EXHIBIT 10.13
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LEASE
BY AND BETWEEN
PRINCETON INVESTMENT GROUP LLC
("LANDLORD")
AND
XACCT TECHNOLOGIES, INC.
A DELAWARE CORPORATION
("TENANT")
January 28, 2000
02/02/00
TABLE OF CONTENTS
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ARTICLE PAGE
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1. TERM 1
2. POSSESSION 1
3. BASIC RENT 1
4. RENTAL ADJUSTMENT 2
5. SECURITY DEPOSIT 3
6. USE 4
7. NOTICES 5
8. BROKERS 5
9. HOLDING OVER 5
10. TAXES ON TENANT'S PROPERTY 6
11. CONDITION OF PREMISES 6
12. ALTERATIONS 6
13. REPAIRS 7
14. LIENS 7
15. ENTRY BY LANDLORD 7
16. UTILITIES AND SERVICES 8
17. BANKRUPTCY 8
18. INDEMNIFICATION 8
19. DAMAGE TO TENANT'S PROPERTY 9
20. TENANT'S INSURANCE 9
21. DAMAGE OR DESTRUCTION 10
22. EMINENT DOMAIN 11
23. DEFAULTS AND REMEDIES 11
24. ASSIGNMENT AND SUBLETTING 12
25. SUBORDINATION 13
26. ESTOPPEL CERTIFICATE 13
27. SIGNAGE 14
28. RULES AND REGULATIONS 14
29. CONFLICT OF LAW 14
30. SUCCESSORS AND ASSIGNS 14
31. SURRENDER OF PREMISES 14
32. ATTORNEYS' FEES 14
33. PERFORMANCE BY TENANT 15
34 MORTGAGEE PROTECTION 15
35. DEFINITION OF LANDLORD 15
36. WAIVER 15
37. IDENTIFICATION OF TENANT 15
TABLE OF CONTENTS
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ARTICLE PAGE
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38. PARKING 16
39. TERMS AND HEADINGS 16
40. FINANCIAL STATEMENTS 16
41. TIME 16
42. PRIOR AGREEMENT; AMENDMENTS 16
43. SEPARABILITY 16
44. RECORDING 16
45. CONSENTS 16
46. LIMITATION OF LIABILITY 17
47. RIDERS 17
48 EXHIBITS 17
49. MODIFICATION FOR LENDER 17
50. OPTION TO EXTEND 17
TABLE OF EXHIBITS
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Exhibit A The Premises
Exhibit B Work Letter Agreement
Exhibit C Standards for Utilities and Services
Exhibit D Rules and Regulations
Exhibit E Parking Rules and Regulations
OFFICE BUILDING LEASE
This LEASE is made as of FEBRUARY 2,2000 by and between PRINCETON
INVESTMENT GROUP LLC ("Landlord"), and XACCT TECHNOLOGIES, INC., A DELAWARE
CORPORATION, ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
SUITE NUMBER 201 (the "Premises") outlined on the floor plan attached hereto and
marked Exhibit A, the Premises being agreed, for the purposes of this Lease, to
have an area of approximately 5,212 RENTABLE SQUARE FEET and being situated on
the SECOND FLOOR of that certain office building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇ (the "Building").
The parties hereto agree that said letting and hiring is upon and subject
to the terms, covenants and conditions here set forth. Tenant covenants, as a
material part of the consideration for this Lease to keep and perform each and
all of saId terms, covenants and conditions for which Tenant is liable and that
this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease the Premises shall be
improved by the Tenant Improvements described in the Work Letter marked EXHIBIT
B attached hereto.
1. TERM
The term of this Lease shall be for FIFTY SEVEN (57) MONTHS commencing
APRIL 11, 2000, and ending on JANUARY 15TH, 2005, unless such term shall be
sooner terminated as hereinafter provided. Reference in this Lease to a "Lease
Year" shall mean each successive twelve-month period commencing with the
commencement date.
2. POSSESSION
Tenant agrees that, if Landlord is unable to deliver possession of the
Premises to Tenant on the scheduled 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 in such event the term of this Lease
shall not commence until Landlord tenders possession of the Premises to Tenant
with the Tenant Improvements substantially completed. If Landlord completes
construction of the Tenant Improvements prior to the date scheduled in the Work
Letter. Landlord shall deliver possession of the Premises to Tenant upon such
completion and the term of this Lease shall thereupon commence. Tenant shall
have the right to access the Premises from APRIL 1, 2000 until the Commencement
Date for the purpose of insta11ing furniture, trade fixtures and equipment, and
data and communication systems. Tenant shall not conduct its business from the
Premises during this early access period. Such early occupancy shall be subject
to all of the provisions of this Lease, excluding the commencement of Rent. The
preceding notwithstanding, Tenant may terminate Lease if Landlord is unable to
deliver possession of the Premises on or before JUNE 30, 2000.
3. BASIC RENT
(a) Tenant agrees to pay Landlord Basic Rent for the Premises (subject to
adjustments as hereinafter provided) as follows:
MONTHS OF TERM MONTHLY BASIC RENT
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01-12 $14,333 PER MONTH
13-24 $14,854 PER MONTH
25-36 $15,375 PER MONTH
37-48 $15,897 PER MONTH
49-60 $16,418 PER MONTH
The Basic Rent shall be paid monthly, in advance on the first (1st) day of
each calendar month during the term, except that the first month's rent shall be
paid on execution hereof. If Tenant's obligation to pay rent commences or ends
on a day other than the first day of a calendar month, then the rental for such
period shall be prorated in the proportion that the number of days this Lease is
in effect during such period bears to number of days in such month. In addition
to the Basic Rent, Tenant agrees to pay as additional rental the amount of
rental adjustments and other charges required by this Lease.
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All rental shall be paid to Landlord, without prior demand and without any
deduction or offset, in lawful money of the United States of America, at the
address of Landlord designated on the signature page of this Lease or to such
other person or at such other place as Landlord may from time to time designate
in writing.
(b) In the event Tenant fails to pay any installment of rent when due or
in the event Tenant fails to make any other payment of which Tenant is obligated
under this Lease when due, then Tenant shall pay to Landlord a LATE CHARGE EQUAL
TO TEN PERCENT (10%) MONTHLY of the amount due to compensate Landlord for the
extra costs incurred as a result of such late payment. If any rent or other
payment remains delinquent for a period in excess of 14 days then, in addition
to such late charge, Tenant shall pay to Landlord interest on such rent or other
payment at the maximum rate permitted by law from the date such rent or other
payment became due until paid.
4. RENTAL ADJUSTMENT
(a) For the purpose of this Article 4, the following terms are defined as
follows:
(i) TENANT'S PERCENTAGE. That portion of the Building occupied by
Tenant divided by the total square footage of the Building, which result is the
following 14.41%.
(ii) DIRECT EXPENSES BASE. The amount of the annual Direct Expenses
which Landlord has included in Basic Rent, which amount is the Direct Expenses
incurred for calendar year 2000 actual Direct Expenses.
(iii) DIRECT EXPENSES. The term "Direct Expenses" shall include:
(A) All real and personal property taxes and assessments imposed
by any governmental authority or agency on the Building and the land on which
the Building is located (including a pro rata portion of any taxes levied on any
common areas); any assessments levied in lieu of taxes; any non-progressive tax
on or measured by gross rentals received from the rental of space in the
Building; and any other costs levied or assessed by, or at the direction of, any
federal, State, or local government authority in connection with the use or
occupancy of the Premises or the parking facilities serving the Premises; any
tax on this transaction or any document to which Tenant is a party creating or
transferring an interest in the Premises, and any expenses, including cost of
attorneys or experts, reasonably incurred by Landlord in seeking reduction by
the taxing authority of the above-referenced taxes, less tax refunds obtained as
a result of an application for review thereof; but shall not include any net
income, franchise, capital stock, estate or inheritance taxes.
(B) Operating costs consisting of costs incurred by Landlord in
maintaining and operating the Building, exclusive of costs required to be
capitalized for federal income tax purposes, and including (without limiting the
generality of the foregoing) the following: costs of utilities, supplies and
insurance, costs of services of independent contractors, managers and other
suppliers, the fair rental value of the Building office, costs of compensation
(including employment taxes and fringe benefits) of all persons who perform
regular and recurring duties connected with the management, operation,
maintenance, and repair of the Building, its equipment, parking facilities and
the common areas, including, without limitation, engineers, janitors, foremen,
floor waxers, window washers, watchmen and gardeners, but excluding persons
performing services not uniformly available to or performed for substantially
all Building tenants; a reasonable management fee; cost of maintaining,
repairing and replacing landscaping, sprinkler systems, concrete walkways, paved
parking areas, signs, and site lighting.
(C) Amortization of such capital improvements as Landlord may
have installed: (a) for the purpose of reducing operating costs, (b) to comply
with governmental roles and regulations promulgated after completion of the
Building, and (c) for the purpose of replacing existing capital items and
improvements, provided that such cost together with interest at the maximum rate
allowed by law shall be amortized over such reasonable period as Landlord shall
determine, and only the monthly amortized cost shall be included in Direct
Expenses.
(b) If Tenant's Percentage of the Direct Expenses paid or incurred by
Landlord for any calendar year after the first calendar year exceeds the Direct
Expenses Base included in Tenant's rent, then Tenant shall pay such excess as
additional rent. Accordingly, for each year after the first calendar year, or
portion thereof, Tenant shall pay Tenant's Percentage of Landlord's estimate of
the amount by which Direct Expenses for that year shall exceed the Direct
Expenses Base ("Landlord Estimate"). This estimated amount shall be divided into
twelve equal monthly installments. Tenant shall
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pay to Landlord, concurrently with the regular monthly rent payment next due
following the receipt of such statement, an amount equal to one monthly
installment multiplied by the number of months from January in the calendar
year in which said statement is submitted to the month of such payment, both
months inclusive. Subsequent installments shall be payable concurrently with the
regular monthly rent payments for the balance of that calendar year and shall
continue until the next calendar year's statement is rendered. As soon as
possible after the end of each calendar year, Landlord shall provide Tenant with
a statement showing the amount of Tenant's Percentage of Direct Expenses, the
amount of Landlord's Estimate actually paid by Tenant and the amount of the
Direct Expenses Base. Thereafter, Landlord shall reconcile the above amounts and
shall either ▇▇▇▇ Tenant for the balance due (payable on demand by Landlord) or
credit any overpayment by Tenant towards the next monthly installment of
Landlord's Estimate falling due, as the case may be. For purposes of making
these calculations, in no event shall Tenant's Percentage of the Direct Expenses
be deemed to be less than the Direct Expenses Base.
(c) Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Percentage of Direct Expenses
for the year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated expenses paid and, conversely, any overpayment
made in the event said expenses decrease shall be rebated by Landlord to Tenant.
5. SECURITY DEPOSIT AND ADDITIONAL DEPOSIT (LETTER OF CREDIT)
(a) Tenant shall deposit with Landlord, upon execution of this Lease, the
sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTEEN DOLLARS AND NO/1OOTHS ($16,418).
Said sum shall be held by Landlord as security for the faithful performance by
Tenant of all of Tenant's obligations hereunder. If Tenant defaults with respect
to any provision of this Lease, including but not limited to the provisions
relating to the payment of rent, Landlord may (but shall not be required to)
use, apply or retain all or any part of this security deposit for the payment of
any rent or any other sum in default, or for the payment of any other amount
which Landlord may spend or become obligated to spend by reason of Tenant's
default or to compensate Landlord for any other loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of the deposit is so
used or applied, Tenant shall, upon demand, deposit cash with Landlord in an
amount sufficient to restore the security deposit to its original amount.
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its general
funds. If Tenant shall fully and faithfully perform all of its obligations under
this Lease, the security deposit or any balance thereof shall be returned to
Tenant (or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) at the expiration of the Lease term, provided that Landlord may
retain the security deposit until such time as any amount due from Tenant in
accordance with Article 4 hereof has been determined and paid in full.
(b) Letter of Credit in the amount of $50,000.00
1. Delivery of Letter of Credit. Tenant shall on execution of this
Lease, deliver to Landlord and cause to be in effect during the
Lease Term an unconditional, irrevocable letter of credit ("LOC")
in the amount of $50,000.00. The LOC shall be in a form
acceptable to Landlord and shall be issued by an LOC bank
selected by Tenant and acceptable to Landlord. An LOC bank is a
bank that accepts deposits, maintains account, has a local office
that will negotiate a letter of credit and the deposits of which
are insured by the Federal Deposit Insurance Corporation. Tenant
shall pay all expenses, points, or fees incurred by Tenant in
obtaining the LOC. The LOC shall not be mortgaged, assigned or
encumbered in any manner whatsoever by Tenant without the prior
written consent of Landlord. Tenant acknowledges that Landlord
has the right to transfer or mortgage its interest in the
Project, the Building and in this Lease. And Tenant agrees that
in the event of any such transfer or mortgage Landlord shall have
the right to transfer or assign the LOC and/or the LOC Security
Deposit (as defined below) to the transferee or mortgagee, and in
the event of such transfer, Tenant shall look solely to such
transferee or mortgagee for the return of the LOC.
2. Replacement of Letter of Credit: Tenant may, from time to time,
replace any existing LOC with a new LOC if the new LOC (a)
becomes effective at least thirty (30) days before expiration of
the LOC that it replaces, (b) is in the required LOC amount;
(c) is issued by an LOC bank acceptable to Landlord; and (d)
otherwise complies with the requirements of the Paragraph 5(b)
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3. Landlord's Right to Draw on Letter of Credit. Landlord shall
hold the LOC as additional security for the performance of
Tenant's obligations under this Lease. If, after notice and
failure to cure within any applicable period provided in this
Lease, Tenant defaults on any provision of this Lease, Landlord
may without prejudice to any other remedy it has, draw on that
portion of the LOC necessary to (a) pay Rent or other sum in
default; (b) payor reimburse Landlord for any amount that
Landlord may spend or become obligated to spend in exercising
Landlord's right under Paragraph 23 (Defaults and Remedies);
and/or (c) compensate Landlord for any expense, loss or damage
that Landlord may suffer because of Tenant's default. If Tenant
fails to renew or replace the LOC at least thirty (30) days
before its expiration, Landlord may, without prejudice to any
other remedy it has, draw on the entire amount of the LOC.
4. LOC Security Deposit. Any amount of the LOC that is drawn on by
Landlord but not applied by Landlord shall be held by Landlord as
security deposit (the LOC Security Deposit") in accordance with
Paragraph 5 of this Lease.
5. Restoration of Letter of Credit and LOC Security Deposit. If
Landlord draws on any portion of the LOC and/or applies all or
any portion of such draw, Tenant shall, within five (5) business
days after demand by Landlord, either (a) deposit cash with
Landlord in an amount that, when added to the amount remaining
under the LOC and the amount of any LOC Security Deposit, shall
equal the LOC Amount then required under this Paragraph 5(b);,or
(b) reinstate the LOC to the full LOC Amount.
6. USE
(a) Tenant shall use the Premises for GENERAL OFFICES, INCLUDING SOFTWARE
ENGINEERING DEVELOPMENT AND SUPPORT, MARKETING, AND shall not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord. Nothing contained herein shall be deemed to give Tenant any exclusive
right to such use in the Building. Tenant shall not use or occupy the Premises
in violation of law or the certificate of occupancy issued for the Building, and
shall, upon written notice from Landlord, discontinue any use of the Premises
which is declared by any governmental authority having jurisdiction to be a
violation of law or of the certificate of occupancy. Tenant shall comply with
any direction of any governmental authority having jurisdiction which shall, by
reason of the nature of Tenant's use or occupancy of the Premises, impose a duty
upon Tenant or Landlord with respect to the Premises or with respect to the use
or occupation thereof. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, extended coverage or any other
insurance policy covering the Building and/or property located therein and shall
comply with all rules, orders, regulations and requirements of the insurance
Service Offices, formerly known as the Pacific Fire Rating Bureau or any other
organization performing a similar function. Tenant shall promptly, upon demand,
reimburse Landlord for any additional premium charged for such policy by reason
of Tenant's failure to comply with the provisions of this article. Tenant shall
not do or permit anything to be done in or about the Premises which will in any
way obstruct or interfere with the rights of other tenants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisances in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises.
(b) Tenant shall not use, store or dispose of any hazardous, toxic or
radioactive materials or substances, including those materials identified as
hazardous pursuant to Article II of Title 22 of the California Code of
Regulations, Division 4, Chapter 20, as they may be amended from time to time
("Hazardous Materials"), in, on or about the Premises or the Building without
the prior written consent of Landlord. If Landlord consents to Tenant's use of
any Hazardous Materials in or on the Premises, Tenant shall comply with all
applicable federal state and local laws, statutes, ordinances, rules and
regulations relating to the use, storage and disposal of Hazardous Materials.
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7. NOTICES
Any notice required or permitted hereunder must be in writing and may be
given by personal delivery, overnight courier service, or by mail, and if given
by mail shall be deemed sufficiently given if sent by registered or certified
mail addressed to Tenant at the Premises, or to Landlord at its address set
forth at the end of this Lease. Either party may specify a different address for
notice purposes by written notice to the other except that the Landlord may in
any event use the Premises as Tenant's address for notice purposes.
ADDRESS TO MAIL RENT STATEMENT TO: PRINCETON INVESTMENT GROUP
P. 0. ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇
CHIEF EXECUTIVE OFFICER
ADDRESS TO MAIL NOTICES STATEMENT TO: PRINCETON INVESTMENT GROUP LLC
C/O HYCD, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇
CHIEF EXECUTIVE OFFICER
AND
PRINCETON INVESTMENT GROUP
P. 0. ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇
CHIEF EXECUTIVE OFFICER
8. BROKERS
Tenant warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiation of the Lease. Tenant knows of no real
estate broker or agent who is or might be entitled to a commission in connection
with this Lease. If Tenant has dealt with any other person or real estate broker
with respect to leasing or renting space in the Building, Tenant shall be solely
responsible for the payment of any fee due said person or firm and Tenant shall
hold Landlord free and harmless against any liability in respect thereto,
including attorneys' fees and costs.
9. HOLDING OVER
If Tenant holds over after the expiration or earlier termination of the
term hereof without the express written consent of Landlord, Tenant shall become
a Tenant at sufferance only, at a rental rate equal to one hundred fifty percent
(150%) of the rent in effect upon the date of such expiration (subject to
adjustment as provided in paragraph 4 hereof and prorated on a daily basis), and
otherwise subject to the terms, covenants and conditions herein specified, so
far as applicable. Acceptance by Landlord of rent after such expiration or
earlier termination shall not result in a renewal of this Lease. The foregoing
provisions of this Article 9 are in addition to and do not affect Landlord's
right of reentry or any rights of Landlord hereunder or as otherwise provided by
law. If Tenant fails to surrender the Premises upon the expiration of this Lease
despite demand to do so by Landlord, Tenant shall indemnify and hold Landlord
harmless from all loss or liability, including without limitation, any claim
made by any succeeding tenant founded upon or resulting from such failure to
surrender, and any attorneys' fees and costs.
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10. TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and shall pay, at least ten days
before delinquency, all taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based upon such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall, upon demand, repay to Landlord the taxes so
levied against Landlord, or the portion of such taxes resulting from such
increase in the assessment.
(b) If the Tenant Improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which Tenant Improvements
conforming to Landlord's "Building Standard" in other space in the Building are
assessed, then the real property taxes and assessments levied against the
Building by reason of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed by the
provisions of Paragraph 10(a), above. If the records of the county assessor are
available and sufficiently detailed to serve as a basis for determining whether
said Tenant Improvements are assessed at a higher valuation than Landlord's
Building Standard, such records shall be binding on both the Landlord and the
Tenant. If the records of the county assessor are not available or sufficiently
detailed to serve as a basis for making said determination, the actual cost of
construction shall be used.
11. CONDITION OF PREMISES
Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises or the Building
or with respect to the suitability of either for the conduct of Tenant's
business. The taking of possession of the Premises by Tenant shall conclusively
eStablish that the Premises and the Building were in satisfactory condition at
such time. The preceding notwithstanding, Landlord represents that all Building
Systems shall be in good order and operating condition at the commencement of
the Lease.
12. ALTERATIONS
(a) Tenant shall make no alterations, additions or improvements in or to
the Premises without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord. Tenant agrees that there shall be
no construction of partitions or other obstruction which might interfere with
Landlord's free access to mechanical installations or service facilities of the
Building or interfere with the moving of Landlord's equipment to or from the
enclosures containing said installations or facilities. All such work shall be
done at such times and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
regulations and requirements of all governmental agencies, offices, and boards
having jurisdiction, and in full compliance with the rules, regulations and
requirements of the Insurance Service Offices formerly known as the Pacific Fire
Rating Bureau, and of any similar body. Before commencing any work, Tenant shall
give Landlord at least ten (10) days written notice of the proposed
commencement of such work and shall, if required by Landlord, secure at Tenant's
own cost and expense, a completion and lien indemnity bond, satisfactory to
Landlord, for said work. Tenant further covenants and agrees that any mechanic's
lien filed against the Premises or against the Building for work claimed to have
been done for, or materials claimed to have been furnished to, Tenant will be
discharged by Tenant, by bond or otherwise, within ten (10) days after the
filing thereof, at the cost and expense of Tenant. All alterations, additions or
improvements upon the Premises made by either party, including (without limiting
the generality of the foregoing) all wallcovering, built-in cabinet work,
paneling and the like, shall, unless Landlord elects otherwise, become the
property of Landlord, and shall remain upon, and be surrendered with the
Premises, as a part thereof, at the end of the term hereof, except that Landlord
may, by written notice to Tenant, require Tenant to remove all partitions,
counters, railings and the like installed by Tenant, and Tenant shall repair all
damage resulting from such removal or, at Landlord's option, shall pay to
Landlord all costs arising from such removal.
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(b) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term when Tenant is not in default hereunder. If Tenant shall fail to remove all
of its effects from the Premises upon termination of this Lease for any cause
whatsoever, Landlord may, at its option, remove the same in any manner that
Landlord shall choose, and store said effects without liability to Tenant for
loss thereof In such event, Tenant agrees to pay Landlord upon demand any and
all expenses incurred in such removal, including court costs and attorneys' fees
and storage charges at its option, without notice, sell said effects, or any of
the same, at private sale and without legal process, for such price as Landlord
may obtain and apply the proceeds of such sale upon any amounts due under this
Lease from Tenant to Landlord and upon the expense incident to the removal and
sale of said effects.
13. REPAIRS
(a) By entry hereunder, Tenant accepts the Premises as being in good and
sanitary order, condition and repair. Tenant shall keep, maintain and preserve
the Premises in first class condition and repair, and shall, when and if
needed, at Tenant's sole cost and expense, make all repairs to the Premises and
every part thereof Tenant shall, upon the expiration or sooner termination of
the term hereof, surrender the Premises to Landlord in the same condition as
when received, usual and ordinary wear and tear excepted. Landlord shall have no
obligation to alter, remodel. improve, repair, decorate, or paint the Premises
or any part thereof The parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises or the
Building except as specifically herein set forth.
(b) Anything contained in Paragraph 13(a) above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, including the foundation, building shell. and roof structure, all
at Landlord's expense, unless such maintenance and repairs are caused in part or
in whole by the act, neglect, or omission of any duty of Tenant, its agents,
employees, or invitees, in which event Tenant shall reimburse Landlord, as
additional rent, for the reasonable cost of such maintenance and repairs.
Landlord shall also repair and maintain the basic plumbing, elevators, life
safety systems and other building systems, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, the roof
membrane, the parking areas, driveways, sidewalks, landscaping, project signs
and exterior site lighting. The cost of the foregoing repairs and maintenance
shall be billed to Tenant as operating costs pursuant to Paragraph 4. Landlord
shall not be liable for any failure to make any such repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time after
written notice of the need of such repairs or maintenance is given to Landlord
by Tenant. Except as provided in Article 21 hereof, there shall be no abatement
of rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein. Tenant waives the right to make
repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect.
14. LIENS
Tenant shall not permit any mechanics, materialmen's or other liens to
be filed against the Building nor against Tenant's leasehold interest in the
Premises. Landlord shall have the right at all reasonable times to post and keep
posted on the Premises any notices, which it deems necessary for protection from
such liens. If any such liens are filed, Landlord may, without waiving its
rights and remedies based on such breach of Tenant and without releasing Tenant
from any of its obligations, cause such liens to be released by any means it
shall deem proper, including payments in satisfaction of the claim giving rise
to such lien. Tenant shall pay to Landlord at once, upon notice by Landlord, any
sum paid by Landlord to remove such liens, together with interest at the maximum
rate per annum permitted by law from the date of such payment by Landlord.
15. ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the right to enter
the Premises to inspect the same, to supply janitor service and any service to
be provided by Landlord to Tenant hereunder, to show the Premises to prospective
purchasers or tenants, to post notices of non-responsibility, to alter, improve
or repair the Premises or any other portion of the Building, all without being
deemed guilty of any eviction of Tenant and without abatement of rent. Landlord
may, in order to carry out such purposes, erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, provided that the business of Tenant shall be interfered with as
little as is reasonably practicable. Tenant hereby waives any claim for damages
for any injury or inconvenience to or interference with Tenant's
7
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss in, upon and about the Premises. Landlord shall at all times have and
retain a key with which to unlock all doors in the Premises. Any entry to the
Premises obtained by Landlord by any of said means, or otherwise, shall not be
construed or deemed to be a forcible or unlawful entry into the Premises, or an
eviction of Tenant from the Premises or any portion thereof, and any damages
caused on account thereof shall be paid by Tenant. It is understood and agreed
that no provision of this Lease shall be construed as obligating Landlord to
perform any repairs, alterations or decorations except as otherwise expressly
agreed herein by Landlord.
16. UTILITIES AND SERVICES
Provided that Tenant is not in default under this Lease, Landlord agrees to
furnish or cause to be furnished to the Premises the utilities and services
described in the Standards for Utilities and Services, attached hereto as
Exhibit C, subject to the conditions and in accordance with the standards set
forth therein. Landlord's failure to furnish any of the foregoing items when
such failure is caused by: (i) accident, breakage, or repairs; (ii) strikes,
lockouts or other labor disturbance or labor dispute of any character, (iii)
governmental regulation, moratorium or other governmental action; (iv) inability
despite the exercise of reasonable diligence to obtain electricity, water or
fuel; or (v) any other cause beyond Landlord's reasonable control, shall not
result in any liability to Landlord. In addition, Tenant shall not be entitled
to any abatement or reduction of rent by reason of such failure, no eviction of
Tenant shall result from such failure and Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of such failure.
In the event of any failure, stoppage or interruption thereof, Landlord shall
diligently attempt to resume service promptly.
17. BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any provision of the
Bankruptcy code as then in effect, or if Tenant shall be adjudicated a bankrupt
in involuntary bankruptcy proceedings and such adjudication shall not have been
vacated within thirty (30) days from the date thereof, or if a receiver or
trustee shall be appointed of Tenant's property and the order appointing such
receiver or trustee shall not be set aside or vacated within thirty (30) days
after the entry thereof, or if Tenant shall assign Tenant's estate or effects
for the benefit of creditors, or if this Lease shall, by operation of law or
otherwise, pass to any person or persons other than Tenant, then in any such
event Landlord may terminate this Lease, if Landlord so elects, with or without
notice of such election and with or without entry or action by Landlord. In such
case, notwithstanding any other provisions of this Lease, Landlord, in addition
to any and all rights and remedies allowed by law or equity, shall, upon such
termination, be entitled to recover damages in the amount provided in Paragraph
23 (b) hereof. Neither Tenant nor any person claiming through or under Tenant
or by virtue of any statute or order of any court shall be entitled to
possession of the Premises but shall surrender the Premises to Landlord. Nothing
contained herein shall limit or prejudice the right of Landlord to recover
damages by reason of any such termination equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved; whether or not such amount is greater,
equal to, or less than the amount of damages recoverable under the provisions of
this Article 17.
18. INDEMNIFICATION
Tenant shall indemnify, defend and hold Landlord harmless from all claims
arising from Tenant's use of the Premises or the conduct of its business or
from any activity, work, or thing done, permitted or suffered by Tenant in or
about the Premises. Tenant shall further indemnify, defend and hold Landlord
harmless from all claims arising from any breach or default in the performance
of any obligation to be performed by Tenant under the terms of this Lease, or
arising from any act, neglect, fault or omission of Tenant or of its agents or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
thereon. In case any action or proceeding shall be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend the same
at Tenant's expense by counsel approved in writing by Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to person in, upon or about the Premises from any
cause whatsoever except that which is caused by the failure of Landlord to
observe any of the terms and conditions of this Lease where such failure has
persisted for an unreasonable period of time after written notice of such
failure. Tenant hereby waives all its claims in respect thereof against Landlord
except as permitted by previous sentence.
8
19. DAMAGE TO TENANT'S PROPERTY
Notwithstanding the provisions of Article 18 to the contrary, Landlord or
its agents shall not be liable for (i) any damage to any property entrusted to
employees of the Building, (ii) loss or damage to any property by theft or
otherwise, (iii) any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water or rain which
may leak from any part of the Building or from the pipes, appliances or
plumbing work therein or from the roof, street or sub-surface or from any other
place or resulting from dampness or (iv) any other cause whatsoever, except to
the extent due to the gross negligence or willful misconduct of Landlord.
Landlord or its agents shall not be liable for interference with light or other
incorporeal heraditaments, nor shall Landlord be liable for any latent defect in
the Premises or in the Building. Tenant shall give prompt notice to Landlord in
case of fire or accidents in the Premises or in the Building or of defects
therein or in the fixtures or equipment.
20. TENANT'S INSURANCE
(a) Tenant shall, during the term hereof and any other period of
occupancy, at it's sole cost and expense, keep in full force and effect the
following insurance:
(i) STANDARD FORM PROPERTY INSURANCE insuring against the perils
of fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All Risk") and sprinkler leakage. This insurance policy shall be
upon all property owned by Tenant, for which Tenant is legally liable or that
was installed at Tenant's expense, and which is located in the Building
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant Improvements installed by Landlord), and any other personal
property, in an amount not less than the full replacement cost thereof. In the
event that there shall be a dispute as to the amount which comprises full
replacement cost, the decision of Landlord or any mortgagees of Landlord shall
be conclusive. This insurance policy shall also be upon direct or indirect loss
of Tenant's earnings attributable to Tenant's inability to use fully or obtain
access to the Premises or Building in an amount as will properly reimburse
Tenant. Such policy shall name Landlord and any mortgagees of Landlord as
insured parties, as their respective interests may appear.
(ii) COMMERCIAL LIABILITY INSURANCE insuring Tenant against any
liability arising out of the lease, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $3,000,000.00 combined single limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of premises and operations, independent contractors,
contractual liability (covering the indemnity contained in Paragraph 18 hereof)
and shall (1) name Landlord as an additional insured, and (2) contain a
provision that the insurance provided the Landlord hereunder shall be primary
and noncontributing with any other insurance available to the Landlord.
(iii) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE (AS
REQUIRED BY STATE LAW).
(iv) Any other form or forms of insurance as Tenant or Landlord or
any mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself.
(b) All policies shall be written in a form satisfactory to Landlord
and shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Bests Insurance Guide. Within ten (10) days after the execution
of this Lease, Tenant shall adhere to Landlord copies of policies or
certificates evidencing the existence of the amounts and forms of coverage
satisfactory to Landlord. No such policy shall be cancelable or reducible in
coverage except after thirty (30) days prior written notice to Landlord. Tenant
shall, within ten (10) days prior to the expiration of such policies, furnish
Landlord with renewals or "binders" thereof, or Landlord may order such
insurance and charge the cost thereofto Tenant as additional rent. If Landlord
obtains any insurance that is the responsibility of Tenant under this section,
Landlord shall deliver to Tenant a Written statement setting forth the cost of
any such insurance and showing in reasonable detail the manner in which it has
been computed.
9
21. DAMAGE OR DESTRUCTION
(a) If the Building and/or the Premises is damaged by fire or other
perils covered by Landlord's insurance, Landlord shall have the following rights
and obligations:
(i) In the event of total destruction, Landlord shall, at
Landlord's option, commence repair, reconstruction and restoration of the
Building and/or the Premises as soon as reasonably possible, and diligently
prosecute the same to completion, in which event this Lease shall remain in full
force and effect. If Landlord elects not to so repair, reconstruct or restore
the Building and/or the Premises, this Lease shall terminate as of the date of
such total destruction. In either event, Landlord shall give Tenant written
notice of its intention within sixty (60) days after the date of damage or
destruction.
(ii) In the event of a partial destruction of the Building and/or
the Premises, Landlord shall promptly restore the Building and/or the Premises
unless Landlord elects to terminate this Lease as permitted herein. Landlord
shall have the right to terminate this Lease if (1) the damage to the Building
and/or the Premises exceeds twenty-five percent (25%) of the full insurable
value thereof, (2) the damage to the Building and/or the Premises is such that
the Building and/or the Premises cannot be repaired, reconstructed or restored
within one hundred eighty (180) days from the date of damage or destruction, or
(3) insurance proceeds received by Landlord will not be sufficient to cover the
cost of such repairs, reconstruction and restoration. Landlord shall give
written notice to Tenant of its intention within sixty (60) days after the date
of damage or destruction. If Landlord elects not to restore the Building and/or
the Premises, this Lease shall be deemed to have terminated as of the date of
such partial destruction.
(b) Upon any termination of this Lease under any of the provisions of
this Article 21, the parties shall be released without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have theretofore accrued and are then unpaid.
(c) In the event of repair, reconstruction and restoration by Landlord
as herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration. Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in this
Article 21. Notwithstanding anything to the contrary contained in this Article
21, if Landlord is delayed or prevented from repairing or restoring the damaged
Premises within one year after the occurrence of such damage or destruction by
reason of acts of God, war, governmental restrictions, inability to obtain the
necessary labor or materials, or other cause beyond the control of Landlord,
Landlord shall be relieved of its obligation to make such repairs of restoration
and Tenant shall be released from its obligations under this Lease as of the end
of said one year period.
(e) If damage is due to any cause other than fire or other peril covered
by A1l-Risk insurance, Landlord may elect to terminate this Lease.
(f) If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall be obligated to make repair or restoration only of
those portions of the Building and the Premises which were originally provided
at Landlord's expense, and the repair and restoration of items not provided at
Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this Article
21, Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article 21, occurs during the last twelve (12) months of the term of this
Lease or any extension hereof.
(h) The provisions of California Civil Code Section 1932, Subsection 2,
and Section 1933, Subsection 4, which permit termination of a lease upon
destruction of the leased premises, are hereby waived by Tenant; and the
provisions of this article shall govern in case of such destruction.
10
22. EMINENT DOMAIN
If all of the Premises, or such part thereof as shall substantially
interfere with Tenant's use and occupancy of the Premises, shall be taken for
any public or quasi-public purpose by any lawful power or authority by exercise
of the right of appropriation, condemnation or eminent domain, or sold to
prevent such taking, either party may terminate this Lease effective as of the
date possession is required to be surrendered to said authority. Tenant shall
not assert any claim against Landlord or the taking authority for any
compensation because of such taking, and Landlord shall be entitled to receive
the entire amount of any award without deduction for any estate or interest of
Tenant. If neither party terminates this Lease as permitted herein, Landlord
shall be entitled to the entire amount of the award without deduction for any
estate or interest of Tenant, Landlord shall restore the Premises to
substantially their same condition prior to such partial taking, and rent shall
be abated for the time and to the extent Tenant is prevented from using the
Premises on account of such taking and restoration. Nothing contained in this
paragraph shall be deemed to give Landlord any interest in any award made to
Tenant for the taking of personal property and fixtures belonging to Tenant or
for Tenant's moving or relocation expenses.
23. DEFAULTS AND REMEDIES
(a) The occurrence of anyone or more of the following events shall
constitute a default hereunder by Tenant:
(i) The vacation or abandorunent of the Premises by Tenant.
Abandorunent is herein defined to include, but is not limited to, any absence by
Tenant from the Premises for five (5) business days or longer while in default
of any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided however, that any such notice shall be
in lieu of, and not in addition to, any notice required under California Code of
Civil Procedure Section ll61 regarding unlawful detainer actions.
(iii) The failure by Tenant to observe or perform any of the express
or implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Subparagraph 23(a)(i) or (ii) above, where
such failure shall continue for a period often (10) days after written notice
thereof from Landlord to Tenant. Any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil Procedure
Section ll61 regarding unlawful detainer actions. If the nature of Tenant's
default is such that more than ten (10) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant shall commence
such cure within said ten-day period and thereafter diligently prosecute such
cure to completion, which completion shall occur not later than sixty (60) days
from the date of such notice from Landlord.
(iv) (1) The making by Tenant of any general assigment for the
benefit of creditors (2) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty (30) days); (3) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not reStored to Tenant within thirty (30) days; or (4) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged within thirty (30) days.
(b) In the event of any such default by Tenant, in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant hereunder.
In the event that Landlord shall elect to so terminate this Lease then Landlord
may recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term
11
after the time of award exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all
detriment aproximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom.
As used in Subparagraphs 23(b)(i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the maximum rate permitted by law.
As used in Subparagraph 23 (b)(iii) above, the "worth at the time of award" 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%).
(c) In the event of any such default Landlord shall also have the right
to continue this Lease in full force and effect, and this Lease shall continue
in full force and effect as long as Landlord does not terminate this Lease, and
Landlord shall have the right to collect rent as it becomes due.
(d) Landlord shall also have the right, with or without terminating
this Lease, to reenter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant No reentry or taking
possession of the Premises by Landlord pursuant to this Paragraph 23(c) shall
be construed as an election to terminate this Lease unless a written notice of
such intention is given to Tenant or unless the termination thereof is decreed
by a court of competent jurisdiction.
(e) All rights, options and remedies of Landlord contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other. Landlord shall have the right to pursue anyone or all
of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or oilier
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
24. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not voluntarily assign or encumber its interest in this
Lease or in the Premises, or sublease all or any part of the Premises, or allow
any other person or entity to occupy or use all or any part of the Premises,
without first obtaining Landlord's prior written consent Any assignment,
encumbrance or sublease without Landlord's prior written consent shall be
voidable, at Landlord's election, and shall constitute a default and at the
option of the Landlord shall result in a termination of this Lease. No consent
to assignment, enc1mIbrance, or sublease shall constitute a further waiver
other provisions of this paragraph. Tenant shall notify Landlord in writing of
Tenant's intent to sublease, encumber or assign this Lease and Landlord shall,
within thirty (30) days of receipt of such written notice, elect one of the
following: (i) consent to such proposed assignment or sublease or; (ii) refuse
such consent, which refusal shall be on reasonable grounds; or (iii) elect to
terminate this Lease.
(b) As a condition for granting its consent to any assignment,
encumbrance or sublease, thirty (30) days prior to any anticipated assignment or
sublease Tenant shall give Landlord written notice (the "Assignment Notice"),
which shall set forth the name, address and business other proposed assignee or
sublessee, information (including references) concerning the character,
ownership and financial condition of the proposed assignee or sublessee, the
Assignment Date, any ownership or commercial relationship between Tenant and
the proposed assignee or sublessee, all in such detail as Landlord shall
reasonably require. If Landlord requests additional detail, the Assignment
Notice shall not be deemed to have been received until Landlord received such
additional detail, and Landlord may withhold consent to any assignment or
sublease until such additional detail is provided to it Further, Landlord may
require that the sublessee or assignee remit directly to Landlord on a monthly
basis, all monies due to Tenant by said assignee or sublessee.
(c) The consent by Landlord to any assignment or subletting shall not
be construed as relieving Tenant or any assignee of this Lease or sublessee
other Premises from obtaining the express written consent of Landlord to any
further assignment or subletting or as releasing Tenant or any assignee or
sublessee of Tenant from any liability or obligation hereunder whether or not
then accrued. In the event Landlord shall consent to an assignment or sublease,
Tenant shall pay
12
Landlord as additional rent a reasonable attorneys' and administration fee not
to exceed $1,000 for costs incurred in connection with evaluating the Assignment
Notice. This section shall be fully applicable to all further sales,
hypothecation, transfers, assignments and subleases of any portion of the by any
successor or assignee of Tenant, or any sublessee of the Premises.
(d) As used in this section, the subletting of substantially all of the
Premises for substantially all of the remaining item of this Lease shall be
deemed an assignment rather than a sublease. Notwithstanding the foregoing,
Landlord shall consent to the assignment, sale or transfer if the Assignment
Notice states that Tenant desires to assign the Lease to any entity into which
Tenant is merged, with which Tenant is consolidated or which acquires all of
substantially all of the assets of Tenant, provided that the assignee first
executes, acknowledges and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this Lease
which Tenant has agreed to keep, observe or perform, that the assignee agrees
that the provisions of this section shall be binding upon it as if it were the
original Tenant hereunder and that the assignee shall have a net worth
(determined in accordance with generally accepted accounting principles
consistently applied) immediately after such assignment which is at least equal
to the net worth (as so determined) of Tenant at the commencement of this Lease.
(e) Except as provided above, Landlord's consent to any sublease shall
not be unreasonably withheld. A condition to such consent shall be delivery by
Tenant to Landlord of a true copy of any such sublease. If for any proposed
assignment or sublease Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess of the rent
called for hereunder, or, in case of the sublease of a portion of the Premises,
in excess of such rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for hereunder are taken
into account, Tenant shall pay to Landlord as additional rent hereunder
three-quarters (3/4) of the excess of each such payment of rent or other
consideration received by Tenant promptly after its receipt. Landlord's waiver
or consent to any assignment or subletting shall not relieve Tenant from any
obligation under this lease. The parties intend that the preceding sentence
shall not apply to any sublease rentals respecting a portion of the Premises
that during the entire term of this Lease was not occupied by Tenant for its own
use, but was always subleased by Tenant and/or kept vacant. For the purpose of
this section, the rent for each square foot of floor space in the Premises shall
be deemed equal.
25. SUBORDINATION
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, and at the election of Landlord or
any mortgagee with a lien on the building or any ground lessor with respect to
the building, this Lease shall be subject and subordinate at all times to:
(i) All ground leases or underlying leases which may now exist or
hereafter be executed affecting the building or the land upon which the building
is situated or both;
(ii) The lien of any mortgage or deed of trust which may now exist
or hereafter be executed in any amount for which the building, land, ground
leases, or underlying leases, or Landlord's interest or estate in any of said
items is specified as security. Notwithstanding the foregoing, Landlord shall
have the right to subordinate or cause to be subordinated any such leases or
underlying leases or any such liens to this Lease. In the event that any ground
lease or underlying lease terminates for any reason or any mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, Tenant shall, notwithstanding any subordination, attorn to and become
the Tenant of the successor in interest to Landlord, at the option of such
successor in interest. Tenant covenants and agrees to execute and deliver, upon
demand by Landlord and in the form requested by Landlord, any additional
documents evidencing the priority or subordination of this Lease with respect to
any such ground leases or underlying leases or in the lien of any such mortgage
or deed of trust. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact of Tenant to execute, deliver and record any such document in
the name and on behalf of Tenant.
26. ESTOPPEL CERTIFICATE
(a) Within ten (10) days following any written request which Landlord
may make from time to time, Tenant shall execute and deliver to Landlord a
statement certifying: (i) the date of commencement of this Lease; (ii) the fact
that this Lease is unmodified and in full force and effect (or, if there have
been modifications); (iii) the date to which the rental and
13
other sums payable under this Lease have been paid; (iv) that there are no
current defaults under this Lease by either Landlord or Tenant except as
specified in Tenant's statement; and (v) such other matters requested by
Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Article 26 may be relied upon by any mortgage, beneficiary, purchaser, or
prospective purchaser of the building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant: (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
month's rental has been paid in advance.
27. SIGNAGE
Landlord shall provide for Tenant the opportunity to have a Tenant
identification sign at the entry to the Premises and the right to have Tenant's
name placed upon the building directory sign. Tenant shall have no other right
to maintain a Tenant identification sign in any other location in, on or about
the Premises, the building, or the Project. Tenant's identification sign shall
be subject to Landlord's written reasonable approval prior to installation. The
cost of the installation of the sign, and its maintenance and removal expense,
shall be at Tenant's sole expense. If Tenant fails to maintain its sign or if
Tenant fails to remove its sign upon termination of this Lease or restore the
appearance of the Premises to its condition prior to the placement of said sign,
Landlord may do so at Tenant's expense and Tenant's reimbursement to Landlord
for such amounts shall be deemed additional rent All signs shall comply with
rules and regulations set forth by Landlord as may be modified from time to
time.
28. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked EXHIBIT D and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or nonperformance by any other tenant or occupant of
the building of any of said Rules and Regulations.
29. CONFLICT OF LAW
This Lease shall be governed by and construed pursuant to the laws of the
State of California.
30. SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the covenants,
conditions, and provisions of this Lease shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns.
31. SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies.
32. ATTORNEY'S FEES
(a) If Landlord should bring suit for possession of the Premises, for
the recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation between the parties with respect to this
Lease, then all costs and expenses, including reasonable attorney's fees,
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
(b) If Landlord is named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorney's fees.
14
33. PERFORMANCE BY TENANT
All covenants and agreements to be performed by Tenant under any other
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum
of money owed to any party other than Landlord, for which it is liable
hereunder, or if Tenant shall fail to perform any other act on its part to be
performed hereunder and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, without waiving or releasing Tenant
from obligations of Tenant, but shall not be obligated to, make any such payment
or perform any such other act to be made or performed by Tenant All sums so
paid by Landlord and all necessary incidental costs together with interest
thereon at the maximum rate permissible by law, from the date of such payment
by Landlord, shall be payable to Landlord on demand. Tenant covenants to pay any
such sums and Landlord shall have (in addition to any other right or remedy of
Landlord) all rights and remedies in the event other nonpayment thereof by
Tenant as are set forth in Article 23 hereof.
34. MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default, including time to obtain possession of the Premises by
power of sale or a judicial foreclosure, if such should prove necessary to
effect a cure.
35. DEFINITION OF LANDLORD
The term "Landlord", as used in this Lease, so far as covenants or
obligations on the part of the Landlord are concerned, shall be limited to
mean and include only the owners, at the time in question, other fee title
other Premises or the lessees under any ground lease, if any. In the event of
any transfer, assignment, or other conveyances, the lien grantor shall be
automatically freed and relieved from and after the date of such transfer,
assignment, or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed. Without further agreement, the transferee of such
title shall be deemed to have assumed and agreed to observe and perform any and
all obligations of Landlord hereunder, during its ownership other Premises.
Landlord may transfer its interest in the Premises without the consent of
Tenant and such transfer or subsequent transfer shall not be deemed a violation
on Landlord's part of any other terms and conditions of this Lease.
36. WAIVER
The waiver by Landlord of any breach of any term, covenant, or condition
herein contained shall not be deemed it to be a waiver of any subsequent breach
other same or any oilier term, covenant, or condition herein contained, nor
shall ~ any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. If the subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant, or condition of this Lease, other than the failure of
Tenant to pay the particular rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent.
37. IDENTIFICATION OF TENANT
If more than one person executes this Lease as Tenant:
(i) Each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions,
provisions, and agreements of this Lease to be kept, observed and performed by
Tenant, and
(ii) The term "Tenant" as used in this Lease shall mean and include
each of them jointly and severally. The act of or notice from, or notice or
refund to, or the signature of anyone or more of them, with respect to the
tenancy other Lease, including, but not limited to any renewal, extension,
expiration, termination, or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refln1d or so signed.
15
38. PARKING
The use by Tenant, its employees and invitees, of the parking facilities of
the building shall be on the terms and conditions set forth in EXHIBIT E
attached hereto and by this reference incorporated herein and shall be subject
to such other agreement between Landlord and Tenant as may hereinafter be
established.
39. TERMS AND HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the plural
as well as the singular. Words used in any gender include other genders. The
paragraph headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
40. FINANCIAL STATEMENTS
Tenant shall deliver to Landlord within ten (10) days after written
request therefor, the current financial statements of Tenant, and financial
statements for the two (2) years prior to the current financial statements year,
including a balance sheet and profit and loss statement for the most recent
prior year, all prepared in accordance with generally accepted accounting
principles.
41. TIME
Time is of the essence with respect to the performance of every provision
of this Lease in which time or performance is a factor.
42. PRIOR AGREEMENT; AMENDMENTS
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior agreement
or understanding pertaining to any such matter shall be effective for any
purpose. No? provisions of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or theIr respective successors
in interest.
43. SEPARABILITY
Any provision of this Lease which shall prove to be invalid, void, or
illegal in no way affects, impairs, or invalidates any other provision hereof,
and any such other provisions shall remain in full force and effect.
44. RECORDING
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
45. CONSENTS
Whenever the consent of either party is required hereunder such consent
shall not be unreasonably withheld.
16
46. LIMITATION OF LIABILITY
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach, or default hereunder by Landlord:
(a) The sole exclusive remedy shall be against the Landlord's
interest in the building;
(b) No partner of Landlord shall be sued or named as a party in
any suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) No service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the partnership;
(d) No partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(e) No judgment will be taken against any partner of Landlord;
(f) Any judgment taken against any partner of Landlord may be
vacated and set aside at any time nune pro tune.
(g) No writ of execution will ever be levied against the assets of
any partner of Landlord;
(h) These covenants and agreements are enforceable both by
Landlord and also by any partner of Landlord.
47. RIDERS
Clauses, plats, and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof
48. EXHIBITS
All exhibits attached hereto are incorporated into this Lease.
49. MODIFICATION FOR LENDER
If, in connection with obtaining construction, interim, or permanent
financing for the building the lender shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay, or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's rights hereunder.
50. OPTION TO EXTEND
(a) Provided that Tenant is not in default hereunder either at the time
of exercise or at the time the extended term commences, Tenant shall have the
option to extend the initial term of this Lease FOR ONE (1) ADDITIONAL PERIOD OF
THREE (3) YEARS ("Option Period") on the same terms, covenants and conditions
provided herein, except that upon such renewal the monthly installments of
Annual Basic Rent due hereunder shall be determined at the time notice to extend
is given. Tenant shall exercise its option by giving Landlord written notice
("Option Notice") no later than one hundred eighty (180) days prior to the
expiration of the initial term.
17
(b) The monthly installments of Annual Basic Rent for the Option Period
shall be determined as follows:
(i) Within fifteen (15) business days after Landlord's receipt of
the Option Notice, the parties shall attempt to agree on the monthly rent for
the Option Period in question BASED UPON THE THEN FAIR MARKET RENTAL VALUE of
the Premises. If the parties agree on the monthly rent for the Option Period
within such fifteen (15) day period, they shall immediately execute an amendment
to this Lease stating the monthly rent for the Option Period.
(ii) The "then fair market rental value of the Premises" shall mean
the fair market monthly rental value of the premises as of the commencement of
the Option Period, taking into consideration the uses permitted under this
Lease, the quality, size, design and location of the Premises, and comparable
buildings located within a one (1) mile radius of the Premises. In no event
shall the then fair market monthly rental value of the Premises for the Option
Period be less than the monthly installments of Annual Basic Rent last payable
under the Lease.
(iii) Within seven (7) days after the expiration of the fifteen (15)
day period, each party, at its cost and by giving notice to the other party,
shall appoint a real estate appraiser or commercial leasing salesperson
("Appraiser") with at least five (5) years' full-time commercial appraisal or
leasing experience in the area in which the Premises are located to appraise and
set the then fair market monthly rent for the Premises for the Option Period.
(c) If Tenant objects to the monthly rent that has been determined,
Tenant shall have the right to rescind its exercise of the option to extend and
have this Lease expire at the end of the initial term, provided that Tenant pays
for all reasonable costs incurred by Landlord in connection with the appraisal
procedure. Tenant's election to allow this Lease to expire at the end of the
initial term must be exercised by delivering written notice of exercise to
Landlord within ten (10) days after the rent determination procedure has been
completed and Tenant has received notice of the monthly rent as determined by
appraisal. If Tenant does not so exercise its election to terminate this Lease
within the ten (10) day period, the initial term of this Lease shall be extended
as provided in this paragraph. Notwithstanding the foregoing, if Tenant elects
to so rescind exercise of its option to extend and, at the time of such election
there are less than one hundred eighty (180) days remaining on the initial term
of the Lease, then, the termination of this Lease shall not be effective until
one hundred eighty (180) days after Landlord's receipt of Tenant's notice of
rescission. During any period that the term of this Lease is so extended beyond
the original termination date, Tenant shall be required to pay the amount of
monthly rent determined pursuant to the appraisal procedure.
(d) This option to extend and any rights granted to Tenant hereunder
shall be personal to Tenant and any of its affiliates and subsidiaries. No
rights granted to Tenant pursuant to this paragraph shall be in any way
applicable to subtenants or assignees of Tenant unless such subtenant or
assignee is an affiliate or subsidiary of Tenant.
18
IN WITNESS WHEREOF. the parties have executed this Lease as of the date
first written above.
LANDLORD ADDRESS:
-------- -------
PRINCETON INVESTMENT GROUP LLC ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇ ▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇
President
TENANT ADDRESS:
------ -------
XACCT
By /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Its Pres & Ceo
---------------------------
19
EXHIBIT A
OUTLINE OF TENANT'S FLOOR PLAN
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
1
WORK LETTER AGREEMENT
This Work Letter Agreement is entered into as of the day of February
2,2000, by and between Princeton Investment Group LLC, ("Landlord") and XACCT, A
DELAWARE CORPORATION ("TENANT").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement, Landlord and
Tenant have entered into a lease (the "Lease") covering certain premises (the
"Premises") more particularly described in EXHIBIT A attached to the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. COMPLETION SCHEDULE
Within ten (10) days after the execution of the Lease, Landlord shall
deliver to Tenant, for Tenant's review and approval, a schedule (the "Work
Schedule") setting forth a timetable for the planning and completion of the
installation of the Tenant Improvements to be construction in the Premises. The
Work Schedule shall set forth each of the various items of work to be done by or
approval to be given by Landlord and Tenant in connection with the completion of
the Tenant Improvements. Such schedule shall be submitted to Tenant for its
approval and, upon approval by both Landlord and Tenant, such schedule shall
become the basis for completing the Tenant Improvement work. If Tenant shall
fail to approve the Work Schedule, as it may be modified after discussions
between Landlord and Tenant, within five (5) working days after the date such
schedule is first received by Tenant, Landlord may, at its option, terminate the
Lease and all of its obligations thereunder.
2. TENANT IMPROVEMENTS
Reference herein to "Tenant Improvements" shall be a build out per the ▇▇▇▇▇▇▇
▇▇▇▇▇ PLAN dated (DATE TO BE ENTERED HERE AFTER SPACE PLANNING FINALIZED), to
the extent that such construction and/or build out does not exceed the "Tenant
Improvement Allowance" provided in Section 6 of this Work Letter Agreement and
shall be subject to all provisions in Section 6 of this Work Letter Agreement.
3. TENANT IMPROVEMENT PLANS
Immediately after the execution of the Lease, Tenant agrees to meet with
Landlord's architect and/or space planner to prepare a space plan for the layout
of the Premises. Based upon such space plan, Landlord's architect shall prepare
final working drawings and specifications for the Tenant Improvements. Such
final working drawings and specifications may be referred to herein as the
"Tenant Improvement Plans."
4. FINAL PRICING AND DRAWING SCHEDULE
After the preparation of the space plan and after Tenant's written approval
thereof, in accordance with the Work Schedule, Landlord shall cause its
architect to prepare and submit to Tenant the final working drawings and
specifications referred to in Paragraph Three (3) hereof Such working drawings
shall be approved by Landlord and Tenant in accordance with the Work Schedule
and shall thereafter be submitted to the appropriate governmental body for plan
checking and a building permit. Landlord, with Tenant's cooperation, shall cause
to be made any changes in the plans and specifications necessary to obtain the
building permit. Concurrent with the plan checking, Landlord shall have prepared
a final pricing for Tenant's approval, taking into account any modifications
which may be required to reflect changes in the plans and specifications
required by the city or county in which the Premises are located. After final
approval of the working drawings, no further changes to the Tenant Improvement
Plans may be made without the prior written approval from both Landlord and
Tenant, and then only after agreement by Tenant to pay any excess costs
resulting from such changes.
5. CONSTRUCTION OF TENANT IMPROVEMENTS
After the Tenant Improvements Plans have been prepared and approved, the
final pricing has been approved and a
2
building permit for the Tenant Improvements has been issued, Landlord shall
enter into a construction contract with its contractor 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 work in accordance with the Work Schedule.
The cost of such work shall be paid as provided in Paragraph Six (6) hereof.
6. PAYMENT OF COST OF THE TENANT IMPROVEMENTS
(a) Landlord hereby grants to Tenant a "Tenant Allowance" of a total not to
exceed SIX THOUSAND DOLLARS AND NO/100THS ($6,000.00). TENANT SHALL BEAR THE
SOLE RESPONSIBILITY FOR AN IMPROVEMENT EXPENSES IN EXCESS OF THE ALLOWANCE
("OVERAGE") PROVIDED, IF ANY. Such Tenant Allowance shall be used only for:
(i) Payment of the cost of preparing the space plan and the final working
drawings and specifications, including mechanical, electrical and structural
drawings and of all other aspects of the Tenant Improvement Plans. The Tenant
Allowance will not be used for the payment of extraordinary design work not
included within the scope of Landlord's building standard improvements or for
payments to any other consultants, designers, or architects other than
Landlord's architect and/or space planner;
(ii) The payment of permit and license fees relating to construction of
the Tenant Improvements;
(iii) Construction of the Tenant Improvements, including, without
limitation, the following:
(1) Installation within the Premises of all partitioning, doors,
floor coverings, finishes, ceilings, wall coverings and painting, millwork, and
similar items;
(2) All electrical wiring, lighting fixtures, outlets, and switches,
and other electrical work to be installed within the Premises;
(3) The furnishing and installation of all duct work, tem1inal
boxes, fuses and accessories required for the completion of the heating,
ventilation and air conditioning systems within the Premises, including the cost
of meter and key control for after-hour air conditioning;
(4) Any additional Tenant requirements including, but not limited to
odor control, special heating, ventilation and air conditioning, noise or
vibration control, or other special systems;
(5) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring, and accessories
installed within the Premises; and
(6) All plumbing, fixtures, pipes, and accessories to be installed
within the Premises.
(b) The cost of each item shall be charged against the Tenant Allowance. In
the event that the cost of installing the Tenant Improvements, as established by
Landlord's final pricing schedule, shall exceed the Tenant Allowance, or if any
of the Tenant Improvements are not to be paid out of the Tenant Allowance as
provided in Paragraph Six (6) above, the excess shall be paid by Tenant to
Landlord prior to the commencement of construction of the Tenant Improvements.
(c) In the event that, after the Tenant Improvement Plans have been prepared
and a price therefor established by Landlord, Tenant shall require any changes
or substitutions to the Tenant Improvement Plans, any additional costs thereof
shall be paid by Tenant to Landlord prior to the commencement of such work.
3
7. COMPLETION AND RENTAL COMMENCEMENT DATE
The commencement of the term of this Lease and Tenant's obligation for the
payment of rental under the Lease shall not commence until substantial
completion of construction of the Tenant improvements. However, if there shall
be a delay in substantial completion of the Tenant improvements as a result of:
(i) Tenant's failure to approve any item or perform any other
obligation in accordance with and by the date specified in the Work Schedule;
(ii) Tenant's request for materials, finishes or installations other
than those readily available; or
(iii) Tenant's changes in the Tenant improvement Plans after their
approval by Tenant;
then commencement of the term of the Lease and the rental
commencement date shall be accelerated by the number of days of such delay.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first written above.
LANDLORD ADDRESS:
-------- --------
PRINCETON INVESTMENT GROUP LLC ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇ ▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇
President
TENANT ADDRESS:
------ --------
XACCT
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇
Its Pres & Ceo
-----------------------------
4
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect. Landlord
resources the right to adopt nondiscriminatory modifications and additions
hereto.
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions, or agreements of this Lease, Landlord shall:
(a) Provide non-attended automatic elevator facilities Monday through Friday,
except holidays, from 8:00 a.m. to 6:00 p.m.
(b) On Monday through Friday, except holidays, from 7:00 a.m. - 6:00 p.m.
(and other times for a reasonable additional charge to be fixed by Landlord),
ventilate the Premises and furnish air conditioning or heating on such days and
hours, when in the judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The air conditioning system achieves maximum cooling
when the window coverings are closed. Landlord shall not be responsible for room
temperatures if Tenant does not keep all window coverings in the Premises closed
whenever the system is in operation. Tenant agrees to cooperate fully at all
times with Landlord, and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of the air
conditioning system. Tenant agrees not to connect any apparatus, device,
conduit, or pipe to the building chilled and hot water air conditioning supply
lines. Tenant further agrees that neither Tenant nor its servants, employees,
agents, visitors, licensees, or contractors shall at any time enter mechanical
installations or facilities of the building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities. The cost of
maintenance and service calls to adjust and regulate the air conditioning system
shall be charged to Tenant if the need for maintenance work results from either
Tenant's adjustment of room thermosats or Tenant's failure to comply with its
results from either Tenant's adjustment of room thermostats or Tenant's failure
to comply with its obligations under this section, including keeping window
coverings closed as needed. Such work shall be charged at hourly rates equal to
then current journeymen's wages for air conditioning mechanics.
(c) Landlord shall furnish to the Premises, during the usual business hours
on business days, electric current as required by the Building standard office
lighting and fractional horsepower office business machines in the amount of
approximately two and one-half (2.5) KWH ▇▇▇▇▇ per square foot. Tenant agrees,
should its electrical installation or electrical consumption be in excess of the
aforesaid quantity or extend beyond normal business hours, to reimburse Landlord
monthly for the measured consumption at the average cost per kilowatt hour
charged to the building during the period. If a separate meter is not installed
at Tenant's cost, such excess costs will be established by an estimate agreed
upon by Landlord and Tenant, and if the parties fail to agree, as established by
an independent licensed engineer. Said estimates to be reviewed and adjusted
quarterly. Tenant agrees not to use any apparatus or device in, or upon, or
about the Premises which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wire, conduits, pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without written consent of Landlord. Should Tenant use
the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount eStablished by Landlord for such excess charge shall
constitute a breach of the obligation to pay rent under this Lease and shall
entitle Landlord to the rights therein granted for such breach. At all times
Tenant's use of electric current shall never exceed the capacity of the feeders
to the building or the risers or wiring installation and Tenant shall not
install or use or permit the installation or use of an excessive amount of
computers or electronic data processing equipment in the premises, without the
prior written consent of Landlord.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses, or consumes water for any purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy, Tenant shall keep said meter
and installation equipment in good working order and repair at Tenant's own cost
and expense, in default of which Landlord may cause such meter and equipment
replaced or repaired and collect the cost thereof from Tenant. Tenant agrees to
pay for water consumed, as shown on said meter, as and when bills are rendered,
and on default in making such payment, Landlord may pay such charges and collect
the same from Tenant Any such costs or expenses incurred, or payments made by
Landlord for any of the reasons or purposes hereinabove stated shall be deemed
to be additional rent payable by Tenant and collectible by Landlord as such.
1
(e) Provide janitor service to the Premises, provided the same are kept
reasonably in order by Tenant, and if to be kept clean by Tenant, no one other
than persons approved by Landlord shall be permitted to enter the Premises for
such purposes. If the Premises are not used exclusively as offices, they shall
be kept clean and in order by Tenant, at Tenant's expense, and to the
satisfaction of Landlord, and by persons approved by Landlord. Tenant shall pay
to Landlord the cost of removal of any of Tenant's refuse and rubbish, to the
extent that the same exceeds the refuse and rubbish usually attendant upon the
use of the Premises as offices.
Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning, and electric systems, when necessary, by reason
of accident or emergency or for repairs, alterations or improvements, in the
judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and shall further have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning, or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations, or requirements of
any federal, State, county, or municipal authority or failure of gas, oil, or
other suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil, or other suitable fuel. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenants, conditions, provisions, or agreements of this Lease, or to
perform any act or thing for the benefit of Tenant, shall not be deemed breached
if Landlord is unable to furnish or perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control.
2
EXHIBIT D
RULES AND REGULATIONS
1. Except as specifically provided in the Lease to which these rules and
regulations are attached, no sign, placard, picture, advertisement, name,
or notice shall be installed or displayed on any part of the outside or
inside of the building without the prior written consent of Landlord.
Landlord shall have the right to remove, at Tenant's expense and without
notice, any sign installed or displayed in violation of this rule. All
approved signs or lettering on doors and walls shall be printed, painted,
affixed, or inscribed at the expense of Tenant by a person approved by
Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens, or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which
is visible from the exterior of the Premises, Tenant shall immediately
discontinue such use. Tenant shall not place anything against or near glass
partitions, doors, or windows which may appear unsightly from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators, or stairways of the building. The halls, passages,
exits, entrances, shopping malls, elevators, and stairways are not open to
the general public, but are open, subject to reasonable regulation, to
Tenant's business invitee. Landlord shall in all cases retain the right to
control and prevent access thereto of all persons whose presence in the
judgment of Landlord would be prejudicial to the safety, character,
reputation, and interest of the building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal or unlawful
activities. No tenant and no employee or invitee of any tenant shall go
upon the roof of the building.
4. The directory of the building will be provided exclusively for the display
of the name and location of tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any
door of its Premises. Tenant, upon the termination of its tenancy, shall
deliver to Landlord the keys of all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm, or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size, and position of all equipment, materials, furniture, or other
property brought into the building. Heavy objects shall, if considered
necessary by Landlord, stand on such platforms as determined by Landlord to
be necessary to properly distribute the weight, which platforms shall be
provided at Tenant's expense. Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted
to the structure of the building or to any space therein to such a degree
as to be objectionable to Landlord or to any tenants in the building, shall
be placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration.
The persons employed to move such equipment in or out of the building must
be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the building by
maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
9. Tenant shall not use or keep in the Premises any kerosene, gasoline,
inflammable, or combustible fluid or material other than those limited
quantities necessary for the operation of maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the building by reason of noise, odors, or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals.
10. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord.
11. Tenant shall not waste electricity, water, or air conditioning and agrees
to cooperate fully with Landlord to assure the most effective operation of
the building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws, or regulations of which Tenant has
actual notice.
12. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the building.
13. Landlord reserves the right to exclude from the building between the hours
of 6:30 p.m. and 6:30 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the building and has a pass or is properly identified. Tenant
shall be responsible for all persons for whom it requests passes and shall
be liable to Landlord for all acts of such persons. Landlord shall not be
liable for damages for any error with regard to the admission to or
exclusion from the building of any person.
14. The toilet rooms, toilets, urinals, wash bowls, and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
15. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets, or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
16. Tenant shall not install any radio or television antenna, loudspeaker, or
other devices on the roof or exterior walls of the building. Tenant shall
not interfere with radio or television broadcasting or reception from or in
the building or elsewhere.
17. Tenant shall not ▇▇▇▇, drive nails, screws, or drill into the partitions,
woodwork, or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any
floor covering to the floor of the Premises in any manner except as
approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
18. Tenant shall not install, maintain, or operate upon the Premises any
vending machines without the written consent of Landlord.
19. Canvassing, soliciting, and distribution of handbills or any other written
material, and peddling in the building are prohibited and Tenant shall
cooperate to prevent such activities.
20. Landlord reserves the right to exclude or expel from the building any
person who, in Landlord's judgement, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules or
Regulations of the building.
21. Tenant shall store all its trash and garbage within its Premises or in
other facilities provided by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary
and customary manner of trash and garbage disposal. AIl garbage and refuse
disposal shall be made in accordance with directions issued from time to
time by Landlord.
22. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, not
shall the Premises be used for any improper, immoral, or objectionable
purpose. No cooking shall be done or permitted on the Premises without
Landlord's consent, except that the use by Tenant of Underwriter'
Laboratory approved equipment for brewing coffee, tea, hot chocolate, and
similar beverages or use of microwave ovens for employee uses shall be
permitted, provided such equipment and use is in accordance with all
applicable federal, State, county, and city laws, codes, ordinances, rules,
and regulations.
23. Tenant shall not use in any space or in the public halls of the building
any hand truck except those equipped with rubber tires and side guards or
such other material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into the building.
24. Without the written consent of Landlord, Tenant shall not use the name of
the building in connections with or in promoting or advertising the
business of Tenant except as Tenant's address.
25. Tenant shall comply with all safety, fire protection, and evacuations
procedures and regulations established by Landlord or any governmental
agency.
26. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery, and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
27. Tenant's requirements will be attended to only upon appropriate application
to the building management office by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
28. Landlord may waive anyone or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
building.
29. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of Tenant's lease of its Premises in the
building.
30. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
31. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees, and
guests.
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the building.
1. Tenant shall not park or permit the parking of any vehicle under its
control in any parking designated by Landlord as areas for parking by visitors
to the building. Tenant shall not leave vehicles in the parking areas overnight
nor park any vehicles in the parking areas other than automobiles, motorcycles,
motor driven or non-motor driven bicycles or four-wheeled trucks.
2. Parking stickers or any other device or form of identification supplied
by Landlord as a condition of use of the parking facilities shall remain the
property of Landlord. Such parking identification device must be displayed as
requested and may not be mutilated in any manner. The serial number of the
parking identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized holder will be
void.
3. No overnight or extended term storage of vehicles shall be permitted.
4. Vehicles must be parked entirely within the painted stall lines of a
single parking stall.
5. All directional signs and arrows must be observed.
6. The speed limit within all parking areas shall be 5 miles per hour.
7. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord.
8. Every ▇▇▇▇▇▇ is required to park and lock his own vehicle. All
responsibility for damage to vehicle is assumed by the ▇▇▇▇▇▇.
9. Loss or theft of parking identification devices from automobiles must be
reported immediately, and a lost or stolen report must be filed by the customer
at that time. Landlord has the right to exclude any car from the parking
facilities that does not have an identification device.
10. Any parking identification devices found by the purchaser must be
reported immediately to avoid confusion.
11. Lost or stolen devices found by the purchaser must be reported
immediately to avoid confusion.
12. Washing, waxing, cleaning, or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
13. Landlord reserves the right to modify and/or adopt such other reasonable
and non-discriminatory rules and regulations for the parking facilities as it
deems necessary for the operation of the parking facilities. Landlord may refuse
to permit any person who violates these rules to park in the parking facilities,
and any violation of the rules shall subject the car to removal.