EXHIBIT 10.16
OFFICE LEASE
1. PARTIES
1.1 This Lease is entered into as of this 5th day of November 1999, in the
City of San Xxxx, County of Santa Xxxxx, State of California, by and between
00 XXXXXXX XXXXXXXXX LIMITED PARTNERSHIP,
a California limited partnership
(hereinafter referred to as "Landlord") and
AGILE SOFTWARE, INC.
(hereinafter referred to as "Tenant").
2. PREMISES
2.1 In consideration of their respective agreements contained herein,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord premises
consisting of the entire fifth (5/th/) and sixth (6/th/) floors of the building
located at:
00 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx
each comprising approximately 16,960 rentable square feet, designated as Suites
500 and 600 and depicted in Exhibit A attached. Said premises are herein
referred to as the "Premises" and the building in which the Premises are located
is herein referred to as the "Building".
3. TERM
3.1 The Term of this Lease shall be for a period of approximately sixty
(60) months commencing on the date defined in Article 4. If the Term expires on
a date other than the last day of the month, the Term shall continue up to and
including the last day of that month. If the Term expires on a day which falls
on a weekend, the Term shall continue up through and including Sunday.
4. LEASE COMMENCEMENT
4.1 The Term of this Lease shall commence on March 1, 2000, provided that
all of the following conditions have been satisfied:
4.1.1 Landlord has recaptured the Premises from Ernst & Young, LLP,
pursuant to the lease between Landlord and Ernst & Young with
expiration date of August 12, 2000. Said recapture must be on terms
that are acceptable to Landlord in its sole judgement.
4.1.2 Ernst & Young has vacated the Premises.
4.1.3 Landlord has substantially completed any improvements to the
Premises which may be required pursuant to Article 34 or Exhibits "E"
or "E-1" of this Lease.
4.2 The Lease Commencement Date and Lease Expiration Date as prescribed
herein shall be confirmed by Landlord to Tenant in a written Confirmation of
Lease Commencement which shall be prepared by Landlord, served on Tenant,
executed by Tenant, returned to Landlord and attached to this lease after Tenant
takes occupancy. Tenant's failure to execute and return the Confirmation of
Lease Commencement within fifteen (15) days after service by Landlord shall be
deemed approval by Tenant of all information set forth therein.
4.3 Tenant agrees that if Landlord is unable to deliver possession of the
Premises to Tenant on the date above specified for the commencement of the Term
of this Lease, this Lease shall not be void or voidable, nor shall Landlord be
liable to Tenant for any loss or damage resulting therefrom, but the expiration
date of the Term shall be extended by the same number of days that the Tenant's
possession of the Premises was delayed by Landlord's inability to deliver
possession, and in such event Tenant shall not be liable for any rent until such
time as Landlord tenders delivery of possession of the Premises to Tenant with
Landlord's work therein, if any, substantially completed. If Landlord's
inability to deliver the Premises is not the result of acts or omissions of
Tenant or its agents, and if such delay in delivery of possession continues for
150 days after the Lease Commencement date, Tenant shall have the right to
cancel this Lease
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by written notice to Landlord 15 days prior to the effective date of
cancellation. The above notwithstanding, there shall be no delay in commencement
of the Term or in Tenant's liability for payment of rent if Landlord is unable
to deliver possession of the Premises due to any act, omission or delay of
Tenant. Should Landlord tender possession of the premises to Tenant prior to the
date specified for commencement of the term hereof, and Tenant elects to accept
such prior tender, such early occupancy shall be subject to all of the terms,
covenants and conditions of this Lease, including the payment of rent, and shall
not alter or affect the expiration date of the Term as set forth in Paragraph 3
above. In the event that Tenant commences occupancy of the Premises on any date
other than the commencement date of the Term pursuant to this Xxxxxxxxx 0,
Xxxxxxxx and Tenant shall promptly execute a written amendment to this Lease
setting forth and confirming the date occupancy commenced.
5. RENT
5.1 Commencing on the first day of the Term of this Lease, Tenant shall
pay to Landlord as monthly installments of Rent in advance, due and payable on
the first day of each calendar month in lawful money of the United States the
following sums:
5.2 Per Sq. Ft. Per Sq. Ft.
-------------- -------------------
Months Fifth Floor Sixth Floor Monthly Rent
--------------- -------------- ------------------- -----------------
01 - 12 $2.50 $2.30 $81,408.00
12 - 24 $2.60 $2.40 $84,800.00
25 - 36 $2.70 $2.50 $88,192.00
37 - 48 $2.81 $2.81 $95,315.20
49 - 60 $2.92 $2.92 $99,046.40
5.3 All rent, including Rent and escalation, due under this Lease shall be
paid at the address set out after the name of the Landlord or such other address
as may be designated in writing by Landlord.
If the date of commencement occurs on a day other than the first day of a
calendar month, the rent for such first month shall be prorated at the monthly
rate agreed upon in this lease agreement divided by the total number of days in
the first month times the number of days occupied during the first month.
If the date of expiration occurs on a day other than the first day of a calendar
month, the rent for such last month shall be prorated at the monthly rate agreed
upon in this lease agreement divided by the total number of days in the last
month times the number of days occupied during the last month.
6. TAXES AND OPERATING EXPENSES ESCALATION
6.1 Tenant shall pay to Landlord its pro rata share (as defined in Section
6.2 below) of the following expenses ("Expenses") paid or incurred, by Landlord
on the Building, land, parking, and appurtenant site improvements whereon the
Premises are located (the "Property") to the extent the Expenses exceed the
expenses paid or incurred in the calendar year 2000, hereinafter defined as
"Base Year".
6.1.1. All real property taxes paid by Landlord that are levied upon
and/or assessed against the Property, including any taxes which may be levied on
rents (other than state or federal income taxes), the use or occupation of the
Building, vehicles utilizing parking areas, the making of this Lease, and the
occupancy of Tenant, Tenant shall be responsible for and charged separately for
any real property tax assessed on tenant improvements installed by Tenant in
accordance with Article 13 herein. If the local taxing authority issues a
separate tax statement for Tenant's improvements, Tenant shall pay those taxes
directly prior to delinquency. Notwithstanding the foregoing, the following
shall be excluded from real property taxes as defined herein:
(a) Any charges or penalties or interest accrued through Landlord's
nonpayment or late payment of taxes or assessments.
(b) Any taxes arising from or applicable to all other real and
personal property of the Landlord.
(c) Any real property tax assessed on tenant improvements installed by
or at the cost and expense of any other tenant of the Building.
6.1.2 Any tax, fee, charge, or excise, however designated, by any
governmental or public authority applicable to the Property that is a direct or
indirect substitute in whole or in part for or in addition to real property
taxes. Estate, inheritance, transfer, gift, or franchise taxes levied on
Landlord shall not be included in Expenses, provided such taxes are not levied
to replace real property taxes, or relate to environmental or energy charges.
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6.1.3 If, during the Term of this Lease, Landlord makes capital
improvements to the Building, Premises, or common areas as required by any new
or existing federal, state, city, or county legislation for reasons of energy
conservation, handicapped access, or other reasons of public health, safety, and
welfare, Landlord may amortize such capital improvement costs over the
reasonable life of the capital improvement period and include the amortized cost
in Expenses. Any work necessary to correct latent defects in the Building or to
correct Landlord's failure to construct the Building in accordance with
applicable building codes and standards, shall be excluded from Expenses.
6.1.4 All insurance premiums of fire, earthquake, extended coverage,
liability, and any other insurance that Landlord reasonably maintains on the
Building.
6.1.5 The cost of all Building services, including, without
limitation, elevator maintenance, engineering wages and benefits, maintenance
and repair, supplies, janitorial wages and benefits, utilities for heating and
ventilation, window cleaning, miscellaneous operating expenses, landscaping and
common area expenses, security, utilities provided to all common areas, the
salaries of the building manager and other building and parking personnel, and
administration and management fees. Any building services may be performed by
Landlord or its affiliates or agents provided such charges and fees do not
exceed those charges and fees of independent contractors in similar buildings in
the San Xxxx area.
6.2 Tenant's pro rata share of Taxes and Operating Expenses shall be
dividends of those fractions represented by Tenant's total net rentable square
feet as of Lease Commencement Date (defined as 33,920 Square Feet) increased by
the portion of any Expansion Space upon exercise of any Expansion Option,
divided by the total net rentable square feet of the building (134,980 Square
Feet which based on space originally leased would be 25.13%). If less than one
hundred percent (100%) of the net rentable area of the building is serviced as
applicable during any calendar year or portions thereon, there will be a
proportional decrease to the total net rentable area of the building for
variable expenses only based on the ratio of the Tenant's total net rentable
square footage bears to the total net rentable area of the Building actually
serviced as applicable. Variable expenses shall be defined as all utilities,
janitorial, janitorial supplies, window cleaning, Building services, and
Building supplies which are provided to the Property. Therefore, Tenant is only
responsible for its pro rata share of expenses on occupied or serviced areas and
not for vacant areas, which is Landlord's responsibility.
6.3 The amount of Additional Rent to be paid by Tenant shall be determined
and payable as follows:
6.3.1 After the end of each calendar year during the Lease Term,
Landlord shall deliver to Tenant a statement of the actual Operating Expenses
for the preceding calendar year which shall become the current year's estimate
of Operating Expenses ("Estimated Expenses"), and Landlord's statement of
Tenant's Pro rata Share of the increase, if any, in the Estimated Expenses over
the Base Year Expenses (the "Excess Expenses"). For purpose hereof, the term
"Base Year Expenses" shall mean the Expenses incurred during calendar year 2000.
6.3.2 If the Estimated Expenses as determined for any calendar year
are less than the actual Operating Expenses incurred by Landlord during that
calendar year, then Tenant shall pay its pro rata share of such difference
within thirty (30) days on receipt of Landlord's statement delivered pursuant to
Subparagraph 6.3.1.
6.3.3 Tenant shall also pay, within thirty (30) days of receipt of
such statement, an amount equal to one-twelfth (1/12th) of its Pro rata Share of
the Excess Expenses times the number of months (including the month in which
payment is made) since the first such month of the year.
6.3.4 Thereafter, with each payment of Rent, Tenant shall pay one-
twelfth (1/12) of its Pro rata Share of the Excess of Expenses.
6.3.5 If the Estimated Expenses as determined for any calendar year
exceed the actual operating Expenses incurred by Landlord during that calendar
year, then Tenant's Pro rata Share of such difference shall be credited against
its next payment of Rent.
6.3.6 Landlord's and Tenant's obligation to make any payment pursuant
to subparagraph 6.3.2 and 6.3.5 above shall survive the termination of this
Lease. If after termination of this Lease, actual Operating Expenses for the
calendar year of the termination are less than Estimated Expenses for such year,
Landlord shall pay Tenant in cash its Pro rata share of such difference. If
actual expenses are higher than Estimated Expenses, then Tenant shall pay
Landlord in cash its Pro rata Share of such difference. Any payment pursuant to
this subparagraph shall be prorated based upon the number of months of the Term
in the year of termination.
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6.4 Landlord shall maintain complete and accurate records of all Expenses.
Tenant or its representative shall have the right to inspect Landlord's records
of the Expenses once each year during reasonable business hours and following
thirty (30) days' notice to Landlord.
6.5 For purposes of computing Tenant's pro rata share of Excess Expenses
under this Lease, the maximum increase in the Building's Operating Expenses for
any one-year over the prior year shall be limited to ten percent (10%). This
provision limits the base for calculating Tenant's pro rata share and shall not
be construed to limit any increase in Tenant's pro rata share of the Excess
Expenses.
7. CONSIDERATION
7.1 Upon execution of this Lease by Tenant, Tenant shall deposit with
Landlord the sum of ninety-nine thousand forty-six and 40/100 dollars
($99,046.40), ("Security Deposit") to secure the faithful performance by Tenant
under this Lease. If Tenant shall at any time fail to make payment or fail to
keep or perform any Term, covenant, and condition on its part may be made or
performed or kept under this Lease, including without limitation, payment of
Rent, maintenance of the Premises in good repair, and surrendering the Premises
in a clean condition, Landlord may, but shall not be obligated to and without
waiving or releasing Tenant from any obligation under this Lease, and without
waiving its right to treat such failure as a default hereof, use, apply or
retain the whole or any part of the Security Deposit reasonably necessary to
remedy such failure of Tenant. In such event, Tenant shall, within five (5)
working days of written demand by Landlord, remit to Landlord sufficient funds
to restore said Security Deposit and Landlord may commingle it, use it in
ordinary business, transfer or assign it, or use it in any combination of those
ways. No interest shall accrue on the Security Deposit. Should Tenant comply
with all of said Terms, covenants, and conditions, and promptly pay all of the
rental herein provided as it falls due, and at the end of the Term of this
Lease, then said Security Deposit shall be returned to Tenant within thirty (30)
days following the termination of this Lease and vacating of the Premises by
Tenant.
8. LATE CHARGE
8.1 Lessee hereby acknowledges that late payment by Lessee to Lessor of
Base Rent, Lessee's Share of Operating Expense increases or other sums due
hereunder will cause Lessor to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed on Lessor by the terms of any mortgage or trust
deed coveting the Building. Accordingly, if any installment of Base Rent,
Operating Expense increase, or any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within five (5) days after such amount
shall be due, then, without any requirement for notice to Lessee, Lessee shall
pay to Lessor a late charge equal to 5% of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee's
default with respect to such overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies granted hereunder.
9. USE
9.1 Tenant shall use and occupy the Premises during the Term for general
office purposes and no other purpose without the prior written consent of
Landlord. Tenant shall not use, suffer or permit the Premises or any part
thereof to be used for any other purpose or purposes without obtaining written
consent of Landlord, which consent shall not be unreasonably withheld.
9.2 Nothing contained in this Lease shall be construed to prohibit or
limit Landlord from using or leasing any portion of the Building, development,
or project of which the Premises are a part, or any other property owned or
controlled by him, for any lawful purpose.
9.3 Should Tenant commit or permit any act or acts upon the Premises or
use the Premises or permit the Premises to be used in any manner which will
increase the existing rate of insurance on the Building, any part thereof or its
contents or any part thereof, such additional expense shall be paid by Tenant to
Landlord within ten (10) days of delivery to Tenant of notice of such increase.
Tenant shall not, however, commit any acts which will cause the cancellation of
any insurance policy. Tenant shall not sell or permit to be kept, used or sold
in or about the Premises any article which may be prohibited by the standard
form of fire insurance policies, as such now or are hereafter provided, covering
the Building, any part thereof, or its contents.
9.4 Tenant shall not commit or suffer to be committed any waste upon the
Premises or any public or private nuisance or any other act or thing which may
disturb the quiet enjoyment of any other tenant in the Building in which the
Premises are located. Tenant shall not use the Premises or permit the Premises
to be used in whole or in part for any purpose that is deemed to be in violation
of any laws, ordinances, regulations or roles of any public authority or
organization at any time. A judgement of any court of competent jurisdiction or
the admission by Tenant in any judicial or administrative action or proceeding
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against Tenant that Tenant has violated any such laws, ordinances, regulations,
or rules in the use of the Premises shall be deemed to be a conclusive
determination of that fact between Landlord and Tenant.
9.5 Upon the expiration or sooner termination of this Lease, Tenant shall
quit and surrender the Premises to Landlord in good condition and repair
reasonable wear and tear excepted.
10. BUILDING SERVICES
10.1 Landlord agrees to furnish heating, ventilating and air conditioning
to the Premises to an extent lawfully permitted for the comfort and occupation
of the Premises to during the hours 7:00 a.m. to 6:00 p.m., Monday through
Friday and from 9:00 a.m. through 3:00 p.m. on Saturdays, legal holidays
excepted. Tenant agrees to keep the corridor doors closed. Tenant agrees not to
install any equipment which gives off heat in an amount which would place an
overload on the central building facilities; and in all respects to conform with
any reasonable rules and regulations Landlord shall make for the use of the
heating and air conditioning systems and will not install equipment which would
place an overload on the structure of the Building. Tenant will have the right
to require and pay for at its cost and expense heating and air conditioning
delivered to the floor or floors in which its Premises are located at times
other than those specified herein, provided it gives Landlord twenty-four (24)
hours notice of such requirements during weekdays and forty-eight (48) hours
during weekends and holidays.
10.2 Landlord shall provide water, electricity, and use of elevators
twenty-four (24) hours per day, seven (7) days a week.
10.2.1 Landlord shall maintain, in good condition, the following:
(a) The structural parts and exterior walls of the Building, which
structural parts include the foundations, bearing walls, subfloor,
roof, and windows (except if caused by acts of Tenant or its
invitees).
(b) The unexposed electrical, plumbing and sewage systems including
without limitation, those portions of the systems lying outside
Premises;
(c) Utilities and building standard lamp replacement on a scheduled
basis;
(d) Heating, ventilating and air conditioning systems of the
Building;
(e) The landscaping, parking, loading areas, walks and driveways of
Premises;
(f) Elevators
10.3 Landlord agrees to furnish, or cause to be furnished, the Premises
with electricity necessary for lighting and fractional horsepower office
machines, water, and elevator service in the Building. Janitorial service will
be furnished five (5) times weekly, legal holidays excepted, time and days to be
at Landlord's option. Window cleaning, inside and outside, will be furnished two
(2) times per year. No electric current will be furnished for high-energy
consumption equipment such as electronic business machines or computers (other
than electric typewriters, word processors, adding machines, copy machines, fax
machines, or desk-top computers using 110 volts) or for hot plates or electric
heaters (see Exhibit B attached hereto).
10.4 If Tenant shall require electric current for purposes other than
those specified above, it is understood that Landlord may cause an electric
meter to be installed in the Premises for that equipment and kept in repair at
the sole cost and expense of the Tenant, so Tenant agrees to pay Landlord for
all such electric current consumed for any such other purposes at the rates
charged for similar services by the local public utility plus any additional
expense incurred in installing and maintaining such meter and keeping account of
the current so consumed. Statements of Landlord for such consumption of electric
current shall be rendered to Tenant not less frequently than quarter annually,
and final statements shall be rendered to Tenant on or before the last days of
the fourth month after expiration of the Lease. The amount of such statements
shall be paid by Tenant within fifteen (15) days after the same have been
rendered.
10.5 Landlord shall not be liable for any damage to person or property of
any nature whatsoever, or compensation or claim for abatement of Rent or
otherwise by reason of any inconvenience, annoyance, injury, or loss arising
from the installation, operation, and maintenance of any equipment or service
provided under this Article 10 or otherwise or from any failure to keep said
equipment or service in operation when such failure is occasioned by act or
neglect of Tenant or by repairs, removals, improvements needful in the judgement
of Landlord or by any power failure, labor controversy or by any accident or
casualty whatsoever, or for any other reason whatsoever and howsoever occurring
beyond Landlord's reasonable control. If interruptions, curtailment or stoppage
of any equipment or service extends beyond five (5) working days after written
notification is received by Landlord and is caused by Landlord or
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its agents', employees', or contractors' negligence in properly maintaining or
otherwise timely commencing repair of any item of equipment, then Tenant shall
be entitled to a pro rata adjustment of rent for the period of any such
curtailment or stoppage of service.
10.6 Landlord shall not be required to furnish and Tenant shall not be
entitled to receive any such service provided for in this Article 10 during any
period when Tenant is in default under the provisions of this Lease.
11. CONDITION OF PRESSES AND REPAIRS
11.1 Tenant shall be deemed to have agreed by accepting occupancy that the
Premises are in good order, condition, and repair except for latent defects and
except for items as to which Tenant has notified Landlord in writing prior to
the date on which Tenant occupies the Premises. Tenant, at Tenant's expense,
shall keep the Premises in good order, condition, and repair, including all
fixtures, and equipment installed by Tenant except for normal wear and tear. In
the event Tenant fails to maintain the Premises in good order and repair, except
for reasonable wear and tear, Landlord shall give Tenant notice to make such
repairs or perform such maintenance as Landlord deems appropriate. In the event
Tenant fails to do so within fifteen (15) days of receipt of notice, or if such
repairs cannot be reasonably made within such a period and if Tenant has not
commenced to make the repairs and/or has not diligently prosecuted the repairs
to completion, Tenant shall be in material breach and default of this Lease, and
Landlord shall have the option, but not the obligation, to make such repairs or
perform such maintenance at the expense of Tenant and the cost thereof shall be
deemed to be, and shall be paid, as additional rent, with the rent next due
following the delivery of notice to Tenant of said cost. Landlord shall have no
liability to Tenant for any damage, inconvenience, or interference with the use
of the Premises by Tenant as a result of making any such repairs or performing
such maintenance. Landlord's right to perform such repair is in addition to a
cumulative with all other rights Landlord has hereunder and at law and in
equity, and Landlord may elect to utilize any number of such other remedies with
or without so performing such work.
12. ALTERATIONS
12.1 Tenant, at its expense, may make changes, additions and improvements
to the Premises provided any change, addition or improvement shall:
(a) Be made only with the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed, and which shall
include approval of space plans and final working drawings, if
applicable; and
(b) comply with all applicable governmental regulations and carry
certification from the Tenant's designer or architect that the
changes, additions or improvements to the Premises, to the best of the
certifier's knowledge, meet the requirements of the Americans with
Disabilities Act; and
(c) equal or exceed the current construction standards for the
building; and
(d) be performed by licensed contractors who have, prior to commencing
work, delivered to Landlord evidence of insurance coverage in amount
and form satisfactory to Landlord, which current insurance
requirements are described in Article 12.1.1 of this Lease.
12.1.1 Commercial General Liability Insurance - Landlord's current
--------------------------------------
insurance requirements for contractors working in the Building, which may be
changed from time to time as is reasonably necessary, are as follows:
Each contractor or subcontractor shall secure and maintain, at its own expense,
a commercial general liability policy which insures against bodily injury,
property damage, personal injury and advertising injury claims arising from work
conducted or service provided on behalf of the Tenant, with a combined single
limit of $1,000,000 per occurrence, a general aggregate limit of $2,000,000, and
a products/completed operations aggregate limit of $2,000,000. Any general
aggregate limit shall apply per project (contractor). Such insurance shall
include Landlord, Landlord's Agents or Representatives and the
Engineer/Architect as additional insureds and certificate holders. Such
insurance shall include the following coverage extensions:
(a) Contractual liability;
(b) Broad form property damage liability;
(c) Personal and advertising injury liability; and
(d) Coverage for liability arising from independent contractors.
Contractor's completed operations insurance shall remain in effect for two years
after completion of work on behalf the Landlord. Coverage may not be written on
a claims made basis without prior approval of Landlord.
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High Risk
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Any contractors or subcontractors whose work or services listed on the "High
Risk Schedule" attached as Exhibit E-1 are required to provide a combined single
limit of $5,000,000 per occurrence, a general aggregate limit of $5,000,000 and
a products/completed operations aggregate of $5,000,000. All other requirements
remain unchanged.
Business Auto Liability
-----------------------
Contractors and subcontractors shall secure and maintain, at their own expense,
a business auto liability policy which insures against bodily injury and
property damage claims arising out of maintenance, use or operation of "any
auto." A combined single limit of liability for bodily injury and property
damage of $1,000,000 per accident shall be furnished. Such insurance shall
include Landlord and Landlord's Agents or Representatives as additional insureds
and certificate holders.
Workers Compensation & Employers Liability
------------------------------------------
Contractors and subcontractors shall secure and maintain, at its own expense,
workers compensation insurance and employers liability insurance. The workers
compensation insurance must satisfy the Contractor's/Subcontractor's workers
compensation obligation to its employees in the states in which they operate on
the Tenant's behalf. Employers liability insurance must be secured with minimum
limits of $1,000,000 for bodily injury by accident, $1,000,000 each employee for
bodily injury by disease, and a $1,000,000 policy limit for bodily injury be
disease or by Contractor's/Subcontractor's employees.
Certificate of Insurance
------------------------
Contractors/Subcontractors shall furnish certificates of insurance, evidencing
such policies required above prior to commencement of work or services and prior
to each renewal thereafter. Such insurance shall be written with insurers
licensed to do business in the state in which the property is located, with a
Best Insurance Reports rating of "A," "VIII" or better unless otherwise approved
by Landlord, Landlord's Agents or Representatives. Such policies shall be
endorsed and such certificates shall provide that no cancellation, non-renewal
or material reduction in coverage can take effect unless 30 days prior written
notice by registered mail to furnished to the Landlord.
12.1.2 Tenant or Tenant's contractor(s) shall apply for and obtain any
and all permits required for any alteration. Copies of each permit, the signed,
approved inspection records and a Certificate of Occupancy issued by the
Building Department shall be provided to Landlord at the completion of work and
prior to Tenant's occupancy of the Premises.
12.1.3 Within sixty (60) days of the completion of any alterations to
the Premises, Tenant shall provide Landlord with a copy of the construction
contract for the alteration along with copies of lien releases evidencing
Tenant's full payment under that contract.
12.1.4 Within sixty (60) days of completion of any alterations to the
Premises, Tenant shall provide to Landlord one (1) set of reproducible sepia "as
built" drawings and two (2) "as built" copies of drawings showing all
alterations, improvements, and changes to the Building and Premises.
12.2 Tenant shall have the right at any time during the Term of this lease
to remove its trade fixtures and personal property from the Premises provided
that Tenant is not then in default of any of its obligations hereunder and
provided such removal shall not damage or mar the Premises. Tenant, upon the
termination of this lease or the expiration of the Term hereof or upon vacating
the Premises for any reason, shall quit and surrender the Premises in good
order, condition, and repair, reasonable wear and tear excepted. Upon the
termination of this Lease or the expiration of the Term, Landlord shall have the
option to require Tenant to remove from the Premises, at Tenant's expense, all
trade fixtures placed on the Premises by Tenant, with the Premises thereafter to
be restored or repaired as required in Article 11.1 by Landlord, at the expense
of the Tenant.
12.3 Tenant shall keep the Premises and the Building of which the Premises
are a part free and clear of any liens and shall indemnify, hold harmless, and
defend Landlord from any liens and encumbrances arising out of any work
performed or materials furnished by or at the direction of Tenant. In the event
any lien is filed, Tenant shall do all acts necessary to discharge any lien
within ten (10) days of filing, or if Tenant desires to contest any lien, then
Tenant shall deposit with Landlord within ten (10) days of filing the lien such
security as Landlord shall demand to insure the payment of the lien claim. In
the event Tenant shall fail to pay any lien claim when due or shall fail to
deposit the security with Landlord within the aforesaid ten (10) day period, the
Tenant shall be in default of this Lease. In addition to any other remedies
Landlord may have under this Lease for the default, Landlord shall also have the
right to expend all sums reasonably necessary to discharge the lien claim and to
notify the Tenant of the amount of such sums.
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Thereafter, Tenant shall pay as additional rental, when the next rental payment
is due, all sums expended by Landlord in discharging any lien, including actual
attorneys' fees and costs.
13. TAXES
13.1 Tenant shall pay, or cause to be paid, before delinquency, any and all
taxes levied or assessed and which become payable during the Term hereof upon
all Tenant's leasehold improvements, equipment, furniture, fixtures and personal
property located in the Premises; except taxes attributed to Landlord's tenant
improvement allowance given to the original tenant of the Premises. In the event
any or all of the Tenant's leasehold improvements, equipment, furniture,
fixtures, and personal property shall be assessed or taxed with the Building,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's property. If the local taxing
authority issues a separate tax statement for Tenant's improvements, Tenant
shall pay those taxes directly prior to delinquency. Failure of Tenant to so pay
timely all or any part of the taxes it is obligated to pay hereunder shall be a
material breach and default of this Lease.
14. ASSIGNMENT AND SUBLETTING
14.1 Tenant shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet or otherwise transfer or encumber all or any part of Tenant's
interest in this Lease or in the Premises, without Landlord's prior written
consent, which Landlord shall not unreasonably withhold or delay. Landlord shall
respond to Tenant's request for consent hereunder in a timely manner and any
attempted assignment, transfer, mortgage, encumbrance or subletting without such
consent shall be void, and shall constitute a breach of this Lease.
14.2 If Tenant wishes to sublet any portion of the Premises ("Proposed
Sublease Space"), Tenant shall give to Landlord, at least fifteen (15) days
prior to the proposed effective date of such subletting ("Proposed Effective
Date") a notice of intention to sublease ("Notice Of Intention"), which states
the Proposed Effective Date and fully describes the Proposed Sublease Space and
the proposed subtenant. Tenant shall also provide Landlord any additional
information requested by Landlord concerning the proposed sublease or the
proposed sublessee immediately upon request.
14.3 If Tenant wishes to sublet the whole Premises for the entire remaining
term, as to the whole Premises, Landlord shall have the right, to be exercised
by giving notice ("Recapture Notice") to Tenant within fifteen (15) working days
after receipt of Tenant's Notice of Intention, to recapture the Premises. If
such Recapture Notice is given, it shall serve to cancel and terminate the
entire remaining Term of this Lease as of the Proposed Effective Date and as
fully and completely as if said Date had been definitely fixed for the
expiration of the Term of this Lease and all option rights of Tenant under this
Lease with respect to the space shall also terminate retroactively as of the
date Tenant gave its Notice of Intention. If such Recapture Notice is not given
within 15 working days after receipt of Tenant's Notice of Intention, to
recapture the Premises then approval to sublease shall be deemed given.
14.4 As to a portion of the Premises, upon receiving Tenant's Notice of
Intention, Landlord will not unreasonably withhold or delay its consent to
Tenant's subletting the Proposed Sublease Space pursuant to the Proposed
Agreement as provided in its Notice of Intention subject, however, to all the
other provisions of this Article.
14.5 In the event of any assignment or sublease of all or any portion of
the Premises ("Transferred Space") where the rental reserved and all other
consideration paid by or on behalf of the assignee or subtenant for such
assignment or sublease, no matter how characterized and without regard to
whether such appears in the assignment or sublease, exceed or are in addition to
the rental reserved in the Lease or prorate portion of such rental, as the case
may be, for such Transferred Space, Tenant shall pay Landlord, as additional
rent, immediately after Tenant receives the same, fifty percent (50%) of such
excess after first deducting the cost, amortized on a straight line basis over
the remaining term of the Lease, of (i) the Broker's commission paid by Tenant
with regards to the transfer; (ii) the cost of improvements made to the Premises
by Tenant at Tenant's expense for the purpose of subletting or assigning.
14.6 Tenant (and any guarantor of this Lease) remains fully liable during
the unexpired Term of the Lease. Regardless of the Landlord's consent, no
subletting or assignment shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provisions hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Tenant or any successor of Tenant, in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against said assignee. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and such action shall not relieve
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Tenant of liability under this lease.
14.7 Tenant shall have the right to enter into a sublease, subject to the
Landlord's approval as defined herein and which approval will not be
unreasonably withheld or delayed, provided that the proposed tenant is generally
compatible with the use and tenant mix of the Building and that existing tenants
would not be adversely affected by the sublease tenant's use and occupancy of
the Premises. Tenant shall not sublease the Premises to any other Tenant that is
or in the future will be prohibited by virtue of restrictive clause(s) in any
other tenant lease and Landlord reserves the right to deny the right to sublease
to such tenant(s) unless express permission and waiver are received from the
tenant or tenants holding such restrictive clause(s). For purpose of this
Section 14.7 any use permitted in Section 9.1 shall be deemed a compatible use
and tenant mix of the building.
14.8 If Tenant is a corporation (other than a corporation which has fifty
(50) or more shareholders and tangible assets of One Million Dollars
($1,000,000) or more in fair market value), or is an unincorporated association
or partnership (other than a partnership which has fifty (50) or more partners
and tangible assets of One Million Dollars ($1,000,000) or more in fair market
value), then the transfer, assignment, or hypothecation of any stock or interest
in such corporation or partnership in the aggregate during the Term of this
Lease in excess of thirty-three and one-third percent (33-1/3%) shall be deemed
an assignment within the meaning and provisions of this section 14.
14.9 Attorneys' Fees: In the event Tenant shall assign or sublet the
Premises or request the consent of Landlord to any assignment or subletting or
if Tenant shall request the consent of Landlord for any act Tenant proposes to
do then Tenant shall pay Landlord's reasonable attorney's fees incurred in
connection therewith, such attorney's fees not to exceed Three Hundred Fifty
($350.00) Dollars for each such request.
15. HOLDING OVER
15.1 Any holding over after the expiration of this Lease by Tenant with the
consent of the Landlord shall be deemed to be a tenancy from month to month and
except for the Term thereof shall be on the same terms and conditions specified
herein, so far as applicable, except for Rent which shall be at 150% of the rent
due under this agreement.
16. NOTICES
16.1 All notices required or permitted by this Lease shall be in writing
and may be delivered in person (by hand or by messenger or courier service) or
may be sent by regular, certified or registered mail or U.S. Postal Service
Express Mail, with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 16.
Either Party may by written notice to the other specify a different address for
notice purposes, except that upon Lessee's taking possession of the Premises,
the Premises shall constitute Lessee's address for the purpose of mailing or
delivering notices to Lessee. A copy of all notices required or permitted to be
given to Lessor hereunder shall be concurrently transmitted to such party or
parties at such addresses as Lessor may from time to time hereafter designate by
written notice to Lessee.
16.2 Any notice sent by registered or certified mail, return receipt
requested, shall be deemed given on the date of delivery shown on the receipt
card, or if no delivery date is shown, the postmark thereon. If sent by regular
mail the notice shall be deemed given forty-eight (48) hours after the same is
addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or overnight courier that guarantees next day
delivery shall be deemed given twenty-four (24) hours after delivery of the same
to the United States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone confirmation of receipt of the transmission thereof,
provided a copy is also delivered via delivery or mail. If notice is received on
a Saturday, Sunday or legal holiday, it shall be deemed received on the next
business day.
16.3 Notices for Landlord shall be addressed to:
00 XXXXXXX XXXXXXXXX LIMITED PARTNERSHIP
c/x Xxxxx Sesnon Buttery
00 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
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cc: 00 XXXXXXX XXXXXXXXX LIMITED PARTNERSHIP
c/x Xxxxx Sesnon Buttery
11828 Xx Xxxxxx Xxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
16.3 Notices for Tenant, prior to its occupancy of the Premises, shall be
addressed to:
AGILE SOFTWARE, INC.
Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxx, CFO
17. SIGNS
17.1 Tenant may not place or permit to be placed in, upon, about, or
outside the Premises or any part of the Building in which the Premises are
located, any sign(s) unless the prior written consent of Landlord is obtained.
17.2 Tenant shall pay all permit and license fees which may be required to
be paid for the erection and maintenance of any and all such signs, and such
signs shall be legally permitted to be installed. Tenant agrees to exonerate,
save harmless, protect and indemnify Landlord from and against any and all
losses, damages, claims, suits, or actions for any damage or injury to person or
property caused by the erection and maintenance of such signs or parts thereof,
and insurance coverage for such signs shall be included in the public liability
policy which Tenant is required to furnish under Sections 20.1 and 20.2 hereof:
17.3 Landlord hereby agrees to install a building directory in the lobby of
the Building, which building directory shall list, one time only at Landlord's
expense in one location, both the name of the Tenant and each of Tenant's
partners, principals, and key executives. Each directory shall be listed
alphabetically from A through Z, and all names shall be of uniform size and
style.
18. RIGHT OF ENTRY
18.1 Landlord and its agents shall have the right at any reasonable time
upon reasonable notice and accompanied by Tenant, except for janitors,
emergencies and in response to Tenant's request for repairs, to enter upon the
Premises for the purposes of inspection, serving, or posting notices,
maintaining the Premises, making any necessary or appropriate repairs,
alterations, or additions to any portion of the Premises (including the erection
and maintenance of scaffolding, partitions, and repair equipment as shall be
required), complying with laws, ordinances, and regulations, protecting the
Premises, or for any other lawful purpose, including showing the Premises to
prospective purchasers or tenants, so long as such entry and activity do not
interfere with the business activities of Tenant on the Premises. Tenant shall
not, in such event, claim or be allowed or paid any damages for any injury or
inconvenience occasioned thereby.
19. INDEMNIFICATION
19.1 Tenant shall indemnify and hold harmless Landlord from any and all
claims arising from Tenant's use of the Premises or from the conduct of its
business or from any activity, work, or other things done, permitted or suffered
by Tenant in or about the Premises, and shall further indemnify and hold
harmless Landlord against and from any and all claims arising from any breach or
default to the performance of any obligation on Tenant's part to be performed
under the terms of this Lease, or arising from any act or negligence of the
Tenant, and from all costs, attorneys fees, and liabilities, incurred in or
about the defense of any such claim or any action or proceeding brought thereon.
Tenant upon notice from Landlord shall defend the same at Tenant's expense by
counsel reasonably satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in, upon, or about the Premises, from any cause other than
Landlord's negligence or intentional misconduct; and Tenant hereby waives all
claims in respect thereof against Landlord. Tenant shall give prompt notice to
Landlord of any casualty or accident in or about the Premises of which it has
knowledge or notice; its complete and total failure to do so shall be a material
breach and default and shall serve to nullify the above exception for Landlord's
active negligence. This indemnity is conditioned upon Landlord giving Tenant
prompt notice of any claim being asserted or claimed against Landlord for which
Tenant might be called upon to indemnify Landlord.
19.2 Landlord shall indemnify and hold harmless Tenant from any and all
claims arising from Landlord's work, or other things done, permitted or suffered
by Landlord in or about the Premises, and shall further indemnify and hold
harmless Tenant against and from any and all claims arising from any breach or
default to the performance of any obligation on Landlord's part to be performed
under the terms of this Lease, or arising from any act or negligence of the
Landlord, and from all costs, attorneys fees, and liabilities, incurred in or
about the defense of any such claim or any action or proceeding brought thereon.
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Landlord upon notice from Tenant shall defend the same at Landlord's expense by
counsel reasonably satisfactory to Tenant.
20. INSURANCE
20.1 Casualty Insurance. At all times during the Lease Term, Tenant, at
------------------
Tenant's expense, shall maintain in effect policies of casualty insurance
coveting; (a) all alterations made by Tenant and all leasehold improvements; and
(b) all of Tenant's Property and other personalty in, on or about the Premises,
in an amount not less than their full replacement cost (without deduction for
depreciation). Such policies shall contain clauses providing that the amount of
coverage shall be increased automatically by one percent (1%) at the end of each
calendar quarter, which rate of increase may be revised from time to time at
Landlord's request. Such policies shall provide for protection against any
perils normally included within the classification of "All Risks" and shall
contain endorsements coveting; demolition and increased costs of construction,
water damage, vandalism and malicious mischief, and liability for changes in
laws or ordinance. The proceeds of such insurance shall be used for the repair
or replacement of the property so insured. Landlord shall be named as loss payee
as respects alterations and leasehold improvements. Tenant shall, in addition,
maintain at Tenant's own expense a policy or policies of business interruption
and extra expense insurance coverage with limits adequate to protect Tenant's
operations for a period of not less than 12 months.
20.2 Commercial Liability Insurance. At all times during the Lease Term,
------------------------------
Tenant, at Tenant's expense, shall maintain in force a policy of commercial
general liability insurance written on an occurrence basis which contains, at a
minimum, the following coverages and limits:
Each Occurrence $1,000,000
General Aggregate $2,000,000
Products/Completed Operations Aggregate $2,000,000
Personal & Advertising Injury $1,000,000
Fire Damage Legal Liability $ 50,000
Medical Payments $ 5,000
Any general aggregate limit shall apply per location and/or project. Such
insurance shall name Landlord, its trustees, officers, directors, agents,
employees and representatives as additional insureds and shall provide that such
insurance is primary and non-contributing with any other such insurance carded
by the Landlord for the Landlord's own benefit. This coverage shall include
blanket contractual liability, broad form property damage and "hostile fire"
exception to any pollution exclusion in addition to a standard separation of
insureds provision. The amount of such insurance shall not limit Tenant's
liability nor relieve Tenant of any obligation hereunder. Each policy shall
contain cross liability endorsements, if applicable, and shall insure Tenant's
performance of the indemnity provisions contained in Section 19.1 and elsewhere
in this Lease and any other obligations of Tenant to Landlord hereunder.
20.3 Other Required Insurance. At all times during Lease Term Tenant shall,
------------------------
at Tenant's expense, maintain business auto liability which insures against
bodily injury and property damage claims arising out of the ownership,
operation, maintenance or use of "any auto". A minimum combined single limit of
$1,000,000 per accident shall apply.
20.4 Policy Requirements
-------------------
(a) All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies, qualified to do business in the
State of California, approved by Landlord and, if required, by Landlord's
Mortgagees. Copies of all policies and certificates thereof shall be
delivered to Landlord at lease ten (10) days prior to Tenant's occupancy of
the Premises. Each policy shall provide that it may not be canceled or
modified except after thirty (30) days' prior written notice to Landlord.
Tenant shall furnish Landlord with renewals or "binders" of each policy,
together with evidence of payment of the premium therefor, at least thirty
(30) days prior to expiration. Tenant shall have the right to provide
insurance coverage pursuant to blanket policies obtained by Tenant if the
blanket policies expressly afford coverage as required by this Lease.
(b) Landlord and, if required, Landlord's Mortgagees shall be named as
additional insureds in each insurance policy and, if requested by Landlord,
they also shall be named as loss payees. The Commercial General Liability
Insurance shall; apply severally to Landlord and Tenant; cover each of them
as if separate policies had been issued to each of them; not contain
provisions affecting any rights which any of them would have had as
claimants if not named as insureds; be primary insurance and not considered
contributory, with any other valid and collectible insurance available to
Landlord and be endorsed as necessary to cover the foregoing requirements.
(c) Each policy of All Risk Coverage which Tenant obtains for the Premises,
and which Landlord obtains for the Building, shall include a clause or
endorsement denying the insurer any right of
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subrogation against the other party hereto to the extent that rights have
been waived by the insured party prior to the occurrence of injury or less.
Landlord and Tenant each waive any rights of recovery against the other for
injury or loss due to hazards covered by its own insurance, to the extent
of the injury or loss covered thereby.
20.5 Tenant's Failure to Deliver Policies. If Tenant fails to deliver
------------------------------------
copies of the insurance policies and evidence of payment therefor within the
time required pursuant to Section 20.4, Landlord may, but shall not be obligated
to obtain the required insurance, and the cost thereof, together with an
administrative fee of Five Hundred Dollars ($500), shall be payable by Tenant to
Landlord on demand. Nothing in this Section shall be deemed to be a waiver of
any rights or remedies available to Landlord under this Lease or at law or in
equity if Tenant fails to obtain and deliver the required insurance policies and
evidence of payment.
21. ESTOPPEL CERTIFICATE
21.1 Tenant shall execute, acknowledge and deliver to Landlord within ten
(10) days of request by Landlord from Lease Commencement Date or payment in full
by Landlord of any contribution toward Tenant Improvements, if any, the attached
form of Estoppel unmodified and in full force and effect (or if there have been
modifications that the same are in full force and effect as modified), the date
of commencement of this Lease, the date on which rent has been paid, and any
such other information as Landlord shall reasonably request. Also, at any time
if requested by Landlord, Tenant shall execute and return to Landlord within ten
(10) days the same or a similar form of Estoppel Certificate. It is acknowledged
by Tenant that any such statement is intended to be delivered by Landlord and
relied upon by prospective purchasers, mortgages, beneficiaries under deeds of
trust or assignees thereof. Failure of Tenant to timely execute and return said
Certificate to Landlord within said ten (10) days shall be deemed approval of
same by Tenant and all information set forth on said Certificate shall be
conclusively binding on Tenant.
22. SUBORDINATION AND NONDISTURBANCE
22.1 Tenant shall, subject to the conditions set forth below, at the
request of Landlord, in writing, cause its interest to become subordinate to any
such first mortgage or first deed of trust which has been or shall be placed on
the land and building or land or building of which the Premises form a part.
Tenant shall, at any time hereinafter on demand, execute any instruments,
releases, or other documents that may be required by any mortgagee, mortgagor,
or trustor or beneficiary under any such first deed of trust or first mortgage
for the purpose of subjecting and subordinating this Lease to the lien of any
such first mortgage or first deed of trust, provided, however, that such
instrument must provide in effect that: (a) in the event of foreclosure or other
action taken under the mortgage or deed of trust by the holder thereof, this
Lease and the rights of Tenant hereunder (including the right, if any, to extend
the Term thereof and for additional space) shall not be disturbed but shall
continue in full force and effect so long as Tenant shall not be in default
hereunder; and (b) such holder shall permit insurance proceeds and condemnation
proceeds to be used for any restoration and repair required by this Lease; and
(c) no property owned or removable by Tenant shall be subject to any lien of the
mortgage or deed of trust. Tenant agrees that if the mortgagee, beneficiary, or
any person claiming under the mortgagee or beneficiary shall succeed to
the/merest of Landlord in this Lease, Tenant will recognize said mortgagee,
beneficiary, or person as its landlord under the terms of this Lease, provided
that said mortgagee, beneficiary, or person for the period during which
beneficiary, trustee, or person shall hold Landlord's interest in the Premises
shall assume all of its obligations of Landlord hereunder.
23. COMPLIANCE WITH LAWS AND RULES
23.1 Tenant, at Tenant's sole cost, shall comply at all times with all
laws, ordinances, orders, and regulations of all governmental and
public authorities with respect to the Premises. Tenant shall also
abide by applicable laws and Landlord's rules and regulations with
respect to its use of the common areas of the Building and the
associated adjacent Parking Facilities controlled or managed by
Landlord. A judgment of any court of competent jurisdiction or the
admission by Tenant in any judicial or administrative action or
proceeding against Tenant that Tenant has violated any such laws,
ordinances, or order or regulations, shall be deemed to be conclusive
as to Landlord and Tenant.
23.2 Tenant and Tenant's agent, servants, and employees, visitors, and
licensees shall observe and comply strictly with all reasonable roles and
regulations now adopted or which are adopted hereafter for the care, protection,
cleanliness, and proper operation of the Building. A copy of the current Rules
and Regulations is attached as Exhibit B. Landlord shall have no obligation to
Tenant as a result of the violation of any such rules by any tenant or any other
person. Landlord shall maintain a copy of such roles in the office of Landlord
for inspection by Tenant at any reasonable time. Each and every such role shall
be deemed a material term of this Lease.
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24. DESTRUCTION
24.1 In the event of damage causing a partial destruction of the Premises
during the Term of this Lease from any cause as to which repairs can be made
within (90) days from the date of the damage under the applicable laws and
regulations of governmental authorities, Landlord shall repair said damage
promptly and within a reasonable period of time, but Tenant and Tenant's
insurance carrier will be solely responsible for repair and replacement, if any,
of Tenant Improvement, furniture, fixture, or any other work required in the
Premises, and shall repair and replace within said ninety (90) days following
full access to the Premises by Tenant, all improvements made at Tenant's expense
and all furniture and fixtures in the Premises. Any such partial destruction
shall in no way void this Lease, except that Tenant shall be entitled to a
proportionate reduction of rent while such repairs are being made such
proportionate reduction to be based upon the extent to which the portion of the
Premises not usable by Tenant bears to the total area of the Premises, provided
that if such damage is caused by negligence or greater culpability of Tenant,
his agents, servants, employees, invitees, or permitees then Tenant shall not be
entitled to abatement of rent not covered by insurance. Tenant shall be liable
to Landlord for any and all damage caused by negligence or greater culpability
of Tenant, his agents, servants, employees, invitees, or permitees and the cost
of repairing same and Tenant shall be entitled to no reduction in rent.
24.2 If such repairs cannot be made within ninety (90) days, Landlord may,
at its option, make the same within the period of no more than one hundred
twenty (120) days, this Lease continuing in full force and effect and the rent
to be proportionately rebated as provided in the previous Section. In the event
that Landlord does not so elect to make such repairs which cannot be made in
ninety (90) days, or such repairs cannot be made under such laws and
regulations, or in the event Landlord does not make the repair within one
hundred twenty (120) days, this Lease may be terminated at the option of either
party.
24.3 With respect to any partial destruction which Landlord is obligated to
repair or may elect to repair under the terms of this Article, the provisions of
any statute or law permitting Tenant to terminate this Lease are waived by
Tenant. In the event that the Building which the Premises are situated is
destroyed to the extent of thirty-three and one-third percent (33-1/3%) or more
of the then replacement cost thereof, the Landlord may elect to terminate this
Lease, whether the Premises are injured or not.
24.4 A total destruction of the Premises or of the Building shall terminate
this Lease as of the date of such total destruction. The determination that such
total destruction has occurred shall be made by Landlord in its sole discretion
which shall be reasonably exercised.
24.5 Except as stated in Section 24.1 herein with respect to reduction of
rent as therein provided, Tenant shall not have any claim whatsoever against
Landlord for any damages, nor shall Tenant be released or discharged from any of
its obligations, liabilities, or indebtedness hereunder, should the possession
by Tenant of the Premises be disturbed or interfered with or affected in any
manner whatsoever, and irrespective of how caused, or by whom, excepting only
the negligent, intentional, or willful interference in the possession of Tenant
by Landlord.
24.6 Upon termination of this Lease pursuant to Article 24, an equitable
adjustment shall be made concerning advance rent and any advance payments made
by Tenant to Landlord. Landlord shall, in addition, return to Tenant so much of
Tenant's security deposit as to which Landlord is not entitled hereunder.
24.7 Tenant waives the provisions of California Civil Code Sections 1932
(2) and 1933 (4) and any successor statutes or other statutes or laws which may
now or during the Term of this Lease exist and which relate to termination of
leases when the thing leased is destroyed, in whole or in part, and agrees that
such event shall be governed solely by the terms of this Lease.
24.8 Anything contained in this Article to the contrary notwithstanding,
Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages from any casualty covered by this Article
occurs during the last twelve (12) months of this Lease or any extensions
thereof. Tenant shall have the right to cancel this lease if Landlord elects not
to make repairs under Section 24.2.
25. CONDEMNATION
25.1 If any part of the Premises shall be taken or condemned for public or
quasi-public use by right of eminent domain, with or without litigation, or
transferred by agreement in connection with such public or quasi-public use,
this Lease, as to the part so taken or condemned or transferred shall terminate
as of the date title shall vest in the condemnor or transferee and the rent
payable hereunder shall be adjusted so that tenant shall be required to pay for
the remainder of the Term only such portion of the rent as the area in the part
remaining that remains useable by Tenant for its business purposes after the
taking or condemnation or transfer bears to the area of the entire Premises as
of the date title shall vest in the condemnor.
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25.2 In the event of such partial taking or condemnation by judgment,
verdict or agreement, Landlord and Tenant each shall have the option to
terminate this Lease as of the date title shall vest in the condemnor or
transferee. If all of the Premises shall be so taken, condemned, or transferred
or such part thereof be so taken, condemned, or transferred so that there does
not remain a portion susceptible of occupation hereunder, this Lease shall
terminate as of the date title shall vest in the condemnor or transferee and
Tenant shall have no responsibility to pay rent from the date of such
termination.
25.3 All compensation awarded upon such condemnation or taking shall go to
the Landlord and the Tenant shall have no claim thereto, and the Tenant hereby
irrevocably assigns and transfers to Landlord any right to compensation or
damages to which Landlord may become entitled during the Term hereof by reason
of the condemnation of all or part of the Premises. Notwithstanding anything in
the foregoing to the contrary, Tenant, if not in default hereunder, shall have
the right to receive that portion of the award made expressly for the moving or
relocation expenses of Tenant, the trade fixtures of Tenant, any improvements
paid for by Tenant or business disruption of Tenant.
26. INABILITY TO PERFORM
26.1 This Lease and the obligation of Tenant hereunder shall not be
affected or impaired because Landlord is unable to fulfill any of his
obligations hereunder or is delayed in doing so, if such inability or delay is
caused by reason of unavailability or scarcity of material, strike, or other
labor troubles, or any other causes beyond the reasonable control of Landlord.
If Landlord is unable to give possession of the Premises to Tenant as provided
for under Article 4 hereof within three (3) months after the estimated Lease
Commencement Date set forth therein, this Lease shall automatically terminate,
and Landlord, by reason thereof shall not be subject to any liability therefor
except that Landlord shall return to Tenant all monies which Landlord has
theretofore received from Tenant as prepaid rent or as a security deposit.
27. INVOLUNTARY TERMINATION
27.1 This Lease, at the option of Landlord, shall cease and terminate upon
the happening of any of the following events:
(a) The filing of a petition for any proceeding under the Bankruptcy Act or
any amendment thereto by Tenant or Lease Guarantor or any other person
against Tenant or any Lease Guarantor, and same is not discharged within
ninety (90) days of filing.
(b) A finding or judgment of insolvency of Tenant or any Lease Guarantor.
(c) An assignment for the benefit of creditors by Tenant or any Lease
Guarantor.
(d) The levying of a writ of execution on the business of Tenant or any
Lease Guarantor or on the assets of Tenant or any Lease Guarantor which
represents thirty-three and one-third percent (33-1/3%) or more of net
worth of that Tenant or Lease Guarantor.
(e) The appointment of a receiver to take possession of the Premises or the
assets of Tenant or any Lease Guarantor which represents thirty-three and
one-third percent (33-1/3%) or more of the net worth of that Tenant or
Lease Guarantor.
28. DEFAULT
28.1 Tenant shall be in material default of this lease, if Tenant fails to
observe or perform any of the covenants, conditions or provisions of this Lease
to be observed or performed by Tenant other than the payment of rent where such
failure shall continue for a period of thirty (30) days after written notice
thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's noncompliance is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commenced such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion. To the extent permitted by law, such
thirty (30) day notice shall constitute the sole and exclusive notice required
to be given Tenant under applicable Unlawful Detainer statutes. If Tenant shall
fail to make any payment of rent or any other payment required to be made by
Tenant, as and when due, where such failure shall continue for a period of three
(3) days after written notice thereof from Landlord to Tenant, or if Tenant
should abandon, vacate, or surrender the Premises or be dispossessed by any
process of law, or Tenant shall fail to perform timely any of its other terms or
obligations under this Lease, the same shall constitute an act of default and
Tenant shall be in material breach of this Lease, and Landlord, in addition to
all other rights or remedies provided by law, shall have the following rights:
28.1.1 In the event Tenant commits an act of default and abandons the
Premises, Landlord may elect to continue this Lease in full force and effect and
not terminate Tenant's right to possession of the Premises, in which event
Landlord shall have the right to enforce any rights and remedies granted by this
Lease and by law against Tenant, including without limitation, the right to
collect when due
14
rental and other sums payable hereunder, provided that after the occurrence of
the act of default and abandonment of the Premises by Tenant and for so long as
Landlord does not terminate Tenant's right to possession of the Premises, Tenant
shall have the right to assign or sublet this Lease upon the prior written
consent of Landlord, which consent Landlord will not unreasonably withhold.
Landlord shall not be deemed to have elected to terminate Tenant's right to
possession unless Landlord gives Tenant written notice of such election to
terminate and in no event shall Landlord's acts of maintenance or preservation
of the Premises, efforts to relet the Premises, or obtaining the appointment of
a receiver to protect the interest of Landlord under the Lease be deemed to
constitute such termination.
28.1.2 Landlord may elect by written notice to Tenant to terminate the
Lease at any time after the occurrence of an act of default, and in such event
Landlord may, at Landlord's option and to the extent permitted by law, declare
this Lease and Tenant's right to possession terminated, re-enter the Premises,
remove Tenant's property therefrom and store it for Tenant's account and at
Tenant's expense, eject all persons from the Premises, and recover damages from
Tenant without hindrance, and Landlord shall not thereby be liable in damages
for such re-entry or be guilty of trespass or forcible entry. In the event
Landlord elects to so terminate this Lease and Tenant's right to possession, or
they are terminated by operation of law, such termination shall cancel all
Tenant's options, if any, to extend the Term.
28.1.3 In the event Landlord elects to so terminate this Lease and
Tenant's right to possession in accordance with the foregoing paragraph, or the
same are terminated by operation of law, Landlord may recover as damages from
Tenant the following:
(i) The worth at the time of award of the unpaid rent and other sums
due hereunder which had been earned at the time of termination of the
Lease; plus
(ii) The worth at the time of the award of the amount by which the
unpaid rent and other sums due hereunder which would have been earned
after the date of termination of this Lease until the time of the
award exceeds the amount of such loss of rental and other sums due
that Tenant proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which unpaid
rental and other sums due hereunder for the balance of the Term after
the time of award exceeds the amount of loss of such rental and other
sums that Tenant proves could be reasonably avoided; plus
(iv) Any other amount, including attorney's fees and court costs,
necessary to compensate Landlord for all detriment proximately caused
by Tenant's act of default or which in the ordinary course of things
would be likely to result therefrom, including but not limited to the
cost of reletting and remodelling the Premises for a new tenant and
brokerage fees involved in same.
28.1.4 The "worth at the time of award" of the amounts referred to in
subparagraphs 28.1.3 (i) and 28.1.3 (ii) above is computed by allowing interest,
at the maximum rate allowable in California as of the date of this Agreement for
business loans, from the date(s) such unpaid rental and other sums became due.
The "worth at the time of award" of the amount referred to in subparagraph
28.1.3 (iii) above is computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%).
29. ATTORNEY'S FEES AND HOLD HARMLESS
29.1 Tenant agrees that if Landlord is involuntarily made a party defendant
to any litigation. concerning this Lease or the Premises or the Building in
which the Premises are a part by reason, in whole or in part, of any act of
omission of Tenant and not because of any act or omission of Landlord, the
Tenant shall hold harmless the Landlord from all liability by reason thereof,
including reasonable attorney's fees incurred by Landlord in such litigation and
all taxable court costs. Landlord agrees that if Tenant is involuntarily made a
party defendant to any litigation concerning this Lease or the Premises or the
Building in which the Premises are a part by reason, in whole or in part, of any
act of omission of Landlord and not because of any act or omission of Tenant,
the Landlord shall hold harmless the Tenant from all liability by reason
thereof, including reasonable attorney's fees incurred by Tenant in such
litigation and all taxable court costs. If legal or equitable action shall be
brought by Landlord for unlawful detainer of the Premises, for the breach of any
term, covenant or provision hereof, the party prevailing in said action
(Landlord or Tenant as the case may be) shall be entitled to recover from the
party not prevailing costs of suit and a reasonable attorney's fee which shall
be fixed by the Judge of the Court, or any court-appointed arbitrator or any
Judge pro tem.
15
30. WAIVER
30.1 No covenant, term, or condition or the breach thereof shall be deemed
to be waived by Landlord, except by written consent of Landlord, and any waiver
or breach of any covenant, term, or condition shall not be deemed to be a waiver
of any preceding or succeeding breach of the same or any other covenant, term,
or condition. Acceptance of all or any portion of rent at any time shall not be
deemed to be a waiver of any covenant, term, or condition except as to the rent
payment accepted.
31. QUIET POSSESSION
31.1 Upon commencement of the Term of this Lease and Tenant's timely paying
the Rent, Operating Expenses Escalation payments and other sums provided
hereunder and timely observing and performing all of the covenants, conditions,
and provisions on Tenant's part to be observed and performed hereunder, Tenant,
so long as not in default hereunder, shall have quiet possession of the Premises
for the entire Term hereof, subject to all the provisions of the Lease.
32. SALE BY LANDLORD
32.1 In the event of a sale or conveyance by Landlord of the Building
containing the Premises, the same shall operate to release Landlord from any
future liability upon any of the covenants or conditions, express or implied,
herein contained in favor of Tenant, and in such event Tenant agrees to look
solely to the responsibility of the successor in interest to Landlord in and to
this Lease. This Lease shall not be affected by any such sale, and Tenant agrees
to attorn to the purchaser or assign.
33. BROKER REPRESENTATION
33.1 Landlord and Tenant agree that neither party has appointed a real
estate broker to represent it in the negotiation and consummation of the Lease
except for Xxxxxx Xxxxx and Xxxx Xxxxxx of CPS representing Landlord and Xxxx
Xxxxxx and Xxxx Xxxxxxx of Xxxxxxx Commercial representing Tenant, whose
commissions shall be paid by Landlord pursuant to a separate agreement between
Landlord and CPS.
34. CONDITION OF PREMISES
34.1 Tenant shall accept the Premises strictly "as-is", except for the
improvements described in the attached Exhibits "E". Prior to Tenant's occupancy
of the Premises, Landlord shall upgrade the fluorescent lighting in the Premises
to the updated, energy-efficient, building standard.
35. PARKING
35.1 Throughout the Term of this Lease, Tenant shall be granted the right
to purchase up to one hundred two (102) unreserved employee parking spaces, on a
monthly basis, at the then current rate for such spaces. The spaces shall be for
passenger cars only and shall be located in Park Center Plaza Garage III.
35.2 Tenant is granted the use of all spaces subject to the reasonable
rules and regulations for operation of the parking facilities.
35.3 Tenant agrees not to assign, sublet, or in any way transfer the right
to use of the parking spaces, except to any successor to Tenant's Premises.
36. HAZARDOUS MATERIALS
36.1 Landlord warrants that, to the best of its knowledge, the Premises are
free of Hazardous Substances at the time of delivery to Tenant.
36.2 Tenant shall not cause or permit any Hazardous Substances to be used,
stored, generated, or disposed of on or in the Premises by Tenant, Tenant's
agents, employees, contractors, or invitees without first obtaining Landlord's
written consent. If Hazardous Substances are used, stored, generated, or
disposed of on or in the Premises except as permitted above, or if the Premises
become contaminated in any manner for which Tenant is legally liable, Tenant
shall indemnify and hold harmless the Landlord from any and all claims, damages,
fine, judgments, penalties, costs, liabilities or losses (including, without
limitation, a decrease in value of the Premises, damages caused by loss or
restriction of rentable or usable space, and any and all sums paid for
settlement of claims, attorneys' fees, consultants' fees, and experts' free)
arising during or after the Lease Term and arising as a result of that
contamination by Tenant. This indemnification includes, without limitation, any
and all costs incurred because of any investigation of the site or any cleanup
removal, or restoration mandated by a federal, state, or local agency or
political subdivision.
16
36.3 Without limitation of the foregoing, if Tenant causes or permits the
presence of any Hazardous Substance on the Premises and that results in
contamination, Tenant shall promptly, at its sole expense, take any and all
necessary actions to return the Premises to the condition existing prior to the
presence of any such Hazardous Substance on the Premises. Tenant shall first
obtain Landlord's approval for any such remedial action.
36.4 As used herein, "Hazardous Substances" means any substance that is
toxic, ignitable, reactive, or corrosive and that is regulated by any local
government, the state of California, or the United States Government. "Hazardous
Substance" includes any and all materials or substances that are defined as
"hazardous waste," extremely hazardous waste" or a "hazardous substance"
pursuant to state, federal or local governmental law. "Hazardous Substance"
includes, but is not restricted to, asbestos, polychlorobiphenyls ("PCBs") and
petroleum.
36.5 Without limitation of the foregoing, it is understood that Tenant may
use or store Hazardous Substances which are required for the operation of normal
office equipment, including, but not limited to copiers, printers, fax machines,
etc.
37. MISCELLANEOUS
37.1 The captions of the paragraphs contained in this Lease are for
convenience only and shall not be deemed to be relevant in resolving any
question of interpretation or construction of any paragraph of the Lease.
37.2 All of the terms, covenants, and conditions of the Lease shall be
binding upon and inure to the benefit of the parties hereto and their heirs,
executors, and administrators, successors, and assigns, except that nothing in
this provision shall be deemed to permit any assignment, subletting or use of
the Premises other than expressly provided herein.
37.3 This Lease shall be governed and interpreted solely by the laws of the
State of California then in force. Each number, singular or plural, as used in
this Lease shall include all numbers and each gender shall be deemed to include
all genders.
37.4 Time is of the essence of this Lease and of each and every provision
hereof, except as to the conditions relating to the delivery, of possession of
the Premises to Tenant. Each term and covenant contained in this Lease to be
performed by Tenant is a condition and any breach of such after notice and the
applicable grace period is a material breach of this Lease. If Tenant shall
consist of more than one person or organization, each such term and covenant
shall be deemed to be the joint and several obligation of each such person or
organization. All rights and remedies granted to Landlord by law or equity or
under the Lease shall be cumulative and non-exclusive of any other remedy.
37.5 In the event Tenant hereunder shall be a corporation, the Tenant
hereby covenants and warrants that Tenant is a duly qualified corporation and
all steps have been taken prior to the date hereof to qualify Tenant to do
business in California and all franchise and corporate taxes have been paid to
date, and all future forms, reports, fees, and other documents necessary to
comply with applicable law will be filed when due. Each individual executing
this Lease on behalf of said corporation, warrants that the execution and
delivery of this Lease by him has been duly authorized by the Board of Directors
of the Tenant. If Tenant is a corporation Tenant shall, within thirty (30) days
after execution of this Lease, deliver to Landlord a certified copy of a
resolution of the Board of Directors said corporation authorizing or ratifying
execution of this Lease.
37.6 If Tenant is a partnership, joint venture, or other unincorporated
association, each individual executing this Lease on behalf of Tenant represents
that this Lease is binding upon Tenant; furthermore, Tenant agrees that the
execution of any written consent hereunder, or of any written modification or
termination of this Lease, by a general partner of Tenant or any authorized
agent of Tenant, shall be binding upon Tenant.
37.7 The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for, the
Premises; and this document shall become effective and binding only upon
execution and delivery hereof by Tenant and by Landlord (or, when duly
authorized, by Landlord's agent or employee). No act or omission of any agent of
Landlord or of Landlord's broker shall alter, change, or modify any of the
provisions hereof.
37.8 If any provision of this Lease shall be determined to be void by any
court of competent jurisdiction, then such determination shall not affect any
other provisions of this lease and all other provisions shall remain in full
force and effect; and it is the intention of the parties hereto that if any
provision of this Lease is capable of two constructions, only one of which would
render the provision valid, then the provision shall have the meaning which
renders it valid.
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37.9 Tenant agrees and covenants to comply with all of Landlord's rules and
regulations as set forth in Exhibit B attached hereto. Landlord shall have the
right from time to time to promulgate amendments and additional new rules and
regulations for the care, safety, maintenance, and cleanliness of the Premises
and the Building, or for the preservation of good order. On delivery of a copy
of such amendments and additional new rules and regulations to Tenant, Tenant
shall comply with same. A violation of any such rules and regulations shall
constitute a default by Tenant under this Lease. If there is a conflict between
the said roles and regulations and any of the provisions of this Lease, the
provisions of the Lease shall prevail.
37.10 The laws of the State of California shall govern the validity,
performance and enforcement of this Lease. Should either party institute a legal
suit or action for enforcement of any obligation contained herein, it is agreed
that the venue of such suit or action shall be in the county in which the
Premises are located and Tenant expressly consents to Landlord's designating the
venue of any such suit or action. This Lease is the result of negotiations
between the parties hereto and shall not be construed either for or against
Landlord or Tenant, but this Lease shall be interpreted in accordance with the
general tenor of the language in an effort to reach an equitable result.
Landlord: 00 XXXXXXX XXXXXXXXX LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxx
---------------------
Xxxxx X. Xxxxx
Tenant: AGILE SOFTWARE, INC.
By:
---------------------
Its:
---------------------
Date: 11-12-99
----------------
18
EXHIBIT "A"
00 Xxxxxxx Xxxxxxxxx
33,920 Total Rentable Square Feet
[Floor plan of Fifth and Sixth Floors]
19
EXHIBIT "B"
RULES AND REGULATIONS
1. Tenant, its agents or employees shall not in any way obstruct the sidewalks,
entry, passages, corridors, hall, stairways or elevators, or use the same in any
other way than as a means of passage to and from their respective offices, nor
bring nor keep anything therein which will obstruct or interfere with the rights
of other tenants, or in any way injure or annoy them, or which shall conflict
with the regulations of the Fire Department or the fire laws or with any
insurance policy on the Building or any part thereof, or with any roles or
ordinances established by the Board of Health, and they shall not make or permit
any improper or unusual noises or odors in the Building, nor bring into nor keep
within the Building any animal, bicycle, or motorcycle; and the tenant agrees
that it will pay any damages that the Landlord may suffer by a violation of this
clause by them, their agents or employees.
2. The wash basins, waterclosets, and urinals shall not be used for any purpose
other than those for which they were constructed and no sweepings, rubbish,
ashes, newspaper, or any other substances of any kind shall be discharged into
them. The doors between the Premises and the corridors of the Building shall at
all times, except when in actual use for ingress and egress, be kept closed.
3. No sign, advertisement, or notice shall be inscribed, painted, or affixed on
any part of the outside or inside of said Building without written consent of
the Landlord, and if such consent shall be inscribed, painted, or affixed by
Landlord or its agent and the cost thereof to be charged to and paid by Tenant.
All outside lettering shall be Building standard height and style.
4. When electric wiring of any kind is introduced it must be connected as
directed by the Landlord and no boring or cutting of wires will be allowed
except with the consent of the Landlord. The location of telephones, telegraph
instruments, electric appliances, call boxes, etc., shall be prescribed by the
Landlord.
5. The Landlord shall have the right to prescribe the weight, size, and position
of all safes and other property brought into the Building, and also the times of
moving the same in and out of the Building; and all such moving must be done
under the supervision of the Landlord. The Landlord will not be responsible for
loss or damage done to any such safe or property from any cause; but all damage
done to the Building by moving or maintaining any such safe or property shall be
repaired at the expense of Tenant. All safes shall stand on steel plates of such
size as shall be designated by Landlord. Any charges for the Building Structural
Engineer to evaluate floor load capacity for any Tenant furnishings (safes,
files, library systems, etc.) shall be paid for by Tenant.
6. No additional lock or locks shall be placed by the Tenant on any door in the
Building unless written consent of the Landlord shall have first been obtained,
and all locks must be identical to the Building Standard and Master Key System.
Duplicate keys for any lock shall be ordered through Landlord, Tenant agrees, at
the termination of the tenancy, to return all keys for doors and waterclosets.
Landlord reserves the right to number all doors and rooms in accordance with the
uniform system of numbering throughout the Building.
7. Tenant shall not employ any person or persons other than the janitor of the
Landlord for the purpose of cleaning the Premises without the written consent of
the Landlord first had and obtained. The Landlord shall be in nowise responsible
to Tenant for any loss of property from the Premises, however occurring, or for
any damage done to the effects of Tenant by the janitor or any of his employees,
or by any other person, or any other cause. Janitor's services will not include
the shampooing of carpets and rugs which, when considered necessary by the
Landlord, shall be done by the Tenant.
8. Waste and unnecessary use of electric lights is prohibited. No electric
current will be furnished for high-energy-consumption electronic business
machines or computers (other than electric typewriters, word processors, desk-
top microcomputers, adding machines, microwave ovens, and copy machines), or for
hot plates or electric heaters.
9. The requirements of tenants will be attended to only upon application to the
Office of the Building. The use of the Building freight elevator must be
approved by the Building Manager prior to the delivery or removal of any
furnishings or equipment. Building employees shall not perform any work or do
anything outside of their regular duties unless under special instructions from
the Office of the Building.
10. Tenant agrees not to store goods, wares, or merchandise upon the Premises.
Tenant waives the rights conferred upon the Tenant by law to have illuminating
gas supplies in or about the Premises leased. Tenant further agrees to use said
Premises in conformity with all the laws, regulations, and ordinances of the
United States of America, the State of California, the City and County where
said Premises are situated, and any national, municipal, or governmental
authority whatsoever.
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11. No alterations or general contractor work shall be done in any part of the
Building, such as painting, changing, or addition of any partitions, door or
doors, window or windows, nor shall there be any nailing, boring, or screwing
into walls, woodwork, or plastering without the consent of Landlord or its
agent. Any such work performed in the Building must be coordinated through the
Office of the Building, and comply with Landlord's Rules and Regulations for
contractor work in the Building.
12. All glass, locks and trimmings in or upon the doors and windows,
respectively, belonging to the Building shall be kept whole and whenever any
part thereof shall be broken, the same shall immediately be replaced or repaired
and put in order under the direction and to the satisfaction of the Landlord or
its agent, and shall be left whole or in good repair.
13. Landlord reserves the right to close and keep locked all entrance and exit
doors of the Building during such hours as Landlord may deem to be advisable for
the adequate protection of the property and during the entire day on Sundays and
legal holidays. All tenants, their employees, or other persons entering or
leaving the Building at any time when it is so locked may be required to sign
the Building Register when so doing, and the watchman in charge may refuse to
admit to the Building while it is locked Tenant or any of Tenant's employees, or
any other person, without a pass previously arranged, or other satisfactory
identification showing his right of access to the Building at such time.
Landlord assumes no responsibility and shall not be liable for any damage
resulting from any error in regard to any such pass or admission to the
Building, or for the admission of any unauthorized person to the Building.
14. No pets, other than seeing-eye-dogs for the blind, are allowed in the
Building.
15. The Landlord reserves the right to make such other or further reasonable
rules and regulations as in its judgment may from time to time be needful or
desirable for the safety, care, and cleanliness of the Premises and for the
preservation of good order therein.
21
EXHIBIT C
ESTOPPEL CERTIFICATE
RE: Lessee's Certification and Agreement
Gentlemen:
The undersigned as Lessee of the _____ floors containing ____ square feet in
the above-named property from _________, as Lessor, under Lease dated _______,
has been advised that said Lease will be assigned, directly or by successive
assignments, to ________, (hereinafter referred to as "Assignee") as security
for a Mortgage Loan to be made of purchased by Assignee, and as inducement
therefor confirms and agrees to Items 1 through 9:
1. It hereby ratifies the above Lease.
2. The aforesaid Lease is in full force and effect and has not been modified,
altered, or amended, and constitutes the entire agreement between Lessor and the
undersigned and further, the undersigned, as Lessee, will not surrender, cancel
or otherwise terminate or seek to surrender, cancel or terminate said Lease
except:
(a) in the case of Lessor's default, upon fifteen (15) days' written notice
to Assignee, or upon such other and greater notice to Assignee as is
required by said Lease;
(b) upon written agreement of Assignee.
3. There are no offsets or credits against rentals, and rentals have not been
and will not be prepaid except for monthly advance payments require by said
Lease, except for the following amounts _________:
4. In the event the undersigned receives written notice from Assignee stating
that a default has occurred under the mentioned Mortgage Loan, the undersigned
will thereafter remit all rental payments as directed and to the address set
forth in such written notification.
5. It has received no notice of a prior Assignment, or pledge of rentals under
the mentioned Lease.
6. At any time after it takes possession of the Premises, it shall execute,
acknowledge, and deliver to Landlord at any time within ten (10) days after
request by Landlord, a statement in writing certifying, if such be the case,
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same are in full force and effect as modified), the
date of commencement of this Lease, the date on which the rent has been paid,
and such other information as Landlord shall reasonably request. It is
acknowledged by Tenant that any such statement is intended to be delivered by
Landlord and relied upon by prospective purchasers, mortgagees, beneficiaries
under deeds of trust or assignees thereof.
7. It has accepted the Building shell pursuant to the terms of the above Lease
and is now occupying same.
8. The said Lessor has fulfilled all of its duties relative to the tenant
improvement allowance set forth in the above Lease, and is not in default under
said Lease, nor does the undersigned know of any occurrence which with the
passage of time or the giving of notice would constitute a default of Lessor
thereunder.
9. The Lease rentals are now being paid on a current basis and Lessee is not in
default thereunder, except as may have been provided in Item 3.
This Certificate of Agreement shall insure to the benefit of Assignee, its
successors and assigns and be binding upon the undersigned and its successors
and assigns as Lessee under the Lease.
Date: Tenant:
---------------------
By:
---------------------
Title:
---------------------
22
EXHIBIT D
CONFIRMATION OF LEASE COMMENCEMENT
This Memorandum is made on __________, 19____, between ___________________
("Landlord"), and ____________________________,("Tenant"), who entered into a
lease dated for reference purposes as of ___________, 19 ___, coveting certain
premises located at ______________________, San Jose, California, as more
particularly described in the Lease. All capitalized terms, if not defined
herein, shall be defined as they are defined in the Lease.
1. The parties to this Memorandum hereby agree to confirm the
establishment of the Commencement Date and Expiration Dates of the Term as
follows:
(a) The date of __________, 19_____, is the "Commencement Date" of the
Term;
(b) The date of __________, 19_____, is the "Expiration Date" of the
Term.
2. Tenant hereby confirms the following:
(a) That it has accepted possession of the Premises pursuant to the
terms of the Lease;
(b) That the improvements required to be furnished according to the
Lease by Landlord have been Substantially Completed, subject to the completion
of any "punchlist" items;
(c) That the Lease has not been modified, altered or amended, except
as follows:
(d) That there are no offsets or credits against rentals, nor has any
security deposit been paid except as provided by the Lease Terms; and
(e) That the Lease is in full force and effect.
3. This Memorandum, each and all of the provisions hereof, shall inure to
the benefit, or bind, as the case may require, the parties hereto, and their
respective heirs, successors, and assigns subject to the restrictions upon
assignment and subletting contained in the Lease.
LANDLORD: TENANT:
-------- ------
By: By:
------------------------ ------------------------
Its: By:
------------------------ ------------------------
23
EXHIBIT E
IMPROVEMENTS WORK LETTER
This Improvements Work Letter is made a part of that certain Office Lease dated
November 5, 1999, between Landlord and Tenant (the "Lease"), for the purpose of
setting forth the agreements between Landlord and Tenant pertaining to the
design, construction and installation of certain tenant improvements (the
"Tenant Improvements") to be constructed prior to or concurrently with
commencement of the term of the Lease. All capitalized terms in this
Improvements Work Letter shall have the same meaning as set forth in the Lease
unless otherwise defined herein.
1. Tenant Improvements. Reference herein to "Tenant Improvements" shall
-------------------
include all work to be done in the Premises pursuant to the Tenant
Improvement Plans described in Paragraph 4 below and Exhibit E-l,
including, but not limited to partitioning, doors, ceilings, floor
coverings, finishes (including paint and wall covering), electrical
(including lighting, switching, outlets, etc.), plumbing, heating,
ventilating and air conditioning, fire protection, cabinets and other mill
work.
2. Space Plan. Within fifteen (15) days following execution of this lease,
----------
Landlord and Tenant shall agree upon a mutually acceptable Space Plan ,to
be prepared by Xxxxx Xxxxxxxx (the "Architect") describing the Tenant
Improvements to be constructed in the Premises.
3. Final Pricing and Drawing Schedule. Following approval of the Space Plan,
----------------------------------
Landlord shall cause the Architect to prepare and submit to Tenant final
working drawings and specifications (the "Tenant Improvement Plans"). Upon
completion of the Tenant Improvement plans and their approval by Landlord,
the architect shall submit the Tenant Improvement Plans to Tenant for its
review and approval. Tenant shall have seven (7) days following submission
of the Tenant Improvement Plans to object to the same provided Tenant shall
object to the Tenant Improvement Plans only to the extent they are
inconsistent with the Space Plan approved in accordance with Paragraph 2
above. Any objection made by Tenant to the Tenant Improvements Plans shall
be in writing and submitted to the Architect with a copy to Landlord.
After approval of the Tenant Improvement Plans, they shall thereafter be
submitted to the appropriate governmental body or bodies for plan checking,
a building permit and any other governmental approval required by law.
Concurrent with the plan checking and governmental approval process,
Landlord shall prepare a final budget for Tenant's approval, excepting any
modifications which may be required to reflect changes in the Tenant
Improvement Plans required in order to obtain a building permit or any
other required governmental approval. This budget shall reflect all costs
incurred by Landlord in constructing furnishing or installing the Tenant
Improvements, such costs to include the following (by the way of
illustration only):
(i) All costs of interior design and completion of plans, drawings and
specifications or the Tenant Improvements, including working and as-built
drawings;
(ii) All costs of obtaining building permits and other required
approvals from any governmental entity or regulatory authority having
jurisdiction, including legal costs;
(iii) All fees payable to the Architect and to any other architect,
engineer or other consultant retaining by Landlord to assist in the
design, construction or installation of the Tenant Improvements or the
obtaining of building permits or other approvals in connection therewith;
(iv) All cost of materials, equipment, furnishings or fixtures necessary
to complete the Tenant Improvements in accordance with the Tenant
Improvement Plans; and
(v) All labor and insurance costs, and a construction fee for overhead
and profit and the cost of all on-site supervisory and administrative
staff, office, equipment and temporary services rendered by Landlord's
contractor or contractors in connection with construction of the Tenant
Improvements (including any fees charged by Landlord for Supervision).
After approval of the Tenant Improvement Plans, no further changes to the
Tenant Improvement Plans may be made without the prior written approval
of Landlord, and then only after agreement by Tenant to pay any excess
costs resulting from such changes.
4. Construction of Tenant Improvements. After the Tenant Improvement Plans
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have been prepared and approved, the final budget has been reviewed and a
building permit and all other required governmental approvals for the
Tenant Improvements have been issued, Landlord shall enter into appropriate
contracts for construction and materials with parties selected by Landlord
for the installation of the Tenant Improvements in accordance with the
Tenant Improvement Plans. Landlord shall supervise the completion of such
work and shall use its best efforts to secure completion of the
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work in accordance with the Work Schedule. The cost of such work shall be
paid as provided in Paragraph 5 below.
If Tenant requests changes to the type, extent and quality of the Tenant
Improvements to be furnished, constructed or installed in the Premises
(whether such change is requested before or after commencement of
construction) which causes the cost of completing the Tenant Improvements
to exceed the cost specified in the final budget, Landlord will prepare a
Change Order for Tenant's review stating the cost of such changes and
indicating whether such changes may cause the completion of the Tenant
Improvements to be delayed beyond the Commencement Date of this Lease. No
work covered by a Change Order will commence until the Change Order is
approved in writing by Tenant. The cost of any Change Orders will be
charged against the Tenant Allowance or the Additional Tenant Allowance
until they are expended, and if no funds remain in the Tenant Allowance or
Additional Tenant Allowance, the cost will be paid by Tenant in the manner
prescribed in paragraph 5 of this Exhibit E.
5. Payment of Cost of the Tenant Improvements. Landlord hereby grants to
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Tenant a "Tenant Allowance" of $254,400 (based on $10.00 per rentable
square foot in Suite 500 and $5.00 per rentable square foot in Suite 600).
This Tenant Allowance shall be used initially to pay the entire cost of the
design, construction, installation and furnishing of the Tenant
Improvements, including any and all Change Orders. If the cost of the
Tenant Improvements as described in this paragraph exceed the amount
provided in the Tenant Allowance, the costs in excess of the Tenant
Allowance shall be invoiced to Tenant by Landlord, and the invoiced amounts
will be paid to Landlord within fifteen (15) days of Tenant's receipt of
invoice.
6. Completion. Anything in the Lease or in this Improvements Work Letter to
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the contrary notwithstanding, but without limiting the generality of any
provisions in Paragraph 4 of the Lease benefitting Landlord, it is
understood that Landlord shall not be responsible for, nor shall
commencement of the Term of the Lease or payment of Rent be delayed as a
result of any delay in completion of the Tenant Improvements resulting
directly or indirectly from any of the following:
(a) Tenant's failure to approve any item or perform any other obligation
in accordance with and by the date specified in this Improvements Work
Letter;
(b) Tenant's orders and requests for materials, finishes or installations
other than those readily available; or
(c) Tenant's requested changes in the Tenant Improvement Plans after
their approval or in the type, extent or quality of the Tenant
Improvements to be furnished, constructed or installed in the Premises
(whether such change is requested before or after the Tenant Improvement
Plans have been approved).
Landlord shall provide Tenant with ten (10) days written notice of the
projected date that the Tenant Improvements will be substantially completed
and the Premises ready for occupancy.
7. Punch List. Within ten (10) days after Landlord has notified Tenant that
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the improvements of the Premises have been substantially completed (whether
or not Tenant is then in possession of the Premises), Tenant shall deliver
to Landlord a list (the "Preliminary Punch List") of items that Tenant
deems necessary that Landlord complete or correct in order for the Premises
to conform to the approved final working drawings. Should Tenant fail to
submit the Preliminary Punch List within the ten (10) day period, or should
additional non-conforming items be discovered after the ten (10) day
period, Tenant may submit another list of items for completion or
correction (the "Final Punch List"), which will replace or supplement the
Preliminary Punch List, within thirty (30) days of Landlord's notice to
Tenant of substantial completion of the Premises. Landlord shall
immediately commence to complete or correct the items, except those that it
contends are not justified. If Tenant does not deliver any Punch List to
Landlord within the thirty (30) day period, Tenant shall be deemed to have
accepted the Premises and approved the construction.
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