
"A" - Legal Description
"B" - Floor Plan/Site Plan
"C" - Construction Obligations
"D" - Acknowledgment of Commencement
"E" - Rules Regulations
"F" - California Code.
"G" - Parking Area
"H" - Building Standard Signage
ARTICLE 2. DEFINITIONS
2.1. The terms defined in this Article 2 shall, for all purposes of
this Lease and all agreements supplemental hereto, have the meanings herein
specified unless expressly stated otherwise.
(a) "Base Operating Cost" means the sum set forth in Section 1.9
hereof.
(b) "Building" shall mean the structure which contains the Leased
Premises.
(c) "Building Standard Work" shall mean the typical interior
improvements constructed or to be constructed by Lessor, which are of the nature
and quality required by specifications developed for the Complex by Lessor's
architect.
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(d) "Commencement" shall mean the earlier of the following dates:
(i) The day upon which Lessee takes possession of the Leased
Premise; or
(ii) The date upon which the leasehold Improvements have been
substantially completed an determined by Lessor's project architect, except in
event completion of the Leasehold Improvements is delayed by design decisions,
revisions or additional work or preparation of plans of Lessee or its agent.
("Lessee Delay"), such delay shall thereupon effect a postponement of the date
at which Lessor is obliged to deliver the Leased Premises to Lessee, by the
number of days of Lessee Delay. Moreover, the Commencement Date as would
otherwise be established had Lessee Delay not occurred shall not be postponed by
the number of days of Lessee Delay. Thus the date for commencement of Rent shall
not be delayed by Lessee Delay. Lessor estimates such completion will be made on
or before the date specified in Section 1.4(A).
(e) "Common Areas" shall mean all areas and facilities outside the
Leased Premises within the exterior boundaries of the Complex of which the
Leased Premises form a part, that are provided and designated by Lessor from
time to time for the general use and convenience of Lessee and of other tenants
of Lessor having the common use of such areas, and their respective authorized
representatives and invitees. Common Areas include, without limitation,
corridors, stairways, elevator shafts, Janitor rooms, driveways, parking areas,
and landscaped areas all as generally described on Exhibit "B" attached hereto.
Exhibit "B" is tentative and Lessor reserves the right to make alterations
thereto from time to time.
(f) "Complex" is that parcel of real property, or parcels of real
property in common ownership with, and contiguous to, the parcel of which the
Leased Premises forms a part, which is described with particularity in Exhibit
"A" attached hereto and made a part hereof by reference.
(g) "Lease Year" means any calendar year, or portion thereof, following
the commencement hereof, the whole or any part of which period is included
within the Term.
(h) "Leased Premises" shall mean the portion of space leased to Lessee
hereunder.
(i) "Leasehold Improvements" shall mean the aggregate of the Building
standard work and the Building nonstandard work done in accordance with the work
letter agreement, which agreement is attached hereto, as Exhibit "C."
(j) "Major Vertical Penetrations" shall mean stairs, elevator shafts,
flues, pipe shafts, vertical ducts, and the like, and their enclosing walls,
which serve more than one floor of the Building, but shall not include stairs,
dumb-waiters, lifts, and the like, exclusively serving a tenant occupying
offices on more than one floor.
(k) "Operating Costs" means the total amount paid or payable, whether
by Lessor or others on behalf of Lessor, in connection with the ownership,
maintenance, repair, and operations of the Complex (including, without
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limitation, all areas and facilities within the exterior boundaries of the
Complex) as determined by standard accounting procedures. Operating Costs shall
include, but not be limited to, the aggregate of the amount paid for all fuel
used in heating and air conditioning of the Building; the amount paid or payable
for all electricity furnished by Lessor to the Complex (other than electricity
furnished to other buildings in the Complex); the cost of periodic relamping and
reballasting of lighting fixtures; the amount paid or payable for all hot and
cold water (other than that furnished to other buildings in the Complex); the
amount paid or payable for all labor and/or wages and other payments including
cost to Lessor of worker's compensation and disability insurance, payroll taxes,
welfare and fringe benefits made to Janitors, caretakers, and other employees,
contractors and subcontractors of Lessor (including wages of the Building
manager) involved in the operation, maintenance and repair of the Complex;
managerial end administrative expenses related to the Building, the total
charges of any independent contractors employed in the repair, care, operation,
maintenance, and cleaning of the Building; the amount paid or payable for all
supplies occasioned by everyday wear and tear; the costs of climate control,
window and exterior wall cleaning, telephone end utility costs for the Building;
the cost of accounting services necessary to compute the rents and charges
payable by Lessees and keep the books of the Complex; fees for management,
legal, accounting, inspection and consulting services; the cost of operating,
repairing end maintaining the Building elevators; the costs of porters, guards
and protection services the cost of establishing and maintaining the Building's
directory board; payments for general maintenance and repairs to the plant and
equipment applying climate control; the cost of supplying all services pursuant
to Article 13 hereof to the extent such services are not paid by individual
lessees; amortization of the costs, including repair and replacement, of all
maintenance and cleaning equipment and master utility meters and of the costs
incurred for repairing or replacing all other fixtures, equipment and facilities
serving or comprising the Complex which by their nature, require periodic or
substantial repair or replacement, and which are not charged fully in the year
in which they are incurred, at rates on the various items determined from time
to time by Lessor in accordance with sound accounting principles; and the net
cost and expenses for insurance for which Lessor is responsible hereunder or
which Lessor reasonably deems necessary in connection with the operation of the
Complex. Operating Cost shall also include any Real Estate Taxes as defined in
Paragraph 2.1(n) hereof. Operating Costs shall also include, without limitation,
the repair and replacement, resurfacing or repaving of any of the paved areas,
curbs or gutters within the Complex, and the repair and replacement of any
equipment or facilities serving or located within the Complex and the costs of
any capital improvements made by Lessor to the Complex for the purpose of
reducing other operating expenses or utility costs, from which Lessee can expect
a reasonable benefit, or that are required by governmental law, ordinance,
regulation or mandate, not applicable to the Complex at the time of the original
construction. For the purposes hereof "Capital Costs" are defined aa any
expenditures of the type which do not normally recur more frequently than every
five (5) years in the normal course of operation and maintenance of the Complex.
The portion of Capital Costs to be included each year in Operating Costs shall
be that fraction allocable to the year in question calculated by amortizing the
cost over the reasonably useful life of such improvement, as determined by
Lessor, with interest on the unamortized balance at the higher of (i) ten
percent (10%) per annum; or (ii) the interest rate as may have been paid by
Lessor for funds borrowed for the purpose of constructing such improvements, but
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in no event to exceed the highest rate permissible by law. Operating Costs shall
not include legal or accounting expenses incurred expressly for negotiating a
lease with a particular tenant, or as a result of a default of a specific
tenant, which negotiation or default does not affect the operation of the
Complex. Operating Costs may be classified into two (2) components: Complex
Costs, relating to those Operating Costs which are not specifically related to
the Building, and building Costs, relating to Operating Costs which are
specifically incurred with respect to the Building.
(1) "Proportionate Share" or "Pro rata Percent" shall be that fraction
(converted to a percentage) the numerator of which is the Usable Area of the
Leased Premises multiplied by the R/U Ratio and the denominator of which is the
Rentable Area of all floors (or Leased Premises if the Complex is on a single
floor) rentable to lessees in the Complex. Lessee's Proportionate Share as of
the commencement of the term hereof, is specified in Section 1.8. With respect
to Complex Costs, Lessee shall pay it. Proportionate Share of the Complex Costs
which are allocated to the Building. The Building shall be allocated a share of
the Complex Costs equal to a fraction thereof, the numerator of which is the
total leased and occupied Rentable Area of the Building and the denominator of
which is the total leased and occupied Rentable Area of all buildings in the
Complex. Said Proportionate Share shall be recalculated as may be required
effective as at the commencement of any period to which the calculation is
applicable in this Lease. Notwithstanding the preceding provisions of this
Section 2.1(1), Lessee's proportionate share as to certain expenses may be
calculated differently to yield a higher percentage share for Lessee as to
certain expenses in the event Lessor permits other tenants in the Complex to
directly incur such expenses rather than have Lessor incur the expense in common
for the Complex (such as, by way of illustration, wherein a tenant performs its
own Janitorial services). In such case Lessee's proportionate share of the
applicable expense shall be calculated as having its denominator the gross
leasable area of all Premises in the Complex less the gross leasable area of
tenants who have incurred such expense directly. In any case in which Lessee,
with Lessor's consent, incurs such expenses directly, Lessee's proportionate
share will be calculated specially so that expenses of the same character which
are incurred by Lessor for the benefit of other tenants in the Complex shall not
be prorated to Lessee. Nothing herein shall imply that Lessor will permit Lessee
or any other tenant of the Complex to incur any Common Area Cost or Operating
Costs. Any such permission shall be in the sole discretion of the Lessor, which
Lessor may grant or withhold in its arbitrary judgment.
(m) "R/U Ratio" (an abbreviation for Rentable/Usable Ratio) shall mean
that fraction the numerator of which is Rentable Area and the denominator of
which is Usable Area.
(n) "Real Estate Taxes" or "Taxes" shall mean and include all general
and special taxes, assessments, fees of every kind and nature, duties and
levies, charged and levied upon or assessed by any governmental authority
against the Complex including the land, the Building, any other improvements
situated on the land other than the Building, the various estates in the land
end the Building, any Leasehold Improvements, fixtures, installations, additions
and equipment, whether owned by Lessor or Lessee; except that it shall exclude
any taxes of the kind covered by Section 8.1 hereof to the extent Lessor is
reimbursed therefor by any tenant in the Building. Real Estate Taxes shall also
include the
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reasonable cost to Lessor of contesting the amount, validity, or the
applicability of any Taxes mentioned in this Section. Further included in the
definition of Taxes herein shall be general and special assessments, license
fees, commercial rental tax, levy or tax (other than inheritance or estate
taxes) imposed by any authority having the direct or indirect power to tax, as
against any legal or equitable interest of Lessor in the Leased Premises or in
the Complex or on the act of entering into this Lease or, as against Lessor's
right to rent or other income therefrom, or as against Lessor's business of
leasing the Leased Premises or the Complex, any tax, fee, or charge with respect
to the possession, leasing, transfer of interest, operation, management,
maintenance, alteration, repair, use, or occupancy by Lessee, of the Leased
Premises or any portion thereof or the Complex, or any tax imposed in
substitution, partially or totally, for any tax previously included within the
definition of Taxes herein, or any additional tax, the nature of which may or
may not have been previously included within the definition of Taxes. Further,
if at any time during the term of this Lease the method of taxation or
assessment of real estate or the income therefrom prevailing at the time of
execution hereof shall be, or has been altered so as to cause the whole or any
part of the Taxes now or hereafter levied, assessed or imposed on real estate to
be levied, assessed or imposed upon Lessor, wholly or partially, as a capital
levy, business tax, fee, permit or other charge, or on or measured by the Rents
received therefrom, then such new or altered taxes, regardless of their nature,
which are attributable to the land, the Building or to other improvements on the
land shall be deemed to be included within the term "Real Estate Taxes" for
purposes of this Section, whether in substitution for, or in addition to any
other Real Estate Taxes, eave and except that such shall not be deemed to
include any enhancement of said tax attributable to other income of Lessor. With
respect to any general or special assessments which may be levied upon or
against the Leased Premises, the Complex, or the underlying realty, or which may
be evidenced by improvement or other bonds, and may be paid in annual or
semi-annual installments, only the amount of such installment, prorated for any
partial year, and statutory interest shall be included within the computation of
Taxes for which Lessee is responsible hereunder.
(o) "Rent" means Minimum Monthly Rent and all other sums required to be
paid by Lessee pursuant to the terms of this Lease.
(p) "Rentable Area". The Rentable Area of a floor shall be computed by
measuring to the inside finished surface of the dominant portion of the
permanent outer building walls, excluding any Major Vertical Penetration of the
floor. No deductions shall be made for columns and projection necessary to the
buildings. The Rentable Area of an office on the floor shall be computed by
multiplying the Usable Area of that office by the R/U Ratio described in Section
2.1(m) for the floor.
(q) "Structural" as herein used shall mean any portion of the Leased
Premises or Complex which provides bearing support to any other integral member
of the Complex such as, by limitation, the roof structure (trusses, joists,
beams), posts, load bearing walls, foundations, girders, floor joists, footings,
and other load bearing members constructed by Lessor.
(r) "Term" shall mean the Term of the lease as specified in Article 4
hereof, including any partial month at the commencement of the Term.
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(s) "Total Building Area" is the total gross leasable area of the
Building.
(t) "Usable Area". The Usable Area of an of(pound)ice shall be the
number of square feet computed by measuring to the finished surface of the
office side of corridor and other permanent walls, to the center of partitions
that separate the office from adjoining Usable Areas, and to the inside finished
surface of the permanent outer building walls. No deductions shall be made for
the columns and projections necessary to the buildings. The Usable Area of floor
shall be equal to the sum of all Usable Areas on that floor.
ARTICLE 3. PREMISES
3.1. Demising Clause. Lessor hereby leases to Lessee, and Lessee hires
from Lessor a portion of the Complex as hereinafter defined.
3.2. Description. The "Complex" as defined in Section 2.1 (f), is
described generally in Section 1.3(A) hereof. The premises leased herein are
described in Section 1.3(B) and delineated on Exhibit "B", which is attached
hereto and made a part hereof by reference, consisting of the approximate amount
of square footage as specified in Section 1.3(C) hereof. The term "Building"
shall refer to the Building in which the Leased Premises are located. The
portion leased herein to Lessee is hereinafter referred to as the "Leased
Premises." Lessor reserves the area beneath and above the Leased Premises and
the use thereof together with the right to install, maintain, use, repair and
replace pipes, ducts, conduits, wires, and structural elements leading through
the Leased Premises serving other parts of the Complex, so long as such items
are concealed by walls, flooring or ceilings. Such reservation in no way affects
the maintenance obligations imposed herein.
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3.4. Covenants, Conditions and Restrictions.
The parties agree that this Lease is subject to the effect of (a) any
covenants, conditions, restrictions, easements, mortgages or deeds of trust,
ground leases, rights of way of record, and any other matters or documents of
record; (b) any zoning laws of the city, county and state where the Complex is
situated; and (c) general and special taxes not delinquent. Lessee agrees that
as to its leasehold estate, Lessee and all persons in possession or holding
under Lessee, will conform to and will not violate the terms of any covenants,
conditions or restrictions of record which may now or hereafter encumber the
property (hereinafter the "restrictions"). This Lease is subordinate to the
restrictions and any amendments or modifications thereto.
3.5. Declaration of Restrictions. The Leased Premises are subject to a
Declaration of Restrictions as referenced in Section 1.10 hereof.
ARTICLE 4. TERM
4.1. Commencement Date. The term of this Lease shall commence on the
date specified in Section 1.4(A) hereof and shall be for the term specified in
Section 1.4(B) hereof, plus any partial month at the commencement of the term.
4.2. Acknowledgment of Commencement. After delivery of the Leased
Premises to Lessee, Lessee shall execute a written acknowledgment of the date of
commencement in the form attached hereto as Exhibit "D" and by this reference it
shall be incorporated herein.
ARTICLE 5. PRE-TERM POSSESSION
5.1. Conditions of Entry. In the event the Leased Premises are to be
constructed or remodelled by Lessor, Lessor may notify Lessee when the Leased
Premises are ready for Lessee's fixturing or Lessee's work, which may be prior
to substantial completion of the Leased Premises by Lessor. Lessee may thereupon
enter the Leased Premises for such purposes at its own risk, to make such
improvements as Lessee shall have the right to make, to install fixtures,
supplies, inventory and other property. Lessee agrees that it shall not in any
way interfere with the progress of Lessor's work by such entry. Should such
entry prove an impediment to the progress of Lessor's work, in Lessor'.
Judgment, Lessor may demand that Lessee forthwith vacate the Leased Premises
until such time as Lessor's work is complete, and Lessee shall immediately
comply with this demand.
During the course of any pre-term possession, whether such pre-term
period arises because of an obligation of construction on the part of Lessor, or
otherwise, all terms and conditions of this Lease, except for rent and
commencement, shall apply, particularly with reference to indemnity by Lessee of
Lessor under Article 17 herein for all occurrences within or about the Leased
Premises.
ARTICLE 6. DELAY IN DELIVERY OF POSSESSION
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ARTICLE 7. MINIMUM RENT
7.1. Payment. Lessee shall pay to Lessor at the address specified in
Section 1.1, or at such other place at Lessor may otherwise designate, as
"Minimum Monthly Rent" for the Leased Premises the amount specified in Section
1.5(A) hereof, payable in advance on the first day of each month during the
Lease term. If the Lease term commences on other than the first day of a
calendar month, the rent for the first partial month shall be prorated
accordingly.
All payments of Minimum Monthly Rent (including sums defined as rent in
Section 30.2) shall be in lawful money of the United States, and payable without
deduction, offset, counterclaim, prior notice or demand.
7.2. Advance Rent. The amount specified in Section 1.5(B) hereof is
paid herewith to Lessor upon execution of this Lease as advance rent, receipt of
which is hereby acknowledged, provided, however, that such amount shall be held
by Lessor as a "Security Deposit" pursuant to Section 10.1 hereof until it is
applied by Lessor to the first Minimum Monthly Rent due hereunder.
7.3. Late Payment. If during any twelve (12) month period Lessee fails
on more than one occasion to make any payment of Minimum Monthly Rent to Lessor
on the date when it is due, then Lessor may, by giving written notice to Lessee,
require that Lessee pay the Minimum Monthly Rent to Lessor quarterly in advance.
ARTICLE 8. ADDITIONAL RENT
8.1. Personal Property, Gross Receipts, Leasing Taxes. This Section 8.1
is intended to deal with impositions or taxes directly attributed to Lessee or
this transaction, as distinct from taxes attributable to the Complex which are
to be allocated among various tenants and others and which are included in
Operating Costs. In addition to the Minimum Monthly Rent and additional charges
to be paid by Lessee hereunder, Lessee shall reimburse Lessor upon demand for
any and all taxes required to be paid by Lessor (excluding state, local or
federal personal and corporate income taxes measured by the income of Lessor
from all sources, and estate and inheritance taxes) whether or not now customary
or within the contemplation of the parties hereto:
(a) upon, measured by, or reasonably attributable to the cost or value
of Lessee's equipment, furniture, fixtures and other personal property located
in the Leased Premises or by the cost or value of any Leasehold Improvements
made in or to the Leased Premises by or for Lessee, other than Building Standard
Work, regardless of whether title to such improvements shall be in Lessee or
Lessor;
(b) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Lessee of the
Leased Premises or any portion thereof to the extent such taxes are not included
as Real Estate Taxes as defined in section 2.1(m) and:
(c) upon this transaction or any document to which Lessee is a party
creating or transferring an interest or an estate in the Leased Premises.
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In the event that it shall not be lawful for Lessee so to reimburse
Lessor, the Minimum Monthly Rent payable to Lessor under this Lease shall be
increased to net Lessor (i.e. after payment of the Taxes for which Lessor may
not receive reimbursement from Lessee) the amount of Minimum Monthly Rent plus
reimbursement for Taxes which would have been receivable by Lessor if such tax
had not been imposed. All taxes payable by Lessee under this Section shall be
deemed to be, end shall be paid as, additional Rent.
8.2. Operating Costs.
(a) If either component or both components of Operating Costs for
any Lease Year, calculated on the basis of the greater of (i) actual Operating
Costs; or (ii) as if the Complex were at least ninety percent (90%) occupied and
operational for the whole of such Lease Year, is/are more than the Base
Operating Cost for such component(s), Lessee shall pay to Lessor its
Proportionate Share of any such increase aa additional Rent in accordance with
Section 8.3 hereof.
(b) If any Lease Year of less than twelve (12) months is included
within the Term, the amount payable by Lessee for such period shall be prorated
on a per diem basis (utilizing a three hundred sixty (360) day year).
8.3. Method of Payment. Any additional Rent payable by Lessee under
Sections 8.1 and 8.2 hereof shall be paid as follows, unless otherwise provided:
(a) During the Term, Lessee shall pay to Lessor monthly in advance
with its payment of Minimum Monthly Rent, one-twelfth (l/12th) of the amount of
such additional Rent as estimated by Lessor in advance, in good faith, to be due
from Lessee.
(c) If the aggregate amount of such estimated additional Rent
payments made by Lessee in any Lease Year should be less than the additional
Rent due for such year, then Lessee shall pay to Lessor as additional Rent upon
demand the amount of such deficiency. If the aggregate amount of ketch
additional Rent payments made by Lessee in any Lease Year of the Term should be
greater than the additional Rent due for such year, then should Lessee not be
otherwise in default hereunder, the amount of such excess will be applied by
Lessor to the next succeeding installments of such additional Rent due
hereunder; and if there is any such excess for the last year of the Term, the
amount thereof will be refunded by Lessor to Lessee, provided Lessee is not
otherwise in default under the terms of this Lease.
ARTICLE 9. ACCORD AND SATISFACTION
9.1. Acceptance of Payment. No payment by Lessee or receipt by Lessor
of a lesser amount of Minimum Monthly Rent or any other sum due hereunder, shall
be deemed to be other than on account of the earliest due rent or payment, nor
shall any endorsement or statement on any check or any letter accompanying any
such check or payment be deemed an accord and satisfaction, and Lessor may
accept such check or payment without prejudice to Lessor's right to recover the
balance of such rent or payment or pursue any other remedy available in this
Lease, at law or in equity. Lessor may accept any partial payment from Lessee
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without invalidation of any contractual notice required to be given herein (to
the extent such contractual notice is required) and without invalidation of any
notice required to be given pursuant to California Code of Civil Procedure
Section 1161, et seq., or of any successor statute thereto.
ARTICLE 10. SECURITY DEPOSIT
10.1. Payment on Lease Execution. Lessee shall pay Lessor upon
execution hereof the sum specified in Section 1.6. This sum is designated as a
Security Deposit and shall remain the sole and separate property of Lessor until
actually repaid to Lessee (or at Lessor's option the last assignee, if any, of
Lessee's interest hereunder), said sum not being earned by Lessee until all
conditions precedent for its payment to Lessee have been fulfilled. As this sum
both in equity and at law is Lessor's separate property, Lessor shall not be
required to (1) keep said deposit separate from his general accounts, or (2) pay
interest, or other increment for its use. If Lessee fails to pay rent or other
charges when due hereunder, or otherwise defaults with respect to any provision
of this Lease, including and not limited to Lessee's obligation to restore or
clean the Leased Premises following vacation thereof, Lessee, at Lessor's
election, shall be deemed not to have earned the right to repayment of the
Security Deposit, or those portions thereof used or applied by Lessor for the
payment of any rent or other charges in default, or for the payment of any other
sum to which Lessor may become obligated by reason of Lessee's default, or to
compensate Lessor for any loss or damage which Lessor may suffer thereby. Lessor
may retain such portion of the Security Deposit as it reasonably deems necessary
to restore or clean the Leased Premises following vacation by Lessee. The
Security Deposit is not to be characterized as rent until and unless so applied
in respect of a default by Lessee.
10.2. Restoration of Deposit. If Lessor elects to use or apply all or
any portion of the Security Deposit aa provided in Section 10.1, Lessee shall
within ten (10) days after written demand therefor pay to Lessor in cash, an
amount equal to that portion of the Security Deposit used or applied by Lessor,
and Lessee's failure to so do shall be a material breach of this Lease. The ten
(10) day notice specified in the preceding sentence shall insofar as not
prohibited by law, constitute full satisfaction of notice of default provisions
required by law or ordinance.
ARTICLE 13. USE
11.1. Permitted Use. The Leased Premises may be used and occupied only
for the purposes specified in Section 1.7 hereof, and for no other purpose or
purposes. Lessee shall promptly comply with all laws, ordinances, orders and
regulations affecting the Leased Premises, their cleanliness, safety, occupation
and use.
11.2. Safes, Heavy Equipment. Lessee shall not place a load upon any
floor of the Leased Premises which exceeds fifty (50) pounds per square foot
live load. Lessor reserves the right to prescribe the weight and position of all
safes and heavy installations which Lessee wishes to place in the Leased
Premises so as properly to distribute the weight thereof, or to require plans
prepared by a qualified structural engineer at Lessee's sole cost and expense
for such heavy objects. Notwithstanding the foregoing, Lessor shall have no
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liability for any damage caused by the installation of such heavy equipment or
safes.
11.3. Machinery. Business machines and mechanical equipment belonging
to Lessee which cause noise and/or vibration that may be transmitted to the
structure of the Building or to any other leased space to such a degree as to be
objectionable to Lessor or to any Lessees in the Complex shall be placed and
maintained by the party possessing the machines or equipment, at such party's
expense, in settings of cork, rubber or spring type noise and/ or vibration
eliminators, and Lessee shall take such other measures as needed to eliminate
vibration and/or noise. If the noise or vibrations cannot be eliminated, Lessee
must remove such equipment within ten (10) days following written notice from
Lessor.
ARTICLE 12. COMPLIANCE WITH LAWS AND REGULATIONS
12.1. Lessee's Obligations. Lessee, shall, at its sole cost and
expense, comply with all of the requirements of all municipal, state and federal
authorities now in force, or which may hereafter be in force, pertaining to the
Leased Premises, and shall faithfully observe in the use of the Leased Premises
all municipal ordinances and state and federal statutes now in force or which
may hereafter be in force. The Judgment of any court of competent jurisdiction,
or the admission of Lessee in any action or proceeding against Lessee, whether
Lessor be a party thereto or not, that any such ordinance or statute pertaining
to the Leased Premises has been violated, shall be conclusive of that fact as
between Lessor and Lessee.
12.2. Condition of Leased Premises. Subject to Lessor's work, if any,
as referred to in Exhibit "C" to this Lease, Lessee hereby accepts the Leased
Premises in the condition existing as of the date of occupancy, subject to all
applicable zoning, municipal, county and state laws, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect during
the Term or any part of the Term hereof regulating the Leased Premises.
12.3. Hazardous Materials. For purposes hereof, "Hazardous Materials"
shall mean any and all flammable explosives, radioactive material, hazardous
waste, toxic substance or related material, including but not limited to those
materials and substances defined as "hazardous substances", "hazardous
materials", "hazardous wastes" or "toxic substances" in the Environmental Laws.
For purposes hereof, "Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601 et seq.; the Hazardous Materials Transportation Act, 39 U.S.C.
Section 1801, et seq.; the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Federal Clean
Water Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Xxxxxx-Cologne Water Quality Act, California State Code
Section 13020 et seq.; and the California Health and Safety Code, Section 25100
et seq., including all amendments thereto replacements thereof, and regulations
adopted and publications promulgated pursuant thereto. (1) (See Addendum
Paragraph 12.3)
(a) Lessee agrees that during the Term of this Lease Lessee
shall not be in violation of any federal, state or local law, ordinance or
regulation
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relating to industrial hygiene, soil, water, or environmental conditions on,
under or about the Leased Premises including, but not limited to, the
Environmental Laws.
(b) Lessee further agrees that during the Term of this Lease,
there shall be no use, presence, disposal, storage, generation, release, or
threatened release of Hazardous Materials on, from or under the Leased Premises.
ARTICLE 13. SERVICE AND EQUIPMENT
13.1. Climate Control. So long as Lessee is not in default under any of
the covenants of this Lease, Lessor shall provide climate control to the Leased
Premises from 7:00 a.m. to 6:00 p.m. (the "Climate Control Hours") on weekdays
(Saturdays, Sundays and Holidays excepted) to maintain a temperature adequate
for comfortable occupancy, provided that Lessor shall have no responsibility or
liability for failure to supply climate control service when making repairs,
alterations or improvement" or when prevented from so doing by strikes or any
cause beyond Lessor's reasonable control. Any climate control furnished for
periods not within the Climate Control Hours pursuant to Lessee's request shall
be at Lessee's sole cost and expense in accordance with rate schedules
promulgated by Lessor from time to time. Lessee acknowledges that Lessor has
installed in the Building a system for the purpose of climate control. Any use
of the Leased Premises not in accordance with the design standards or any
arrangement of partitioning which interferes with the normal operation of such
system may require changes or alterations in the system or ducts through which
the climate control system operates. Any changes or alterations so occasioned,
if such changes can be accommodated by Lessor's equipment, shall be made by
Lessee at its cost and expense but only with the written consent of Lessor first
had and obtained, and in accordance with drawings and specifications and by a
contractor first approved in writing by Lessor. If installation of partitions,
equipment or fixtures by Lessee necessitates the rebalancing of the climate
control equipment in the Leased Premises, the same will be performed by Lessor
at Lessee's expense. Lessee acknowledges that up to one (1) year may be required
after Lessee has fully occupied the Leased Premises in order to adjust and
balance the climate control systems. Any charges to be paid by Lessee hereunder
shall be due within ten (10) days of receipt of an invoice from Lessor, which
invoice may precede Lessor's expenditure for the benefit of Lessee.
13.2. Elevator Service. Lessor shall provide elevator service (which
may be with or without operator at Lessor's option) during normal business hours
provided that Lessee, its employees, and all other persons using such services
shall do so at their own risk.
13.3. Cleaning Public areas. Lessor shall maintain and keep clean the
street level lobbies, sidewalks, truck dock, public corridors and other public
portions of the Building.
13.4. Refuse Disposal. Lessee shall pay Lessor, within ten (10) days of
being billed therefor, for the removal from the Leased Premises and the Building
of such refuse and rubbish of Lessee as shall exceed that ordinarily accumulated
daily in the routine of business office occupancy.
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13.5. Janitorial Service. Lessor shall provide cleaning and janitorial
service in and about the Complex and Leased Premises from time to time on
weekdays (Saturdays, Sundays and Holidays excepted) in accordance with standards
in first class office buildings in the city in which the Building is located.
To the extent that Lessee shall require special or more frequent
cleaning and/or janitorial service (hereinafter referred to as "Special Cleaning
Service") Lessor may, upon reasonable advance notice from Lessee, elect to
furnish such special Cleaning Service and Lessee agrees to pay Lessor, within
ten (10) days of being billed therefor, Lessor's charge for providing such
additional service.
Special Cleaning Service shall include but shall not be
limited to the following:
(a) The cleaning and maintenance of Lessee eating facilities
including the removal of refuse and garbage therefrom.
(b) The cleaning and maintenance of Lessee computer centers,
including peripheral areas, and removal of waste paper therefrom.
(c) The cleaning and maintenance of special equipment areas,
kitchen areas, private toilets and locker rooms, medical centers and large scale
duplicating rooms.
(d) The cleaning and maintenance in areas of special security
such as storage units.
(e) The provision of consumable supplies for private toilet
rooms.
13.6. Interruptions. It is understood that Lessor does not warrant that
any of the services referred to above or any other services which Lessor may
supply will be free from interruption. Lessee acknowledges that any one or more
such services may be suspended or reduced by reason of repairs, alterations or
improvements necessary to be made, by strikes or accidents, by any cause beyond
the reasonable control of Lessor, or by orders or regulations of any federal,
state, county or municipal authority.
Any such interruption or suspension of services shall not be deemed an
eviction or disturbance of Lessee's use and possession of the Leased Premises or
any part thereof, nor render Lessor liable to Lessee for damages by abatement of
Rent or otherwise, nor relieve Lessee of performance of Lessee's obligations
under this Lease.
ARTICLE 14. WASTE
14.1. Waste or Nuisance. Lessee shall not commit, or suffer to be
committed, any waste upon the Leased Premises, or any nuisance, or other act or
thing which may disturb the quiet enjoyment of any other tenant or occupant of
the Complex in which the Leased Premises are located.
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ARTICLE 15. ALTERATIONS
15.1. Consent of Lessor Ownership. Lessee shall not make, or suffer to
be made, any alterations to the Leased Premises, or any part thereof, without
the written consent of Lessor first had and obtained. Any additions to, or
alterations of, the Leased Premises, except trade fixtures, shall upon
expiration or termination of this Lease become a part of the realty and belong
to Lessor. Except as otherwise provided in this Lease, Lessee shall have the
right to remove its trade fixtures placed upon the Leased Premises provided that
Lessee restores the Leased Premises as indicated below.
15.2. Requirements. Any alterations, additions or installations
performed by Lessee (hereinafter collectively "alterations") shall be subject to
strict conformity with the following requirements:
(a) All alterations shall be at the sole cost and expense of
Lessee;
(b) Prior to commencement of any work of alteration, Lessee
shall submit detailed plans and specifications, including working drawings,
(hereinafter referred to as "Plans") of the proposed alterations, which shall be
subject to the consent of Lessor in accordance with the terms of Section 15.1
above;
(c) Following approval of the Plans by Lessor, Lessee shall
give Lessor at least ten (10) days prior written notice of commencement of work
in the Leased Premises so that Lessor may post notices of non-responsibility in
or upon the Leased Premises as provided by law;
(d) No alterations shall be commenced without Lessee having
previously obtained all appropriate permits and approvals required by and of
governmental agencies;
(e) All alterations shall be performed in a skillful and
workmanlike manner, consistent with the best practices and standards of the
construction industry, and pursued with diligence in accordance with the Plans
previously approved by Lessor and in full accord with all applicable laws and
ordinances. All material, equipment, and articles incorporated in the
alterations is to be new, and of recent manufacture, and of the most suitable
grade for the purpose intended;
(f) Lessee must obtain the prior written approval from Lessor
for Lessee's contractor prior to commencement of the work. Lessee's contractor
shall maintain all of the insurance reasonably required by Lessor, including
comprehensive general liability, workers' compensation, builder's risk insurance
and course of construction insurance;
(g) As a condition of approval of the alterations, Lessor may
require performance and labor and materialmen's payment bonds issued by a surety
approved by Lessor, in a sum equal to the cost of the alterations guarantying
the completion of the alterations free and clear of all liens and other charges
in accordance with the Plans. Such bonds shall name Lessor as beneficiary;
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(h) The alterations must be performed in a manner such that
they will not interfere with the quiet enjoyment of the other Lessees in the
Complex.
15.3. Liens. Lessee shall keep the Leased Premises and the Complex in
which the Leased Premises are situated, free from any liens arising out of any
work performed, materials furnished or obligations incurred by Lessee. In the
event a mechanic's or other lien is filed against the Leased Premises or the
Complex of which the Leased Premises forms a part as a result of a claim arising
through Lessee, Lessor may demand that Lessee furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to at least one hundred fifty percent
(150%) of the amount of the contested lien claim or demand, indemnifying Lessor
against liability for the same and holding the Leased Premises free from the
effect of such lien or claim. Such bond must be posted within ten (10) day~
following notice from Lessor. In addition, Lessor may require Lessee to pay
Lessor's attorney's fees and costs in participating in any action to foreclose
such lien if Lessor shall decide it is to its best interest to do so. Lessor may
pay the claim prior to the enforcement thereof, in which event Lessee shall
reimburse Lessor in full, including attorney's fees, for any such expense, as
additional rent, with the next due rental.
15.4. Restoration. Lessee shall return the Leased Premises to Lessor
at the expiration or earlier termination of this Lease in good and sanitary
order, condition and repair, free of rubble and debris, broom clean, reasonable
wear and tear excepted. However, Lessee shall ascertain from Lessor at least
thirty (30) days prior to the termination of this Lease, whether Lessor desires
the Leased Premises, or any part thereof, restored to its condition prior to the
making of permitted alterations, installations and improvements, and if Lessor
shall so desire, then Lessee shall forthwith restore said Leased Premises or the
designated portions thereof as the case may be, to its original condition,
entirely at its own expense, excepting normal wear and tear. All damage to the
Leased Premises caused by the removal of such trade fixtures and other personal
property that Lessee is permitted to remove under the terms of this Lease and/or
such restoration shall be repaired by Lessee at its sole cost and expense prior
to termination.
ARTICLE 16. PROPERTY INSURANCE
16.3. Personal Property Insurance. Lessee shall maintain in full force
and effect on all of its fixtures and equipment in the Leased Premises a policy
or policies of fire and casualty insurance in "all risk" form to the extent of
at least ninety percent (90%) of their replacement cost, or that percentage of
the replacement cost required to negate the effect of a co- insurance provision,
whichever is greater. No such policy shall have a deductible in a greater amount
than (3) (Five Thousand Dollars ($5,000.00) Lessee shall also insure in the same
manner the physical value of all its leasehold improvements in the Leased
Premises. During the term of this Lease, the proceeds from any such policy or
policies of insurance shall be used for the repair or replacement of the
fixtures equipment, and leasehold improvements (4) (made after the commencement
date) so insured. Lessor shall have no interest in said insurance, and will sign
all documents necessary or proper in connection with the settlement of any claim
or loss by Lessee.
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ARTICLE 17. INDEMNIFICATION, WAIVER OF CLAIMS AND SUBROGATION
17.2. Waiver of Subrogation. Lessor and Lessee release each other, and
their respective authorized representatives, from any claims for damage to any
person or to the Leased Premises and the Building and other improvements in
which the Leased Premises are located, and to the fixtures, personal property,
Lessee's improvements and alterations of either Lessor or Lessee, in or on the
Leased Premises and the Building and other improvements in which the Leased
Premises are located, including loss of income, that are caused by or result
from risks insured or required under the terms of this Lease to be insured
against under any property insurance policies carried or to be carried by either
of the parties. (1) (See Addendum - Paragraph 17.2)
17.4. Indemnity. Lessee, as a material part of the consideration to be
rendered to Lessor, shall indemnify, defend, protect and hold harmless Lessor
against all actions, claims, demands, damages, liabilities, losses, penalties,
or expenses of any kind which may be brought or imposed upon Lessor or which
Lessor may pay or incur by reason of injury to person or property, from whatever
cause, all or in any way connected with the condition or use of the Leased
Premises, or the improvements or personal property therein or thereon, including
without limitation any liability or injury to the person or property of Lessee,
its agents, officers, employees or invitees. Lessee agrees to indemnify, defend
and protect Lessor and hold it harmless from any and all liability, loss, cost
or obligation on account of, or arising out of, any such injury or lost however
occurring, including breach of the provisions of this Lease and the negligence
of the parties hereto. Nothing contained herein shall obligate Lessee to
indemnify Lessor against its own sole or gross negligence or willful acts. (3)
(See Addendum - Paragraph 17.4)
17.5. Defense of Claims. In the event any action, suit or proceeding
is brought against Lessor by reason of any such occurrence, Lessee, upon
Lessor's request will at Lessee's expense resist and defend such action, suit or
proceeding, or cause the same to be resisted and defended by counsel designated
either by Lessee or by the insurer whose policy covers the occurrence and in
either case approved by Lessor. The obligations of Lessee under this Section
arising by reason of any occurrence taking place during the Lease term shall
survive any termination of this Lease. (4) (See Addendum - Paragraph 17.5)
ARTICLE 18. LIABILITY INSURANCE
18.2. Worker's Compensation Insurance. Lessee shall carry Workers
Compensation insurance as required by law, including an employer's contingent
liability endorsement.
ARTICLE 19. INSURANCE POLICY REQUIREMENTS
19.1. General Requirements. All insurance policies required to be
carried by Lessee (except Lessee's Personal Property Insurance) hereunder shall
conform to the following requirements:
(a) The insurer in each case shall carry a designation in
"Best's Insurance Reports" as issued from time to time throughout the term as
follows: Policy holders' rating of A; financial rating of not less than (2)
(VII)
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(b) The insurer shall be qualified to do business in the state
in which the Leased Premises are located;
(d) Each policy shall name Lessor as an additional insured and,
at Lessor's request, shall carry a lender's loss payee endorsement in favor of
Lessor's lender and such other endorsement(s) as Lessor may from time to time
require;
(e) An executed copy of each insurance policy, or a certificate
thereof, shall be delivered to Lessor at commencement of the term and shall
remain in effect throughout the term, including copies of any renewals or
certificates thereof, at least (4) (five (5)) days prior to the expiration of
such policies;
(f) These policies shall require that Lessor be notified in
writing by the insurer (5) (immediately upon receipt by Lessee of notice of)
cancellation or expiration of such policy, or any reduction ~n the I amount~ of
insurance carried;
(g) Each policy shall be primary, not contributing with, and
not in excess of coverage which Lessor may carry;
ARTICLE 20. LESSEE INSURANCE DEFAULT
20.1. Rights of Lessor. In the event that Lessee fails to obtain any
insurance required of it under the terms of this Lease, Lessor may, at its
option, but is not obligated to, obtain such insurance on behalf of Lessee and
xxxx Lessee, as additional rent, for the cost thereof. Payment shall be due
wi.thin ten (10) days of receipt of the billing therefor by Lessee.
ARTICLE 21. FORFEITURE OF PROPERTY AND LESSOR'S LIEN
21.1. Removal of Personal Property. Lessee agrees that as at the date
of termination of this Lease or repossession of the Leased Premises by Lessor,
by way of default or otherwise, it shall remove all personal property to which
it has the right to ownership pursuant to the terms of this Lease. Any and all
such property of Lessee not removed by such date shall, at the option of Lessor,
irrevocably become the sole property of Lessor. Lessee waives all rights to
notice and all common law and statutory claims and causes of action which it may
have against Lessor subsequent to such date as regards the storage, destruction,
damage, loss of use and ownership of the personal property affected by the terms
of this Article. Lessee acknowledges Lessor's need to relet the Leased Premises
upon termination of this Lease or repossession of the Leased Premises and
understands that the forfeitures and waivers provided herein are necessary to
aid said reletting, and to prevent Lessor incurring a loss for inability to
deliver the Leased Premises to a prospective lessee. (1) (See Addendum Paragraph
21.1)
ARTICLE 22. MAINTENANCE AND REPAIRS
22.1 Lessor's Obligations. Subject to the other provisions of this
Lease imposing obligations in this respect upon Lessee, Lessor shall repair,
replace and maintain the external and Structural parts of the Complex which do
not
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comprise a part of the Leased Premises and are not leased to others, janitor and
equipment closets and shafts within the Leased Premises designated by Lessor for
use by it in connection with the operation and maintenance of the Complex, and
all Common Areas. Lessor shall perform such repairs, replacements and
maintenance with reasonable dispatch, in a good and workmanlike manner; but
Lessor shall not be liable for any damages, direct, indirect or consequential,
or for damages for personal discomfort, illness or inconvenience of Lessee by
reason of failure of such equipment, facilities or systems or reasonable delays
in the performance of such repairs, replacements and maintenance, unless caused
by the deliberate act or omission of Lessor, its servants, agents, or employees.
The cost for such repairs, maintenance and replacement shall be included in
Operating Costs in accordance with Section 2.1(k) hereof.
22.2 Negligence of Lessee. If the Building, the elevators, boilers,
engines, pipes or apparatus used for the purpose of climate control of the
Building or operating the elevators, or if the water pipes, drainage pipes,
electric lighting or other equipment of the Building, or the roof or the outside
walls of the Building, fall into a state of disrepair or become damaged or
destroyed through the negligence, carelessness or misuse of Lessee, its agents,
employees or anyone permitted by it to be ln the Complex, or through lt in any
way, the cost of the necessary repairs, replacements or alterations shall be
borne by Lessee who shall pay the same to Lessor as additional charges forthwith
on demand.
22.3 Lessee's Obligations. Lessee shall repair the Leased Premises,
including without limiting the generality of the foregoing, all interior
partitions and walls, fixtures, Leasehold Improvements and alterations in the
Leased Premises and all electrical and telephone outlets and conduits, fixtures
and shelving, and special mechanical and electrical equipment which equipment is
not a normal part of the Leased Premises installed by or for Lessee, reasonable
wear and tear, damage with respect to which Lessor has an obligation to repair
as provided in Section 22.1 and Section 23 hereof only excepted. Lessor may
enter and view the state of repair and Lessee will repair in a good and
workmanlike manner according to notice in writing.
22.4 Cleaning. Lessee agrees at the end of each business day to leave
the Leased Premises in a reasonably clean condition for the purpose of the
performance of Lessor's cleaning services referred to herein.
22.5 Waiver. Lessee waives all rights it may have under law to make
repairs at Lessor's expense.
22.6 Acceptance. Except as to the construction obligations of Lessor,
if any, stated in Exhibit "C" to this Lease, Lessee shall accept the Leased
Premises in "as is" condition as of the date of execution of this Lease by
Lessee, and Lessee acknowledges that the Leased Premises in such condition are
in good sanitary order, condition and repair.
ARTICLE 23. DESTRUCTION
23.1. Rights of Termination. In the ovens the Leased Premises suffers
(a) an uninsured casualty, or (b) a casualty which cannot be repaired within one
hundred twenty (120) days from the date of destruction under the laws and
- 19 -
regulations of state, federal, county or municipal authorities, or other
authorities with Jurisdiction, Lessor may terminate this Lease as at the date of
the damage upon written notice to Lessee following the casualty. In the event of
a casualty to the Leased Premises which cannot be repaired within one hundred
ninety five (195) days of the occurrence thereof, Lessee shall have the right to
terminate the Lease by written notice to Lessor within twenty (20) days
following notice from Lessor that the time for restoration shall exceed one
hundred ninety five (195) days. (1) (See Addendum - Paragraph 23.1)
23.2. Repairs. In the event of a casualty which may be repaired within
one hundred twenty (120) days from the date of the damage, or, in the
alternative, in the event the parties do not elect to terminate this Lease under
the terms of Section 23.1 above, then this Lease shall continue in full force
and effect and Lessor shall forthwith undertake to make such repairs to
reconstitute the Leased Premises to as near the condition as existed prior to
the casualty as practicable. Such partial destruction shall in no way annul or
void this Lease except that Lessee shall be entitled to a proportionate
reduction of Minimum Monthly Rent following the casualty and until the time the
Leased Premises are restored. Such reduction shall be an amount which reflects
the degree of interference with Lessee's business. So long as Lessee conducts
it. business in the Leased Premises there shall be no abatement until the
parties agree on the amount thereof. If the parties cannot agree within forty
five (45) days of the casualty, the matter shall be submitted to arbitration
under the rules of the American Arbitration Association. Upon the resolution of
the dispute, the settlement shall be retroactive and Lessor shall within ten
(10) days thereafter refund to Lessee any sums due in respect of the reduced
rental from the date of the casualty. Lessor's obligations to restore shall in
no way include any construction originally performed by Lessee or subsequently
undertaken by Lessee, but shall include solely that property constructed by
Lessor prior to commencement of the term hereof.
23.3. Repair Costs. The cost of any repairs to be made by Lessor,
pursuant to Section 23.2 of this Lease, shall be paid by Lessor utilizing
available insurance proceeds. Lessee shall reimburse Lessor upon completion of
the repairs for any deductible for which no insurance proceeds will be obtained
under Lessor's insurance policy, or if other premises are also repaired, a pro
rata share based on total costs of repair equitably apportioned to the Leased
Premises. Lessee shall, however, not be responsible to pay any deductible or its
share of any deductible-to the extent. (1) such deductible exceeds Five Thousand
Dollars ($5.000.00)
23.4. Waiver. Lessee hereby waives all statutory or common law rights
of termination in respect to any partial destruction or casualty which Lessor is
obligated to repair or may elect to repair under the terms of this Article.
Further, in event of a casualty occurring during the last two (2) years of the
original term hereof or of any extension, Lessor need not undertake any repairs
and may cancel this Lease unless Lessee has the right under the terms of this
Lease to extend the term for an additional period of at least five (5) years and
does so within thirty (30) days of the date of the casualty.
23.5. Lessor's Election. In the event that the Complex or Building in
which the Leased Premises is situated be destroyed to the extent of not less
than thirty-three and one-third percent (33-1/3%) of the replacement cost
- 20 -
thereof, Lessor may elect to terminate this Lease, whether the Leased Premises
be injured or not, in the same manner as in Section 23.1 above. At all events, a
total destruction of the Complex of which the Leased Premises form a part, or
the Leased Premises itself, shall terminate this Lease.
ARTICLE 24. CONDEMNATION
24.1. Definitions.
(a) "Condemnation" means (i) the exercise of any governmental
power, whether by legal proceedings or otherwise, by a condemnor and/or (ii)
voluntary sale or transfer by Lessor to any condemnor, either under threat of
condemnation or while legal proceedings for condemnation are pending.
(b) "Date of taking" means the date the condemnor has the right
to possession of the property being condemned.
(c) "Award" means all compensation, sums or anything of value
awarded, paid or received on a total or partial condemnation.
(d) "Condemnor" means any public or quasi-public authority, or
private corporation or individual, having the power of condemnation.
24.2. Total Taking. If the Leased Premises are totally taken by
condemnation, this Lease shall terminate on the date of taking.
24.3. Partial Taking; Common Area.
(a) If any portion of the Leased Premises is taken by
condemnation, this Lease shall remain in effect, except that Lessee can elect to
terminate this Lease if 33-1/3% or more of the total number of square feet in
the Leased Premises is taken.
(b) If any part of the Common Areas of the Complex are taken by
condemnation, this Lease shall remain in full force and effect so long as there
is no material interference with the access to the Leased Premises, except that
if thirty percent (30%) or more of the Common Area is taken by condemnation,
either party shall have the election to terminate this Lease pursuant to this
Section.
(c) If fifty percent (50%) or more of the Building in which the
Leased Premises are located is taken, Lessor shall have the election to
terminate this Lease in the manner prescribed herein.
24.4. Termination or Abatement. If either party elects to terminate
this Lease under the provisions of Section 24.3, (such party is hereinafter
referred to as the "Terminating Party") it must terminate by giving notice to
the other party (the "Nonterminating Party") within thirty (30) days after the
nature and extent of the taking have been finally determined (the "Decision
Period"). The Terminating Party shall notify the Nonterminating Party of the
date of termination, which date shall not be earlier than sixty (60) days after
the Terminating Party has notified the Nonterminating Party of its election to
terminate nor later than the date of taking. If Notice of Termination is not
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given within the Decision Period, the Lease shall continue in full force and
effect except that Minimum Monthly Rent shall be reduced by subtracting
therefrom an amount calculated by multiplying the Minimum Monthly Rent in effect
prior to the taking by a fraction the numerator of which is the number of square
feet taken from the Leased Premises and the denominator of which is the number
of square feet in the Leased Premises prior to the taking.
24.5. Restoration. If there is a partial taking of the Leased Premises
and this Lease remains in full force and effect pursuant to this Article,
Lessor, at its cost, shall accomplish all necessary restoration so that the
Leased Premises is returned as near as practical to its condition immediately
prior to the date of the taking, but in no event shall Lessor be obligated to
expend more for such restoration than the extent of funds actually paid to
Lessor by the condemnor.
24.6. Award. Any award arising from the condemnation or the settlement
thereof shall belong to and be paid to Lessor except that Lessee shall receive
from the award compensation for the following if specified in the award by the
condemning authority, so long as it does not reduce Lessor's award in respect of
the real property: Lessee's trade fixtures, tangible personal property,
goodwill, loss of business and relocation expenses. At all events, Lessor shall
be solely entitled to all award in respect of the real property, including the
bonus value of the leasehold. Lessee shall not be entitled to any award until
Lessor has received the above sum in full.
ARTICLE 25. ASSIGNMENT AND SUBLETTING
25.1. Lease is Personal. The purpose of thin Lease is to transfer
possession of the Leased Premises to Lessee for Lessee's personal use in return
for certain benefits, including rent, to be transferred to the Lessor. Lessee's
right to assign or sublet as stated in this Article is subsidiary and incidental
to the underlying purpose of this Lease. Lessee acknowledges and agrees that it
has entered into this Lease in order to acquire the Leased Premises for its own
personal use and not for the purpose of obtaining the right to convey the
leasehold to others.
25.2. "Transfer of the Leased Premises" Defined. The terms "Transfer of
the Leased Premise" or "Transfer" as used herein shall include any assignment of
all or any part this Lease (including assignment by operation of law),
subletting of all or any part the Leased Premises or transfer of possession, or
right of possession or contingent right of possession of all or any portion of
the Leased Premises including without limitation, concession, mortgage, devise,
hypothecation, agency, franchise or management agreement, or to suffer any other
person (the agents and servants of Lessee excepted) to occupy or use the said
Leased Premises or any portion thereof. If Lessee is a corporation which is not
deemed a public corporation, or is an unincorporated association or partnership,
or Lessee consists of more than one party,the transfer, assignment or
hypothecation of any stock or interest in such corporation, association,
partnership or ownership interest, ln the aggregate ln excess of twenty-five
percent (25%), shall be deemed a Transfer of the Leased Premises.
25.3. No Transfer Without Consent. Lessee shall not suffer a Transfer
of the Leased Premises or any interest therein, or any part thereof, or any
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right or privilege appurtenant thereto without the prior written consent of
Lessor, and a consent to one Transfer of the Leased Premises shall not be deemed
to be a consent to any subsequent Transfer of the Leased Premises. Any Transfer
of the Leased Premises without such consent shall be void, and shall, at the
option of Lessor, terminate this Lease.
25.4. When Consent Granted.
(a) The consent of Lessor to a Transfer may not be
unreasonably withheld, provided should Lessor withhold its consent for any of
the following reasons, which list is not exclusive, such withholding shall be
deemed to be reasonable:
(i) Financial strength of the proposed transferee is
not at least equal to that of Lessee at the time of execution of thin Lease;
(ii) A proposed transferee whose occupation of the
Leased Premises would cause a diminution in the reputation of the Complex or the
other businesses located therein;
(iii) A proposed transferee whose impact on the
common facilities or the other occupants of the Complex would be
disadvantageous; or
(iv) A proposed transferee whose occupancy will
require a variation in the terms of the lease.
(v) Lessee agrees that its personal business skills
and philosophy were an important inducement to Lessor for entering into this
Lease agreement and that Lessor may reasonably object to the transfer of the
Leased Premises to another whose proposed use, while permitted by the use clause
of this Lease, would involve a different quality, manner or type of business
skills than that of Lessee.
(b) Notwithstanding the foregoing, Lessee shall have the
right, without the consent of Lessor, but upon prior written notice to Lessor,
to assign this Lease to a company incorporated or to be incorporated by Lessee
provided that Lessee owns or beneficially controls all the issued and
outstanding shares of capital stock of the company.
25.5. Procedure for Obtaining Consent.
(a) Lessor need not commence its review of any proposed
Transfer, or respond to any request by Lessee with respect to such, unless and
until it has received from Lessee adequate descriptive information concerning
the business to be conducted by the proposed transferee, the transferee's
financial capacity, and such other information as may reasonably be required in
order to form a prudent Judgment as to the acceptability of the proposed
Transfer, including, without limitation, the following:
(i) The past two year's Federal income Tax returns of
the proposed transferee (or in the alternative the past two years audited annual
Balance Sheets and Profit and Loss statements, certified correct by a Certified
Public Accountant);
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(ii) Banking references of the proposed transferee;
(iii) A resume of the business background and
experience of the proposed transferee;
(iv) At least five (5) business and three (3)
personal references for the proposed transferee;
(v) An executed copy of the instrument by which
Lessee proposes to effectuate the Transfer.
(b) Lessee shall reimburse Lessor as additional rent for
Lessor's reasonable costs and attorney's fees incurred in conjunction with the
processing and documentation of any proposed Transfer of the Leased Premises,
whether or not content is granted. (1) (See Addendum - Paragraph 25.5(b))
25.6. Effect of Transfer. If Lessor consents to a Transfer, the
following conditions shall apply:
(a) Each and every covenant, condition or obligation imposed
upon Lessee by this Lease and each and every night, remedy or benefit afforded
Lessor by this Lease shall not be impaired or diminished as a result of such
Transfer.
(b) On a monthly basis, any sums of money, or other economic
consideration received by Lessee from the Transferee in such month (whether or
not for a period longer than one month), including higher rent, bonuses, key
money, or the like which exceed, in the aggregate, the total sums which Lessee
pays Lessor under this Lease in such month, or the prorated portion thereof if
the Leased Premises transferred is less than the entire Leased Premises, shall
be payable eighty percent (80%) to Lessor and twenty percent (20%) to Lessee,
and Lessor's share shall be paid with Lessee's payment of Minimum Monthly Rent.
(c) No Transfer, whether or not consent of Lessor is required
hereunder, shall relieve Lessee of its primary obligation to pay the rent and to
perform all other obligations to be performed by Lessee hereunder. The
acceptance of rent by Lessor from any person shall not be deemed to be a waiver
by Lessor of any provision of this Lease or to be a consent to any Transfer of
the Leased Premises.
(d) If Lessor consents to a sublease, such sublease shall not
extend beyond the expiration of the term of this Lease.
(e) No Transfer shall be valid and no transferee shall take
possession of the Leased Premises or any part thereof unless, within ten (10)
days after the execution of the documentary evidence thereof, Lessee shall
deliver to Lessor a duly executed duplicate original of the Transfer instrument
in form satisfactory to Lessor which provides that (i) the transferee assumes
Lessee's obligations for the payment of rent and for the full and faithful
observance and performance of the covenants, terms and conditions contained
herein, (ii) such transferee will, at Lessor's election, attorn directly to
Lessor in the event Lessee's Lease is terminated for any reason on the terms set
forth in the instrument of transfer and (iii) such instrument of transfer
contains such other assurances as Lessor reasonably deems necessary.
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ARTICLE 26. ABANDONMENT
26.1. Lessee to Occupy. Lessee shall not vacate nor abandon the Leased
Premises at any time during the Lease term, nor permit the Leased Premises to
remain unoccupied for a period longer than ten (10) consecutive days during the
Lease term, and if Lessee shall abandon, vacate or surrender the Leased
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee and remaining on the Leased Premises after such ten
(10) day period shall, at the option of Lessor, be deemed abandoned.
ARTICLE 27. ENTRY BY LESSOR
27.1. Rights of Lessor. Lessee shall permit Lessor and Lessor's agents
to enter the Leased Premises at all reasonable times for the purpose of
inspecting the same or for the purpose of maintaining the Building, or for the
purpose of making repairs, alterations or additions to any portion of the
Building, including the erection and maintenance of such scaffolding, canopies,
fences and props as may be required, or for the purpose of posting notices of
non-responsibility for alterations, additions or repairs, or for the purpose of
placing upon the Building any usual or ordinary "for sale" signs, without any
rebate of Rent and without any liability to Lessee for any loss of occupation or
quiet enjoyment of the Leased Premises thereby occasioned, and shall permit
Lessor, at any time within ninety (90) days prior to the expiration of this
Lease, to place upon the Leased Premises any usual or ordinary "to let" or "to
lease" signs. This Section in no way affects the maintenance obligations of the
parties hereto. (1) (See Addendum - Paragraph 27.1)
ARTICLE 28. SIGNS
28.1. Approval, Installation and Maintenance. Lessee shall not place on
the Leased Premises or on the Complex, any exterior signs or advertisements nor
any interior signs or advertisements that are visible from the exterior of the
Leased Premises, without Lessor's prior written consent, which Lessor reserves
the right to withhold for any aesthetic reason in its sole judgment. The cost of
installation and regular maintenance of any such signs approved by Lessor shall
be at the sole expense of Lessee. At the termination of this Lease, or any
extension thereof, Lessee shall remove all his signs, and all damage caused by
such removal shall be repaired at Lessee's expense.
ARTICLE 29. DEFAULT
29.1. Definition. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Lessee:
(b) The abandonment or vacation of the Leased Premises by
Lessee in violation of Section 26.1 thereof;
(c) A failure by Lessee to observe and perform any other
provision of this Lease to be observed or performed by Lessee, where such
failure continues for ten (10) days after written notice thereof by Lessor to
Lessee; provided, however, that if the nature of the default is such that the
same cannot reasonably be cured within the ten (10) day period allowed, Lessee
shall
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not be deemed to be in default if Lessee shall, within such ten (10) day period,
commence to cure and thereafter diligently prosecute the same to completion;
(d) Either (1) the appointment of a receiver (except a
receiver appointed at the instance or request of Lessor) to take possession of
all or substantially all of the assets of Lessee, or (2) a general assignment by
Lessee for the benefit of creditors, or (3) any action taken or suffered by
Lessee under any insolvency or bankruptcy act shall constitute a breach of this
Lease by Lessee. In such event, Lessor may, at its option, declare this Lease
terminated and forfeited by Lessee, and Lessor shall be entitled to immediate
possession of the Leased Premises. Upon such notice of termination, this Lease
shall terminate immediately and automatically by its own limitation;
ARTICLE 30. REMEDIES UPON DEFAULT
30.1. Termination and Damages. In the event of any default by Lessee,
then in addition to any other remedies available to Lessor here in or at law or
inequity, Lessor shall have the immediate option to terminate this Lease and all
rights of Lessee here under by giving written notice of such intention to
terminate. In the event that Lessor shall elect to so terminate this Lease, then
Lessor may recover from Lessee:
(a) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss Lessee proves could have been
reasonably avoided: plus
(c) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term after termination of award exceeds the
amount of such rental loss that Lessee proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Lessor for all
the detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of events would be likely to
result there from; and
(e) At Lessor's election, such other amounts in addition to or
in lieu of the foregoing as maybe permitted from time to time by the applicable
law in the state in which the Leased Premises are located.
30.2. Definitions.
(a) The term "rent", as used in this Lease, shall be deemed to
be and to mean the Minimum Monthly Rent and all other sums required to be paid
by Lessee pursuant to the terms of this Lease.
(b) As used in Sections 30.1(a) and (b) above, the worth at
the time of award,is computed by allowing interest at the rate of ten percent
(10%) per annum. As used in Section 30.1(c) above, the "worth at the time of
award" is computed by discounting such amount at the discount rate of the
Federal
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Reserve Bank for the region in which the Complex is located at the time of award
plus one percent (1%).
30.3. Personal Property.
(a) In the event of any default by Lessee, Lessor shall also
have the right, with or without terminating this Lease, to reenter the Leased
Premises and remove all persons and property from the Leased Premises; such
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Lessee.
(b) In the event of default, all of Lessee's fixtures,
furniture, equipment, improvements, additions, alterations and other personal
property, shall remain upon the Leased Premises and in that event, and
continuing during the length of such default, Lessor shall have the sole right
to take exclusive possession of such property and to use it, renter charge free,
until all defaults are cured or, at Lessor's option, at any time during the term
of this Lease, to require Lessee to forthwith remove such property. The rights
stated herein are in addition to Lessor' rights described in Section 21.1.
30.4. Recovery of Rent: Reletting.
(a) In the event of the vacation or abandonment of the Leased
Premises by Lessee or in the event that Lessor shall elect to reenter as
provided in Section 30.3 above, or shall take possession of the Leased Premises
pursuant to legal proceeding or pursuant to any notice provided by law, then if
Lessor does not elect to terminate this Lease as provided in Section 30.1 above,
Lessor may from time to time, without terminating this Lease, either recover all
rental as it becomes due or relet the Leased Premises or any part thereof for
such term or terms and at such rental or rentals and upon such other terms and
conditions as Lessor in its sole discretion, may deem advisable with the right
to make alterations and repairs to the Leased Premises.
(b) In the event that Lessor shall elect to so relet, then
rentals received by Lessor from such reletting shall be applied: first, to the
payment of any indebtedness other than rent due hereunder from Lessee to Lessor;
second, to the payment of any cost of such reletting: third, to the payment or
the cost of any alterations and repairs to the Leased Premises; fourth, to the
payment of rent due and unpaid hereunder; and the residue, if any, shall be held
by Lessor and applied in payment of future rent as the same may become due and
payable hereunder. Should that portion of such rentals received from such
reletting during any month, which is applied by the payment of rent thereunder,
be less than the rent payable during that month by Lessor hereunder, then Lessee
shall pay such deficiency to Lessor immediately upon demand there for by Lessor.
Such deficiency shall be calculated and paid monthly. Lessee shall also pay to
Lessor as soon as ascertained, any cost and expenses incurred by Lessor in such
reletting or in making such alteration and repairs not covered by the rentals
received from such reletting.
(c) No reentry or taking possession of the Leased Premises or
any other action under this Section shall be construed as an election to
terminate this Lease unless a written notice of such intention be given to
Lessee or unless the termination thereof be decreed by a Court of competent
jurisdiction.
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Notwithstanding any reletting without termination by Lessor because of any
default by Lessee, Lessor may at any time after such reletting elect to
terminate this Lessee for any such default.
30.5. No Waiver. Efforts by Lessor to mitigate the damages caused by
Lessee's default in this Lease shall not constitute a waiver of Lessor's right
to recover damages hereunder, nor shall Lessor have any obligation to mitigate
damages hereunder.
30.6. Curing Defaults. Should Lessee fail to repair, maintain, and/or
service the Premises, or any part or contents thereof at any time or times, or
perform any other obligations imposed by this Lease or otherwise, then after
having given Lessee reasonable notice of the failure or failures and a
reasonable opportunity which in no case shall exceed ten (10) days, to remedy
the failure, Lessor may perform or contract for the performance of the repair,
maintenance, or other Lessee obligation, and Lessee shall pay Lessor for all
direct and indirect costs incurred in connection therewith within ten (10) days
of receiving a xxxx therefor from Lessor.
30.7. Cumulative Remedies. The various rights, options, election
powers, and remedies of Lessor contained in this Article and elsewhere in this
Lease shall be construed as cumulative and no one of them exclusive of any
others or of any legal or equitable remedy which Lessor might otherwise have in
the event of breach or default, and the exercise of one right or remedy by
Lessor shall not in any way impair its right to any other right or remedy.
ARTICLE 31. BANKRUPTCY
31.1. Bankruptcy Events. If at any time during the term of this Lease
there shall be filed by or against Lessee in any court pursuant to any statute
either of the United States or of any State a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of Lessee's property, or if a receiver or trustee takes
possession of any of the assets of Lessee, or if the leasehold interest herein
passes to a receiver, or if Lessee makes an assignment for the benefit of
creditors or petitions for or enters into an arrangement (any of which are
referred to herein as "a bankruptcy event"), then the following provisions shall
apply:
(a) At all events any receiver or trustee in bankruptcy or
Lessee as debtor in possession ("debtor"), shall either expressly assume or
reject this Lease within sixty (60) days following the entry of an "Order for
Relief".
(b) In the event of an assumption of the Lease by a debtor,
receiver, or trustee, such debtor, receiver, or trustee shall immediately after
such assumption (l) cure any default or provide adequate assurances that
defaults will be promptly cured; and (2) compensate Lessor for actual pecuniary
loss or provide adequate assurances that compensation will be made for actual
pecuniary loss; and (3) provide adequate assurance of future performance.
For the purposes of this paragraph 46.1(b), adequate assurance
of future performance of all obligations under this Lease shall include, but is
not limited to:
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(i) written assurances that rent and any other
consideration due under the Lease shall first be paid before any other of
Lessee's costs of operation of its business in the Leased Premises are paid;
(ii) written agreement that assumption of this Lease
will not cause a breach of any provision hereof including, but not limited to,
any provision relating to use or exclusivity in this or any other Lease, or
agreement relating to the Leased Premises, or if such a breach is caused, the
debtor, receiver or trustee will indemnify Lessor against such loss (including
costs of suit and attorney's fees), occasioned by such breach:
(c) Where a default exists under the Lease, the party
assuming the Lease may not require Lessor to provide services or supplies
incidental to the Lease before its assumption by such trustee or debtor, unless
Lessor is compensated under the terms of the Lease for such services and
supplies provided before the assumption of such Lease.
(d) The debtor, receiver, or trustee may only assign this
Lease if adequate assurance of future performance by the assignee is provided,
whether or not there has been a default under the Lease. Any consideration paid
by any assignee in excess of the rental reserved in the Leases shall be the sole
property of, and paid to, Lessor. Upon assignment by the debtor or trustee the
obligations of the Lease shall be deemed to have been assumed and the assumption
shall execute an assignment agreement on request of Lessor.
(e) Lessor shall be entitled to the fair market value for
the Leased Premises and the services provided by Lessor (but in no event less
than the rental reserved in the Lease) subsequent to the commencement of a
bankruptcy event.
(f) Lessor specifically reserves any and all remedies
available to Lessor in Article 30 hereof or at law or inequity in respect of a
bankruptcy event by Lessee to the extent such remedies are permitted by law.
ARTICLE 32. SURRENDER OF LEASE
32.1. No Merger. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work as a merger, and shall,
at the option of Lessor, terminate all or any existing subleases or
subtenancies, or may, at the option of Lessor, operate as an assignment to it of
any or all such subleases or subtenancies.
ARTICLE 33. LESSOR'S EXCULPATION
33.1. In the event of default, breach, or violation by Lessor (which
term includes Lessor's partners, co-venturers, co-tenants, officers, directors,
employees, agents, or representatives) of any Lessor's obligations under this
Lease, Lessor's liability to Lessee shall be limited to its ownership interest
in the Leased Premises (or its interest in the Complex, if applicable) or the
proceeds of a public sale of such interest pursuant to foreclosure of a Judgment
against Lessor. Lessor may, at its option, and among its other alternatives,
relieve itself of all liability under this Lease by conveying the Leased
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Premises to Lessee. Notwithstanding any such conveyance, Lessee's leasehold and
ownership interest shall not merge.
33.2. No Recourse. Lessor (as defined in Section 33.1) shall not be
personally liable for any deficiency beyond its interest in the Leased Premises.
ARTICLE 34. ATTORNEY'S FEES
34.1. Actions, Proceedings, etc. Lessee hereby agrees to pay, as
additional rent, all attorney's fees and disbursements, and all other court
costs or expenses of legal proceedings or other legal services which Lessor may
incur or pay out by reason of, or in connection with:
(a) any action or proceeding brought by Lessor wherein Lessor
obtains a final judgment or award against Lessee (including arbitration) on
account of any default by Lessee in the observance or performance of any
obligation under this Lease including, but not limited to, matters involving
payment of rent and additional rent, alterations or other Lessee's work and
subletting or assignment;
(b) any action or proceeding brought by Lessee against Lessor
(or any officer, partner, or employee of Lessor) in which Lessee fails to secure
a final judgment against Lessor;
(c) any other appearance by Lessor (or any officer, partner,
or employee of Lessor) as a witness or otherwise in any action or proceeding
whatsoever involving or affecting Lessee or this Lease;
(d) any assignment, sublease, or leasehold mortgage proposed
or granted by Lessee (whether or not permitted under this Lease), and all
negotiations with respect thereto; and (1) (See Addendum - Paragraph 34.1(d))
(e) any alteration of the Leased Premises by Lessee, and all
negotiations with respect thereto.
In any action or proceeding referred to in subsection (a), Lessee shall
be entitled to recover its attorney fees and costs if Lessee is the prevailing
party against Lessor.
34.2. Survival. Lessee's obligations under this Section shall survive
the expiration or any other termination of this Lease. This Section is intended
to supplement (and not to limit) other provisions of this Lease pertaining to
indemnities and/or attorney's fees.
34.3 Counsel Fees. Should it be necessary for Lessor to employ legal
counsel to enforce any of the provisions of this Lease. This Section is intended
to supplement (and not to limit) other provisions of this Lease pertaining to
indemnities and/or attorney's fees.
35.1 Writing. All notices, demands and requests required or permitted
to be given or made by personal service or by mailing same by registered or
certified mail, return receipt requested, postage prepaid, or by reputable
courier which provides written evidence of delivery, addressed to the respective
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party at the address set forth in Section 1.2 of this Lease or at such other
address as the party may from time to time designate, by a written notice, sent
to the other in the manner aforesaid.
35.2. Effective Date. Any such notice, demand or request (notice")
shall be deemed given or made on the third day after the date so mailed.
Notwithstanding the foregoing, notice given by personal delivery to the party at
its address as aforesaid, shall be deemed given on the day on which delivery is
made. Notice given by a reputable courier service which provides written
evidence of delivery shall be deemed given on the business day immediately
following deposit with the courier service.
35.3. Authorization to Receive. Each person and/or entity whose
signature is affixed to this Lease as Lessee or as guarantor of Lessee's
obligations ("obligor") designates such other obligor their agent for the
purpose of receiving any notice pertaining to this Lease or service of process
in the event of any litigation or dispute arising from any obligation imposed by
this Lease.
ARTICLE 36. SUBORDINATION
36.1. Priority of Encumbrances. This Lease, at Lessor's option, shall
be subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the real property of
which the Leased Premises are apart and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Lessee's right to quiet possession of the Leased Premises shall not be disturbed
if Lessee is not in default and so long as Lessee shall pay the rent and observe
and perform all the provisions of this Lease, unless this Lease, is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground lessor
shall elect to have this Lease prior to the lien of its mortgage, deed of trust
or ground lease, and shall give written notice thereof to Lessee, this Lease
shall be deemed prior to such mortgage, deed of trust or ground lease, whether
this Lease is dated prior or subsequent to the date of said mortgage, deed of
trust or ground lease or the date of recording thereof.
36.2. Execution of Documents. Lessee agrees to execute any documents
required to effectuate such subordination or to make this Lease prior to the
lien of any mortgage, deed of trust or ground lease, as the case may be, and
failing to do so within ten (10) days after written demand, does hereby make,
constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and in
Lessee's name, place and stead, to do so. It is understood by all parties, that
Lessee's failure to execute the subordination documents referred to above may
cause Lessor serious financial damage by causing the failure of a financing or a
sale transaction.
36.3. Attornment. Lessee shall attorn to any purchaser at any
foreclosure sale, or to any grantee or transferee designated in any Deed given
in lieu of foreclosure.
ARTICLE 37. ESTOPPEL CERTIFICATES
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37.1. Execution by Lessee. Within ten (10) days of request therefor by
Lessor, Lessee shall execute a written statement acknowledging the commencement
and termination dates of this Lease, that it is in full force and effect, has
not been modified (or if it has, stating such modifications), and providing any
other pertinent information as Lessor or its agent might reasonably request.
Failure to comply with this Article shall be a material breach of this Lease by
Lessee giving Lessor all rights and remedies under Article 30 hereof, as well as
a right to damages caused by the loss of a loan or sale which may result from
such failure by Lessee. 37.2. Financing. If Lessor desires to finance or
refinance the Leased Premises, or any part thereof, or the Building, Lessee
hereby agrees to deliver to any lender designated by Lessor such financial
statement of Lessee as may be reasonably required by such lender. Such
statements shall include the past three (3) years' financial statements of
Lessee. All such financial statements shall be received by Lessor in confidence
and shall be used only for the purposes herein set forth.
ARTICLE 38. WAIVER
38.1. Effect of Waiver. The waiver by Lessor of any breach of any Lease
provision shall not be deemed to be a waiver of such Lease provision or any
subsequent breach of the same or any other term, covenant or condition therein
contained. The subsequent acceptance of rent thereunder by Lessor shall not be
deemed to be a waiver of any preceding breach by Lessee of any provision of this
Lease, other than the failure of Lessee to pay the particular rental so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
ARTICLE 39. HOLDING OVER
39.1. Month-to-Month Tenancy on Acceptance. If Lessee should remain in
possession of the Leased Premises after the expiration of the Lease term and
without executing a new Lease, then, upon acceptance of rent by Lessor, such
holding over shall be construed as a tenancy from month to month, subject to all
the conditions, provisions and obligations of this Lease as existed during the
last month of the term hereof, so far as applicable to a month to month tenancy,
except that the Minimum Monthly Rent shall be equal to twice the Minimum Monthly
Rent payable immediately prior to the expiration or sooner termination of the
Lease.
ARTICLE 40. SUCCESSORS AND ASSIGNS
40.1. Binding Effect. The covenants and condition herein contained
shall, subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
41.1. Time of the Essence.Time is of the essence of this Lease with
respect to each and every article, section and subsection hereof.
ARTICLE 42. EFFECT OF LESSOR'S CONVEYANCE
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42.1. Release of Lessor. If, during the term of this Lease, Lessor
shall sell its interest in the Building or Complex of which the Leased Premises
forms a part, or the Leased Premises, then from and after the effective date of
the sale or conveyance, Lessor shall be released and discharged from any and all
obligations and responsibilities under this Lease, except those already accrued.
ARTICLE 43. COMMON AREAS
43.1. Lessor shall, in Lessor's sole discretion, maintain the Common
Areas (subject to reimbursement pursuant to Article 8 hereof), establish and
enforce reasonable rule 6 and regulations concerning such areas, close any of
the Common Areas to whatever extent required in the opinion of Lessor's counsel
to prevent a dedication of any of the Common Areas or the accrual of any rights
of any person or of the public to the Common Areas, close temporarily any of the
Common Areas for maintenance purposes, and make changes to the Common Areas
including, without limitation, changes in the location of driveways, corridors,
entrances, exits, vehicular parking spaces, parking area, the designation of
areas for the exclusive use of others, the direction of the flow of traffic or
construction of additional buildings thereupon. Lessor may provide security for
the Common Areas but is not obligated to do so.
ARTICLE 44. TRANSFER OF SECURITY
44.1. Transfer to Purchaser. If any security be given by Lessee to
secure the faithful performance of all or any of the covenants of this Lease on
the part of Lessee, Lessor may transfer and/or deliver the security, as such, to
the purchaser of the reversion, in the event that the reversion be sold, and
thereupon Lessor shall be discharged from any further liability in reference
thereto.
ARTICLE 45. LATE CHARGES
45.1. Late Payment by Lessee. Lessee acknowledges that late payment by
Lessee to Lessor of rent or any other payment due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult and impractical to fix. Such costs include, without
limitation, processing and accounting charges that may be imposed on Lessor by
the terms of any encumbrance and note secured by any encumbrance covering the
Leased Premises. Therefore, if any installment of rent, or any other payment due
hereunder from Lessee is not received by Lessor when due, Lessee shall pay to
Lessor an additional sum of such rent or other charge as a late charge. Thy
parties agree that this late charge represents a fair and reasonable estimate of
the cost that Lessor will incur by reason of late payment by Lessee. Acceptance
of any late charge shall not constitute a waiver of Lessee default with respect
to the overdue amount, or prevent Lessor from exercising any other rights or
remedies available to Lessor.
ARTICLE 46. CORPORATE AUTHORITY
46.1. Authorization to Execute. If Lessee is a corporation, each
individual executing this Lease on behalf of said corporation, represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
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corporation, and that this Lease is binding upon said corporation in accordance
with its terms.s Further, Lessee shall, within thirty (30) days after execution
of this Lease, deliver to Lessor a certified copy of a resolution of the Board
of Directors of said corporation authorizing or ratifying the execution of this
Lease.
ARTICLE 47. MORTGAGEE PROTECTION
47.1. Notice and Right to Cure Default. Lessee agrees to give any
mortgagee(s) and/or trust deed holders, by registered mail, a copy of any notice
of default served upon Lessor, Provided that prior to such notice Lessee has
been notified, in writing (by way of Notice of Assignment of Rents and Leases,
or otherwise), of the address of such mortgagees and/or trust deed holders.
Lessee further agrees that if Lessor shall have failed to cure such default
within the time provided for in this Lease, then the mortgagees and/or trust
deed holders shall have an additional thirty (30) days within which to cure such
default or if such default cannot be cured within that time, then such
additional time as may be necessary if within such thirty (30) days, any
mortgagee and/or trust deed holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary
ARTICLE 48. MISCELLANEOUS PROVISIONS
48.1. Captions. The captions of this Lease are for convenience only and
are not a part of this Lease and do not in anyway limit or amplify the terms and
provisions of this Lease.
48.2. Number and Gender. Whenever the singular number is used in this
Lease and when required by the context, the same shall include the plural, the
plural shall include the singular, and the masculine gender shall include the
feminine and neuter genders, and the word "person" shall include corporation,
firm or association. If there be more than one Lessee, the obligations imposed
under this Lease upon Lessee, shall be joint and several.
48.3. Modifications. This instrument contains all of the agreements,
conditions and representations made between the parties to this Lease and may
not be modified orally or in an any other manner than by an agreement in writing
signed by all of the parties to this Lease.
48.4. Payments. Except as otherwise expressly stated, each payment
required to be made by Lessee shall be in addition to and not in substitution
for other payments to be made by Lessee.
48.5. Severability. The invalidity of any provision of this Lease, as
determined by a Court of competent Jurisdiction, shall in no way affect the
validity of any other provision hereof.
48.6. No Offer. The preparation and submission of a draft of this Lease
by either party to the other shall not constitute an offer no shall either party
be bound to any terms of this Lease or the entirety of the Lease itself until
both parties have fully executed a final document and an original signature
document has been received by both parties. Until such time as described in the
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previous sentence, either party is free to terminate negotiations with no
obligation to the other.
48.7. Disputed Sums. Under the terms of this Lease numerous charges are
an may be due from Lessee to Lessor including, without limitation, Common Area
charges, real estate taxes, insurance reimbursement and other items of a similar
nature including advances made by Lessor in respect of Lessee's default at
Lessor's option. In event that at any time during the term there is a bona fide
dispute between the parties as to the amount due for any of such charges claimed
by Lessor to be due, the amount demanded by Lessor shall be paid by Lessee until
the resolution of the dispute between the parties or by litigation. Failure by
the dispute between the parties or by litigation. Failure by Lessee to pay the
disputed sums until resolution shall constitute a default under the terms of the
Lease.
48.9. Light, Air and View. No diminution of light, air, or view by any
structure which may hereafter be erected (whether or not be Lessor) shall
entitle Lessee to any reduction of Rent, result in any liability of Lessor to
Lessee, or in any other way affect this Lease or Lessee's obligations hereunder.
48.10. Public Transportation Information. Lessee shall establish and
maintain during the Term hereof a program to encourage maximum use of public
transportation by personnel of Lessee employed on the Leased Premises, including
without limitation the distribution to such employees of written materials
explaining the convenience and availability of public transportation facilities
adjacent or proximate to the Complex, staggering working hours of employees, and
encouraging use of such facilities, all at Lessee's sole reasonable cost and
expense. Lessee shall comply with all requirements of any local transportation
management ordinance.
48.11. Rules and Regulations. Lessee agrees to comply with all
reasonable rules and regulations adopted and promulgated by Lessor and
applicable to all tenants in the Complex for the lawful, orderly, clean, safe,
aesthetic, quiet, and beneficial use, operation, maintenance, management, and
enjoyment of the Complex.
48.12. Joint and Several Liability. Should Lessee consist of more than
one person or entity, they shall be jointly and severally liable on this Lease.
ARTICLE 49. WAIVER OF CALIFORNIA CODE SECTIONS
49.1. Waiver by Lessee. Lessee waives (for itself and all persons
claiming under Lessee) the provisions of Civil Code Sections 1932(2) and 1933(4)
with respect tot he destruction of the Leased Premises, Civil Code Sections 1941
and 1942 with respect to Lessor's repair duties and Lessee's right to repair,
Code of Civil Procedure Section 1265.130, allowing either party to petition the
Superior Court to terminate this Lease in the event of a partial taking of the
Leased Premises by condemnation as herein defined, and any right of redemption
or reinstatement of Lessee under any present or future case law or statutory
provision (including Code of Civil Procedure Sections 473 and 1179 and Civil
Code Section 3275) in the event Lessee is dispossessed from the Leased Premises
for any reason. This waiver applies to future statutes enacted in addition to
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or in substitution for the statutes specified herein. Copies of the above-
referenced Code sections are attached as Exhibit "F".
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease.
LESSOR: LESSEE:
KI MONTEREY RESEARCH, INC., A THINKING TOOLS, INC., A DELAWARE
CORPORATION CALIFORNIA CORPORATION
By: By:
Xxxxxx Real Estate Management Xxxx Xxxxx, President
It's Authorized Agent
Xxxxx X. Xxxxxxx, Vice President
Date: Date:
FOR OFFICE USE ONLY:
PREPARED BY:
REVIEWED BY:
APPROVED BY:
Lessor's Lessee's
Initials Initials
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EXHIBIT "A"
THE LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF MONTEREY, CITY OF
MONTEREY AND DESCRIBED AS FOLLOWS:
LOT 16 A AS SAID LOT IS SHOWN ON THAT CERTAIN RECORD OF SURVEY RECORDED
SEPTEMBER 22, 1988 IN BOOK 15 OF SURVEYS AT PAGE 174, OFFICIAL RECORDS OF
MONTEREY COUNTY, CALIFORNIA.
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EXHIBIT "D"
ACKNOWLEDGEMENT OF COMMENCEMENT
This Acknowledgement is made as of March 31, 1995, with reference to
that certain Lease Agreement (hereinafter referred to as the"lease") dated (1)
August 19, 1995, by and between as "Lessor" therein, and Thinking Tools, Inc.,
as "Lessee", for the demised premises situated at Xxxxxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxx #0, Xxxxx 000.
The undersigned hereby confirms the following:
1. That the Lessee accepted possession of the Demised Premises (as
described in said lease) on April 1, 1995, and acknowledges that the premises
are as represented by the Lessor and in good order, condition and repair, and
that the improvements, if any, required to be constructed for Lessee by Lessor
under this lease have been so constructed and are satisfactorily completed in
all respects.
2. That all conditions of said lease to be performed by Lessor
prerequisite to the full effectiveness of said lease have been satisfied and
that Lessor has fulfilled all of its duties of an inducement nature.
3. That in accordance with the provisions of Article 3 of said lease
the commencement date of the term is April 1, 1995, and that, unless sooner
terminated, the original term thereof expires on March 31, 1998.
4. That said lease is in full force and effect and that the same
represents the entire agreement between Lessor and Lessee concerning said lease.
5. That there are no existing defenses which Lessee has against the
enforcement of said lease by Lessor, and no offsets or credits against rentals.
6. That the minimum rental obligation of said lease is presently in
effect and that all rentals, charges and other obligations on the part of Lessee
under said lease commenced to accrue on April 1, 1995.
7. That the undersigned Lessee has not made any prior assignment,
hypothecation or pledge of said lease or of the rents thereunder.
LESSEE:
By:___________________________
Date: 3/31/95
(1)and in reference to the First Amendment dated September 27th, 1994, and the
Second Amendment ad dated January 3rd, 1995,
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EXHIBIT "E"
RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on the Building or to any part
thereof, or which is visible from the outside of the Building, without the
written consent of Lessor, first had and obtained and Lessor shall have the
right to remove any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Lessee.
All approved signs or lettering on doors shall be printed, affixed or inscribed
by a person approved by Lessor.
Lessee shall not place anything or allow anything to be placed near the glass of
any window, door, partition or wall which may appear unsightly from outside the
Premises.
2. The director of the Building will be provided exclusively for the
display of the name and location of Lessee only and Lessor reserves the right to
exclude any other names therefrom.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways in and around the Building shall not be obstructed by Lessee or used
by it for any purpose other than for ingress to and egress from the Premises.
The halls, passages, exits, entrances, elevators, stairways, and roof are not
for the use of the general public and Lessor shall in all cases retain the right
to control and prevent access thereto by all persons whose presence in the (1)
(reasonable) judgment of Lessor shall be prejudicial to the safety, character,
reputation and interests of the Building and its Lessees, provided that nothing
herein contained shall be construed to prevent such access to persons with whom
Lessee normally deals in the ordinary course of Lessee's business unless such
persons are engaged in illegal activities. Neither Lessee nor any employees or
invitees of Lessee shall go upon the roof of the Building.
4. Lessee shall not be permitted to install any additional lock or
locks on any door in the Building unless written consent of Lessor shall have
first been obtained. Two keys will be furnished by Lessor for any room.
5. The toilets and urinals shall not be used for any purpose other than
those for which they were constructed and no rubbish, newspapers or other
substances of any kind shall be thrown into them. Waste and excessive or unusual
use of water shall not be allowed. Lessee shall be responsible for any breakage,
stoppage or damage resulting from the violation of this rule by Lessee or its
employees or invitees.
6. Lessee shall not overload the floor of the Premises or xxxx, drive
nails, screw or drill into the partitions, woodwork, or plaster or in any way
deface the premises or any part thereof.
7. No furniture, freight or equipment of any kind shall be brought into
the Building without the consent of Lessor and all moving of the same into or
out of the Building shall be done at such time and in such manner as Lessor
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shall designate. Lessor shall have the right to determine of limit the weight,
size and position of all safes and other heavy equipment brought into the
Building and also the times and manner of moving the same in and out of the
Building. Safes or other heavy objects shall, if considered necessary by Lessor,
stand on wood strips of such thickness as is necessary to properly distribute
their weight. Lessor will not be responsible for loss or damage to any such safe
or property from any cause and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense or
Lessee.
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8. Lessee shall not employ any person or persons other than the janitor
of lessor for the purpose of cleaning the premises unless otherwise agreed by
Lessor. Except with the written consent of Lessor, no person or persons other
than those approved by lessor shall be permitted to enter the Building for the
purpose of cleaning the same. Lessee shall not cause any unnecessary labor by
reason of lessee's carelessness or indifference in the preservation of good
order and cleanliness.
9. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Lessor or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other Lessees or those having business therein.
10. Cooking shall not be permitted by Lessee in the Premises (except
microwave cooking (1) (coffee and tea cooking)) and the Premises shall not be
used for the storage of merchandise (2) (except for finished software products)
for washing clothes, for lodging or for any improper, objectionable or immoral
purposes.
11. Lessee shall not use or keep in the Premises or the Building any
kerosene, gasoline, or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Lessor, except
as noted in paragraph 12.3(c) of the Lease.
12. Lessor will direct electricians to the manner and location in which
telephone and telegraph wires are to be introduced. No boring or cutting for
wires will be allowed without the consent of Lessor. the location of telephones,
call boxes and other office equipment affixed to the Premises shall be subject
to the approval of Lessor.
13. Lessee shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Lessor. The expense of repairing any damage
resulting from violation of this rule or removal of any floor covering shall be
borne by Lessee.
14. No packages, supplies or merchandise will be received in the
Building or carried up or down in the elevators, except during such hours and in
such elevators as shall be designated by Lessor.
15. Blinds are furnished for each window by Lessor as part of the
Construction Allowance and any additional window covering desired by Lessee
shall be put up at Lessee's expense and must be of such uniform shape, color of
material and make as may be prescribed by Lessor.
16. The requirement of Lessee will be attended to only upon application
to the Building property manager. Employees shall not perform any work nor do
anything outside of their regular duties unless under special instructions from
the Lessor or his agent, and no employee shall admit any person (Lessee or
otherwise) to any office without instructions from the Lessor.
17. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 p.m. and 8:00 a.m. the following day, access to the Building
or to the halls, corridors, elevators or stairways in the Building or to the
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premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
Lessor shall in no event be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In case of invasion,
mob, riot, public excitement or other commotion, Lessor reserves the right to
prevent access to the Building during the continuance of the same by closing the
doors or otherwise for the safety of lessees and protection property in the
Building.
18. Lessor reserves the right to exclude or expel from the Building any
person who, in the judgement of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
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19. No vending machine or machines of any description shall be
installed, maintained or operated upon the Premises without the written consent
of the Lessor.
20. lessee shall not disturb, solicit or canvass any occupant of the
Building.
21. Without the written consent of Lessor, Lessee shall not use the
name of the Building in connection with or in promoting or advertising the
business of Lessee except as Lessee's address.
22. Lessee shall not any contractor or other person making any
alterations, additions or installations within the Premises to use the hallways,
lobby or corridors as storage or work areas without the prior written consent of
Lessor. Lessee shall be liable for and shall pay the expense of any additional
cleaning or other maintenance required to be performed by Lessor as a result of
the transportation or storage of materials or work performed within the Building
by or for Lessee.
23. Subject to Rule 17, normal hours in which the Building will be open
for Lessee, its employees and its invitees for business therein will be from
8:00 a.m. to 6:00 p.m.
24. Lessee shall be entitled to use parking spaces as a mutually agreed
upon between Lessee and Lessor subject to such reasonable conditions and
regulations as may be imposed from time to time by Lessor. Lessee agrees that
vehicles of Lessee or its employees or agents shall not park in driveways nor
occupy parking spaces or other areas reserved for any use such as Visitors,
Delivery, Loading or other tenants. Lessor or its agents shall have the right to
cause or be removed any car of Lessee, its employees or agents, that may be
parked in unauthorized areas, and Lessee agrees to save and hold harmless
Lessor, its agents and employees from any and all claims, losses, damages and
demands asserted or arising in respect to or in connection with the removal of
any such vehicle. Lessee, its employees, or agents shall not park campers,
trucks or cars on the Building parking areas overnight or over weekends. Lessee
will from time to time, upon request of Lessor, supply Lessor with a list of
license plate numbers of vehicles owned or operated by its employees and agents.
25. Lessor reserves the right to make modifications hereto and such
other and further rules and regulations as in its (1) (reasonable) judgment may
be required for the safety, care and cleanliness of the premises and the
Building and for the preservation of good order therein. Lessee agrees to abide
by all such rules and regulations.
26. Canvassing, soliciting and peddling is prohibited in the Building
and each Lessee shall cooperate to prevent the same.
27. Lessor is not responsible for the violation of any rule contained
herein by any other Lessee.
28. (2) (Where necessary and reasonably appropriate) Lessor may waive
any one or more of these rules for the benefit of any particular Lessee, but no
such waiver shall be construed as a waiver of Lessor's right to enforce these
rules against any or all Lessee occupying the Building.
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EXHIBIT "F"
TEXT OF CALIFORNIA CODE SECTIONS
CIVIL CODE SECTION 1932(2)
Hirer may terminate the hiring, when.
The hirer of a thing may terminate the hiring before the end of the term agreed
upon:
When the greater part of the thing hired, or that part which was and which the
latter had at the time of the hiring reason to believe was the material
inducement to the hirer to enter into the contract, perishes from any other
cause than the want of ordinary care of the hirer.
CIVIL CODE SECTION 1932(4)
When hiring terminates
The hiring of a thing terminates:
By the destruction of the thing hired.
CIVIL CODE SECTION 1941
Lessor to make dwelling-house fit for its purpose
The lessor of a building intended for the occupation of human beings must, in
the absence of an agreement to the contrary, put it into a condition fit for
such occupation, and repair all subsequent dilapidation thereof, which render it
untenantable, except such as are mentioned in section nineteen hundred and
twenty-nine.
CIVIL CODE SECTION 1942
When Lessee may make repairs, etc.
(a) If within a reasonable time after written or oral notice
to the landlord or his agent, as defined in subdivision (a) of Section 1962, of
dilapidation rendering the premises untenantable which the landlord ought to
repair, the landlord neglects to do so, the tenant may repair the same himself
where the cost of such repairs does not require an expenditure of more than one
month's rent of the premises and deduct the expenses of such repairs from the
rent when due, or the tenant may vacate the premises, in which case the tenant
shall be discharged from further payment of rent, or performance of other
conditions as of the date of vacating the premises. This remedy shall not be
available to the tenant more than twice in any 12-month period.
(b) For the purposes of this section, if a tenant acts to
repair and deduct after the 30th day following notice, he is presumed to have
acted after a reasonable time. The presumption established by this subdivision
is a rebuttable presumption affecting the burden of producing evidence and shall
not
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be construed to prevent a tenant from repairing and deducting after a shorter
notice if all the circumstances require shorter notice.
(c) The tenant's remedy under subdivision (a) shall not be
available if the condition was caused by the violation of Section 1929 or
1941.2.
(d) The remedy provided by this section is in addition to any
other remedy provided by this chapter, the rental agreement, or other applicable
statutory common law.
CIVIL CODE SECTION 3275
Relief in case of forfeiture
Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or
a loss in the nature of a forfeiture, by reason of his failure to comply with
its provisions, he may be relieved therefrom, upon making full compensation to
the other party, except in case of a grossly negligent, willful, or fraudulent
breach of duty.
CODE OF CIVIL PROCEDURE 473
Amendment of pleadings; Continuance;
Relief from judgment;
Correction of clerical errors.
The court may, in furtherance of justice, and on such terms as may be proper,
allow a party to amend any pleading or proceeding by adding or striking out the
name of any party, or by correcting q mistake in the name of a party or a
mistake in any other respect; and may, upon like terms, enlarge the time for
answer or demurrer. The court may likewise, in its discretion, after notice to
the adverse party, allow, upon such terms as may be just, an amendment to any
pleading or proceeding in other particulars and may upon like terms allow an
answer to be made after the time limited by this code.
When it appears to the satisfaction of the court that such amendment renders it
necessary, the court may postpone the trial, and may, when such postponement
will by the amendment be rendered necessary, require, as a condition tot he
amendment, the payment to the adverse party of such costs as may be just.
The court may, upon such terms as may be just, relieve a party or his or her
legal representative from a judgment, order, or other proceeding taken against
him or her through his or her mistake, inadvertence, surprise or excusable
neglect. Application for such relief must be accompanied by a copy of the answer
or other pleading proposed to be filed therein, otherwise the application shall
not be granted, and must be made within a reasonable time, in no case exceeding
six months, after such judgment, order or proceeding was taken; provided
however, that, in the case of a judgment, order or other proceeding determining
the ownership or right to possession of real or personal property, without
extending said six months period, when a notice in writing is personally served
within the State of California both upon the party against whom the judgment,
order or other proceeding has been taken, and upon his or her attorney of
record, if any, notifying said party and his or her attorney of record, if any,
that such order, judgment or other proceeding was taken against him or her and
that any rights said party has to apply for relief under the provisions of
Section 473 of the Code of Civil Procedure shall expire 90 days after service
- 45 -
of said notice, then such application must be made within 90 days after service
of said notice upon the defaulting party or his or her attorney or record, if
any, whichever service shall be later. No affidavit or declaration of merits
shall be required of the moving party.
The court may, upon motion of the injured party, or its own motion, correct
clerical mistakes in its judgment or orders as entered, so as to conform to the
judgment order directed, and may, on motion of either party after notice to the
other party, set aside any void judgment or order.
CODE OF CIVIL PROCEDURE SECTION 1179
(Relief against forfeiture of lease:
Application by whom and how made:
Notice: Condition of granting of relief.
The court may relieve a tenant against a forfeiture of a lease, and restore him
to his former estate, in case of hardship, where application for such relief is
made within thirty days after the forfeiture is declared b the judgment of the
court, as provided in section one thousand one hundred and seventy-four. The
application may be made by a tenant or subtenant, or a mortgagee of the term, or
any person interested in the continuance of the term. It must be made upon
petition setting forth the facts upon which the relief is sought, and be
verified by the applicant. Notice of the application, with a copy of the
petition, must be served on the plaintiff i the judgment, who may appear and
contest the application. In no case shall the application be granted except on
condition that full payment of rent due, or full performance of conditions or
covenants stipulated, so far as the same is practicable, be made.
CODE OF CIVIL PROCEDURE SECTION 1265.130
Court order terminating lease
Where part of the property subject to a lease is acquired for public use, the
court may, upon petition of any party to the lease, terminate the lease if the
court determines that an essential part of the property subject to the lease is
taken or that the remainder of the property subject to the lease is no longer
suitable for the purposes of the lease.
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ADDENDUM
FULL SERVICE OFFICE LEASE
THIS ADDENDUM AMENDS that certain Lease ("Lease") made and entered into the 19th
day of August, 1994, between Thinking Tools, Inc., a California Corporation
("Lessee"), and KI Monterey Research, Inc. ("Lessor"), and the terms hereof
shall for all purposes, be incorporated into the Lease. Wherever any
inconsistency appears between the body of the Lease and this Addendum, the
provisions of the Addendum shall prevail, except where indicated otherwise in
this Addendum.
Accordingly, pursuant to Paragraph 48.3, Modifications, of the Original
Agreement, the parties hereby amend the same as follows:
Paragraph 6.1, Delay is hereby amended, in its entirety, to read as follows:
Effective upon execution of the Lease, Lessee acknowledges Delivery of the
Premises and accept the Premises in its "As Is" condition with no warranties or
representation by Lessor.
Subparagraph 8.3(b) is hereby amended, in its entirety, to read as follows:
(b) Annually, as soon as is reasonably possible after the expiration of each
Lease Year, Lessor shall prepare in good faith and deliver to Lessee a
comparative statement, which statement shall be conclusive between the parties
after a period of ninety (90) days following delivery of the same to Lessee if
not objected to by Lessee during this time, setting forth (1) the Operating
Costs for Lease Year, and (2) the amount of additional Rent as determined in
accordance with the provisions of this Article 8.
Subparagraph 12.3(c) is hereby added to state the following:
Notwithstanding Article 12, or any other provisions contrary in this Agreement,
Lessee shall not be in violation of the Lease Agreement by its use and storage
of standard office products, otherwise defined as hazardous, which products are
used by Lessee with due care and in accordance with the instructions of the
product manufacturer in the reasonable and prudent conduct of Lessee's business
and use of the Premises.
Paragraph 12.4, Indemnity, is hereby replaced in its entirety with the
following:
Lessee agrees to indemnify, defend, protect and hold harmless Lessor, its
directors, officers, employees, partners, and agents from and against any and
all claims and expenses arising out of Lessee use or storage of any Hazardous
Materials on or about the Leased Premises.
Paragraph 16.1, Use of Premises, is hereby deleted in its entirety and replaced
with the following:
16.1. Use of Premises. Other than the use as specified herein, no use shall be
made or permitted to be made on the Leased Premises, nor acts done, which will
increase the existing rate of insurance upon the Building in which the Leased
Premises are located or upon any other Building in the Complex or cause the
- 47 -
cancellation of any insurance policy covering the Building, or any part thereof,
nor shall Lessee sell, or permit to be kept, used or sold, in or about the
Leased Premises, any article which may be prohibited by the standard form of
"Special Causes of Loss" fire insurance policies. Lessee shall, at its sole cost
and expense, comply with any and all reasonable requirements pertaining to the
Leased Premises, of any insurance organization or company, necessary for the
maintenance of reasonable property damage and commercial general liability
insurance, covering the Leased Premises, the Building or the Complex. Paragraph
16.2, Increase in Premiums, is hereby deleted in its entirety and replaced with
the following:
16.2. Increase in Premiums. Lessee agrees to pay to Lessor, as additional Rent,
any increase in premiums on policies which may be carried by Lessor on the
Leased Premises, the Building or the complex, or any blanket policies which
include the Building or the Complex, covering damage thereto and loss of Rent
caused by fire and other perils above the rates for the least hazardous type of
occupancy for office use, excluding, however, such use as is otherwise permitted
to Lessee under this Agreement. Lessee further agrees to pay to Lessor, as
additional Rent, any increase in such premiums resulting from the nature of
Lessee's occupancy or any act or omission of Lessee, to the extent the same are
inconsistent with the use permitted Lessee and as provided for herein.
Paragraph 17.1, Intent and Purpose, is hereby deleted in its entirety and
replaced with the following:
17.1. Intent and Purpose. This Article 17 is written and agreed to in respect of
the intent of the parties to assign the risk of loss, whether resulting from
negligence of the parties or otherwise, and to the extent of the insurance which
is required to be carried by said party under this Agreement, to the party who
is obligated hereunder to cover the risk of such loss with said insurance. Thus,
the indemnity and waiver of claims provisions of this Lease have as their
object, so long as such object is not in violation of public policy, the
assignment of risk for a particular casualty to the party carrying the insurance
for such risk only, however, to the extent of the insurance carried under this
Agreement, and without respect to the causation thereof.
Paragraph 17.2, Waiver of Subrogation, is hereby amended by the addition of the
following sentence at the end thereof:
The waiver and release provided for herein shall be applicable only to the
extent of the insurance required pursuant to this Agreement.
Paragraph 17.3, Form of Policy, is hereby deleted in its entirety and replaced
with the following:
17.3. Form of Policy. Each party shall cause each such insurance policy obtained
by it to provide that the insurance company waives all rights of recovery by way
of subrogation against either party in connection with any damage covered by
such policy. Neither party shall be liable to the other for any damage caused by
any peril included within the classification "Special Causes of Loss", to the
extent of the coverage required under this Agreement, and which is insured
against under any such policy carried under the terms of this Lease.
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Paragraph 17.4, Indemnity, is modified by the addition of the following sentence
at the end thereof:
The requirement of Lessee to indemnify, defend, protect and hold harmless Lessor
as provided for in this provision shall be limited to claims arising by reason
of the negligence or misconduct of Lessee, or that of its agents, assigns,
invitees or Licensees.
Paragraph 17.5, Defense of Claims, is hereby modified by the addition of the
following sentence at the end thereof.
The obligations of Lessee under this Agreement shall apply only for such
actions, suits or proceedings as are brought as a result of the negligence or
misconduct of Lessee, or that of its agents, assigns, invitees, or Licensees.
Paragraph 18.1, Lessee's Insurance, is hereby deleted in its entirety and
replaced with the following:
18.1. Lessee's Insurance. Lessee shall, at Lessee's expense, obtain and keep in
force during the term of this Lease, a commercial general liability insurance
policy insuring Lessor and Lessee against the risks of personal injury and
property damage arising out of the use, occupancy or maintenance of the Leased
Premises by Lessee and all areas appurtenant thereto. Such insurance shall be a
combined single limit policy in an amount not less than one million dollars
($1,000,000.00) per occurrence with a two million dollar ($2,000,000.00) annual
aggregate. The policy shall contain cross liability endorsements and shall
insure performance by Lessee of the indemnity provisions of this Lease. In
addition, such policy shall cover contractual liability. The limits of said
insurance shall not, however, limit any liability of Lessee hereunder, except as
otherwise provided for herein. In the event that the Leased Premises do not
constitute part of a larger property, said insurance shall have a Lessor's
protective liability endorsement attached thereto.
Subparagraph 19.1 (c) is hereby amended in its entirety to read as follows:
(c) The policy shall be in a form and include such endorsements as are
customarily acceptable to fulfill requirements such as set forth in this lease.
Paragraph 21.1, Removal of Personal Property, is hereby amended by the addition
of the following sentence at the end thereof:
Under no circumstances under this provision shall the software owned, licensed
or developed by Lessee become the property of Lessor pursuant to this provision.
Paragraph 23.1, Rights of Termination, is modified by the addition of the
following sentence at the end thereof:
Notwithstanding any of the provisions of this Article 23, if more than one third
(as measured by square footage) of the Leased Premises suffers (a) an uninsured
casualty or (b) a casualty which cannot be repaired within sixty (60) days,
Lessee shall have the right to terminate this Lease by written notice to Lessor.
Subparagraph 25.5(b) is hereby amended by the addition of the following sentence
at the end thereof:
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Under no circumstances, however, shall the reimbursement provided for pursuant
to this Paragraph 25 exceed five thousand dollars ($5,000.00).
Paragraph 27.1, Rights of Lessor, is hereby amended by the addition of the
following:
Notwithstanding anything to the contrary in this Agreement, Lessee shall have in
the Leased Premises an area of no greater than one hundred square feet which
shall be sealed and inaccessible to all, save for those who are required to have
access by requirement of the laws or regulations of any governmental authority
(such as fire code, etc.). This area is for the storage of Lessee's trade
secrets, source code and other such materials. Upon reasonable request, however,
Lessee shall permit Lessor access to this area, as accompanied by a
representative of Lessee, during such reasonable hours as Lessor may request.
Paragraph 28. 1, Approval. Installation and Maintenance, is hereby amended by
the addition of the following sentence at the end thereof:
The signage as proposed in Exhibit H as of the date of this Agreement, is hereby
deemed approved pursuant to this paragraph.
Subparagraph 29.19(a) is hereby deleted in its entirety and replaced with the
following:
(a) Any failure by Lessee to pay the rental or to make any other payments
required to be made by Lessee hereunder when due after receipt by Lessee of
notice by Lessor sent by certified mail to Lessee demanding payment of the same,
if Lessee does not pay the same within five (5) days thereof shall be considered
to be a material default and breach hereunder.
Subparagraph 29.1(e) is hereby deleted in its entirety and replaced with the
following:
(e) Any habitual failure by Lessee to observe and perform any provision of this
Lease during any twelve (12) month period of the term, as such may be extended,
shall constitute, at the option of Lessor, a separate and non-curable default.
Subparagraph 34.1 (d) is hereby modified by the addition of the following:
Under no circumstances, however, shall the reimbursement provided for pursuant
to this Paragraph 34 exceed five thousand dollars ($5,000.00).
Subparagraph 45.1 is hereby modified by the addition of the following sentence
at the end thereof:
The late payment penalty under this paragraph shell not exceed $200.00 for any
one occurrence.
The following Paragraphs 50 through 56 are hereby added to the Lease Agreement
to read as follows:
50. Tenant Improvement Costs. Intentionally Omitted.
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51. Option to Extend. Provided that Lessee is not in default under any terms and
conditions of this Lease, Lessee shall have the option to extend the term of
this Lease for one (1) three (3) year period on the same terms and conditions of
the Lease, except for the following provisions:
1. The base monthly rental payable under the option period will be
as follows:
Months 37-48: $6,230.40 $1.65 p.s.f.,Gross, Fully Serviced
Months 49-60: $6,419.20 $1.70 p.s.f., Gross, Fully Serviced
Months 61-72: $6,608.00 $1.75 p.s.f.,Gross, Fully Serviced
2. At least ninety (90) days prior to the expiration of the original term,
Lessee shall notify Lessor in writing of its intentions to exercise the option
period.
3. In the event that Lessee does not wish to exercise the option term, this
Lease shall terminate at the expiration of the original term.
52. Right of First Offer. If at any time during the initial term, or any
extension thereof, of this Lease, the 1,270 square feet of space (the "Offer
Space 1", see exhibit "B" attached hereto) is available or becomes available for
lease, Lessee shall have the right to include the same under the terms and
conditions of this agreement provided, however, that the rights of Lessee to any
such space currently under a right of first offer or right of first refusal
clause in another lessee's lease in the building, as of the date of this
agreement, or such rights are granted to GMAC, shall be subordinate to the
rights of the other lessee(s). If Lessee exercises its right to incorporate
additional space into this Lease, Lessee must commit to a minimum term of three
(3) years from the date of said commitment, and if Lessee so elects, the tenant
improvement allowance for Offer Space 1 is hereby established as $18.75 per
rentable square foot. The tenant improvements provided for herein are for
customary tenant improvements and not for specialty tenant improvements or
furniture, trade fixtures or equipment.
Lessor agrees to inform Lessee if an offer to lease the Offer Space is submitted
(Offer Notice). Within five (5) working days following Lessee's receipt of the
Offer Notice, Lessee shall notify Lessor whether or not Lessee is interested in
incorporating the Offer Space into the Leased Premises. Failure of Lessee to
respond within said five (5) working days, or failure to accept the Offer Space
on the above-specified conditions, Lessor shall have the right to rent the Offer
Space under whatever terms and conditions Lessor may desire. This right of first
offer shall continue to remain in full force and effect for the Offer Space
during the initial term or any extension thereof, and Lessor shall notify Lessee
in the same manner as referred to above for further offer notices. If Lessee
elects to accept the Offer Space, it shall be deemed to have done so under the
terms and conditions as set forth in Paragraph 1.5(a) of the Lease or paragraph
51 in this addendum, whichever is appropriate. Upon acceptance of the Offer
Space by Lessee, the parties shall amend this Lease to incorporate the Offer
Space into the Leased Premises and adjust the rent, pro-rata percentage, square
- 51 -
footage, and other charges hereunder appropriate, and all other terms and
conditions of the Lease shall remain unchanged.
53. Parking. Lessee shall have the right to park in the Complex parking areas on
a non-exclusive basis with other lessees in the Complex. (See Exhibit "G"
attached and by this reference made a part hereof.) Lessee agrees not to
overburden the parking areas and agrees to cooperate with Lessor and other
lessees in the use of the parking areas. Parking will be provided on a ratio of
approximately 4.0 spaces per 1,000 square feet or 15 spaces, free of charge. All
parking is provided on a first come, first serve basis. Lessor, at Lessor's
reasonable discretion, reserves the right to modify parking policies.
54. Signage. Lessee shall retain the existing signage on the directory board,
monument board-and door in its "As Is" condition with no further contribution
from Lessor.
55. X.X. X'Xxxxx. Intentionally Omitted.
56. Hold Harmless Agreement (Legal & Tax). The undersigned agrees to hold
BLICKMAN TURKUS, the "Broker", harmless with regard to the form and substance of
any and all of the legal documents and/or contract associated with this
transaction, and the undersigned has consulted separate counsel regarding legal
and tax matters pertaining to this transaction.
57. Early Occupancy. Intentionally Omitted.
All other terms and conditions of the Lease Agreement shall remain as stated
therein, and this amendment shall be considered merged with the same as a single
agreement and as if this amendment had been a part of the Lease Agreement as of
the date of its execution.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
DATED: 9/14/94 DATED: 9/7/94
LESSOR: KI MONTEREY RESEARCH, LESSEE: THINKING TOOLS, INC.
INC., A DELAWARE A CALIFORNIA
CORPORATION CORPORATION
BY: BY: /s/ Xxxx X. Xxxxx
XXXXXX REAL ESTATE MANAGEMENT XXXX XXXXX, PRESIDENT
COMPANY, ITS AUTHORIZED AGENT
BY: /s/ Xxxxx Xxxxxxx
XXXXX X. XXXXXXX
ITS:
VICE PRESIDENT
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") is entered into this 27th day of
September, 1994, by and between KI MONTEREY RESEARCH, INC.("LESSOR") and
THINKING TOOLS, INC. ("LESSEE").
RECITALS
A. The parties have entered into that certain lease dated August 19, 1994 (the
"Lease") whereby Lessor leased to Lessee, and Lessee leased from Lessor
approximately 3,776 square feet of floor space (the "Premises"); See Exhibit "A"
attached hereto, located at 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx 0, Xxxxx 000 in the
City of Monterey, California (the "Building").
B. The parties wish to amend the Lease to adjust the Rent and Term.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
TERMS
1. This Amendment shall take effect upon execution and delivery to Lessor of
this First Amendment to Lease and the Termination of Lease Agreement from Maxis.
2. The "Minimum Monthly Rent" (Paragraph 1.5 of the Lease) shall be as follows:
Month 1: $5,475.20
Month 2: $ 664.00
Months 3-12: $5,664.00
Months 13-24: $5,852.80
Months 25-37: $6,041.60
3. The "Term" (Paragraph 1.4 of the Lease) shall be thirty-seven (37) months,
commencing October 1, 1994, or upon the first day of the first month following
completion of the items in Paragraph #1 above, if later.
4. All other terms and conditions of the Lease, other than changes made herein,
shall be binding and insure to the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Amendment.
LESSOR: LESSEE:
KI Monterey Research, Inc., A Thinking Tools, Inc., A
Delaware Corporation California Corporation
By: Xxxxxx Real Estate
Management Co.
Its: Authorized Agent
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By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx
Xxxxx X. Xxxxxxx, Vice President Xxxx Xxxxx, President
Date: 9/28/94 Date: September 27, 1994
5) The "Initial Pro-Rata %" (Paragraph 1.8 of the Lease) shall be changed to the
following:
.1009 5,046 sq.ft./50,031 sq.ft.
6) The "Base Operating Costs" (Paragraph 1.9 of the Lease) shall be changed to
the following:
$0.47 x 12 = $5.64 x 5,046 sq.ft. = $28,459.44
7) All other terms and conditions of the Lease, other than changes made herein,
shall be binding and inure to the benefit of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Amendment.
LESSOR: LESSEE:
KI Monterey Research, Inc., A Thinking Tools, Inc.,
Delaware Corporation A California Corporation
By: Xxxxxx Real Estate
Management Co.
Its: Authorized Agent
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
Xxxxx X. Xxxxxxx, Vice President Xxxx Xxxxx, President
Date: 1/11/95 Date: 1-3-95
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SECOND AMENDMENT TO LEASE
This First Amendment to Lessee Amendment is entered into this 3rd day of
January, 1995, by on between KI MONTEREY RESEARCH, INC. ("LESSOR") and THINKING
TOOLS, INC. ("LESSEE").
RECITALS
A. The parties have entered into that certain lease dated August 19, 1994 (the
"Lease") whereby Lessor leased to Lessee, and Lessee leased from Lessor
approximately 3,776 square feet of floor space (the "Premises"); See Exhibit "A"
attached hereto, located at 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx 0, Xxxxx 000 in the
City of Monterey, California (the "Building").
B. The parties wish to amend the Lease to enlarge the Premises, adjust the
Rent, Pro-Rata % and Base Operating Costs.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties agree as follows:
TERMS
1. This Amendment shall take effect upon execution and delivery to Lessor of
this Second Amendment to Lease and (i) a Certificate of Occupancy from the City
of Monterey.
2. Lessor shall construct Tenant Improvements within the Premises and within
that area of the Complex which is to become a part of the Premises (the
"Expansion Space") composed of 1,270 square feet and is shown on the Floor Plan
attached hereto as Exhibit B hereof. Lessor shall contribute up to Twenty Nine
Thousand Five Hundred Sixty Dollars ($29,560.00) or Twenty Three Dollars and
Twenty Seven Cents $23.27 per square foot toward the cost of constructing the
Tenant Improvements within the Premises. All costs above this allowance shall be
paid directly by Lessee. Lessee's new total square footage will be approximately
5,046 square feet Lessor will make diligent efforts to complete Lessor's work
expeditiously and shall deliver the Expansion Space to Lessor promptly upon
completion of Lessor's work and receipt of a certificate of occupancy for the
Expansion Space. Estimated delivery date is March 1, 1995. Lessee shall have the
right to enter the Expansion Space for purposes of inspection during the course
of Lessor's work, at Lessee's sole risk, provided Lessee does not unreasonably
interfere with Lessor or cause a delay in the completion of Lessor's work.
3. The "Premises" (Paragraph 1.3(c) of the Lease) shall be changed as follows:
Approximately 5,046 square feet
4. The "Rent" (Paragraph 1.5 of the Lease) for the Premises shall be changed as
follows:
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Monthly Rent
Delivery Date through Month 12 $7,745.61
Month 13 through Month 24 $7,997.91
Month 25 through Month 36 $8,250.21
5) The "Initial Pro-Rata %" (Paragraph 1.8 of the Lease) shall be changed to the
following:
.1009 5,046 sq.ft./50,031 sq.ft.
6) The "Base Operating Costs" (Paragraph 1.9 of the Lease) shall be changed to
the following:
$0.47 x 12 = $5.64 x 5,046 sq.ft. = $28,459.44
7) All other terms and conditions of the Lease, other than changes made herein,
shall be binding and inure to the benefit of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Amendment.
LESSOR: LESSEE:
KI Monterey Research, Inc., A Thinking Tools, Inc.,
Delaware Corporation A California Corporation
By: Xxxxxx Real Estate
Management Co.
Its: Authorized Agent
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
Xxxxx X. Xxxxxxx, Vice President Xxxx Xxxxx, President
Date: 1/11/95 Date: 1-3-95
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