EXHIBIT 10.9
------------
OFFICE LEASE
----------------------------------------------------------------------
OFFICE LEASE
BETWEEN
ATTACHMATE CORPORATION
-----------------------------------------------------------------
LANDLORD
AND
SOFTSENSE COMPUTER PRODUCTS, INC.
-----------------------------------------------------------------
TENANT
PREMISES
18,047 +/- Usable Sq. Ft.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECTION -- BASIC LEASE PROVISIONS
1.01. Date and parties. This lease (Lease) is made June 30, 1995, between
ATTACHMATE CORPORATION (Landlord) and SOFTSENSE COMPUTER PRODUCTS, INC.
(Tenant). Landlord is a corporation, organized under the laws of Washington,
with principal offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and a
business office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Tenant is a
corporation organized under the laws of New York, with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.02. Premises. Landlord leases to Tenant certain office space (Premises) as
shown cross-hatched on the attached floor plans (Exhibit A) that contains 18,047
+/- total usable square feet in the building known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ (Building). The Premises contain the fixtures and any
improvements now installed plus any improvements required by paragraph 1.05, but
excluding any artwork, furniture and equipment now installed.
Tenant and its agents, employees, and invitees have the non-exclusive
right with others designated by Landlord to the free use of the common areas in
the Building for the common areas' intended and normal purpose. Common areas
include elevators, sidewalks, parking areas, driveways, hallways, stairways,
public bathrooms, common entrances, lobby, cafeteria, and other similar public
areas and access ways. Landlord may change the common areas if the changes do
not materially and unreasonably interfere with Tenant's access to the Premises
or use of them.
1.03. Use. Tenant shall use the Premises as a general office for the
development and sale of computer systems only, unless Landlord gives its advance
written consent to another use and the applicable laws, ordinances, regulations,
or restrictive covenants do not permit the Premises to be used by Tenant for
such general offices. Tenant shall not create a nuisance or use the Premises for
any immoral or illegal purposes. Tenant agrees to perform and abide by the then-
current Rules and Regulations, a copy of which are attached hereto and hereby
made a part of this Lease, as promulgated by the Landlord and as reasonably
amended from time to time by the Landlord. Tenant also agrees to perform and
abide by such rules and regulations as may be issued from time to time by
Windward Business Center.
1.04. Term.
1.04(a). Term. The Lease Term begins September 1, 1995 or the date
the Premises are substantially completed, whichever is later
(Commencement Date). Tenant may take possession and occupy
the Premises after the Premises are substantially completed
according to paragraph 1.04(c) and Landlord delivers actual
possession of the Premises. All of the terms and conditions
shall apply to Tenant when Tenant takes possession of the
Premises, however, Rent shall not commence until the
Commencement Date. The Lease ends (Ending Date) 60 months
from the Commencement Date, unless ended earlier under this
Lease.
1.04(b). Holdover Status. If Tenant continues occupying the Premises
after the Term ends (Holdover), then all terms and
conditions of this Lease shall continue to apply except
that:
(i) if the Holdover is with Landlord's written
consent, it shall be a month-to-month tenancy,
terminable on thirty (30) days advance notice by
either party and Tenant shall pay to Landlord at
the beginning of each month Rent and Additional
Rent that is five (5) percent higher than the
amount due in the last full month immediately
preceding the Holdover period unless Landlord
specifies a lower or higher Rent and Additional
Rent in the written consent; or
(ii) if the Holdover is without Landlord's written
consent, then (A) Tenant (1) shall be a tenant-
at-sufferance; (2) shall pay to Landlord by the
first day of each month twice the amount of Rent
and Additional Rent due in the last full month
immediately preceding the Holdover period; and
(3) shall be liable for any damages suffered by
Landlord because of Tenant's Holdover and (B)
Landlord shall retain its remedies against
Tenant who holds over without written consent.
-1-
1.04(c). Substantial completion. Landlord shall use its best efforts
to substantially complete the Premises by September 1, 1995.
Substantially complete means:
(i) completing Tenant's Improvements (paragraph
1.05) so that (A) Tenant can use the Premises
for their intended purposes without material
interference to Tenant conducting its ordinary
business activities and (B) the only incomplete
items are minor or insubstantial details of
construction, mechanical adjustments, or
finishing touches like touch-up plastering or
painting;
(ii) Tenant, its employees, agents, and invitees,
have ready access to the Building and Premises
through the lobby, entranceways, elevators, and
hallways;
(iii) the decoration, fixtures, and equipment to be
installed by Landlord are installed and in good
operating order; and
(iv) the Premises are ready for the installation of
any equipment, furniture, fixtures, or
decoration by Tenant that Tenant will install.
1.04(d). Inspection and Punchlist. Before the Commencement Date, the
parties shall inspect the Premises and prepare a punchlist.
The punchlist shall list incomplete, minor, or insubstantial
details of construction; necessary mechanical adjustments;
and needed finishing touches. Landlord will complete the
punchlist items within thirty (30) days after the
Commencement Date.
1.05. Improvements. Landlord will provide at its expense a Tenant
Improvement Allowance of $5.00 per rentable square foot, within which Landlord
shall make improvements to the Premises in accord with Exhibit B (Improvements).
The Improvements shall be completed in a good and workmanlike manner and comply
with all applicable laws, ordinances, rules, and regulations of governmental
authorities.
1.06. Parking and Use. The Tenant shall have the right to use the parking
spaces serving the building of which the Premises is a part on a non-exclusive
basis, in common with the other tenants thereof, and to use the access driveways
and allocated parking spaces for its business purposes and those of its agents,
employees or invitees. The Landlord reserves the right to allocate designated
parking spaces if Landlord chooses, provided that Landlord assigns no fewer than
8.72% of the available parking spaces to Tenant. The Landlord and Tenant
mutually agree that they will not block, hinder or otherwise obstruct the access
driveways and parking areas so as to impede the free flow of vehicular traffic
in and out of the Premises. The tenant may not utilize any portion of the land
outside of the Premises for any use, including but not limited to outside
storage of raw materials or finished products. Tenant shall place no signs upon
the outside land, walls or roof of the Premises except with the express, prior
written consent of the Landlord. Any and all signs placed of the Premises by the
Tenant, subject to the Landlord's permission as described above, shall be
maintained in compliance with governmental rules and regulations governing
signs, as well as the Landlord's then-current Rules and Regulations and the
Windward Business Center rules and regulations, and Tenant shall be responsible
to Landlord for any damage caused by installation, use or maintenance of said
signs, and all damage incident to such removal.
SECTION 2 -- RENT AND SECURITY
2.01. Rent. Tenant shall pay to Landlord a fee of $ 1,398,642.00 for the
Term as rent (Rent), payable in monthly installments of $23,310.70. Commencing
with the payment due on the thirteenth (13th) month of the Lease, Tenant will
pay as additional monthly rent (Additional Rent) to Landlord the sum of the
following fees:
(i) the amount by which all taxes, including but not
limited to ad valorem taxes, special assessments
and any other governmental charges, on the
Premises, or on the pro rata portion of the
entire property that can be allocated to the
Premises, which at time of execution of this
Lease is 8.72%, for each tax year of the Term
exceed taxes on the Premises for the tax year
1995;
(ii) its pro rata share of the excess cost of fire
and extended coverage insurance, including any
and all public liability insurance on the
Building over the cost for the first year of the
Term
-2-
for each subsequent of the term, although it
will be Landlord's responsibility to carry a
comtomary level of fire and extended coverage
insurance; and
(ii) the lesser of (a) one-half (1/2) of the
preceding calendar year's increase in the
Consumer Price Index (CPI); or (b) two and one-
half percent (2.5%) of the net annual rent. For
purposes of the preceding sentence, the parties
agree that the net annual rent is based on
$15.50 per square foot. The Rent and Additional
Rent shall be paid:
(i) without advance notice, demand, offset,
or deduction;
(ii) by the first day of each month during the
Term; and
(iii) to Landlord at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or as
Landlord may specify in writing to
Tenant.
If the Term does not begin on the first day or end on the last day of
a month, the Rent or Additional Rent for that partial month shall be prorated by
multiplying the monthly Rent or Additional Rent by a fraction, the numerator of
which is the number of days of the partial month included in the Term and the
denominator of which is the total number of days in the full calendar month.
If Tenant fails to pay part or all of the Rent or Additional Rent
(paragraph 2.02(e)) within ten (10) days after it is due, the Tenant shall also
pay:
(i) a late charge equal to 3 percent of the unpaid
Rent and Additional Rent, plus
(ii) interest at 12 percent per annum or the maximum
then allowed by applicable law, whichever is
less, on the remaining unpaid balance,
retroactive to the date originally due until
paid, but the interest accumulation shall stop
after thirty (30) days unless Landlord gives
Tenant notice within 30 days of the date payment
was due of Tenant's failure to pay Rent or
Additional Rent.
2.02. Personal Property Tax. Before delinquency, Tenant shall pay taxes
assessed during the Term against trade fixtures or personal property placed by
Tenant in or on the Premises. If these taxes are assessed against the Building,
Tenant shall pay its share of the taxes to Landlord within ten (10) days after
receiving Landlord's written statement setting forth the amount of taxes
applicable to Tenant's property and the basis for the charge to Tenant. Tenant's
failure to pay within the ten-day period shall entitle Landlord to the same
remedies it has upon Tenant's failure to pay Rent or Additional Rent.
2.03. Security Deposit. Upon execution of this Lease, the Tenant shall
deposit $23,310.70 (Security Deposit) with Landlord to secure Tenant's
performance of its Lease obligations. If Tenant defaults Landlord may, after
giving five (5) days advance notice to Tenant, without prejudice to Landlord's
other remedies, apply part or all of the Security Deposit to cure Tenant's
default. If Landlord so uses part or all of the Security Deposit, then Tenant
shall within ten (10) days after written demand, pay Landlord the amount used to
restore the Security Deposit to its original amount. Landlord may mix the
Security Deposit with its own funds and is without liability to Tenant for any
interest on the Security Deposit.
Any part of the Security Deposit not used by Landlord as permitted by
this paragraph shall be returned to Tenant within thirty (30) days after the
Lease ends.
If Landlord sells, transfers, conveys or assigns the Building, then
Landlord shall be relieved of any liability or obligation for the Security
Deposit, except with regard to Landlord's transfer obligation of the Security
Deposit under paragraph 5.03(a).
SECTION 3 -- AFFIRMATIVE OBLIGATIONS
3.01. Compliance with Laws. Tenant shall comply with all applicable laws,
ordinances, rules, and regulations of governmental authorities (Applicable Laws)
(i) regarding the physical condition of the Premises, but only to the extent the
Applicable Laws pertain to the particular manner in which Tenant uses the
Premises; or (ii) that do not relate to the
-3-
physical condition of the Premises but relate to the lawful use of the Premises
and with which only the occupant can comply, such as laws governing maximum
occupancy, workplace smoking, and illegal business operations, such as gambling.
3.02. Services and Utilities.
3.02.(a). Services. Landlord shall provide at its expense:
(i) heating, ventilation, and air conditioning
(HVAC) for the Premises to maintain temperatures
for comfortable use and occupancy and will
cooperate with Tenant to insure comfortable
working conditions in those areas where Tenant
personnel will be working 24 hours per day,
seven days per week;
(ii) hot and cold water sufficient for drinking,
lavatory, toilet, and ordinary cleaning purposes
to be drawn from approved fixtures in the
Premises;
(iii) electricity, except as provided in paragraph
3.02(c), to the Premises that provides electric
current in reasonable amounts necessary for
normal office use, lighting, and HVAC;
(iv) maintenance of common areas which shall include
cleaning, HVAC, illumination, lawn care, and
landscaping; and
(v) security for the building common areas provided
that (A) Tenant utilizes Landlord's then current
security system; (B) the security available in
no way replaces, but only supplements, Tenants
own security; and (C) Landlord is not
responsible, nor will be held responsible by
Tenant, its agents, employees or invitees, for
security of any kind, including but not limited
to security from any criminal acts such as
arson, theft, sabotage, looting, vandalism,
destruction of property, riot, assault, battery,
murder or any other act of like violence, to the
Premises or for the protection of Tenant, its
agents, employees or invitees.
3.02.(b). 24 Hour Access. Tenant, and its employees, shall have access
to the Premises twenty-four (24) hours a day, seven (7) days
a week. Landlord may restrict access by requiring persons to
show a badge or identification card issued by Landlord.
Landlord shall not be liable for denying entry to any person
unable to show the proper identification.
Landlord may temporarily close the Building if
required because of a life-threatening or Building-
threatening situation. Landlord shall use its best
efforts to close the Building during nonbusiness hours
only. If, however, the Building must be closed during
business hours, then the Rent and Additional Rent shall
▇▇▇▇▇ during any closing that lasts more than eight (8)
hours.
3.02.(c). Extra Services. Tenant is responsible for paying for all
additional services that it receives, including but not
limited to office cleaning or other sanitary services.
Whenever Tenant is using excess services because of high
electricity consumption installations, Landlord will
directly charge Tenant for the extra use.
Landlord may require that special, high
electricity consumption installations of Tenant such as
computer or reproduction facilities (except personal
computers or normal office photocopy machines) be
separately sub-metered for electrical consumption at
Tenant's cost. Tenant's charges for the utilities
provided above shall be Landlord's actual cost of labor
and utilities.
Tenant's failure to pay the charges above within
thirty (30) days of receiving a proper and correct
invoice shall entitle Landlord to the same remedies it
has upon Tenant's failure to pay Rent or Additional
Rent.
-4-
3.02.(d). Interruption of Services.
(i) Interruptions. Landlord does not warrant that
any services Landlord supplies will not be
interrupted. Services may be interrupted because
of accidents, repairs, alterations,
improvements, or any reason beyond the
reasonable control of Landlord. Except as noted
in (ii) below, any interruption (except for
those caused by willful misconduct or gross
negligence by Landlord) shall not:
(A) be considered an eviction or disturbance of
Tenant's use and possession of the
Premises;
(B) make Landlord liable to Tenant for damages;
(C) ▇▇▇▇▇ Rent or Additional Rent; or
(D) relieve Tenant from performing Tenant's
Lease obligations.
(ii) Remedy. If any essential services (such as HVAC,
electricity, water) supplied by Landlord are
interrupted, and the interruption does not
result from the negligence or willful misconduct
of Tenant, its employees, invitees, or agents,
Tenant shall be entitled to an abatement of Rent
and Additional Rent. The abatement shall begin
on the fifth consecutive business day of the
interruption. The abatement shall end when the
services are restored. If any interruption under
(i) above prohibits Tenant from occupying space
for more than 30 consecutive days, Tenant may
cancel the lease without further liability.
3.03. Repairs and Maintenance.
3.03(a). Tenant's Care of Premises. Tenant shall:
(i) keep the Premises and fixtures in good order;
(ii) make or request Landlord to make at Tenant's
expense repairs and replacements to the Premises
or Building needed because of Tenant's misuse or
primary negligence;
(iii) repair and replace special equipment or
decorative treatments installed by or at
Tenant's request and that serve the Premises
only; and
(iv) not commit waste.
3.03(b). Surrendering the Premises. Upon the Ending Date or the date
of the last extension Term, if any, ends, whichever is later
or upon earlier termination of this Lease, Tenant shall
surrender the Premises to Landlord in the same broom clean
condition as they existed on the Commencement Date, except
for ordinary wear and tear or loss due to casualty or
condemnation.
On surrender, Tenant shall remove from the
Premises its personal property, trade fixtures, and any
alterations required to be removed under paragraph 4.01
and repair any damage to the Premises caused by the
removal. Any items not removed by Tenant as required
above shall be considered abandoned. Landlord may
dispose of abandoned items as Landlord chooses and ▇▇▇▇
Tenant for the cost of their disposal, minus any
revenues received by Landlord for their disposal.
SECTION 4 -- NEGATIVE OBLIGATIONS
4.01 Alterations.
4.01(a). Definitions. "Alterations" means alterations, additions,
substitutions, installations, changes, and improvements, but
excludes minor decorations and the Improvements Landlord is
to make under paragraph 1.05 and Exhibit B.
-5-
4.01(b). Consent. Tenant shall not make Alterations without the
Landlord's prior written consent. Any alterations made by
Tenant under this paragraph shall be at Tenant's expense and
will be accomplished in a good and workmanlike manner and in
conformity with all applicable laws, regulations and
ordinances. The Alterations shall belong to Landlord when
this Lease ends. Nevertheless, Tenant may remove its trade
fixtures, furniture, equipment, and other personal property
if Tenant promptly repairs any damage caused by their
removal.
4.02. Assignment and Subleasing. Tenant shall not transfer, mortgage,
encumber, assign, permit the use of or sublease all or part of the Premises
without the express written consent of Landlord. For the purposes of this Lease,
a substantial change in control of the business decision making authority or
voting rights of the Tenant shall constitute a transfer, along within all other
reasonable constructions of the word transfer, and Landlord agrees to not
unreasonably withhold its consent in the event that a control of business
transfer as defined above occurs.
SECTION 5 -- INSURANCE
5.01 Insurance.
5.01(a). Property Insurance. Tenant shall keep its personal property
and trade fixtures in the Premises insured with "all risks"
insurance in an amount to cover one hundred (100) percent of
the replacement cost of the property and fixtures. Tenant
shall also keep any non-Building standard improvements made
to the premises at Tenant's request insured to the same
degree as Tenant's personal property.
5.01(b). Liability Insurance. Tenant shall maintain contractual and
comprehensive general liability insurance, including public
liability and property damage, with a minimum combined
single limit of liability of one million dollars
($1,000,000.00) for personal injuries or deaths of persons
occurring in or about the Building and Premises.
5.01(c). Wavier of Subrogation. Tenant waives claims arising in any
manner in its favor and against the Landlord for loss or
damage to Tenant's property located within the Building.
5.01(d). Insurance Criteria. Insurance policies required by this
Lease shall:
(i) be issued by insurance companies licensed to do
business in the state of Georgia with general
policyholder's ratings of at least "A" and a
financial rating of at least "XI" in the most
current Best's Insurance Reports available as of
the date in paragraph 1.01, and if the Best's
ratings are changed or discontinued, the parties
shall agree to an equivalent method of rating
insurance companies or in the event that the
parties cannot agree, they shall submit the
dispute to arbitration under paragraph 10.01;
(ii) name the Landlord party as an additional insured
as its interest may appear;
(iii) provide that the insurance may not be canceled
or materially changed in the scope or amount of
coverage unless fifteen (15) days' advance
notice is given to the Landlord;
(iv) be primary policies--not as contributing with,
or in excess of, the coverage that the Landlord
may carry;
(v) be permitted to be carried through a "blanket
policy" or "umbrella" coverage; and
(vi) be maintained during the entire Term and any
extension Terms.
5.01(e). Evidence of Insurance. By the Commencement Date, and upon
each renewal of its insurance policies, Tenant shall give
certificates of insurance to the Landlord. The certificate
shall specify amounts, types of coverage, the waiver of
subrogation, and the insurance criteria listed in paragraph
5.0l(d). The policies shall be renewed or replaced and
maintained by the Tenant. If Tenant fails to give the
required certificate within thirty (30) days after notice of
demand for it, the Landlord may obtain and pay for that
insurance and receive reimbursement from the Tenant.
-6-
5.02. Tenant's Indemnity. Tenant indemnifies, defends, and holds Landlord
harmless from claims:
(i) for personal injury, death, or property damage;
(ii) for incidents occurring in or about the Premises
or Building; and
(iii) caused by the negligence or willful misconduct
of Tenant, its agents, employees, or invitees.
The above indemnity obligations include, but are not
limited to, the Tenant's obligation to indemnify and
hold the Landlord harmless against any claim, damage,
liability, cost, penalty or fine which the Landlord may
suffer as a result of air, water or ground pollution
caused by the Tenant in its use of the Premises. When a
claim, if any, is caused by the joint negligence or
willful misconduct of Tenant and Landlord or Tenant and
a third party unrelated to Tenant, except Tenant's
agents, employees, or invitees, Tenant's duty to
defend, indemnify, and hold Landlord harmless shall be
in proportion to Tenant's allocable share of the joint
negligence or willful misconduct.
5.03. Limitation of Landlord's Liability.
5.03.(a). Transfer of Premises. Landlord may transfer, assign and/or
convey any part of or interest in the Building where the
Premises are located, or any of Landlord's rights under this
Lease. If Landlord assigns its interest in such building or
its rights under this Lease, Landlord shall be released from
any further obligations under this Lease; Landlord shall
transfer the Tenant's Security Deposit to the new owner or
new landlord, provided that the Landlord is not required to
lay claim against the Security Deposit because of damage to
the Premises by Tenant; and Tenant shall look sold to
Landlord's successor in interest for performance of said
obligations.
5.03.(b). Liability for Money Judgment. If Landlord, its employees,
officers, or partners are ordered to pay Tenant a money
judgment because of Landlord's default, Tenant's sole remedy
to satisfy the judgment shall be limited to:
(i) Landlord's interest in the Building and Land
including the rental income and proceeds from
sale; and
(ii) any insurance or condemnation proceeds received
because of damage or condemnation to, or of, the
Building or Land that are available for use by
Landlord.
SECTION 6 -- LOSS OF PREMISES
6.01. Damages.
6.01(a). Definition. "Relevant Space" means:
(i) the Premises as defined in paragraph 1.02,
excluding Tenant's non-Building-Standard
fixtures;
(ii) access to the Premises; and
(iii) any part of the Building that provides essential
services to the Premises.
6.01(b). Repair of Damage. If the Relevant Space is damaged in part
or whole from any cause and the Relevant Space can be
substantially repaired and restored within one hundred and
twenty (120) days from the date of the damage using standard
working methods and procedures, Landlord shall at its
expense promptly and diligently repair and restore the
Relevant Space to substantially the same condition as
existed before the damage. This repair and restoration shall
be made within one hundred
-7-
and twenty days (120) from the date of the damage unless the
delay is due to causes beyond Landlord's reasonable control.
If the Relevant Space cannot be repaired and
restored within the one hundred and twenty (120) day
period, then either party may, within ten (10) days
after determining that the repairs and restoration
cannot be made within one hundred and twenty (120) days
(as prescribed in paragraph 6.01(c)), cancel the Lease
by giving notice to the other party. Nevertheless, if
the Relevant Space is not repaired and restored within
one hundred and twenty (120) days from the date of the
damage, then Tenant may cancel the Lease at any time
after the one hundred and twentieth (120th) day and
before the later of when the premises are restored or
the one hundred and fiftieth (150th) day following the
date of damage. Tenant shall not be able to cancel this
Lease if its willful misconduct causes the damage
unless Landlord is not promptly and diligently
repairing and restoring the Relevant Space.
6.01(c). Determining the Extent of Damage. If the parties cannot
agree in writing whether the repairs and restoration
described in paragraph 6.01(b) will take more than one
hundred and twenty (120) days to make, then the
determination will be submitted to arbitration under
paragraph 10.01.
6.01(d). Abatement. Unless the damage is caused by Tenant's willful
misconduct, the Rent or Additional Rent shall ▇▇▇▇▇ in
proportion to that part of the Premises that is unfit for
use in Tenant's business. The abatement shall consider the
nature and extent of interference to Tenant's ability to
conduct business in the Premises and the need for access and
essential services. The abatement shall continue from the
date the damage occurred until the date that the Landlord
completes the repairs and restoration to the Relevant Space
or the part rendered unusable and notice to Tenant that the
repairs and restoration are completed, or until Tenant again
uses the Premises or the part rendered unusable, whichever
is first.
6.01(e). Tenant's Property. Notwithstanding anything else in Section
6, Landlord is not obligated to repair or restore damage to
Tenant's trade fixtures, furniture, equipment, or other
personal property, or any Tenant improvements other than
those listed in Exhibit B, except for damages caused by
Landlord's willful misconduct or gross negligence and only
to the extent not covered by Tenant's insurance.
6.01(f). Damage to Building. If:
(A) more than forty (40) percent of the
Building is damaged and the Landlord
decides not to repair and restore the
Building;
(B) any mortgagee of the Building shall not
allow adequate insurance proceeds for
repair and restoration;
(C) the damage is not covered by Landlord's
insurance (which Landlord will use
reasonable commercial efforts to maintain
coverage comparable to what Landlord is
currently carrying); or
(D) the Lease is in the last twelve (12)
months of its Term,
then Landlord may cancel this Lease. To cancel,
Landlord must give notice to Tenant within thirty (30)
days after the Landlord knows of the damage. The notice
must specify the cancellation date, which shall be at
least thirty (30) but not more than sixty (60) days
after the date notice is given.
6.01(g). Cancellation. If either party cancels this Lease as
permitted by paragraph 6.01, then this Lease shall end on
the day specified in the cancellation notice. The Rent,
Additional Rent, and other charges shall be payable up to
the cancellation date and shall account for any abatement.
Landlord shall promptly refund to Tenant any prepaid,
unaccrued Rent or Additional Rent, accounting for any
abatement, plus security deposit, if any, less any sum then
owing by Tenant to Landlord.
-8-
If Landlord cancels this lease as permitted by
paragraph 6.01, then Landlord must also cancel all
other similarly affected Tenant leases in the Building.
6.02 Condemnation.
6.02(a). Definitions. The terms "eminent domain," "condemnation,"
"taken," and the like in paragraph 6.02 include (A) taking
for public or quasi-public use and (B) private purchases in
place of condemnation by any authority authorized to
exercise the power of eminent domain.
6.02(b). Entire Taking. If the entire Premises or the portions of the
Building required for reasonable access to, or the
reasonable use of, the Premises are taken by eminent domain,
this Lease shall automatically end on the earlier of:
(i) the date title vests; or
(ii) the date Tenant is dispossessed by the
condemning authority.
6.02(c). Partial Taking. If the taking of a part of the Premises
materially interferes with Tenant's ability to continue its
business operations in substantially the same manner and
space then Tenant may end this Lease on the earlier of:
(i) the date when title vest;
(ii) the date Tenant is dispossessed by the
condemning authority; or
(iii) sixty (60) days following notice to Tenant of
the date when vesting or dispossession is to
occur.
If there is a partial taking and this Lease continues,
then the Lease shall end as to the part taken and the
Rent and Additional Rent shall ▇▇▇▇▇ in proportion to
the part of the Premises taken and Tenant's pro rata
share shall be equitably reduced.
6.02(d). Termination by Landlord. If title to a part of the Building
other than the Premises is condemned, and in the Landlord's
reasonable opinion, the Building should be restored in a
manner that materially alters the Premises, Landlord may
cancel this Lease by giving notice to Tenant. Cancellation
notice shall be given within sixty (60) days following the
date title vested. This Lease shall end on the date
specified in the cancellation notice, which date shall be at
least thirty (30) days but not more than ninety (90) days
after the date notice is given.
6.02(e). Rent Adjustment. If the Lease is canceled as provided in
paragraphs 6.02(b), (c), or (d), then the Rent, Additional
Rent and other charges shall be payable up to the
cancellation date, and shall account for any abatement.
Landlord, considering any abatement, shall promptly refund
to Tenant any prepaid, unaccrued Rent plus Security Deposit,
if any, less any sum then owing by Tenant to Landlord.
6.02(f). Repair. If the Lease is not canceled as provided for in
paragraphs 6.02(b), (c), or (d), then Landlord at its
expense shall promptly repair and restore the Premises to
the condition that existed immediately before the taking,
except for the part taken, to render the Premises a complete
architectural unit, but only to the extent of the
condemnation award received for the damage.
6.02(g). Awards and Damages Landlord reserves all rights to damages
paid because of any partial or entire taking of the
Premises. Tenant assigns to Landlord any right Tenant may
have to the damages or award. Further, Tenant shall not make
claims against Landlord or the condemning authority for
damages.
Notwithstanding anything else in Paragraph
6.02(g), Tenant may claim and recover from the
condemning authority a separate award for Tenant's
moving expenses, business dislocation damages, Tenant's
personal property and fixtures, the unamortized costs
of leasehold improvements paid for by Tenant, excluding
the Landlord's Buildout described in paragraph 1.05
-9-
and Exhibit B. Each party shall seek its own award, as
limited by paragraph 6.02(g), at its own expense, and
neither shall have any right to the award made to the
other.
6.02(h). Temporary Condemnation. If part or all of the Premises are
condemned for a limited period of time (Temporary
Condemnation), this Lease shall remain in effect. The Rent
or Additional Rent and Tenant's obligations for the part of
the Premises taken shall ▇▇▇▇▇ during the Temporary
Condemnation in proportion to the part of the Premises that
Tenant is unable to use in its business operations as a
result of the Temporary Condemnation. Landlord shall receive
the entire award for any Temporary Condemnation.
SECTION 7 -- DEFAULT
7.01. Tenant's Default.
7.01(a). Defaults. Each of the following, whether alone or together,
constitutes a default (Default):
(i) Tenant's failure to pay Rent or Additional Rent
within seven (7) days after Tenant receives
notice from Landlord of Tenant's failure to pay
Rent or Additional Rent;
(ii) Tenant's failure to pay Rent or Additional Rent
by the due date, at any time during a calendar
year in which Tenant has already received three
notices of its failure to pay Rent or Additional
Rent by the due date;
(iii) Tenant's failure to perform or observe any other
Tenant obligation after a period of thirty (30)
business days or the additional time, if any,
that is reasonably necessary to promptly and
diligently cure the failure after receiving
notice from Landlord setting forth in reasonable
detail the nature and extent of the failure and
identifying the applicable Lease provision(s);
(iv) Tenant's abandoning or vacating the Premises if
Tenant fails to timely pay the Rent or
Additional Rent by the due date; and
(v) Tenant's failure to vacate or stay any of the
following within ninety (90) days after they
occur:
(A) petition in bankruptcy is filed by, or
against, Tenant;
(B) Tenant is adjudicated as bankrupt or
insolvent;
(C) a receiver, trustee, or liquidation is
appointed for all or a substantial part
of Tenant's property; or
(D) Tenant makes an assignment for the
benefit of creditors.
7.02. Landlord's Remedies
7.02(a). Remedies. Landlord, in addition to the remedies given in
this Lease or under the law, may do any one or more of the
following if Tenant commits a Default under paragraph 7.01:
(i) end this Lease, and Tenant shall then surrender
the Premises to Landlord; and
(ii) with process of law enter and take possession of
the Premises, alter locks and other security
devices at the Premises and/or remove Tenant,
with or without having ended the Lease.
Tenant waives claims for damages by reason of
Landlord's reentry, repossession, or alteration of
locks or other security devices and for damages by
reason of any legal process.
-10-
7.02(b). No Surrender. Landlord's exercise of any of its remedies or
its receipt of Tenant's keys shall not be considered an
acceptance or surrender of the Premises by Tenant. A
surrender must be agreed to in a writing signed by both
parties.
7.02(c). Rent. If Landlord ends this Lease or ends Tenant's right to
possess the Premises because of a Default, Landlord may hold
Tenant liable for Rent, Additional Rent and other
indebtedness accrued to the date the Lease ends. Tenant
shall also be liable for the Rent, Additional Rent and other
indebtedness that otherwise would have been payable by
Tenant during the remainder of the Term had there been no
Default, reduced by any sums Landlord receives by reletting
the Premises during the Term.
7.02(b). Other Expenses. Tenant shall also be liable for that part of
the following sums paid by Landlord and attributable to that
part of the Term ended due to Tenant's Default:
(i) reasonable broker's fees incurred by Landlord
for reletting part or all of the Premises
prorated for that part of the reletting Term
ending concurrently with the then current Term
of this Lease;
(ii) the cost of removing and storing Tenant's
property;
(iii) the cost of minor repairs, alterations, and
remodeling necessary to put the Premises in a
condition reasonably acceptable to a new Tenant;
and
(iv) other necessary and reasonable expenses incurred
by Landlord in enforcing its remedies.
7.02(e). Payment. Tenant shall pay the sums due in paragraphs 7.02(c)
and (d) within thirty (30) days of receiving Landlord's
proper and correct invoice for the amounts. Landlord is not
entitled to accelerated Rent or Additional Rent. During each
action to collect, Landlord shall be limited to the amount
of (A) any sums due under paragraph 7.02(c) that would have
accrued had the Lease not been ended and (B) sums due under
paragraph 7.02(d) that have been incurred by Landlord and
are now payable by Landlord.
7.03. Exception to Cure Periods. The cure period in paragraph 7.01 (a)(iii)
does not apply to failure to maintain the insurance required by paragraph 5.01.
7.04. Self-Help. If Tenant defaults, the Landlord may, without being
obligated and without waiving the Default, cure the Default. The Landlord may
enter the Premises to cure the Default. The Tenant shall pay the Landlord, upon
demand, all costs, expenses, and disbursements incurred by the Landlord to cure
the Default.
7.05. Survival. The remedies permitted by Section 7 and the indemnities in
paragraph 5.02 shall survive the ending of this Lease.
SECTION 8 -- NONDISTURBANCE
8.01. Subordination.
8.01(a). Mortgages. Subject to paragraph 8.01(b), this Lease is
subordinate to existing or subsequent mortgages covering the
Building.
8.01(b). Mortgages Approval Required. This Lease shall be subject to,
and contingent upon, Landlord's receiving the approval of
all of the terms and conditions contained herein by Bank of
America National Trust and Savings Association. Landlord
agrees to use its reasonable efforts to secure such
approval. If such approval cannot be obtained, Landlord
shall notify Tenant before Tenant occupies space, Landlord
shall return to Tenant the first month's rent and security
deposit delivered to Landlord pursuant to Paragraph 2.03 of
the Lease, and this Lease shall terminate and all rights,
obligations and liabilities of the parties hereunder shall
be released and discharged.
8.01(c). Foreclosures. If any mortgage is foreclosed, then:
-11-
(i) this Lease shall continue;
(ii) Tenant's quiet possession shall not be disturbed
provided that Tenant is not in Default;
(iii) Tenant will attorn to and recognize the
mortgagee or purchaser at foreclosure sale
(Successor Landlord) as Tenant's landlord for
the remaining Term; and
(iv) the Successor Landlord shall not be bound by:
(A) any payment of Rent or Additional Rent
for more than one month in advance,
except the Security Deposit and free
rent, if any, specified in the Lease,
(B) any amendment, modification, or ending of
this Lease without Successor Landlord's
consent after the Successor Landlord's
name is given to Tenant unless the
amendment, modification, or ending is
specifically authorized by the original
Lease and does not require Landlord's
prior agreement or consent, and
(C) any liability for any act or omission of
a prior Landlord.
8.01(d). Self-Operating. Paragraph 8.01 is self-operating. However,
Tenant shall promptly execute and deliver any documents
needed to confirm this arrangement.
8.02. Estoppel Certificate.
8.02(a). Obligation. Tenant shall from time to time, within ten (10)
business days after receiving a written request by the
Landlord, execute and deliver to the Landlord a written
statement. This written statement, which may be relied upon
by the Landlord and any third party with whom the Landlord
is dealing, shall certify:
(i) the accuracy of the Lease document;
(ii) the Commencement and Ending Dates of the Lease;
(iii) that the Lease is (A) unmodified and in full
effect, or (B) in full effect as modified,
stating the date and nature of any and all
modifications;
(iv) whether, to the Tenant's knowledge, the Landlord
is in default or whether the Tenant has any
claims or demands against the Landlord and, if
so, specifying the Default, claim or demand; and
(v) to other correct and reasonably ascertainable
facts that are covered by the Lease terms.
8.02(b). Remedy. The Tenant's failure to comply with its obligation
in paragraph 8.02(a) shall be a Default. Notwithstanding
paragraphs 7.01(a)(iii) and 7.03, the cure period for this
Default shall be five (5) business days after the Tenant
receives notice of the Default.
8.03. Quiet Possession. If Tenant is not in default and subject to the Lease
terms and the above encumbrances, Landlord warrants that Tenant's peaceable and
quiet enjoyment of the Premises shall not be disturbed by the Landlord or anyone
acting for or through the Landlord.
SECTION 9 -- LANDLORD'S RIGHTS
9.01. Mechanic's Liens
9.01(a). Discharge Lien. Tenant shall, within twenty (20) days after
receiving notice of any mechanic's lien for material or work
claimed to have been furnished to the Premises on Tenant's
behalf and at Tenant's request, except for work contracted
by Landlord including the Improvements described in
paragraph 1.05 and Exhibit B:
-12-
(i) discharge the lien; or
(ii) post a bond equal to the amount of the disputed
claim with companies reasonably satisfactory to
Landlord.
If Tenant posts a bond, it shall contest the validity
of the lien. Tenant shall indemnify, defend, and hold
Landlord harmless from losses incurred from these
liens.
9.01(b). Landlord's Discharge. If Tenant does not discharge the lien
or post the bond within the twenty (20) day period, Landlord
may pay any amounts, including interest and legal fees, to
discharge the lien. Tenant shall then be liable to Landlord
for the amounts paid by Landlord.
9.01(c). Consent not Implied. Paragraph 9.01 is not a consent to
subject Landlord's property to these liens.
9.02. Right to Enter.
9.02(a). Permitted Entries. Landlord and its agents, servants, and
employees may enter the Premises at reasonable times, and at
any time if an emergency, without charge, liability, or
abatement of Rent or Additional Rent, to:
(i) examine the Premises;
(ii) make repairs, alterations, improvements, and
additions either required by the Lease or
advisable to preserve the integrity, safety, and
good order of part or all of the Premises or
Building;
(iii) provide janitorial and other services;
(iv) comply with Applicable Laws;
(v) show the Premises to prospective lenders or
purchasers and during the ninety (90) days
immediately before this Lease ends to
prospective tenants, accompanied, if requested
by Tenant, by a Tenant representative;
(vi) post notices of nonresponsibility;
(vii) remove any Alterations made by Tenant in
violation of paragraph 4.01; and
(viii) post "For Sale. signs and, during the one
hundred and twenty (120) days immediately before
this Lease ends, post "For Lease" signs.
9.02(b). Entry Conditions. Notwithstanding paragraph 9.02(a), entry
is conditioned upon Landlord causing the least practical
interference to Tenant's business.
9.03. Right to Terminate. Landlord may terminate this Lease at any time
without penalty by giving nine (9) months advance written notice to Tenant. This
lease shall end on the date specified in the termination notice, which date
shall be at least nine (9) months after the date that the notice was sent. If
the Lease is terminated as provided above, then the Rent, Additional Rent and
other charges shall be payable up to the termination date. Landlord shall
promptly refund to Tenant any prepaid, unaccrued Rent, Additional Rent plus
Security Deposit, if any, less any sum then owing by Tenant to Landlord.
SECTION 10 -- DISPUTES
10.01. Arbitration.
10.01(a). Procedure. For disputes subject to arbitration under
paragraph 10.01(c) that are not resolved by the parties
within ten (10) days after either party gives notice to the
other of its desire to arbitrate
-13-
the dispute, the dispute shall be settled by binding
arbitration by the American Arbitration Association in
accord with its then-prevailing rules. Judgment upon the
arbitration award may be entered in any court having
jurisdiction. The arbitrators shall have no power to change
the Lease provisions. The arbitration panel shall consist
of three arbitrators, one of whom shall be selected by the
Tenant, one of whom shall be selected by the Landlord, and
one of whom shall be mutually agreed upon by the parties
and who must be a real estate attorney actively engaged in
the practice of law for at least the last five (5) years.
Both parties shall continue performing their Lease
obligations pending the award in the arbitration
proceeding. The arbitrators shall award the prevailing
party reasonable expenses and costs, including reasonable
attorneys' fees pursuant to paragraph 11.02, plus interest
on the amount due at eighteen (18) percent per annum or the
maximum amount then allowed by applicable law, whichever is
less.
10.01(b). Payment. The losing party shall pay to the prevailing party
the amount of the final arbitration award. If payment is
not made within ten (10) business days after the date the
arbitration award is no longer appealable, then in addition
to any remedies under the law:
(i) if Landlord is the prevailing party, it shall have
the same remedies for failure to pay the arbitration
award as it has for Tenant's failure to pay the Rent
or Additional Rent; and
(ii) if Tenant is the prevailing party, it may deduct any
remaining unpaid award from its monthly payment of
Rent, Additional Rent, or other charges.
10.01(c). Arbitration. The following disputes are subject to
arbitration:
(i) any disputes that the parties agree to submit to
arbitration;
(ii) the date when the Premises arc substantially
completed;
(iii) the amount of any abatement of Rent and Additional
Rent because of damage or condemnation;
(iv) determination of the party that must comply with
Applicable Laws under paragraph 3.01;
(v) whether the utilities are being provided in the
quality and quantity required by paragraph 3.02;
(vi) whether Tenant may ▇▇▇▇▇ Rent and Additional Rent or
cancel the Lease under paragraph 3.02(e)(ii);
(vii) whether Landlord's withholding of consent is
unreasonable or unduly delayed under paragraph
4.01(a) and (b);
(viii) whether either party can cancel the Lease under
Sections 6 or 7; and
(ix) any allocation required under paragraph 2.02.
SECTION 11 -- MISCELLANEOUS
11.01. Broker's Warranty. The parties warrant that ▇▇▇▇▇▇ & Associates is the
only broker they dealt with on this Lease. The party who breaches this warranty
shall defend, hold harmless and indemnify the nonbreaching party from any claims
or liability arising from the breach. Landlord is solely responsible for paying
the commission of ▇▇▇▇▇▇ & Associates.
11.02. Attorneys' Fees. In any litigation or arbitration between the parties
regarding this Lease, the losing party shall pay to the prevailing party all
reasonable expenses and court costs including attorneys' fees actually incurred
by the prevailing party. A party shall be considered the prevailing party if:
-14-
(i) it initiated the litigation and substantially
obtains the relief it sought, either through a
judgment or the losing party's voluntary action
before arbitration (after it is scheduled),
trial, or judgment;
(ii) the other party withdraws its action without
substantially obtaining the relief it sought; or
(iii) it did not initiate the litigation and judgment
is entered for either party, but without
substantially granting the relief sought.
11.03. Notices. All notices under this Lease shall be in writing and sent by
registered or certified mail, postage prepaid, as follows:
To Tenant: At the Premises
To Landlord: c/o Attachmate Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attn: Legal Department
Either party may change these persons or addresses by giving notice as
provided above. Tenant shall also give required notices to Landlord's mortgagee
after receiving notice from Landlord of the mortgagee's name and address.
Notice shall be considered given and received on the latest original delivery or
attempted delivery date as indicated on the postage receipt(s) of all persons
and addresses to which notice is to be given.
11.04. Partial Invalidity. If any Lease provision is invalid or unenforceable
to any extent, then that provision and the remainder of this Lease shall
continue in effect and be enforceable to the fullest extent permitted by law.
11.05. Waiver. The failure of either party to exercise any of its rights is
not a waiver of those rights. A party waives only those rights specified in
writing and signed by the party waiving its rights.
11.06. Construction.
11.06(a). Construction Against Drafter. The parties chose this Lease
document because it is fair to both parties and shall be
construed as if both parties were equally responsible for
drafting the provision. If any Lease provision is modified
or added by the parties, then the rule of construction of
construing against the drafter shall apply to the modified
or added provision. If the Lease's fairness is materially
affected because of the cumulative effect of the changes,
additions, or deletions (paragraph 11.06(b)), then
paragraph 11.06 shall be void.
11.06(b). Deletions. If the parties delete any provision or part of a
provision, the Lease will be interpreted as if the deleted
language was never part of the Lease. This paragraph is
subject to the rule in paragraph 11.06(a) concerning any
changes, additions or deletions that materially affect the
Lease's fairness.
11.07. Binding on Successors. This Lease shall bind the parties' heirs,
successors, representatives, and permitted assigns.
11.08. Governing Law. This Lease shall be governed by the laws of the state
in which the Building is located.
11.09. Insurance Increase. If due to Tenant's particular use of the Premises
the Landlord's insurance rates are increased, Tenant shall pay the increase.
11.10. Lease not an Offer. Landlord gave this Lease to Tenant for review. It
is not an offer to lease. This Lease shall not be binding unless signed by a
duly authorized representative of both parties and an originally signed
counterpart is delivered to Tenant by June 30, 1995. This Lease shall create the
relationship of Landlord and Tenant between the parties hereto. No estate shall
pass out of Landlord. Tenant has only a usufruct not subject to levy or sale and
not assignable by Tenant except by Landlord's prior, written consent.
11.11. Recording. Recording of this Lease is prohibited except as allowed in
this paragraph. At the request of either party, the parties shall promptly
execute and record, at the cost of the requesting party, a short form memorandum
-15-
describing the Premises and stating this Lease's Term, its Commencement and
Ending Dates, and other information the parties agree to include.
11.12. Survival of Remedies. The parties' remedies shall survive the ending
of this Lease when the ending is caused by the Default of the other party.
11.13. Authority of Parties. Each party warrants that it is authorized to
enter into the Lease, that the person signing on its behalf is duly authorized
to execute the Lease, and that no other signatures are necessary.
11.14. Business Days. Business days means Monday through Friday inclusive,
excluding the following holidays or the days on which the holidays are
designated for observance: New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day
and Christmas Day.. Throughout this Lease, wherever "days" are used the term
shall refer to calendar days. Wherever the term "business days" is used the
term shall refer to business days.
11.15. Early Termination. Either Landlord or Tenant reserves the right to
terminate this lease under the following terms and conditions: (a) by Tenant at
the end of the second anniversary of this Lease upon 9 months written notice
prior to the second anniversary of this Lease; or (b) by Landlord in the event
that Landlord elects to recapture the Premises upon 9 months written notice
prior to such recapture. Upon any termination of the Lease by Tenant, Tenant
shall (a) reimburse Landlord for all unamortized Tenant Improvement Allowance in
accordance with the schedule on Exhibit C, (b) pay a termination fee equal to
one months rent, and (c) pay Landlord all outstanding commissions due to the
Broker based upon the canceled portion of this Lease.
11.16. Entire Agreement. This Lease contains the entire agreement between the
parties about the Premises and Building. Except for the Rules and Regulations
document, this Lease shall be modified only by a writing signed by both parties.
11.17. Definition of Lease. This Lease consists of the following:
(i) Title Page;
(ii) Sections 1 through 11;
(iii) Signature Page;
(iv) Rules and Regulations; and
(v) Exhibits A through C.
11.18. Time. Time is of the essence of this Lease.
TENANT ACKNOWLEDGES THAT TENANT HAS READ AND UNDERSTANDS THE TERMS AND
CONDITIONS OF THIS LEASE AND HAS RECEIVED A COPY OF IT.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals.
LANDLORD: ATTACHMATE CORPORATION
/s/ ▇▇▇▇▇ ▇. Dumma SIGNATURE /s/ W.E. ▇▇▇▇▇▇
------------------------------ -------------------------------
WITNESS
________________________________________
NAME W.E. ▇▇▇▇▇▇
-----------------------------------
TITLE Vice President
-----------------------------------
-16-
TENANT: SOFTSENSE, INC.
/s/ ▇.▇. Zudall SIGNATURE /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------- -------------------------------
WITNESS
________________________________________
NAME ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
TITLE President
-----------------------------------
-17-
RULES AND REGULATIONS
1. Signs. Landlord retains the right to regulate the manner of display of the
-----
exterior signs, placards, pictures, advertisements, names or notices. Landlord
shall have the right to remove any exterior sign, placard, picture,
advertisement, name or notice which has not been approved by Landlord or is
being displayed in a non-acceptable manner without notice to and at the expense
of the Tenant. All approved signs or lettering on doors shall be printed,
painted, affixed or inscribed at the expense of Tenant, except as provided
otherwise in Exhibit B. Tenant shall not place anything or allow anything to be
placed near the glass of any window, door partition or wall which may appear
unsightly from outside of the Premises. Without the written consent of
Landlord, Tenant shall not use the name of the Building in connection with or in
promotion or advertising the business of Tenant except as Tenant's address.
2. Nuisance. Tenant shall not use, keep or permit to be used or kept noxious
--------
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or
others by reason of noise, odors and/or vibrations. No animals or birds shall be
brought in or kept in or about the Premises or the Building. No Tenant shall
make or permit to be made any disturbing noises or disturb or interfere with
neighboring Buildings, or with those having business with such occupants by the
use of any musical instrument, radio, phonograph, alarm, or unusual noise. No
Tenant shall throw anything out of doors or down the passageways.
3. Permitted Use. The Premises shall not be used except as otherwise
-------------
specified in the Lease Agreement. No Tenant shall occupy or permit any portion
of the Premises to be occupied for the manufacture or sale of liquor, narcotics,
or tobacco in any form. The Premises shall not be used for lodging or sleeping
or for any retail sales on premises or for illegal purposes.
4. Premises Closure. Tenant shall see that the doors of the Premises are
----------------
closed and securely locked before leaving the Building and that all water
faucets, water apparatus and Electricity within the Premises are entirely shut
off before Tenant or Tenant's employees leave the Building, except to the extent
necessary to the operation of Tenant's business and monitored. Tenant shall be
responsible for any damage to the Building or other Tenants caused by Tenant's
negligent failure to entirely shut off all water faucets, water apparatus and
electricity.
5. Disorderly Conduct. Landlord reserves the right to exclude or expel from
------------------
the Building any person who, in the judgment of Landlord, is intoxicated or
under the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of these Rules and Regulations.
6. Fire Regulations. Tenant agrees that it shall comply with all fire
----------------
regulations that may be issued from time to time by Landlord and Tenant also
shall provide Landlord with the names of a designated responsible employee to
represent Tenant in all matters pertaining to fire regulations.
7. Emergency Information. Upon written request of Landlord, Tenant will
---------------------
provide Landlord with names and telephone numbers to contact in case of
emergency.
8. No Antennas. Tenant shall not install any radio or television antenna,
-----------
loudspeaker or other devices on the roof or exterior walls of the Building,
without Landlord's prior knowledge and written consent which shall not be
unreasonably withheld or delayed. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Building or the Project.
9. Prohibited Uses. No cooking shall be done or permitted on the Premises
---------------
without Landlord's consent, except that use by Tenant of Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages or use of refrigerators or microwave ovens for employee use shall be
permitted, provided that all use of Tenant's equipment is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules and
regulations.
10. Security of Premises. Tenant assumes any and all responsibility for and
--------------------
agrees to use its best efforts to protect its Premises from theft, robbery and
pilferage, which includes keeping doors locked and other means of entry to the
Premises closed.
11. Lease. These Rules and Regulations are in addition to and shall be made a
-----
part of, the terms, covenants, agreements and conditions of Tenant's Lease, and
shall be construed consistent with the Lease, if possible, however, if
provisions of this
Rules and Regulations are otherwise inconsistent with the specific terms and
provisions of the Lease Agreement, such terms and conditions of the Lease
Agreement shall supersede and take precedence over these Rules and Regulations.
12. Additional Rules. Landlord reserves the right to make such other
----------------
reasonable Rules and Regulations as, in its reasonable 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 or
modified Rules and Regulations which are adopted by Landlord. Said additional
or modified Rules and Regulations shall be delivered by Landlord to Tenant and
upon delivery shall be immediately enforceable.
13. Parking.
-------
a. Landlord hereby grants to Tenant, its employees and invitees a nonexclusive
license to use the designated parking areas on an unreserved, first come, first
serve basis for the parking of motor vehicles during the term of this Lease.
Parking is prohibited in such areas as may be reasonably designated by Landlord
or Landlord's agent from time to time.
b. Landlord shall not be liable for damage to vehicles, persons, or any
consequential loss suffered by Tenant, its employees, invitees, licensees,
suppliers, agents, the driver or owner.
c. Tenant or its customers, suppliers, employees or invitees shall not use
motor homes or other similar vehicles in the parking areas and shall not leave
vehicles in the parking area overnight or for any extended period of time, nor
park any vehicles in the parking areas other than automobiles, motorcycles,
motor driven or non-motor driven bicycles or four-wheeled trucks not more than
20 feet in length. Provided that, from time to time, Tenant may park passenger
automobiles overnight.
d. All directional signs and arrows must be observed. The speed limit within
all parking areas shall be 5 miles per hour.
e. Landlord or its agents shall have the right to cause to be removed any car
of Tenant, its employees, invitees, licensees, or agents, that may be parked in
unauthorized areas or in violation of governmental authority. Tenant agrees to
be liable to Landlord, for any and all claims, losses, damages and attorneys'
fees and costs of litigation asserted or arising in respect to or in connection
with the removal of Tenant's, its employees' or guest's vehicle and for all
expenses incurred by Landlord in connection with such removal.
f. Landlord reserves the right to modify and/or adopt such other Rules and
Regulations for the parking facilities. Landlord may refuse to permit any
person who violates these rules and Regulations to park in the parking
facilities, and any violation shall subject the car to removal at the owner's
expense. Landlord agrees to work with appropriate representatives of Tenant in
carrying out any of the above which requires removal of any vehicles.
-2-