▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
OFFICE LEASE AGREEMENT
BETWEEN
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
C-BRIDGE INTERNET SOLUTIONS, A DELAWARE CORPORATION
("TENANT")
TABLE OF CONTENTS
I. BASIC LEASE INFORMATION........................... 1
II. LEASE GRANT....................................... 3
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION....... 3
IV. RENT.............................................. 4
V. COMPLIANCE WITH LAWS; USE......................... 8
VI. SECURITY DEPOSIT.................................. 8
VII. SERVICES TO BE FURNISHED BY LANDLORD.............. 8
VIII. LEASEHOLD IMPROVEMENTS............................ 9
IX. REPAIRS AND ALTERATIONS........................... 9
X. USE OF ELECTRICAL SERVICES BY TENANT.............. 10
XI. ENTRY BY LANDLORD................................. 11
XII. ASSIGNMENT AND SUBLETTING......................... 11
XIII. LIENS............................................. 12
XIV. INDEMNITY AND WAIVER OF CLAIMS.................... 12
XV. INSURANCE......................................... 13
XVI. SUBROGATION....................................... 13
XVII. CASUALTY DAMAGE................................... 14
XVIII. CONDEMNATION...................................... 14
XIX. EVENTS OF DEFAULT................................. 15
XX. REMEDIES.......................................... 15
XXI. LIMITATION OF LIABILITY........................... 16
XXII. NO WAIVER......................................... 17
XXIII. QUIET ENJOYMENT................................... 17
XXIV. RELOCATION........................................ 17
XXV. HOLDING OVER...................................... 17
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.. 17
XXVII. ATTORNEYS' FEES................................... 18
XXVIII. NOTICE............................................ 18
XXIX. EXCEPTED RIGHTS................................... 18
XXX. SURRENDER OF PREMISES............................. 18
XXXI. MISCELLANEOUS..................................... 19
XXXII. ENTIRE AGREEMENT.................................. 20
i
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 15th day of March, 2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean that certain building to be constructed at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, commonly known as ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. As of the date of this Lease, Landlord has not
caused the Building to be fully constructed.
B. "Rentable Square Footage of the Building" is deemed to be
approximately 201,787 square feet, subject to adjustment as provided
below in Section I.C.
C. "Premises" shall mean the area shown on EXHIBIT A to this Lease. The
Premises are located on the 10th floor and known as suite number 1000.
The "Rentable Square Footage of the Premises" is deemed to be 9,829
square feet. If the Premises include one or more floors in their
entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. Upon substantial
completion of the Building, Landlord shall have its architect measure
the Premises and Building in accordance with Landlord's standard
measurement practices for the Building in order to determine the
Rentable Square Footage of the Premises and Rentable Square Footage of
the Building. Such remeasurement shall be conducted using the
following load factor for the Premises: single tenant/full floor load
factor of approximately 20.82% (not to exceed 22.82%). Upon such
determination, Landlord and Tenant shall enter into the amendment as
described in the last paragraph of Section I.D. below.
D. "Base Rent":
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ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
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6/1/2000 - 5/31/2005 $55.75 $547,966.80 $45,663.90
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Landlord and Tenant acknowledge that the foregoing schedule is based
upon the assumption that the Premises shall contain a total of 9,829
square feet of Rentable Square Footage. In the event that the
Premises contain other than 9,829 square feet of Rentable Square
Footage as a result of a remeasurement of the Premises by Landlord's
architect as provided in Section I.C. above, the foregoing schedule
shall be recalculated based upon the actual Rentable Square Footage of
the Premises, and upon such determination of the Rentable Square
Footage of the Premises, Landlord and Tenant shall promptly enter into
an amendment to this Lease to modify (i) the total Rentable Square
Footage of the Premises, (ii) the Rentable Square Footage of the
Building (to reflect any change in the Rentable Square Footage of the
Building as a result of a remeasurement of the Building by Landlord's
architect as provided in Section I.C. above), (iii) the amount of the
monthly installments of Base Rent payable by Tenant with respect to
the Premises, (iv) the amount of the Allowance, if any, and (v) any
other matters which are affected by a change in the Rentable Square
Footage of the Premises.
E. "Tenant's Pro Rata Share": 4.8710%.
F. "Base Year" for Taxes: 2000; "Base Year" for Expenses: 2000.
G. "Term": A period of 60 months. The Term shall commence on JUNE 1,
2000 (the "Commencement Date") and, unless terminated early in
accordance with this Lease, end on MAY 31, 2005 (the "Termination
Date"). However, if Landlord is required to Substantially Complete
(defined in Section III.A) any Landlord Work (defined in Section I.O.)
prior to the Commencement Date under the terms of a Work Letter
(defined in Section I.O): (1) the date set forth in the prior sentence
as the "Commencement Date" shall instead be defined as the "Target
Commencement Date" by which date Landlord will use reasonable efforts
to
1
Substantially Complete the Landlord Work; and (2) the actual
"Commencement Date" shall be the date on which the Landlord Work is
Substantially Complete, as determined by Section III.A. In such
circumstances, the Termination Date will instead be the last day of
the Term as determined based upon the actual Commencement Date.
Landlord's failure to Substantially Complete the Landlord Work by the
Target Commencement Date shall not be a default by Landlord or
otherwise render Landlord liable for damages. Promptly after the
determination of the Commencement Date, Landlord and Tenant shall
enter into a commencement letter agreement in the form attached as
EXHIBIT C.
H. Tenant allowance(s): $35.00 per rentable square foot of the Premises,
as more fully set forth on EXHIBIT D.
I. "Security Deposit" shall mean $933.755.00 in the form of a letter of
credit, as more fully described in Article VI.
J. "Guarantor(s)": As of the date of this Lease, there are no
Guarantors.
K. "Broker(s)": ▇▇▇▇▇ & ▇▇▇▇▇
▇. "Permitted Use": General office use.
M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises. Prior to the Commencement Date, notices shall be sent
to Tenant at the following address:
C-BRIDGE INTERNET SOLUTIONS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LANDLORD: WITH A COPY TO:
EOP-150 CALIFORNIA STREET, L.L.C. EQUITY OFFICE PROPERTIES TRUST
C/O EQUITY OFFICE PROPERTIES TRUST TWO NORTH RIVERSIDE PLAZA
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: BUILDING MANAGER ATTENTION: REGIONAL COUNSEL -
PACIFIC REGION
Rent (defined in Section IV.A) is payable to the order of EQUITY
OFFICE PROPERTIES at the following address: TO BE DETERMINED.
N. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is obligated to
perform in the Premises pursuant to a separate work letter agreement
(the "Work Letter"), if any, attached as EXHIBIT D. If a Work Letter
is not attached to this Lease or if an attached Work Letter does not
require Landlord to perform any work, the occurrence of the
Commencement Date shall not be conditioned upon the performance of
work by Landlord and, accordingly, Section III.A. shall not be
applicable to the determination of the Commencement Date.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building are 8:00 a.m. to 6:00 p.m. on
Business Days.
2
R. "Property" means the Building and the parcel(s) of land on which it is
located and, at Landlord's discretion, the Building garage and other
improvements serving the Building, if any, and the parcel(s) of land
on which they are located.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. ADJUSTMENT OF COMMENCEMENT DATE; POSSESSION.
A. The Landlord Work shall be deemed to be "Substantially Complete" on
the later of (i) the date that all Landlord Work has been performed
other than any details of construction, mechanical adjustment or any
other similar matter, the noncompletion of which does not materially
interfere with Tenant's use of the Premises, or (ii) the date Landlord
receives (or would have received absent any Tenant Delays) all
governmental approvals which are required to obtain a temporary or
permanent certificate of occupancy for the Premises from the local
governmental authority. However, if Landlord is delayed in the
performance of the Landlord Work as a result of any Tenant Delay(s)
(defined below), the Landlord Work shall be deemed to be Substantially
Complete on the date that Landlord could reasonably have been expected
to Substantially Complete the Landlord Work absent any Tenant Delay.
"Tenant Delay" means any act or omission of Tenant or its agents,
employees, vendors or contractors that actually delays the Substantial
Completion of the Landlord Work, including, without limitation: (1)
Tenant's failure to furnish information or approvals within any time
period specified in this Lease, including the failure to prepare or
approve preliminary or final plans by any applicable due date; (2)
Tenant's selection of equipment or materials that have long lead times
after first being informed by Landlord that the selection may result
in a delay; (3) changes requested or made by Tenant to previously
approved plans and specifications; (4) performance of work in the
Premises by Tenant or Tenant's contractor(s) during the performance of
the Landlord Work; or (5) if the performance of any portion of the
Landlord Work depends on the prior or simultaneous performance of work
by Tenant, a delay by Tenant or Tenant's contractor(s) in the
completion of such work. If the Commencement Date does not occur by
March 1, 2001 (or such later date as the Commencement Date may be
extended due to Tenant Delays and events of Force Majeure) (the
"Outside Completion Date"), Landlord or Tenant, as their sole remedy,
may terminate this Lease by giving the other party written notice of
termination on or before 10 Business Days after the Outside Completion
Date. In such event, the termination of this Lease shall be effective
as of the date of the non-terminating party's receipt of such notice
of termination. In the event that either Tenant or Landlord has so
provided the termination notice, this Lease shall be deemed null and
void and of no further force and effect and Landlord shall promptly
refund any prepaid rent and Security Deposit previously advanced by
Tenant under this Lease and, so long as Tenant has not previously
defaulted under any of its obligations under the Work Letter beyond
any applicable cure period, the parties hereto shall have no further
responsibilities or obligations to each other with respect to this
Lease. Landlord and Tenant acknowledge and agree that: (i) the
determination of the Commencement Date and the Outside Completion Date
shall take into consideration the effect of any Tenant Delays, and any
events of Force Majeure. Notwithstanding anything herein to the
contrary, if Landlord determines, that it will be unable to cause the
Commencement Date to occur by the Outside Completion Date, Landlord
shall have the right to immediately cease its performance of the
Landlord Work and provide Tenant with written notice (the "Outside
Extension Notice") of such inability, which Outside Extension Notice
shall set forth the date on which Landlord reasonably believes that
the Commencement Date will occur. Upon receipt of the Outside
Extension Notice, Tenant shall have the right to terminate this Lease
by providing written notice of termination to Landlord within 10
Business Days after the date of Tenant's receipt of the Outside
Extension Notice. In the event Tenant so provides a written notice of
termination, this Lease shall terminate effective as of the date of
Landlord's receipt of Tenant's notice of termination. In the event
that Tenant does not terminate this Lease within such 10 Business Day
period, the Outside Completion Date shall automatically be
3
amended to be the date set forth in Landlord's Outside Extension
Notice (subject to an ongoing right of the parties hereto to repeat
this process in the event Tenant does not so terminate this Lease and
Landlord subsequently determines that Landlord will be unable to cause
the Commencement Date to occur by the Outside Completion Date as
extended).
B. Subject to Landlord's obligation, if any, to perform Landlord Work and
Landlord's obligations under Section IX.B., the Premises are accepted
by Tenant in "as is" condition and configuration. By taking possession
of the Premises, Tenant agrees that the Premises are in good order and
satisfactory condition, and that there are no representations or
warranties by Landlord regarding the condition of the Premises or the
Building. If Landlord is delayed delivering possession of the
Premises or any other space due to the holdover or unlawful possession
of such space by any party, Landlord shall use reasonable efforts to
obtain possession of the space. If Landlord is not required to
Substantially Complete Landlord Work before the Commencement Date, the
Commencement Date shall be postponed until the date Landlord delivers
possession of the Premises to Tenant free from occupancy by any party,
and the Termination Date, at the option of Landlord, may be postponed
by an equal number of days. If Landlord is required to Substantially
Complete Landlord Work before the Commencement Date, the Commencement
Date and Termination Date shall be determined by Section I.G.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions of
this Lease and Tenant shall pay Rent (defined in Section IV.A.) to
Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent for
any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or installing
furniture, equipment or other personal property.
IV. RENT.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
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without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord.
Additional Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental, sales and
use taxes (but excluding income taxes), if any, imposed upon or
measured by Rent under applicable Law. Base Rent and recurring
monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand,
provided that the installment of Base Rent for the first full calendar
month of the Term shall be payable upon the execution of this Lease by
Tenant. All other items of Rent shall be due and payable by Tenant on
or before 30 days after billing by Landlord. All payments of Rent
shall be by good and sufficient check or by other means (such as
automatic debit or electronic transfer) acceptable to Landlord. If
Tenant fails to pay any item or installment of Rent when due, Tenant
shall pay Landlord an administration fee equal to 5% of the past due
Rent, provided that Tenant shall be entitled to a grace period of 5
days for the first 2 late payments of Rent in a given calendar year.
If the Term commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a calendar
month, the monthly Base Rent and Tenant's Pro Rata Share of any Tax
Excess (defined in Section IV.B.) or Expense Excess (defined in
Section IV.B.) for the month shall be prorated based on the number of
days in such calendar month. Landlord's acceptance of less than the
correct amount of Rent shall be considered a payment on account of the
earliest Rent due. No endorsement or statement on a check or letter
accompanying a check or payment shall be considered an accord and
satisfaction, and either party may accept the check or payment without
prejudice to that party's right to recover the balance or pursue other
available remedies. Tenant's covenant to pay Rent is independent of
every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
-----------------------------
Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for the
Base Year (the "Expense Excess") and also the amount, if any, by which
Taxes (defined in
4
Section IV.D.) for each calendar year during the Term exceed Taxes for
the Base Year (the "Tax Excess"). If Expenses and/or Taxes in any
calendar year decrease below the amount of Expenses and/or Taxes for
the Base Year, Tenant's Pro Rata Share of Expenses and/or Taxes, as
the case may be, for that calendar year shall be $0. Landlord shall
provide Tenant with a good faith estimate of the Expense Excess and of
the Tax Excess for each calendar year during the Term. On or before
the first day of each month, Tenant shall pay to Landlord a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the Expense Excess and one-twelfth of Tenant's
Pro Rata Share of Landlord's estimate of the Tax Excess. If Landlord
determines that its good faith estimate of the Expense Excess or of
the Tax Excess was incorrect by a material amount, Landlord may
provide Tenant with a revised estimate. After its receipt of the
revised estimate, Tenant's monthly payments shall be based upon the
revised estimate. If Landlord does not provide Tenant with an estimate
of the Expense Excess or of the Tax Excess by January 1 of a calendar
year, Tenant shall continue to pay monthly installments based on the
previous year's estimate(s) until Landlord provides Tenant with the
new estimate. Upon delivery of the new estimate, an adjustment shall
be made for any month for which Tenant paid monthly installments based
on the previous year's estimate(s). Tenant shall pay Landlord the
amount of any underpayment within 30 days after receipt of the new
estimate. Any overpayment shall be refunded to Tenant within 30 days
or credited against the next due future installment(s) of Additional
Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses
and Expense Excess and the actual Taxes and Tax Excess for the prior
calendar year. If the estimated Expense Excess and/or estimated Tax
Excess for the prior calendar year is more than the actual Expense
Excess and/or actual Tax Excess, as the case may be, for the prior
calendar year, Landlord shall apply any overpayment by Tenant against
Additional Rent due or next becoming due, provided if the Term expires
before the determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent due.
If the estimated Expense Excess and/or estimated Tax Excess for the
prior calendar year is less than the actual Expense Excess and/or
actual Tax Excess, as the case may be, for such prior year, Tenant
shall pay Landlord, within 30 days after its receipt of the statement
of Expenses and/or Taxes, any underpayment for the prior calendar
year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred in
----------------
each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including, but
not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that would have been incurred had Landlord entered into an
arms-length contract for such services with an unaffiliated
entity of comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by owners
of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by tenants. "Electrical Costs" means: (a) charges
paid by Landlord for electricity; (b) costs incurred in
connection with an energy management
5
program for the Property; and (c) if and to the extent permitted
by Law, a fee for the services provided by Landlord in connection
with the selection of utility companies and the negotiation and
administration of contracts for electricity, provided that such
fee shall not exceed 50% of any savings obtained by Landlord.
Electrical Costs shall be adjusted as follows: (i) amounts
received by Landlord as reimbursement for above standard
electrical consumption shall be deducted from Electrical Costs;
(ii) the cost of electricity incurred to provide overtime HVAC to
specific tenants (as reasonably estimated by Landlord) shall be
deducted from Electrical Costs; and (iii) if Tenant is billed
directly for the cost of building standard electricity to the
Premises as a separate charge in addition to Base Rent, the cost
of electricity to individual tenant spaces in the Building shall
be deducted from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b) required to
comply with any Laws that are enacted, or first interpreted to
apply to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 5 years. The
amortized cost of capital improvements may, at Landlord's
option, include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance the cost
of the capital improvement. "Payback Period" means the
reasonably estimated period of time that it takes for the cost
savings resulting from a capital improvement to equal the total
cost of the capital improvement.
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall
not include: the cost of capital improvements (except as set forth
above); depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of mortgage
and other non-operating debts of Landlord; the cost of repairs or
other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the
Building, including brokerage commissions; lease concessions,
including rental abatements and construction allowances, granted to
specific tenants; costs incurred in connection with the sale,
financing or refinancing of the Building; fines, interest and
penalties incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes Landlord; or
any penalties or damages that Landlord pays to Tenant under this Lease
or to other tenants in the Building under their respective leases. If
the Building is not at least 95% occupied during any calendar year or
if Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building at any time during a calendar
year, Expenses shall, at Landlord's option, be determined as if the
Building had been 95% occupied and Landlord had been supplying
services to 95% of the Rentable Square Footage of the Building during
that calendar year. If Tenant pays for its Pro Rata Share of Expenses
based on increases over a "Base Year", Expenses for the Base Year
shall also be determined as if the Building had been 95% occupied and
Landlord had been supplying services to 95% of the Rentable Square
Footage of the Building. The extrapolation of Expenses under this
Section shall be performed by appropriately adjusting the cost of
those components of Expenses that are impacted by changes in the
occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
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other assessments on the Building and/or Property, including, but not
limited to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments
and the Property's share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or
similar agreement as to the Property; (2) all personal property taxes
for property that is owned by Landlord and used in connection with the
operation, maintenance and repair of the Property; and (3) all costs
and fees
6
incurred in connection with seeking reductions in any tax liabilities
described in (1) and (2), including, without limitation, any costs
incurred by Landlord for compliance, review and appeal of tax
liabilities. Without limitation, Taxes shall not include any income,
capital levy, franchise, capital stock, gift, estate or inheritance
tax. If an assessment is payable in installments, Taxes for the year
shall include the amount of the installment and any interest due and
payable during that year. For all other real estate taxes, Taxes for
that year shall, at Landlord's election, include either the amount
accrued, assessed or otherwise imposed for the year or the amount due
and payable for that year, provided that Landlord's election shall be
applied consistently throughout the Term. If a change in Taxes is
obtained for any year of the Term during which Tenant paid Tenant's
Pro Rata Share of any Tax Excess, then Taxes for that year will be
retroactively adjusted and Landlord shall provide Tenant with a
credit, if any, based on the adjustment. Likewise, if a change is
obtained for Taxes for the Base Year, Taxes for the Base Year shall be
restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro Rata
Share of any such increase in the Tax Excess within 30 days after
Tenant's receipt of a statement from Landlord.
E. Tenant shall be responsible for, and shall pay prior to delinquency,
taxes or governmental service fees, possessory interest taxes, fees or
charges in lieu of any such taxes, capital levies, or other charges
imposed upon, levied with respect to, or assessed against, its
personal property, and its interest pursuant to this Lease. To the
extent that any such taxes are not separately assessed or billed to
Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by
Landlord prior to the delinquency of such taxes. In the event that
the tenant improvements in the Building which correspond to the
Landlord Work, as defined in this Lease, are assessed and taxed
separately by the applicable taxing authority, then Tenant shall be
liable and shall pay that portion of the Taxes applicable to the value
of the Landlord Work in the Premises which is in excess of $35.00 per
rentable square foot of the Premises based on the value attributed
thereto by the applicable taxing authority to either (a) the
applicable taxing authority prior to the delinquency of such taxes in
the event Tenant is billed directly by such taxing authority, or (b)
the Landlord within 30 days after written demand, in the event
Landlord is billed directly by the applicable taxing authority.
F. Audit Rights. Tenant may, within 90 days after receiving Landlord's
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statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and shipping
the records. If Tenant retains an agent to review Landlord's records,
the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit.
Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord
an Objection Notice within the 60 day period or fails to provide
Landlord with a Review Notice within the 90 day period described
above, Tenant shall be deemed to have approved Landlord's statement of
Expenses and shall be barred from raising any claims regarding the
Expenses for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good
faith to resolve any issues raised in Tenant's Objection Notice. If
Landlord and Tenant determine that Expenses for the calendar year are
less than reported, Landlord shall provide Tenant with a credit
against the next installment of Rent in the amount of the overpayment
by Tenant. In addition, if Landlord and Tenant determine that
Expenses for the Building for the year in question were less than
stated by more than 5%, Landlord, within 30 days after its receipt of
paid invoices therefor from Tenant, shall reimburse Tenant for any
reasonable amounts paid by Tenant to third parties in connection with
such review by Tenant. Likewise, if Landlord and Tenant determine
that Expenses for the calendar year are greater than reported, Tenant
shall pay Landlord the amount of any underpayment within 30 days. The
records obtained by Tenant shall be treated as confidential. In no
event shall Tenant be permitted to examine Landlord's records or to
dispute any statement of Expenses unless Tenant has paid and continues
to pay all Rent when due.
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V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. Tenant shall comply with the rules and regulations of
the Building attached as EXHIBIT B and such other reasonable rules and
regulations adopted by Landlord from time to time. Tenant shall also cause its
agents, contractors, subcontractors, employees, customers, and subtenants to
comply with all rules and regulations. Landlord shall not knowingly
discriminate against Tenant in Landlord's enforcement of the rules and
regulations. In the event of a conflict between any rules and regulations
enacted after the date hereof and the Lease, this Lease shall control.
VI. SECURITY DEPOSIT.
A. The Security Deposit shall be in the form of an irrevocable letter of
credit (the "Letter of Credit") which shall: (a) be in the amount of
$933,755.00; (b) be issued on the form attached hereto as EXHIBIT E;
(c) name Landlord as its beneficiary; (d) be drawn on an FDIC insured
financial institution satisfactory to Landlord; and (e) expire no
earlier than 90 days after the Termination Date of this Lease. The
Security Deposit shall be delivered to Landlord upon the execution of
this Lease by Tenant and shall be held by Landlord without liability
for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance
payment of Rent or a measure of Tenant's liability for damages.
Landlord may, from time to time, without prejudice to any other
remedy, use all or a portion of the Security Deposit to satisfy past
due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied
portion of the Security Deposit to Tenant within 45 days after the
later to occur of: (1) the date Tenant surrenders possession of the
Premises to Landlord in accordance with this Lease; or (2) the
Termination Date. If Landlord transfers its interest in the Premises,
Landlord may assign the Security Deposit to the transferee and,
following the assignment, Landlord shall have no further liability for
the return of the Security Deposit. Landlord shall not be required to
keep the Security Deposit separate from its other accounts.
B. Notwithstanding anything herein to the contrary, provided Tenant is
not then in default under this Lease, Tenant shall have the right to
reduce the amount of the Security Deposit (i.e., the Letter of Credit)
by $186,751.00 on each anniversary of the Commencement Date. Such
reduction shall be accomplished by having Tenant provide Landlord with
a substitute Letter of Credit in the form of the letter of credit
attached hereto as EXHIBIT E in the reduced amount.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably required
by Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined by
Landlord from time to time. As of the date hereof, Landlord's charge
for after hours ventilation service is $35.00 per hour, per floor and
Landlord's charge for after hours air conditioning service is $50.00
per hour, per floor, subject to change; (3) Maintenance and repair of
the Property as described in Section IX.B.; (4) Janitor service on
Business Days. If Tenant's use, floor covering or other improvements
require special services in excess of the standard services for the
Building, Tenant shall pay the additional cost attributable to the
special services; (5) Elevator service; (6) Electricity to the
Premises for general office use, in accordance with and subject to the
terms and conditions in Article X; and (7) such other services as
Landlord reasonably determines are necessary or appropriate for the
Property.
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B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive Business Day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not
been rendered untenantable by the Service Failure, the amount of
abatement that Tenant is entitled to receive shall be prorated based
upon the percentage of the Premises rendered untenantable and not used
by Tenant. In no event, however, shall Landlord be liable to Tenant
for any loss or damage, including the theft of Tenant's Property
(defined in Article XV), arising out of or in connection with the
failure of any security services, personnel or equipment.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables. Tenant's possession of the Premises shall be subject to all of the
terms and conditions of this Lease, including the obligation to pay Rent on a
per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform
related repairs in a timely manner, Landlord, at Tenant's expense, may remove
and dispose of the Required Removables and perform the required repairs.
Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for
the reasonable costs incurred by Landlord. Notwithstanding the foregoing,
Tenant, at the time it requests approval for a proposed Alteration (defined in
Section IX.C), may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration, if any, will be
considered to be Required Removables.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
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expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior partitions;
(3) doors; (4) the interior side of demising walls; (5) electronic,
phone and data cabling and related equipment (collectively, "Cable")
that is installed by or for the exclusive benefit of Tenant and
located in the Premises or other portions of the Building; (6)
supplemental air conditioning units, private showers and kitchens,
including hot water heaters, plumbing, and similar facilities serving
Tenant exclusively; and (7) Alterations performed by contractors
retained by Tenant, including related HVAC balancing. All work shall
be performed in
9
accordance with the rules and procedures described in Section IX.C.
below. If Tenant fails to make any repairs to the Premises for more
than 15 days after notice from Landlord (although notice shall not be
required if there is an emergency), Landlord may make the repairs, and
Tenant shall pay the reasonable cost of the repairs to Landlord within
30 days after receipt of an invoice, together with an administrative
charge in an amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
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good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord
is responsible.
C. Alterations. Tenant shall not make alterations, additions or
-----------
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable
to Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with
respect to Building systems); copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's insurance
in amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to
10% of the cost of the non-Cosmetic Alterations. Upon completion,
Tenant shall furnish "as-built" plans (except for Cosmetic
Alterations), completion affidavits, full and final waivers of lien in
recordable form, and receipted bills covering all labor and materials.
Tenant shall assure that the Alterations comply with all insurance
requirements and Laws. Landlord's approval of an Alteration shall not
be a representation by Landlord that the Alteration complies with
applicable Laws or will be adequate for Tenant's use.
X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage); (2) by
a separate charge payable by Tenant to Landlord within 30 days after
billing by Landlord; or (3) by separate charge billed by the
applicable utility company and payable directly by Tenant. Electrical
service to the Premises may be furnished by one or more companies
providing electrical generation, transmission and distribution
services, and the cost of electricity may consist of several different
components or separate charges for such services, such as generation,
distribution and stranded cost charges. Landlord shall have the
exclusive right to select any company providing electrical service to
the Premises, to aggregate the electrical service for the Property and
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Premises with other buildings, to purchase electricity through a
broker and/or buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive a fee
(if permitted by Law) for the selection of utility companies and the
negotiation and administration of contracts for electricity, provided
that the amount of such fee shall not exceed 50% of any savings
obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building. If
Tenant requests permission to consume excess electrical service,
Landlord may refuse to consent or may condition consent upon
conditions that Landlord reasonably elects (including, without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance costs
shall be paid by Tenant. Landlord shall have the right to separately
meter electrical usage for the Premises and to measure electrical
usage by survey or other commonly accepted methods.
XI. ENTRY BY LANDLORD.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not
constitute constructive eviction or entitle Tenant to an abatement or reduction
of Rent. Notwithstanding the foregoing, except in emergency situations as
determined by Landlord, Landlord shall exercise reasonable efforts to perform
any entry into the Premises in a manner that is reasonably designed to minimize
interference with the operation of Tenant's business in the Premises.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld if Landlord does not elect to exercise its
termination rights under Section XII.B below. Without limitation, it
is agreed that Landlord's consent shall not be considered unreasonably
withheld if: (1) the proposed transferee's financial condition does
not meet the criteria Landlord uses to select Building tenants having
similar leasehold obligations; (2) the proposed transferee's business
is not suitable for the Building considering the business of the other
tenants and the Building's prestige, or would result in a violation of
another tenant's rights; (3) the proposed transferee is a governmental
agency or occupant of the Building; (4) Tenant is in default after the
expiration of the notice and cure periods in this Lease; or (5) any
portion of the Building or Premises would likely become subject to
additional or different Laws as a consequence of the proposed
Transfer. Tenant shall not be entitled to receive monetary damages
based upon a claim that Landlord unreasonably withheld its consent to
a proposed Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or declaratory
judgment. Any attempted Transfer in violation of this Article shall,
at Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation under
this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant
within 30 days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the execution of
a
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consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing; or (2)
exercise its right to terminate this Lease with respect to the portion
of the Premises that Tenant is proposing to assign or sublet. Any
such termination shall be effective on the proposed effective date of
the Transfer for which Tenant requested consent. Tenant shall pay
Landlord a review fee of $750.00 for Landlord's review of any
Permitted Transfer or requested Transfer, provided if Landlord's
actual reasonable costs and expenses (including reasonable attorney's
fees) exceed $750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 60% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for Landlord's
share of any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer (other than Landlord's review fee),
including brokerage fees, legal fees and construction costs. If
Tenant is in Monetary Default (defined in Section XIX.A. below),
Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent in
the amount of any payments received (less Landlord's share of any
excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange, or if
at least 80% of its voting stock is owned by another entity, the
voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a successor
to Tenant by purchase, merger, consolidation or reorganization without
the consent of Landlord, provided that all of the following conditions
are satisfied (a "Permitted Transfer"): (1) Tenant is not in default
under this Lease; (2) Tenant's successor shall own all or
substantially all of the assets of Tenant; (3) Tenant's successor
shall have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net worth as
of the day prior to the proposed purchase, merger, consolidation or
reorganization; (4) the Permitted Use does not allow the Premises to
be used for retail purposes; and (5) Tenant shall give Landlord
written notice at least 30 days prior to the effective date of the
proposed purchase, merger, consolidation or reorganization. Tenant's
notice to Landlord shall include information and documentation showing
that each of the above conditions has been satisfied. If requested by
Landlord, Tenant's successor shall sign a commercially reasonable form
of assumption agreement.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition
to any other right or remedy of Landlord, Landlord may bond or insure over the
lien or otherwise discharge the lien. Tenant shall reimburse Landlord for any
amount paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including,
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without limitation, reasonable attorneys' fees and other professional
fees (if and to the extent permitted by Law), which may be imposed
upon, incurred by or asserted against Landlord or any of the Landlord
Related Parties and arising out of or in connection with any damage or
injury occurring in the Premises or any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant or
any of the Tenant Related Parties and arising out of or in connection
with the acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind
or weather; (2) the failure of any sprinkler, heating or air-
conditioning equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout; (4) the
bursting, leaking or running of any tank, water closet, drain or other
pipe; (5) water, snow or ice upon or coming through the roof,
skylight, stairs, doorways, windows, walks or any other place upon or
near the Building; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Tenant shall insure itself
against such losses under Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance written at replacement cost value and
with a replacement cost endorsement covering all of Tenant's trade fixtures,
equipment, furniture and other personal property within the Premises ("Tenant's
Property"); (3) Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be required by applicable
statute; and (4) Employers Liability Coverage of at least $1,000,000.00 per
occurrence. Any company writing any of Tenant's Insurance shall have an A.M.
Best rating of not less than A-VIII. All Commercial General Liability Insurance
policies shall name Tenant as a named insured and Landlord (or any successor),
Equity Office Properties Trust, a Maryland real estate investment trust, EOP
Operating Limited Partnership, a Delaware limited partnership, and their
respective members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and other designees of Landlord as the interest of such
designees shall appear, as additional insureds. All policies of Tenant's
Insurance shall contain endorsements that the insurer(s) shall give Landlord and
its designees at least 30 days' advance written notice of any change,
cancellation, termination or lapse of insurance. Tenant shall provide Landlord
with a certificate of insurance evidencing Tenant's Insurance prior to the
earlier to occur of the Commencement Date or the date Tenant is provided with
possession of the Premises for any reason, and upon renewals at least 15 days
prior to the expiration of the insurance coverage. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value, as
reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's' insurance shall not limit such party's
liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant
hereby waive and shall cause their respective insurance carriers to waive any
and all rights of recovery, claim, action or causes of action against the other
and their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of
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recovery, claims, actions or causes of action arising out of the negligence of
Landlord or any Landlord Related Parties or the negligence of Tenant or any
Tenant Related Parties, which loss or damage is (or would have been, had the
insurance required by this Lease been carried) covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the
Rent shall ▇▇▇▇▇ for the portion of the Premises that is untenantable
and not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not the
Premises has been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before
the fire or casualty; (3) the Premises have been materially damaged
and there is less than 2 years of the Term remaining on the date of
the casualty; (4) any Mortgagee requires that the insurance proceeds
be applied to the payment of the mortgage debt; or (5) a material
uninsured loss to the Building occurs. Landlord may exercise its
right to terminate this Lease by notifying Tenant in writing within 90
days after the date of the casualty. If Landlord does not terminate
this Lease, Landlord shall commence and proceed with reasonable
diligence to repair and restore the Building and the Leasehold
Improvements (excluding any Alterations that were performed by Tenant
in violation of this Lease). However, in no event shall Landlord be
required to spend more than the insurance proceeds received by
Landlord. Landlord shall not be liable for any loss or damage to
Tenant's Property or to the business of Tenant resulting in any way
from the fire or other casualty or from the repair and restoration of
the damage. Landlord and Tenant hereby waive the provisions of any
Law relating to the matters addressed in this Article, and agree that
their respective rights for damage to or destruction of the Premises
shall be those specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless
of anything in Section XVII.A above to the contrary, either party
shall have the right to terminate this Lease by giving written notice
to the other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of Tenant, Tenant Related Parties
or any of Tenant's transferees, contractors or licensees.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part of
the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
14
XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 3 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 10 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 10 days, Tenant
shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 10 days, and (2) Tenant
diligently pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the failure
must be cured immediately upon notice to Tenant. In addition, if
Landlord provides Tenant with notice of Tenant's failure to comply
with any particular term, provision or covenant of the Lease on 3
occasions during any 12 month period, Tenant's subsequent violation of
such term, provision or covenant shall, at Landlord's option, be an
incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud
of creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
E. In the case of any ground floor or retail Tenant, Tenant does not take
possession of, or abandons or vacates all or any portion of the
Premises.
F. Tenant is in default beyond any notice and cure period under any other
lease or agreement with Landlord, including, without limitation, any
lease or agreement for parking.
XX. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XIX or not, Landlord shall have
the option to pursue any one or more of the following remedies without
any notice (except as expressly prescribed herein) or demand
whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of
Rent or other obligations and waives any and all other notices or
demand requirements imposed by applicable law):
1. Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to the
sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which had
been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by which the
unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such Rent loss
that Tenant affirmatively proves could have been reasonably
avoided;
(c) The Worth at the Time of Award of the amount by which the
unpaid Rent for the balance of the Term after the time of
award exceeds the amount of such Rent loss that Tenant
affirmatively proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all
the detriment either proximately 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; and
15
(e) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to in
parts (a) and (b) above, shall be computed by allowing interest
at the lesser of a per annum rate equal to: (i) the greatest per
annum rate of interest permitted from time to time under
applicable law, or (ii) the Prime Rate plus five percent (5%).
For purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by a
federally insured bank selected by Landlord in the State of
California. The "Worth at the Time of Award" of the amount
referred to in part (c), above, shall be 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%);
2. Employ the remedy described in California Civil Code (S) 1951.4
(Landlord may continue this Lease in effect after Tenant's breach
and abandonment and recover Rent as it becomes due, if Tenant has
the right to sublet or assign, subject only to reasonable
limitations); or
3. Notwithstanding Landlord's exercise of the remedy described in
California Civil Code (S) 1951.4 in respect of an event or events
of default, at such time thereafter as Landlord may elect in
writing, to terminate this Lease and Tenant's right to possession
of the Premises and recover an award of damages as provided above
in Paragraph XX.A.1.
B. 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. No waiver by Landlord of any breach hereof shall be effective
unless such waiver is in writing and signed by Landlord.
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF
THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (C) AND 1179 OF THE
CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND
RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE TERM
PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR
RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH. TENANT ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing by
agreement, applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default.
E. This Article XX shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD
16
NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL
GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT
HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE XXVI BELOW) ON THE
PROPERTY, BUILDING OR PREMISES, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED
DEFAULT.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys
to the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject
to the terms of this Lease, provided Tenant pays the Rent and fully performs all
of its covenants and agreements. This covenant and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Building, and shall not be a
personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
Landlord, at its expense, at any time before or during the Term, may
relocate Tenant from the Premises to reasonably comparable space ("Relocation
Space") within the Building or adjacent buildings within the same project upon
60 days' prior written notice to Tenant, provided that the Relocation Space
shall be located on or above the 6th floor of the Building. From and after the
date of the relocation, "Premises" shall refer to the Relocation Space into
which Tenant has been moved and the Base Rent and Tenant's Pro Rata Share shall
be adjusted based on the rentable square footage of the Relocation Space.
Landlord shall pay Tenant's reasonable costs for moving Tenant's furniture and
equipment and printing and distributing notices to Tenant's customers of
Tenant's change of address and one month's supply of stationery showing the new
address.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if Tenant
fails to surrender the Premises at the expiration or earlier termination of this
Lease, occupancy of the Premises after the termination or expiration shall be
that of a tenancy at sufferance. Tenant's occupancy of the Premises during the
holdover shall be subject to all the terms and provisions of this Lease and
Tenant shall pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the greater of: (1) the sum of the
Base Rent and Additional Rent due for the period immediately preceding the
holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a
part of Landlord's interest in the Lease, Tenant shall, without charge, attorn
to the successor-in-interest. Landlord and Tenant shall each, within 15 days
after receipt of a written request from the other, execute and deliver an
estoppel certificate to those parties as are reasonably
17
requested by the other (including a Mortgagee or prospective purchaser). The
estoppel certificate shall include a statement certifying that this Lease is
unmodified (except as identified in the estoppel certificate) and in full force
and effect, describing the dates to which Rent and other charges have been paid,
representing that, to such party's actual knowledge, there is no default (or
stating the nature of the alleged default) and indicating other matters with
respect to the Lease that may reasonably be requested. Notwithstanding the
foregoing, upon written request by Tenant, Landlord will use reasonable efforts
to obtain a non-disturbance, subordination and attornment agreement from
Landlord's then current Mortgagee on such Mortgagee's then current standard form
of agreement. "Reasonable efforts" of Landlord shall not require Landlord to
incur any cost, expense or liability to obtain such agreement, it being agreed
that Tenant shall be responsible for any fee or review costs charged by the
Mortgagee. Upon request of Landlord, Tenant will execute the Mortgagee's form of
non-disturbance, subordination and attornment agreement and return the same to
Landlord for execution by the Mortgagee. Landlord's failure to obtain a non-
disturbance, subordination and attornment agreement for Tenant shall have no
effect on the rights, obligations and liabilities of Landlord and Tenant or be
considered to be a default by Landlord hereunder.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or to
enforce any covenant or condition of this Lease, or if either party intervenes
in any suit in which the other is a party to enforce or protect its interest or
rights, the prevailing party shall be entitled to all of its costs and expenses,
including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively referred to
as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for
Tenant is other than the Premises, and Tenant has vacated such address) without
providing Landlord a new Notice Address, Landlord may serve notice in any manner
described in this Article or in any other manner permitted by Law. Each notice
shall be deemed to have been received or given on the earlier to occur of actual
delivery or the date on which delivery is refused, or, if Tenant has vacated the
Premises or the other Notice Address of Tenant without providing a new Notice
Address, three (3) days after notice is deposited in the U.S. mail or with a
courier service in the manner described above. Either party may, at any time,
change its Notice Address by giving the other party written notice of the new
address in the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall remove Tenant's Property (defined in Article XV) from
the Premises, and quit and surrender the Premises to Landlord, broom clean, and
in good order, condition and repair, ordinary wear and tear excepted. Tenant
shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant's Property within 2 days
after the termination of this Lease or of Tenant's right to possession,
Landlord, at
18
Tenant's sole cost and expense, shall be entitled (but not obligated) to remove
and store Tenant's Property. Landlord shall not be responsible for the value,
preservation or safekeeping of Tenant's Property. Tenant shall pay Landlord,
upon demand, the expenses and storage charges incurred for Tenant's Property. In
addition, if Tenant fails to remove Tenant's Property from the Premises or
storage, as the case may be, within 30 days after written notice, Landlord may
deem all or any part of Tenant's Property to be abandoned, and title to Tenant's
Property shall be deemed to be immediately vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
State of California and Landlord and Tenant hereby irrevocably consent
to the jurisdiction and proper venue of such state. If any term or
provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected, and
each provision of this Lease shall be valid and enforced to the
fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and shall
have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such
action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, civil disturbances and other causes beyond the
reasonable control of the performing party ("Force Majeure").
However, events of Force Majeure shall not extend any period of time
for the payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right by
either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to the successor in interest of Landlord
for the performance of such obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any other brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify
and hold Tenant and the Tenant Related Parties harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Lease.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
State of California. If there is more than one Tenant, or if Tenant
is comprised of more than one party or entity, the obligations imposed
upon Tenant shall be joint and several obligations of all the parties
and entities. Notices, payments and agreements given or made by, with
or to any one person or entity shall be deemed to have been given or
made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may
19
continue to accrue after the expiration or early termination of this
Lease. Without limiting the scope of the prior sentence, it is agreed
that Tenant's obligations under Sections IV.A, IV.B., VIII, XIV, XX,
XXV and XXX shall survive the expiration or early termination of this
Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord may
reasonably request in order to create a "business profile" of Tenant
and determine Tenant's ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such
information unless Landlord is requested to produce the information in
connection with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a commercially
reasonable confidentiality agreement covering any confidential
information that is disclosed by Tenant.
M. Pursuant to City Planning Code Section 163, the Landlord has entered
into an agreement with the Department of City Planning for the City of
San Francisco, California to provide and implement a Transportation
Management Program for building tenants and to participate in a
program designed to coordinate commute alternatives marketing and
brokerage for greater downtown San Francisco, California employees.
During the Term of this Lease, Landlord agrees to provide
transportation brokerage and commute assistance services to Tenant and
to assist Tenant in meeting the transportation needs of its employees.
Tenant agrees to cooperate with and assist the Landlord's
transportation management coordinator (the "Coordinator"), through
designation of a responsible employee to distribute to Tenant's
employees written materials promoting and encouraging the use of
public transit and/or ridesharing, and distribute and return to the
Coordinator transportation survey questionnaire forms. Tenant may
agree, at its option, to participate in other activities required of
Landlord as incentives for increasing use of public transit and/or
ridesharing by employees in the Building.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A (Outline and Location of Premises),
EXHIBIT B (Rules and Regulations), EXHIBIT C (Commencement Letter), EXHIBIT D
(Work Letter Agreement), EXHIBIT D-1 (Summary of Final Plans) and EXHIBIT E
(Form of Letter of Credit).
20
Landlord and Tenant have executed this Lease as of the day and year first
above written.
LANDLORD:
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
TENANT:
C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President and General Counsel
----------------------------------
21
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
--------------------------------
This Exhibit is attached to and made a part of the Lease dated as of March 15,
2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Non-detailed drawing on floor space omitted.
A-1
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord. All
tenant identification and suite numbers at the entrance to the Premises
shall be installed by Landlord, at Tenant's cost and expense, using the
standard graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or screws
shall be inserted into any part of the Premises or Building except by the
Building maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent and Landlord shall have the right
to retain at all times and to use keys to all locks within and into the
Premises. A reasonable number of keys to the locks on the entry doors in
the Premises shall be furnished by Landlord to Tenant at Tenant's cost, and
Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, which may be revised from time to
time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use
of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant shall obtain Landlord's
prior approval by providing a detailed listing of the activity. If
approved by Landlord, the activity shall be under the supervision of
Landlord and performed in the manner required by Landlord. Tenant shall
assume all risk for damage to articles moved and injury to any persons
resulting from the activity. If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or removal
of Tenant's Property shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
B-1
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property. Tenant
shall not, without Landlord's prior written consent, use, store, install,
spill, remove, release or dispose of, within or about the Premises or any
other portion of the Property, any asbestos-containing materials or any
solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.
Tenant shall comply with all Laws pertaining to and governing the use of
these materials by Tenant, and shall remain solely liable for the costs of
abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption
or dispute, or interfere with Landlord's or any other tenant's or
occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor shall
the Commencement Date of the Term be extended as a result of the above
actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees, and then only if the
operation does not violate the lease of any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon
written notice from Landlord, Tenant shall refrain from and discontinue
such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the Premises to emanate into the Common
Areas or any other part of the Building. Landlord shall have the right to
designate the Building (including the Premises) as a non-smoking building.
B-2
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant
shall not make deliveries to or from the Premises in a manner that might
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
B-3
EXHIBIT C
COMMENCEMENT LETTER
-------------------
(EXAMPLE)
Date ________________________
Tenant ________________________
Address ________________________
________________________
________________________
Re: Commencement Letter with respect to that certain Lease dated as of
_________, 2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY, as Landlord, and C-BRIDGE INTERNET
SOLUTIONS, A DELAWARE CORPORATION, as Tenant, for 9,829 rentable square
feet on the 10th floor of the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is ________________________;
2. The Termination Date of the Lease is ____________________________.
Please acknowledge your acceptance of possession and agreement to the terms
set forth above by signing all 3 counterparts of this Commencement Letter in the
space provided and returning 2 fully executed counterparts to my attention.
Sincerely,
___________________________________
Property Manager
Agreed and Accepted:
Tenant: ______________________
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
C-1
EXHIBIT D
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Lease dated as of March 15,
2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
All improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord in accordance with the Plans (as hereinafter
defined) are hereinafter referred to as the "Landlord Work." It is agreed
that construction of the Landlord Work will be completed at Tenant's sole
cost and expense, subject to the Allowance (as defined below). Landlord
shall enter into a direct contract for the Landlord Work with a general
contractor selected by Landlord (the "General Contractor"). The General
Contractor will solicit bids from no less than 3 separate pre-qualified
subcontractors mutually agreed upon by Landlord and Tenant as to each major
trade involved with the Landlord Work. Tenant agrees that Landlord shall
utilize Landlord's building-approved engineering firm and contractors for
all fire/life safety, electrical, plumbing, HVAC and mechanical work to be
performed in connection with the construction of the Landlord Work.
Landlord's Work shall not include base building work (the "Base Building
Work") which shall be performed by Landlord at Landlord's sole cost and
expense prior to or concurrent with Landlord's construction of Landlord's
Work in the Premises substantially in accordance with the construction
documents prepared by Hellmuth Obata & Kassabaum, Inc., and designated as
M&L Project #6502.00 (the "Final Plans"), a partial summary of which is set
forth on EXHIBIT D-1 to the Lease. In the event of a conflict between the
Final Plans and the provisions of EXHIBIT D-1, the Final Plans will
control. In no event shall the cost of the Base Building Work be applied
against or deducted from the Allowance (as hereinafter defined). Landlord
shall have the right to change the plans and specifications for the Base
Building Work from time to time, provided that Landlord shall not
materially reduce the overall quality of the Base Building Work. Landlord
will comply with all applicable Laws in connection with the construction of
the Base Building Work.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called "Plans")
necessary to construct the Landlord Work, which plans shall be subject to
approval by Landlord and Landlord's architect and engineers and shall
comply with their requirements to avoid aesthetic or other conflicts with
the design and function of the balance of the Building. Tenant shall be
responsible for all elements of the design of Tenant's plans (including,
without limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the Premises and
the placement of Tenant's furniture, appliances and equipment), and
Landlord's approval of Tenant's plans shall in no event relieve Tenant of
the responsibility for such design. If requested by Tenant, Landlord's
architect will prepare the Plans necessary for such construction at
Tenant's cost. Whether or not the layout and Plans are prepared with the
help (in whole or in part) of Landlord's architect, Tenant agrees to remain
solely responsible for the timely preparation and submission of the Plans
and for all elements of the design of such Plans and for all costs related
thereto. Tenant has assured itself by direct communication with the
architect and engineers (Landlord's or its own, as the case may be) that
the final approved Plans can be delivered to Landlord on or before March
15, 2000 (the "Plans Due Date"), provided that Tenant promptly furnishes
complete information concerning its requirements to said architect and
engineers as and when requested by them. Tenant covenants and agrees to
cause said final, approved Plans to be delivered to Landlord on or before
said Plans Due Date and to devote such time as may be necessary in
consultation with said architect and engineers to enable them to complete
and submit the Plans within the required time limit. Time is of the
essence in respect of preparation and submission of Plans by Tenant. In the
event the Plans are not fully completed and approved by the Plans Due Date,
Tenant shall be responsible for 1 day of Tenant Delay (as defined in the
Lease) for each day during the period beginning on the day following the
Plans Due Date and ending on the date completed Plans are approved. (The
word "architect" as used in this EXHIBIT D shall include an interior
designer or space planner.)
D-1
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any construction
of Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within 3 Business
Days thereafter, Tenant shall either notify Landlord in writing of its
approval of the cost estimate, or specify its objections thereto and any
desired changes to the proposed Landlord Work. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall work
with Landlord to reach a mutually acceptable alternative cost estimate.
4. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. The amounts payable by Tenant
hereunder constitute Rent payable pursuant to the Lease, and the failure to
timely pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to the
drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost which will be chargeable to Tenant by reason
of such change, addition or deletion. Tenant, within 1 Business Day, shall
notify Landlord in writing whether it desires to proceed with such change,
addition or deletion. In the absence of such written authorization,
Landlord shall have the option to continue work on the Premises
disregarding the requested change, addition or alteration, or Landlord may
elect to discontinue work on the Premises until it receives notice of
Tenant's decision, in which event Tenant shall be responsible for any Delay
in completion of the Premises resulting therefrom. In the event such
revisions result in a higher estimate of the cost of construction and/or
higher actual construction costs which exceed the Allowance, such increased
estimate or costs shall be deemed Excess Costs pursuant to Paragraph 4
hereof and Tenant shall pay such Excess Costs, plus any applicable state
sales or use tax thereon, upon demand.
6. Following approval of the Plans and the payment by Tenant of the required
portion of the Excess Costs, if any, Landlord shall cause the Landlord Work
to be constructed substantially in accordance with the approved Plans.
Landlord shall notify Tenant of substantial completion of the Landlord
Work.
7. Landlord, provided Tenant is not in default, agrees to provide Tenant with
an allowance (the "Allowance") in an amount not to exceed $35.00 per
rentable square foot of the Premises to be applied toward the cost of the
Landlord Work in the Premises. In the event the Allowance shall not be
sufficient to complete the Landlord Work, Tenant shall pay the Excess
Costs, plus any applicable state sales or use tax thereon, as prescribed in
Paragraph 4 above. In the event the Allowance exceeds the cost of Landlord
Work, any remaining Allowance not utilized in connection with the Landlord
Work by December 31, 2000 shall accrue to the sole benefit of Landlord, it
being agreed that Tenant shall not be entitled to any credit, offset,
abatement or payment with respect thereto. Landlord shall be entitled to
deduct from the Allowance a construction management fee for Landlord's
oversight of the Landlord Work in an amount equal to $1.25 per rentable
square foot of the Premises; provided that in the event Landlord reasonably
determines that the Landlord Work to be performed exceeds typical building
standard tenant improvements, Landlord shall have the right to increase the
amount of the construction management fee to be deducted from the Allowance
to an amount which Landlord reasonably determines will compensate Landlord
for the additional oversight work to be performed.
8. This EXHIBIT D shall not be deemed applicable to any additional space added
to the original Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of this Lease, whether by any options under
the Lease or otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
D-2
Landlord and Tenant have executed this exhibit as of the day and year first
above written.
LANDLORD:
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
TENANT:
C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President and General Counsel
----------------------------------
D-3
EXHIBIT D-1
SUMMARY OF FINAL PLANS
----------------------
This Exhibit is attached to and made a part of the Lease dated as of March
15, 2000, by and between EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") and C-BRIDGE INTERNET SOLUTIONS, A DELAWARE
CORPORATION ("Tenant") for space in the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
The Base Building Work includes the following improvements:
1. HVAC SYSTEM.
a. The Building will have 2 central fan systems which shall deliver
cooling and ventilation air to all office floors. Floors 2 through 13
will be served from a fan system located at Level 5, while Floors 14
through 23 will be served from a fan system located at the roof
penthouse.
The central fan systems will be sized for the cooling load imposed by
the building envelope, lights, people and miscellaneous receptacle
loads (PC's, printers, etc.) of 2.5 ▇▇▇▇▇ per square foot of tenant
floor area. The central fan systems will have an "air economizer
cycle" which uses outside air for cooling.
b. Cooling will be provided by 2 chillers and 2 cooling towers located at
the roof penthouse.
c. Heating will be provided by 2 boilers located at the roof penthouse,
and by heating water coils at tenant provided VAV boxes serving the
perimeter areas of each tenant floor.
d. Each tenant floor will receive air from the central fan system during
Normal Business Hours.
e. Tenant may install a water-cooled air conditioning unit and
circulating pump for supplemental air conditioning on a 24-hour basis.
Connection to be made by Tenant to a set of condenser water pipe
risers, which will have valved stub-outs on each tenant floor. Tenant
will be charged for running the central cooling towers, as necessary.
This tenant condenser water system will be sized for 2 ▇▇▇▇▇ per
square foot of tenant floor area, or 9 tons per floor, over and above
the cooling provided by the central fan systems.
f. Tenant's mechanical engineer is required to verify that total loads,
including building envelope loads, can be met with the existing system
capacities. Tenant loads in excess of the available capacity will
require supplemental air conditioning that is to be supplied by the
Tenant.
2. ELECTRICAL SYSTEMS.
a. The Building will be served by 480Y/277 volt. The electric service
will consist of a 4000A bus to serve the building and office tenant
loads, a fire pump service and a 400A service to serve the retail
tenant loads.
b. A bus duct riser at 480Y/227 volt will have a capacity of 7.0 volt-
amperes per net rentable square foot for office tenant loads. Local
480V-208Y/120V, 3 phase, 4 wire will have a capacity of 2.5 volt-
amperes per net rentable square foot to serve tenant equipment and
receptacle loads.
c. A 480Y/277V, 3 phase, 4 wire panelboard will be provided at each floor
for lighting loads. A 208Y/120V, 3 phase, 4 wire panelboard will be
provided at each floor for equipment and receptacle loads.
d. Tenant lighting controls to be provided by Tenant.
e. A telephone/data closet will be provided at each floor for tenant/data
service.
D-4
3. FIRE PROTECTION IN PREMISES.
a. All exposed decks, columns and beams will have fireproofing in
accordance with City of San Francisco building codes.
b. Automatic sprinkler system piping will be connected to the existing
system riser, including flow and damper switches and riser drains.
Smoke detectors, main loop and minimum distribution piping will
provide required system density for shell space per City of San
Francisco building codes. Sprinkler system piping relocation and
sprinkler head installation will be the responsibility of Tenant.
4. CONDITION OF PREMISES.
Drywall (taped, sanded and finish-ready) at all core locations in the
Premises, columns exposed, ceiling exposed to structure, concrete slab
exposed, exit signs per shell code, HVAC main duct trunk run stubbed out to
a predetermined location, upright fire sprinklers, fire extinguisher
cabinets, window ▇▇▇▇▇ painted.
5. ELEVATOR LOBBY ON PREMISES FLOORS.
Drywall (taped, sanded and finish-ready) in elevator lobby area, ceiling
exposed to structure, concrete slab exposed, exit signs per shell code,
pendent fire sprinklers.
6. TOILET ROOMS IN PREMISES.
Granite counters with undermount sinks, tile floor and base, full height
tile at wet walls, wall covering at other walls, metal toilet partitions,
wood door at entry, down lights/cove light at wet wall/sconce light at
mirror, HVAC diffusers with VAV boxes, toilet room accessories, pendent
fire sprinklers. Interior lights to be tied to a motion sensor.
7. ELECTRICAL/TELECOM ROOMS ON PREMISES FLOORS.
Drywall (taped, sanded and finish-ready) in electrical/telecom area,
ceiling exposed to structure, concrete slab exposed, fluorescent utility
lighting, HVAC per shell code, pendent fire sprinklers. One (1) lighting
panel and one (1) power panel per floor.
D-5
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as of
the day and year first above written.
LANDLORD:
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
TENANT:
C-BRIDGE INTERNET SOLUTIONS,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President and General Counsel
----------------------------------
D-6
EXHIBIT E
FORM OF LETTER OF CREDIT
------------------------
____________________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ________________________
Issuance Date:______________
Expiration Date:____________
Applicant:__________________
Beneficiary
-----------
EOP-150 CALIFORNIA STREET, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor for
the account of the above referenced Applicant in the amount of Nine Hundred
Thirty Three Thousand Seven Hundred Fifty Five and 00/100 U.S. Dollars
($933,755.00) available for payment at sight by your draft drawn on us when
accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between ______________________, as landlord, and
_____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will be
considered automatically renewed for a one year period upon the expiration date
set forth above and upon each anniversary of such date, unless at least sixty
(60) days prior to such expiration date or applicable anniversary thereof, we
notify you in writing by certified mail, return receipt requested, that we elect
not to so renew this Irrevocable Standby Letter of Credit. A copy of any such
notice shall also be sent to: Equity Office Properties Trust, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Senior Vice President-
Treasurer. In addition, provided that you have not provided us with written
notice of Applicant's default under the above referenced lease prior to the
effective date of any reduction, the amount of this Irrevocable Standby Letter
of Credit shall automatically reduce in accordance with the following schedule:
EFFECTIVE DATE OF REDUCTION NEW REDUCED AMOUNT OF LETTER OF CREDIT
1ST ANNIVERSARY OF COMMENCEMENT DATE $747,004.00
2ND ANNIVERSARY OF COMMENCEMENT DATE $560,253.00
3RD ANNIVERSARY OF COMMENCEMENT DATE $373,502.00
4TH ANNIVERSARY OF COMMENCEMENT DATE $186,751.00
E-1
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1. and
2. above in the event that we elect not to renew this Irrevocable Standby Letter
of Credit and, in addition, you provide us with a dated statement proportedly
signed by one of Beneficiary's officers stating that the Applicant has failed to
provide you with an acceptable substitute irrevocable standby letter of credit
in accordance with the terms of the above referenced lease. We further
acknowledge and agree that: (a) upon receipt of the documentation required
herein, we will honor your draws against this Irrevocable Standby Letter of
Credit without inquiry into the accuracy of Beneficiary's signed statement and
regardless of whether Applicant disputes the content of such statement; (b) this
Irrevocable Standby Letter of Credit shall permit partial draws and, in the
event you elect to draw upon less than the full stated amount hereof, the stated
amount of this Irrevocable Standby Letter of Credit shall be automatically
reduced by the amount of such partial draw; and (c) you shall be entitled to
assign your interest in this Irrevocable Standby Letter of Credit from time to
time without our approval and without charge. In the event of an assignment, we
reserve the right to require reasonable evidence of such assignment as a
condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at
______________________________________________ to the attention of
__________________________________.
Very truly yours,
______________________
[name]
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[title]
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