100 SPEAR STREET OFFICE LEASE TENANT: APTIMUS, INC., a Washington corporation
EXHIBIT
10.12
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
TENANT:
APTIMUS, INC., a Washington corporation
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
San
Francisco, California
Basic
Lease Information
Date: ______________,
2003
|
Landlord: |
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Owners Corp., a Delaware corporation | ||||
|
Tenant: |
Aptimus,
Inc., a Washington corporation | ||||
|
Premises
(Section 1.1): |
4,451
Rentable Square Feet Located on the 11th
Floor of the Building | ||||
|
Term
(Section 2.1): |
48
months | ||||
|
Commencement
Date (Section 2.1): |
December
1, 2003 | ||||
|
Expiration
Date (Section 2.1): |
November
30, 2007 | ||||
|
Base
Rent (Section 3.1(a)): |
December
1, 2003 -
November
30, 2004 |
$8.50
Per Rentable Square Foot Per Year ($3,152.79 per month) | |||
|
December
1, 2004 - November 30, 2006 |
$12.50
Per Rentable Square Foot Per Year ($4,636.46 per month) | ||||
|
December
1, 2006 - November 30, 2007 |
$16.50
Per Rentable Square Foot Per Year ($6,120.13 per month) | ||||
|
Notwithstanding
the foregoing to the contrary, so long as Tenant is not then in default
under this Lease, Tenant shall be entitled to an abatement of rent
(including Operating Expenses and Property Taxes) for the first three (3)
consecutive full calendar months of the Term. | |||||
|
Tenant's
Percentage Share
(Section
4.1): |
2.2% | ||||
|
Liability
Insurance (Section 10.3): |
$2,000,000 | ||||
|
Deposit
(Section 21.1): |
$21,053.23 | ||||
|
Landlord's
Address (Section 23.1): |
100
Spear Street Owners Corp.
c/o
Lend Lease Real Estate Investment
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Mr. ▇▇▇ ▇▇▇▇ | ||||
i
|
▇▇▇▇▇▇'s
Address: |
Prior
to Commencement Date:
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Following
Commencement Date:
At
the Premises
| ||||
|
Real
Estate Broker (Section 26.5): |
The
CAC Group and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
|
Exhibit
A - Plan(s) Outlining the Premises |
|||||
|
Exhibit
B - Work Agreement |
|||||
|
Exhibit
C - Rules and Regulations |
|||||
|
Special
Provisions - |
Renewal
Option (Section 2.2) | ||||
The
foregoing Basic
Lease Information is
incorporated in and made a part of the Lease to which it is attached. If there
is any conflict between the Basic
Lease Information and the
Lease, the Lease shall control.
|
APTIMUS,
INC.,
a
Washington corporation |
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇
▇▇▇▇▇▇▇▇ corporation | ||||
|
By: |
By: |
||||
|
Its: |
Its: |
||||
|
By: |
By: |
||||
|
Its: |
Its: |
||||
ii
TABLE OF
CONTENTS
|
Page | ||
| Article 1 | Premises |
1 |
| Article 2 | Term |
1 |
| Article 3 | Rent |
5 |
| Article 4 | Operating Expenses and Property Taxes |
6 |
| Article 5 | Other Taxes Payable by Tenant |
9 |
| Article 6 | Use |
10 |
| Article 7 | Services |
11 |
| Article 8 | Maintenance and Repairs |
12 |
| Article 9 | Alterations |
14 |
| Article 10 | Insurance |
16 |
| Article 11 | Compliance With Legal Requirements |
16 |
| Article 12 | Assignment or Sublease |
16 |
| Article 13 | Rules and Regulations |
19 |
| Article 14 | Entry by Landlord |
20 |
| Article 15 | Events of Default and Remedies |
23 |
| Article 16 | Damage or Destruction |
24 |
| Article 17 | Eminent Domain |
24 |
| Article 18 | Subordination, Merger and Sale |
25 |
| Article 19 | Estoppel Certificate |
26 |
| Article 20 | Holding Over |
27 |
| Article 21 | Security Deposit |
27 |
| Article 22 | Waiver |
28 |
| Article 23 | Notices |
28 |
| Article 24 | Waiver of Jury Trial |
28 |
| Article 25 | Telephone Service |
29 |
| Article 26 | Miscellaneous |
29 |
iii
THIS
LEASE is made as of the date specified in the Basic
Lease Information by and
between 100
SPEAR STREET OWNERS CORP., a
Delaware corporation ("Landlord"), and the tenant specified in the Basic
Lease Information
("Tenant").
W I T N E
S S E T
H:
ARTICLE
1
Premises
1.1 Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, for the term
and subject to the covenants hereinafter set forth, to all of which Landlord and
Tenant hereby agree, the space on the floor(s) specified in the Basic
Lease Information (the
"Premises"), as outlined on the floor plan(s) attached hereto as Exhibit A, in
the building (the "Building") known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, which includes the land (Assessor's Lot 1, Block 3717) on which the
Building is located. Tenant shall have the right to use, in common with others,
the entrances, lobbies and elevators of the Building for access to the Premises.
All of the windows and outside decks, balconies and walls of the Building and
any space in the Premises used for shafts, stacks, pipes, conduits, ducts,
electric or other utilities, sinks or other Building facilities, and the use
thereof and access thereto through the Premises for the purposes of operation,
maintenance and repairs, are reserved to Landlord.
1.2 No
easement for light, air or view is included with or appurtenant to the Premises.
Any diminution or shutting off of light, air or view by any structure which may
hereafter be erected (whether or not constructed by Landlord) shall in no way
affect this Lease or impose any liability on Landlord.
ARTICLE
2
Term
2.1 Generally. The
term of this Lease ("Term") shall be the term specified in the Basic
Lease Information, which
shall commence on the later of: (a) the commencement date specified in the
Basic
Lease Information (which
is the date upon which the parties estimate that the Tenant Improvements
(defined in Exhibit
B attached
hereto) will be substantially completed), and (b) substantial completion of the
Tenant Improvements (the "Commencement Date") and, unless sooner terminated as
hereinafter provided, shall end on the expiration date specified in the
Basic
Lease Information (the
"Expiration Date"); provided that if Tenant occupies and conducts business from
any portion of the Premises prior to the Commencement Date as established
pursuant to the immediately preceding sentence, the Commencement Date shall be
deemed to have occurred as of the date of such prior occupancy; and provided,
further, however, that Tenant’s efforts to prepare the Premises for occupancy,
including without limitation, installing computer systems and furniture, in
preparation for conducting business shall not trigger the Commencement Date.
Landlord shall deliver possession of the Premises to Tenant on the date
estimated to be the Commencement Date in the Basic
Lease Information or the
date of substantial completion of the Tenant Improvements, whichever is later,
and Tenant shall accept such delivery of the Premises, which acceptance shall
constitute agreement by Tenant that the Premises are in the condition required
by this Lease. Tenant's acceptance of the Premises shall be subject to
Landlord's obligation to correct:
1
(i) portions
of the Tenant Improvements as set forth on a construction punch list prepared by
Landlord and Tenant in accordance with the terms hereof. Within 15 days after
Substantial Completion of the Tenant Improvements, Landlord and Tenant shall
together conduct an inspection of the Premises and prepare a "punch list"
setting forth any portions of the Tenant Improvements that are not in conformity
with the Tenant Improvements as required by the terms of the Work Agreement
attached hereto as Exhibit
B.
Notwithstanding the foregoing, at the request of Landlord, such construction
punch list shall be mutually prepared by Landlord and Tenant prior to the date
on which Tenant first begins to move its furniture, equipment or other personal
property into the Premises. Landlord shall use good faith efforts to correct all
such items within a reasonable time following the completion of the punch list;
and
(ii) any
system or facility serving the Premises which is not in good working order and
repair as of the date the Premises are delivered to Tenant (Tenant will have
thirty (30) days in which to notify Landlord in writing of any such items),
provided that if any such item(s) of disrepair are caused by ▇▇▇▇▇▇’s misuse or
abuse of the Premises, Landlord shall not be obligated to perform such work
unless Tenant bears the cost of such work.
2.2 Renewal
Option.
(a) Generally. Tenant
shall have the right to extend the Term (the “Renewal Option”) for one (1)
additional period of three (3) years (the “Renewal Term”) if:
(i) Landlord
receives notice of exercise of the Renewal Option (“Initial Renewal Notice”) not
less than 270 days prior to the expiration of the initial Term and not more than
390 days prior to the expiration of the initial Term; and
(ii) Tenant is
not in default under this Lease beyond any applicable cure period and no event
which, with notice, the passage of time, or both, would constitute a default
hereunder on the part of Tenant exists at the time that Tenant delivers its
Initial Renewal Notice or at the time Tenant delivers its Binding Notice (as
defined below) or as of the commencement of the Renewal Term; and
(iii) The
Premises or any portion thereof has not been sublet (other than pursuant to a
Permitted Transfer) at the time that Tenant delivers its Initial Renewal Notice
or at the time Tenant delivers its Binding Notice; and
(iv) This
Lease has not been assigned by Tenant (other than pursuant to a Permitted
Transfer) prior to the date that Tenant delivers its Initial Renewal Notice or
prior to the date Tenant delivers its Binding Notice; and
(v) Tenant
executes and returns the Renewal Amendment (hereinafter defined) within twenty
(20) days after submission to Tenant of an accurate Renewal Amendment;
and
2
(vi) Tenant
(or a transferee pursuant to a Permitted Transfer) is in occupancy of all of the
Premises at the time Tenant delivers its Initial Renewal Notice, at the time
Tenant delivers its Binding Notice and as of the commencement of the Renewal
Term.
(b) Rent. The
initial Base Rent rate during the Renewal Term shall equal the Prevailing Market
(hereinafter defined) rate per Rentable Square Foot, as determined in the manner
set forth below.
(c) Additional
Rent. Tenant
shall pay Additional Rent (i.e. Operating Expenses and Property Taxes) for the
Premises during the Renewal Term in accordance with this Lease.
(d) Determination
of Base Rent. Within
thirty (30) days after receipt of Tenant’s Initial Renewal Notice, Landlord
shall advise Tenant of the applicable Base Rent rate for the Premises for the
Renewal Term. Tenant, within thirty (30) days after the date on which Landlord
advises Tenant of the Base Rent rate for the Renewal Term, shall either (i) give
Landlord final binding written notice (“Binding Notice”) of Tenant’s exercise of
its option, or (ii) if Tenant disagrees with ▇▇▇▇▇▇▇▇’s determination, provide
Landlord with written notice of rejection (the “Rejection Notice”). If Tenant
fails to provide Landlord with either a Binding Notice or Rejection Notice
within such thirty (30) day period, Tenant’s Renewal Option shall be null and
void and of no further force and effect. If Tenant provides Landlord with a
Binding Notice, Landlord and Tenant shall enter into the Renewal Amendment (as
defined below) upon the terms and conditions set forth herein. If Tenant
provides Landlord with a Rejection Notice, Landlord and Tenant shall work
together in good faith to agree upon the Prevailing Market Base Rent rate during
the Renewal Term. Upon written agreement by both parties, Landlord and ▇▇▇▇▇▇
shall enter into the Renewal Amendment in accordance with the terms and
conditions hereof. Notwithstanding the foregoing, if Landlord and Tenant are
unable to agree upon the Prevailing Market Base Rent rate for the Premises
within thirty (30) days after the date on which Tenant provides Landlord with a
Rejection Notice, then Tenant’s Initial Renewal Notice and Tenant’s exercise of
the Renewal Option shall be null and void and of no further force or effect,
unless Tenant, on or before the thirty-fifth (35th) day following Tenant’s
delivery of the Rejection Notice, elects to submit the matter to arbitration by
delivery of written notice of such election to Landlord (in which event such
notice will be deemed a Binding Notice, and Tenant will have irrevocably
committed to lease the Premises during the Renewal Term at the rental rate(s)
determined pursuant to such arbitration). If the matter is submitted to
arbitration, the Prevailing Market Base Rent rate payable as of commencement of
the Renewal Term shall be determined (and when determined, shall be binding upon
the parties) as follows:
(i) Within
ten (10) days after the thirty-fifth (35th) day described above, Tenant, at its
sole expense, shall obtain and deliver in writing to Landlord a determination of
the Prevailing Market Base Rent rate for the Premises for a term equal to the
Renewal Term, from a real estate broker (“Tenant’s Broker”) licensed in the
State of California and engaged in the leasing of commercial real estate in the
San Francisco, California vicinity for at least the immediately preceding five
(5) years; such determination shall be stated in a single “per square foot per
annum (or month)” figure, for ease of comparison. If Landlord accepts such
determination, the Prevailing Market Base Rent rate payable by Tenant during the
Renewal Term shall be equal to the amount determined by ▇▇▇▇▇▇’s Broker. If
Tenant fails to timely deliver such determination, the Prevailing Market Base
Rent rate as quoted by Landlord shall control.
3
(ii) If
Landlord does not accept such determination, within fifteen (15) days after
receipt of the determination of ▇▇▇▇▇▇’s Broker, Landlord shall designate a
similarly qualified broker (“Landlord’s Broker”). If the two Brokers are
appointed by the parties as set forth above, such Brokers shall promptly meet
and attempt to agree upon the applicable Prevailing Market Base Rent rate. If
such Brokers are unable to agree within fifteen (15) days following the
appointment of ▇▇▇▇▇▇▇▇’s Broker, the Brokers shall select a third broker
meeting the qualifications set forth above within ten (10) days after the last
date the two Brokers are given to agree upon the applicable Prevailing Market
Base Rent rate. The Third Broker shall be a person who has not previously acted
and is not currently acting in any capacity for either party.
(iii) The Third
Broker shall conduct its own independent investigation of the applicable
Prevailing Market Base Rent rate, and shall be instructed not to advise either
party of its determination, except as follows: when the Third Broker has made
its determination (which shall be completed within fifteen (15) days after the
appointment of the Third Broker), it shall advise Landlord and Tenant and
establish a date, at least five (5) days after the giving of notice by such
Third Broker to Landlord and Tenant, on which it will disclose its
determination. Such meeting shall take place in ▇▇▇▇▇▇▇▇’s office unless
otherwise mutually agreed by the parties. After having initialed the paper on
which its determination is set forth, the Third Broker shall place its
determination in a sealed envelope. Landlord’s Broker and ▇▇▇▇▇▇’s Broker shall
each set forth their determination (each stated in a single “per rentable square
foot per annum (or month)” figure) on a separate piece of paper, initial the
same, and place them in sealed envelopes. Each of the three envelopes shall be
marked with the name of the party whose determination is inside the envelope. In
the presence of the Third Broker, the determination of the Prevailing Market
Base Rent rate by Landlord’s Broker and ▇▇▇▇▇▇’s Broker shall be opened and
examined. If the higher of the two determinations submitted by ▇▇▇▇▇▇▇▇’s Broker
and ▇▇▇▇▇▇’s Broker is one hundred and five percent (105%) or less of the amount
set forth in the lower determination, the average of the two determinations
shall be the Prevailing Market Base Rent rate, the envelope containing the
determination by the Third Broker shall be destroyed and the Third Broker shall
be instructed not to disclose its determination. If either party’s envelope is
blank, or does not set forth a determination, the determination of the other
party shall prevail and be treated as the Prevailing Market Base Rent rate. If
the higher of the two determinations is more than one hundred and five percent
(105%) of the amount of the other determination, the envelope containing the
Third Broker’s determination shall be opened, the Prevailing Market Base Rent
rate shall, in such event, be the rent proposed by either Landlord’s Broker or
Tenant’s Broker which is closest to the determination of Prevailing Market Base
Rent rate by the Third Broker; if the two are equidistant, the Prevailing Market
Base Rent rate shall be equal to the Third Broker’s determination.
(iv) Landlord
shall pay the costs and fees of Landlord’s Broker in connection with any
determination hereunder, and Tenant shall pay the costs and fees of ▇▇▇▇▇▇’s
Broker in connection with such determination. The costs and fees of any Third
Broker shall be paid one-half by Landlord and one-half by Tenant. Tenant
expressly acknowledges that any costs, fees and commissions arising in favor of
any broker or other party hired by ▇▇▇▇▇▇ to represent Tenant in the negotiation
of the extension of the term of this Lease shall be borne solely by
▇▇▇▇▇▇.
(v) If the
amount of the Prevailing Market Base Rent rate is not known as of the
commencement of the Renewal Term, then Tenant shall continue to pay the then
current Base Rent rate in effect immediately prior to the expiration of the
initial Term until the amount of the Prevailing Market Base Rent rate are
determined. When such determination is made, Tenant shall pay Landlord any
deficiency to Landlord upon demand or Landlord will credit any overpayment
against Base Rent next due and payable under this Lease.
4
(e) Renewal
Amendment. If
Tenant is entitled to and properly exercises its Renewal Option, Landlord shall
prepare an amendment (the “Renewal Amendment”) to reflect changes in the Base
Rent, Term, Expiration Date and other appropriate terms. The Renewal Amendment
shall be:
(i) Sent to
Tenant within a reasonable time after receipt of the Binding Notice;
and
(ii) Executed
by ▇▇▇▇▇▇ and returned to Landlord in accordance with Section 2.2(a)(v)
above.
An
otherwise valid exercise of the Renewal Option shall, at Landlord’s option, be
fully effective whether or not the Renewal Amendment is executed.
(f) Prevailing
Market. For
purpose hereof, “Prevailing Market” shall mean the arms length fair market
annual rent rate per rentable square foot under renewal leases and amendments in
the Building and other first class office buildings in the San Francisco
financial district entered into on or about the date on which the Prevailing
Market is being determined hereunder for space comparable to the Premises in the
Building, taking into account then prevailing factors, including Landlord
concessions (which may include but shall not necessarily be limited to, tenant
improvement allowances, brokerage commissions, free rent and other then
customary concessions).
2.3 Landlord
shall deliver possession of the Premises to Tenant on the date estimated to be
the Commencement Date in the Basic
Lease Information or the
date of substantial completion of the Tenant Improvements, whichever is later,
and Tenant shall accept such delivery of the Premises, which acceptance shall
constitute agreement by Tenant that the Premises are in the condition required
by this Lease, subject to normal punch list items specified by ▇▇▇▇▇▇▇▇'s
architect which Landlord shall promptly correct or complete.
ARTICLE
3
Rent
3.1 Tenant
shall pay to Landlord the following amounts as rent for the
Premises:
(a) During
the Term, Tenant shall pay to Landlord, as base monthly rent, the amount of
monthly rent specified in the Basic
Lease Information (the
"Base Rent").
(b) During
the Term of this Lease, Tenant shall pay to Landlord, as additional monthly
rent, Tenant's Percentage Share (as hereinafter defined) of all Operating
Expenses (as hereinafter defined) paid or incurred by Landlord during the Term
and ▇▇▇▇▇▇'s Percentage Share of all Property Taxes (as hereinafter defined)
paid or incurred by Landlord during the Term as more particularly described in
Article 4 below.
(c) Throughout
the Term of this Lease, Tenant shall pay, as additional rent, all other amounts
of money and charges required to be paid by Tenant under this Lease, whether or
not such amounts of money or charges are designated "additional rent." As used
in this Lease, "rent" shall mean and include all Base Rent, additional monthly
rent and additional rent payable by Tenant in accordance with this Lease.
Landlord will have the same remedies for a default in the payment of additional
rent as for a default in the payment of Base Rent.
5
3.2 Tenant
shall pay all Base Rent and additional monthly rent under Section 3.1 above to
Landlord, in advance, on or before the first day of each and every calendar
month during the Term of this Lease, provided that the installment of Base Rent
for the first full calendar month of the Term, and the first monthly installment
of additional monthly rent, shall be payable upon the execution of this Lease by
Tenant. Tenant shall pay all rent to Landlord without notice, demand, deduction
or offset, in lawful money of the United States of America, at the address of
Landlord specified in the Basic
Lease Information, or to
such other person or at such other place as Landlord may from time to time
designate in writing.
ARTICLE
4
Operating
Expenses and Property Taxes
4.1 As used
in this Lease, "Tenant's Percentage Share" shall mean the percentage specified
in the Basic
Lease Information.
4.2 Operating
Expenses. As used
in this Lease, "Operating Expenses" shall mean all costs and expenses of any
kind paid or incurred by Landlord in connection with the ownership, management,
operation, maintenance or repair of the Building or providing services in
accordance with this Lease, including, without limitation but by way of example
the following: salaries, wages, other compensation, taxes and benefits
(including payroll, social security, workers' compensation, unemployment,
disability and similar taxes and payments) for all personnel engaged in the
management, operation, maintenance or repair of the Building; uniforms provided
to such personnel; premiums and other charges for all property, earthquake,
rental value, liability and other insurance carried by Landlord, as well as the
deductible portion of any insured loss; water and sewer charges or fees;
license, permit and inspection fees; electricity, chilled water, air
conditioning, gas, fuel, steam, heat, light, power and other utilities; sales,
use and excise taxes on goods and services purchased by Landlord; telephone,
delivery, postage, stationery supplies and other expenses; management fees and
expenses; equipment lease payments; repairs to and maintenance of the Building,
including Building systems and accessories thereto and repair and replacement of
worn-out or broken equipment, facilities, parts and installations; janitorial,
window cleaning, security, guard, extermination, water treatment, garbage and
waste disposal, rubbish removal, plumbing and other services; inspection or
service contracts for elevator, electrical, mechanical and other Building
equipment and systems; the cost to maintain the Building's main telephone system
(including wiring), supplies, tools, materials and equipment; accounting, legal,
consulting and other professional fees and expenses (excluding legal fees
incurred by Landlord relating to the negotiation of specific leases); painting
the exterior or the public or common areas of the Building and the cost of
maintaining the sidewalks, landscaping and other common areas of or serving the
Building as well as the Building's exterior and rooftop; the cost, reasonably
amortized as determined by Landlord, with interest at the rate of ten percent
(10%) per annum, or such higher rate as Landlord may actually have to pay, on
the unamortized balance, of all furniture, fixtures, draperies, carpeting and
personal property furnished by Landlord in common areas or public corridors of
the Building or in the Building office; all costs and expenses resulting from
compliance with any laws, ordinances, rules, regulations or orders applicable to
the Building, including compliance with requirements of the transportation
management program; Building office rent or rental value; all costs and expenses
of contesting by appropriate legal proceedings any matter concerning managing,
operating, maintaining or repairing the Building, or the validity or
applicability of any law, ordinance, rule, regulation or order relating to the
Building, or the amount or validity of any Property Taxes; reasonable
depreciation as determined by Landlord on all machinery, fixtures and equipment
(including window washing machinery) used in the management, operation,
maintenance or repair of the Building and on window coverings and floor
coverings provided by Landlord; and the cost, reasonably amortized as determined
by Landlord, with interest at the rate of ten percent (10%) per annum, or such
higher annual rate as Landlord may actually have to pay, on the unamortized
balance, of all capital improvements made to the Building or capital assets
acquired by Landlord that are designed or intended to be a labor-saving or
energy-saving device, or to improve economy or efficiency in the management,
operation, maintenance or repair of the Building, or to reduce any item of
Operating Expenses, or that are reasonably necessary to comply with any
conservation program or required by any law, ordinance, rule, regulation or
order. Operating Expenses shall not include Property Taxes, the cost of any
goods or services (such as electricity) billed separately to and paid directly
by Tenant or another tenant of the Building, depreciation on the Building
(except as described above); costs of tenants' improvements, real estate
brokers' commissions, interest (except as described above) or capital items
(except as described above). Actual Operating Expenses for the first calendar
year and each calendar year shall be adjusted, if necessary, to equal Landlord's
reasonable estimate of Operating Expenses for a full calendar year with the
total area of the Building occupied during such full calendar year. The
determination of Operating Expenses shall be in accordance with generally
accepted accounting principles applied on a consistent basis.
6
4.3 Property
Taxes. As used
in this Lease, "Property Taxes" shall mean all taxes, assessments, excises,
levies, fees and charges (and any tax, assessment, excise, levy, fee or charge
levied wholly or partly in lieu thereof or as a substitute therefor or as an
addition thereto) of every kind and description, general or special, ordinary or
extraordinary, foreseen or unforeseen, secured or unsecured, whether or not now
customary or within the contemplation of Landlord and Tenant, that are levied,
assessed, charged, confirmed or imposed by any public or government authority on
or against, or otherwise with respect to, the Building or any part thereof or
any personal property used in connection with the Building. Property Taxes shall
not include net income (measured by the income of Landlord from all sources or
from sources other than solely rent), franchise, documentary transfer,
inheritance or capital stock taxes of Landlord, unless levied or assessed
against Landlord in whole or in part in lieu of, as a substitute for, or as an
addition to any Property Taxes. Property Taxes shall not include any tax,
assessment, excise, levy, fee or charge paid by Tenant pursuant to Section 5.1
hereof.
4.4 Landlord's
Statement of Estimated Operating Expenses and Property Taxes. On or
before the Commencement Date, or as soon thereafter as practicable, and on or
before the first day of each subsequent calendar year during the Term, or as
soon thereafter as practicable, Landlord shall give Tenant written notice of
▇▇▇▇▇▇▇▇'s estimate of ▇▇▇▇▇▇'s Percentage Share of Operating Expenses and
Property Taxes for the balance of the first calendar year after the Commencement
Date or for the ensuing calendar year, as the case may be. Tenant shall pay such
estimated amount to Landlord in equal monthly installments, in advance, on or
before the Commencement Date and on or before the first day of each month during
such balance of the first calendar year after the Commencement Date or during
such ensuing calendar year, as the case may be. If such notice is not given for
any calendar year, Tenant shall continue to pay on the basis of the prior year's
estimate until the month after such notice is given, and subsequent payments by
Tenant shall be based on Landlord's current estimate. Landlord may, by giving
written notice to ▇▇▇▇▇▇, revise Landlord's estimate for any such year, and
subsequent payments by Tenant for such year shall be based on such revised
estimate.
7
4.5 Final
Statements. Within
a reasonable time after the end of each calendar year, Landlord shall give
Tenant a written statement of the actual Operating Expenses and Property Taxes
for such calendar year and Tenant's Percentage Share of such amount which
statement shall be final and binding. If such statement shows an amount owing by
Tenant that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall credit the excess to the next
succeeding monthly installments of the amount payable by Tenant under Section
4.4 hereof. If such statement shows an amount owing by Tenant that is more than
the estimated payments for such calendar year previously made by Tenant, Tenant
shall pay the deficiency to Landlord within ten (10) days after delivery of such
statement. Notwithstanding any other provision of this Article 4 to the
contrary, failure by Landlord to give any notice or statement to Tenant under
this Section 4.5 shall not waive Landlord's right to receive, or Tenant's
obligation to pay, the amount payable by Tenant under Section 3.1(b)
hereof.
4.6 Proration. If the
Term of this Lease ends on a day other than the last day of a calendar year, the
amount payable by Tenant under Section 3.1(b) hereof applicable to the calendar
year in which such Term ends shall be prorated according to the ratio which the
number of days in such calendar year to and including the end of the Term bears
to three hundred sixty (360). Termination of this Lease shall not affect the
obligations of Landlord and Tenant pursuant to this Article 4 to be performed
after such termination.
4.7 Net
Lease. It is
the intention of Landlord and Tenant that the Base Rent payable by Tenant to
Landlord during the entire Term of this Lease shall be absolutely net of
Tenant's Percentage Share of all Operating Expenses and all Property Taxes. The
provisions of this Lease for payment by Tenant of Tenant's Percentage Share of
all Operating Expenses and all Property Taxes are intended to pass on to Tenant
and to reimburse Landlord for all Operating Expenses and all Property Taxes in
connection with the Building. Landlord and ▇▇▇▇▇▇ agree that statements in this
Lease to the effect that Landlord is to perform certain of its obligations
hereunder at its own or sole cost or expense shall not be interpreted as
excluding any cost or expense from Operating Expenses or Property Taxes if such
cost or expense is an Operating Expense or a Property Tax pursuant to this
Lease.
4.8 Property
Tax Appeal. As of
the date of this Lease, Landlord is appealing the amount of Property Taxes
payable by the Building (the “Appeal”). Landlord estimates that the aggregate of
2003 Building Operating Expenses and Property Taxes and Tenant utilities will
equal to $17.50 per rentable square foot; the Base Rent rates set forth herein
were established by assuming an Operating Expense/Property Tax/Tenant utilities
burden of $17.50 per rentable square foot for the calendar year 2003, thus
providing an agreed-upon effective rental rate (i.e., Base Rent plus estimated
Property Taxes, Operating Expenses and Tenant utilities). Prior to the
resolution of the Appeal, Tenant shall pay its percentage Share of actual
Operating Expenses, ▇▇▇▇▇▇’s share of utilities, and Tenant’s Percentage Share
of Property Taxes which for the calendar year 2003 are, for the purposes of
Tenant’s payment, estimated to be $17.50 per rentable square foot per year. Upon
the conclusion of the Appeal, Tenant shall continue to pay Tenant’s Percentage
Share of the actual Property Taxes (as adjusted, if applicable, pursuant to the
final determination of the Appeal) and Operating Expenses as well as Tenant’s
share of utilities costs, but, if and only if the Appeal produces an assessed
valuation of the Building which results in a per rentable square foot Property
Tax burden which differs from that originally estimated by Landlord, Landlord
shall adjust the Base Rent rate payable by Tenant for the calendar year 2004
(and for subsequent years) upwards or downwards, as is necessary to provide
Tenant with an effective rental rate that was assumed by the parties in entering
into this Lease; provided, however, that in no event will the Base Rent rate
payable by Tenant be adjusted as a result of any increase or decrease in any
component of Operating Expenses, Tenant utilities or Property Taxes (all of
which Tenant shall continue to pay in full) other than solely due to increases
or decreases in Property Taxes resulting directly from the final determination
of the Appeal.
8
ARTICLE
5
Other
Taxes Payable by Tenant
5.1 In
addition to all monthly rent and other charges to be paid by Tenant under this
Lease, Tenant shall reimburse Landlord upon demand for all taxes, assessments,
excises, levies, fees and charges, including all payments related to the cost of
providing facilities or services, whether or not now customary or within the
contemplation of Landlord and Tenant, that are payable by Landlord and levied,
assessed, charged, confirmed or imposed by any public or government authority
upon, or measured by, or reasonably attributable to (a) the Premises, (b) the
cost or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises or the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, regardless of whether
title to such improvements is vested in Tenant or Landlord, (c) any rent payable
under this Lease, including, without limitation, any gross income tax or excise
tax levied by any public or government authority with respect to the receipt of
any such rent, (d) the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises, or (e) this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises. Such taxes, assessments, excises,
levies, fees and charges shall not include net income (measured by the income of
Landlord from all sources or from sources other than solely rent), franchise,
documentary transfer, inheritance or capital stock taxes of Landlord, unless
levied or assessed against Landlord in whole or in part in lieu of, as a
substitute for, or as an addition to any such taxes, assessments, excises,
levies, fees and charges. All taxes, assessments, excises, levies, fees and
charges payable by Tenant under this Section 5.1 shall be deemed to be, and
shall be paid as, additional rent.
ARTICLE
6
Use
6.1 The
Premises shall be used for general office purposes and for no other purpose.
Tenant shall not do or permit to be done in, on or about the Premises, nor bring
or keep or permit to be brought or kept therein, anything which (a) is
prohibited by or will in any way conflict with any law, ordinance, rule,
regulation or order now in force or which may hereafter be enacted, (b) which is
prohibited by any insurance policy carried by Landlord for the Building, or will
in any way increase the existing rate of, or cause a cancellation of, or affect
any insurance for the Building or (c) will impair the proper and economic
maintenance, operation of the Building or any portion thereof. Tenant shall not
bring or keep, or permit to be brought or kept, in the Premises or the Building
any toxic or hazardous substance, material or waste or any other contaminant or
pollutant. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of Landlord
or other tenants of the Building, or injure or annoy them. Tenant shall not use
or allow the Premises to be used for any improper, immoral, unlawful or
objectionable activity, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises or commit or suffer to be committed any waste in,
on or about the Premises. Tenant shall not bring or keep in the Premises any
furniture, equipment, materials or other objects which overload the Premises or
any portion thereof in excess of fifty (50) pounds per square foot live or dead
load, which is the normal load-bearing capacity of the floors of the
Building.
9
ARTICLE
7
Services
7.1 So long
as Tenant is not in default under this Lease, Landlord shall supply the Premises
during reasonable and usual business hours, as determined by Landlord and
subject to the Rules and Regulations (as hereinafter defined) established by
Landlord, with normal electricity for lighting and the operation of desk top
office machines, normal heating, ventilation and air conditioning reasonably
required for the use and occupancy of the Premises, and normal water for
lavatory purposes. Landlord shall furnish normal elevator service to the
Premises during business hours (and shall use reasonable efforts to provide at
least one (1) passenger elevator for use after Landlord's normal business hours)
and lighting replacement for Building standard lights, restroom supplies and
exterior window washing when needed, as determined by Landlord and subject to
the Rules and Regulations. Landlord shall also furnish normal security service
for the Building (not Tenant or the Premises) in such a manner as Landlord deems
appropriate; Tenant expressly acknowledges that Landlord's security service, if
provided, shall in no way limit Tenant's obligation to secure the Premises and
Tenant's personnel and personal property, and no warranty against or obligation
to prevent any loss, damage or injury is given, express or implied, by Landlord
by virtue of Landlord's provision of security services, and Tenant hereby waives
any claim against Landlord for failure to provide security services, or for the
provisions of inadequate security services. Landlord shall not be liable for any
criminal acts of others or for any direct, consequential or other loss or damage
related to any malfunction, circumvention or other failure of such security
service. Landlord shall also provide normal janitor service to the Premises
during the times and in the manner that such services are customarily furnished
in comparable office buildings in the area. Landlord shall not be in default
under this Lease or be liable for any damage or loss directly or indirectly
resulting from, nor, except as expressly set forth herein, shall the rent be
abated or a constructive or other eviction be deemed to have occurred by reason
of, any installation, use or interruption of use of any equipment in connection
with the furnishing of any of the foregoing services, any failure to furnish or
delay in furnishing any such services, any interruption in telephone service to
the Premises, or any limitation, curtailment, rationing or restriction on use of
water, electricity, gas or any resource or form of energy serving the Premises
or the Building, whether such results from mandatory restrictions or voluntary
compliance with guidelines. Landlord shall use reasonable efforts to correct any
interruption in the furnishing of such services. Notwithstanding anything to the
contrary contained in this Article 7, if (i) Landlord ceases to furnish any
service to be provided by Landlord hereunder to the Premises for a period in
excess of five (5) consecutive business days after Tenant notifies Landlord of
such cessation; (ii) such cessation is due to the act or omission of Landlord
and does not in any way result as a result of an act or omission of Tenant or
any event of force majeure; (iii) such cessation is not caused by a fire or
other casualty (in which case Article 16 shall control); (iv) the restoration of
such service is reasonably within the control of Landlord; and (v) as a result
of such cessation, the Premises, or a material portion thereof, is rendered
untenantable (meaning that Tenant is unable to use the Premises for the
Permitted Use) and Tenant in fact ceases to use the Premises, or material
portion thereof, then Tenant, as its sole remedy, shall be entitled to receive
an abatement of Base Rent payable hereunder during the period beginning on the
first (1st) day following ▇▇▇▇▇▇’s notice to Landlord of such cessation and
ending on the day when the service in question has been restored. In the event
the entire Premises has not been rendered untenantable by the cessation in
service, the amount of abatement that Tenant is entitled to receive shall be
prorated based upon the percentage of the Premises so rendered untenantable and
not used by Tenant.
10
7.2 If Tenant
uses heat generating machines, equipment, or computers or lighting other than
Building standard lights and ordinary and customary computing equipment and
peripherals in the Premises which affect the temperature otherwise maintained by
the air conditioning system or causes the Premises to be occupied by more than
one (1) person per 120 rentable square feet, Landlord shall have the right to
install supplementary air conditioning units in the Premises and Tenant shall
pay to Landlord the reasonable cost thereof, including the costs of
installation, operation, maintenance and repair thereof, as reasonably
determined by Landlord, upon billing by Landlord. If Tenant installs lighting
requiring power in excess of that required for normal office use in the Building
or equipment or computers requiring power in excess of that required for normal
desk top office equipment, Tenant shall pay to Landlord, upon billing by
Landlord, the reasonable cost of such excess, as reasonably determined by
Landlord (which may be determined by either an electrical engineer’s survey or
by a separate meter installed at Tenant’s cost), together with Landlord's
then-standard administrative fee. Tenant shall pay to Landlord, upon billing by
Landlord, the cost of all additional services, electricity, power and energy
consumed by Tenant, in excess of the amount that would reasonably be incurred
for a normal business office operating during reasonable and usual business
hours, as a result of the operation of Tenant's computers or equipment, the
number of hours Tenant operates, or any other feature of the conduct of Tenant's
business in the Premises, all as reasonably determined by Landlord. All costs
payable by Tenant under this Section 7.2 shall be deemed to be, and shall be
paid as, additional rent.
ARTICLE
8
Maintenance
and Repairs
8.1 Landlord
shall maintain and repair the public and common areas of the Building, such as
plazas, lobbies, stairs, corridors and restrooms, the roof and exterior elements
of the Building, and the elevator, mechanical (heating, ventilating and air
conditioning) and electrical systems serving the Building as a whole and keep
such areas, elements and systems in reasonably good order and condition. Any
damage in or to any such areas, elements or systems solely caused by Tenant or
any agent, officer, employee, contractor, licensee or invitee of Tenant shall be
repaired by Landlord at Tenant's expense and Tenant shall pay to Landlord, upon
billing by Landlord, as additional rent, the reasonable cost of such repairs
incurred by Landlord.
8.2 Tenant
shall, at all times during the Term of this Lease and at Tenant's sole cost and
expense, maintain and repair the Premises and every part thereof and all
equipment, fixtures and improvements therein (including, without limitation, the
interior portion of the demising walls, interior partition walls, wall-covering
and glass, any electrical systems installed for the exclusive use of Tenant,
plumbing, floor coverings, millwork, draperies, kitchen areas, ceiling tiles,
entry doors and light fixtures) and keep all of the foregoing clean and in good
order and operating condition, ordinary wear and tear and damage thereto
excepting (x) by fire or other casualty, or (y) attributable to the acts of
Landlord of Landlord’s employees, contractors or agents or to any other tenants
or occupants of the Building (unless invitees of Tenant at the time of damage).
Tenant hereby waives all rights under California Civil Code Section 1941 and all
rights to make repairs at the expense of Landlord or in lieu thereof to vacate
the Premises as provided by California Civil Code Section 1942 or any other law,
statute or ordinance now or hereafter in effect. Subject to Section 9.2 hereof,
Tenant shall, at the end of the Term of this Lease, surrender to Landlord the
Premises and all alterations, additions, fixtures and improvements therein or
thereto in the same condition as when received, ordinary wear and tear and
damage thereto by fire or other casualty excepted (provided that at Landlord's
request Tenant shall remove all computer cabling and/or wiring installed by or
on behalf of Tenant). Landlord shall have the right to approve in advance all
work, repair, maintenance or otherwise, to be performed under this Lease by
▇▇▇▇▇▇ and all of Tenant's repairmen, contractors, subcontractors and suppliers
performing work or supplying materials (Landlord's approval not to be
unreasonably withheld, conditioned or delayed).
11
ARTICLE
9
Alterations
9.1 Tenant
shall make no alterations, additions or improvements to the Premises or install
fixtures in the Premises without first obtaining Landlord's written consent,
which consent shall not be unreasonably withheld. In no event, however, may
Tenant make any alterations, additions or improvements or install fixtures which
in Landlord's sole discretion might (i) affect the exterior appearance of the
Premises or the Building, (ii) affect the structural components of the Building,
(iii) affect the Building's mechanical, utility or life safety systems or (iv)
diminish the value of, or Landlord's ability to re-lease, the Premises. At the
time such consent is requested, Tenant shall furnish to Landlord for Landlord's
written approval a copy of all plans and permits for the proposed work, an
estimate of the cost thereof and such other information as shall be requested by
Landlord substantiating Tenant's ability to pay for such work. Landlord, at its
sole option, may require as a condition to the granting of such consent to any
work costing in excess of $50,000, that Tenant provide to Landlord, at Tenant's
sole cost and expense, a lien and completion bond in an amount equal to one and
one-half (1-1/2) times any and all estimated costs of the proposed work, to
insure Landlord against any liability for mechanics' and materialmen's liens and
to insure completion of the work. Before commencing any work, ▇▇▇▇▇▇ shall
deliver to Landlord a copy of any required building permit with respect thereto
and shall give Landlord at least ten (10) days' written notice of the proposed
commencement of such work in order to give Landlord an opportunity to prepare,
post and record such notice as may be permitted by law to protect Landlord's
interest in the Premises and the Building from mechanics' and materialmen's
liens. Within thirty (30) days following completion of any work, Tenant, at
Tenant's cost, shall furnish to Landlord "as built" plans showing the changes
made to the Premises, but only if such “as builts” are typically prepared given
the scope of the alterations in question.
9.2 Any
alterations, additions or improvements to the Premises shall be made by Tenant
at Tenant's sole cost and expense (including the cost of all utilities, permits,
fees, taxes, and property and liability insurance premiums in connection
therewith as well as a construction management fee to Landlord in the amount of
five percent (5%) of the aggregate cost of such work, net of fees, utilities,
permits, taxes and insurance to reimburse Landlord for its administrative and
managerial time and effort), and all such work shall be performed by a
contractor(s) designated by Tenant and reasonably acceptable to Landlord. Tenant
shall also be responsible for the cost of all work required by applicable law to
be performed in or about the Premises or Building as a result of Tenant's
elective alterations. Tenant shall pay to Landlord, as additional rent, any
additional reasonable costs (beyond the normal services provided to tenants in
the Building) and shall reimburse Landlord, as additional rent, for all
reasonable expenses incurred by Landlord in connection with the review, approval
and supervision of any elective alterations, additions or improvements. Under no
circumstances shall Landlord be liable to Tenant for any damage, loss, cost or
expense incurred by Tenant on account of any plans and specifications,
contractors or subcontractors, design of any work, construction of any work, or
delay in completion of any work.
9.3 All work
performed by Tenant shall comply with the laws, rules, orders, directions,
regulations and requirements of the Building and all governmental entities
having jurisdiction over such work and shall comply with the rules, orders,
directions, regulations and requirements of any nationally recognized board of
insurance underwriters. Tenant shall indemnify, defend, protect and hold
Landlord harmless from and against any and all loss, cost (including, without
limitation, reasonable attorneys' fees and costs), damage or liability arising
in any way out of Tenant's performance of any work of alterations, additions or
improvements, including, without limitation, any claims based upon interference
to or interruption of other occupants or invitees of the Building (whether due
to noise levels, vibrations, the presence of smoke, fumes, odors, dust or debris
or otherwise) or upon the violation of any applicable law, rule, order,
direction or regulation.
9.4 All
alterations, additions, fixtures and improvements, including carpeting and all
other improvements made pursuant to Exhibit B, whether temporary or permanent in
character, made in or to the Premises by Landlord or Tenant, shall become part
of the Building and Landlord's property. Upon termination of this Lease,
Landlord shall have the right, at Landlord's option, by giving written notice to
Tenant at any time before or within sixty (60) days after such termination, to
retain all such alterations, additions, fixtures and improvements in the
Premises, without compensation to Tenant, or to remove all such alterations,
additions, fixtures and improvements from the Premises, repair all damage caused
by any such removal, and restore the Premises (including restoration of all
openings or holes, stairs and vertical penetrations in the Premises) to the
condition in which the Premises existed before such alterations, additions,
fixtures and improvements were made, and in the latter case Tenant shall pay to
Landlord, upon billing by Landlord, the cost of such removal, repair and
restoration (including a fee in the amount of five percent (5%) of the cost of
such work for Landlord's overhead and profit). All movable furniture, equipment,
trade fixtures, computers, office machines and other personal property shall
remain the property of Tenant. Upon termination of this Lease, Tenant shall, at
Tenant's expense, remove all such movable furniture, equipment, trade fixtures,
computers, office machines and other personal property, and, if requested by
Landlord, all cabling and/or wiring installed by Tenant within or serving the
Premises from the Building and repair all damage caused by any such removal.
Termination of this Lease shall not affect the obligations of Tenant pursuant to
this Section 9.4 to be performed after such termination.
12
ARTICLE
10
Insurance
10.1 Landlord
shall not be liable to Tenant for any damage to or loss or theft of any property
or for any bodily or personal injury, illness or death of any person in, on or
about the Premises or the Building arising at any time and from any cause
whatsoever, except to the extent caused by the negligence or willful misconduct
of Landlord, and subject in any event to the terms of Section 10.5 below. Tenant
waives all claims against Landlord arising from any liability described in this
Section 10.1, except to the extent caused by the negligence or willful
misconduct of Landlord. Notwithstanding any other provision of this Lease to the
contrary, in no event shall Landlord be liable to Tenant for the loss or
interruption of Tenant's business or for indirect or consequential damages of
any kind.
10.2 To the
fullest extent permitted under applicable law, Tenant shall indemnify, defend,
protect and hold Landlord, Landlord's members, managers, patrons, shareholders,
officers, directors, employees, agents and contractors ("Landlord's
Indemnitees") harmless from and against any and all claims, demands,
liabilities, damages, losses, costs and expenses of any kind, including, without
limitation, reasonable attorneys' fees and disbursements, arising from or in any
way related to any use or occupancy of the Premises, or any condition of the
Premises (including, without limitation, Tenant's failure to comply with any of
the requirements of the Americans with Disabilities Act of 1991, 42 U.S.C. §
12101 et. seq. (as amended from time to time) and the regulations promulgated
thereunder ("ADA") within the Premises or with respect to alterations performed
by or on behalf of Tenant), or any failure by Tenant to comply with ▇▇▇▇▇▇'s
obligations hereunder, or any damage to any property (including property of
employees and invitees of Tenant) or any bodily or personal injury, illness or
death of any person (including employees and invitees of Tenant) occurring in,
on or about the Premises or any part thereof arising at any time and from any
cause whatsoever (other than to the extent attributable to (x) casualty or
condemnation governed by Article 16 and 17 below or to (y) the acts or omissions
of Landlord, Landlord’s agents, employees or contractors or any other
third-party occupant of the Building (unless such third party occupant is an
invitee of Tenant)) or occurring in, on about or in the vicinity of any part of
the Building other than the Premises when such damage, bodily or personal
injury, illness or death is caused or is claimed to have been caused in any way
by any act or omission of Tenant or its agents, officers, employees,
contractors, invitees or licensees. This Section 10.2 shall survive the
termination of this Lease with respect to any damage, bodily or personal injury,
illness or death occurring prior to such termination. If any claim, action or
proceeding is made or brought against any Landlord's Indemnitees, which claim,
action or proceeding Tenant is obligated hereunder to indemnify against, then
upon demand by Landlord Tenant, at its sole cost and expense, shall resist or
defend such claim, action or proceeding in the Landlord's Indemnitee's name, if
necessary, by such actions Landlord's Indemnitee shall approve; provided that
▇▇▇▇▇▇▇▇'s Indemnitee may, at is cost, retain its own attorneys to defend or
assist in defending any claim, action or proceeding.
10.3 Tenant
shall, at all times during the Term of this Lease and at Tenant's sole cost and
expense, obtain and keep in force commercial general liability insurance,
including contractual liability (specifically covering this Lease), fire legal
liability, and premises operations, with a minimum combined single limit in the
amount specified in the Basic
Lease Information per
occurrence for bodily or personal injury to, illness of, or death of persons and
damage to property occurring in, on or about the Premises or the Building. In
addition, Tenant shall, at all times during the Term of this Lease and at
Tenant's sole cost and expense, obtain and keep in force workers' compensation
insurance in amount not less than the minimum required by applicable law. Tenant
shall, at ▇▇▇▇▇▇'s sole cost and expense, be responsible for insuring Tenant's
furniture, equipment, fixtures, computers, office machines and personal
property.
13
10.4 All
insurance required under this Article 10 and all renewals thereof shall be
issued by good and responsible companies qualified to do and doing business in
the State of California. Each policy shall expressly provide that the policy
shall not be cancelled or altered without thirty (30) days' prior written notice
to Landlord and shall remain in effect notwithstanding any such cancellation or
alteration until such notice shall have been given to Landlord and such period
of thirty (30) days shall have expired. All liability insurance under this
Article 10 shall name Landlord’s asset manager, ▇▇▇▇▇▇▇▇'s property manager for
the Building, and any other parties reasonably designated by Landlord as an
additional insured, shall be primary and noncontributing with any insurance
which may be carried by Landlord, shall afford coverage for all claims based on
any act, omission, event or condition that occurred or arose (or the onset of
which occurred or arose) during the policy period, and shall expressly provide
that Landlord, although named as an insured, shall nevertheless be entitled to
recover under the policy for any covered loss, injury or damage to Landlord.
Upon the issuance thereof, Tenant shall upon demand deliver each such policy or
a certified copy and a certificate thereof to Landlord for retention by
Landlord; provided that Tenant will initially deliver a copy of such policy or a
certificate thereof prior to Tenant’s entry into the Premises. If Tenant fails
to insure or fails to furnish to Landlord upon notice to do so any such policy
or certified copy and certificate thereof as required, Landlord shall have the
right from time to time to effect such liability insurance for the benefit of
Tenant or Landlord or both of them and the incremental cost of premiums relating
to such policy paid by Landlord shall be payable by Tenant as additional rent on
demand.
10.5 Tenant
waives on behalf of all insurers under all policies of property insurance now or
hereafter carried by Tenant insuring or covering the Premises, or any portion or
any contents thereof, or any operations therein, all rights of subrogation which
any insurer might otherwise, if at all, have to any claims of Tenant against
Landlord. Landlord waives on behalf of all insurers under all policies of
property insurance now or hereafter carried by Landlord insuring or covering the
Building or any portion or any contents thereof, or any operations therein, all
rights of subrogation which any insurer might otherwise, if at all, have to any
claims of Landlord against Tenant. Tenant shall, prior to or immediately after
the date of this Lease, procure from each of the insurers under all policies of
property insurance now or hereafter carried by Tenant insuring or covering the
Premises, or any portion or any contents thereof, or any operations therein, a
waiver of all rights of subrogation which the insurer might otherwise, if at
all, have to any claims of Tenant against Landlord as required by this Section
10.5.
ARTICLE
11
Compliance
With Legal Requirements
11.1 Tenant
shall, at Tenant's sole cost and expense, promptly upon notice or knowledge
undertake reasonable steps to comply with all laws, ordinances, rules,
regulations, orders and other requirements of any government or public authority
now in force or which may hereafter be in force, with all requirements of any
board of fire underwriters or other similar body now or hereafter constituted,
and with all directions and certificates of occupancy issued pursuant to any law
by any governmental agency or officer, insofar as any thereof relate to or are
required by the condition, use, alteration or occupancy of the Premises or the
operation, use or maintenance of any personal property, fixtures, machinery,
equipment or improvements in the Premises, but Tenant shall not be required to
make structural changes unless structural changes are related to or required by
Tenant's acts or use of the Premises or by improvements or alterations made by
or for Tenant.
14
ARTICLE
12
Assignment
or Sublease
12.1 Tenant
shall not, directly or indirectly, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed, assign this Lease or any interest herein or sublease the Premises or
any part thereof, or permit the use or occupancy of the Premises by any person
or entity other than Tenant. Tenant shall not, directly or indirectly, without
the prior written consent of Landlord, pledge, mortgage or hypothecate this
Lease or any interest herein. This Lease shall not, nor shall any interest
herein, be assignable as to the interest of Tenant involuntarily or by operation
of law without the prior written consent of Landlord. Any of the foregoing acts
without such prior written consent of Landlord shall be void and shall, at the
option of Landlord, constitute a default that entitles Landlord to terminate
this Lease.
12.2 If Tenant
wishes to assign this Lease or sublease all or any part of the Premises, Tenant
shall give written notice to Landlord identifying the intended assignee or
subtenant by name and address and specifying all of the terms of the intended
assignment or sublease. Tenant shall give Landlord such additional information
concerning the intended assignee or subtenant (including complete financial
statements and a business history) or the intended assignment or sublease
(including true copies thereof) as Landlord may reasonably request. For a period
of twenty (20) days after such written notice is given by ▇▇▇▇▇▇, Landlord shall
have the right (except in the case of a Permitted Transfer [defined below]), by
giving written notice to Tenant, to terminate this Lease in the event of a
proposed assignment of this Lease or a sublease of the entire Premises. Further,
Landlord shall have the right to terminate this Lease with respect to any
portion of the Premises which Tenant desires to sublease to any party. If
Landlord timely exercises its option to terminate this Lease, then this Lease
shall terminate on a date specified by Landlord in the Landlord's notice (the
"Specified Termination Date"), which Specified Termination Date shall not be
sooner than thirty (30) days after the date of Landlord's notice, nor later than
ninety (90) days after the date of Landlord's notice, and all rent shall be paid
and apportioned to the Specified Termination Date. If Landlord exercises its
option to terminate this Lease as to only a portion of the Premises, then (i)
this Lease shall end and expire with respect to the applicable sublease space on
the applicable Specified Termination Date, (ii) from and after the applicable
Specified Termination Date, the Base Rent shall be reduced by the amount of Base
Rent that was being paid in respect of the applicable sublease space as of the
applicable Specified Termination Date, (iii) Tenant's Percentage Share shall be
recalculated based on the square feet of rentable area included in the Premises
(exclusive of such sublease space), (iv) if the sublease space adjoins another
portion of the Premises, Tenant shall, at Tenant's sole cost and expense,
construct and finish such demising walls as are necessary to physically separate
the Premises from the sublease space, and (v) if the sublease space is part of a
floor which is fully included in the Premises, then Landlord shall have the
right, at Tenant's sole cost and expense, (a) to construct and finish in
accordance with Building standards or to cause Tenant to construct and finish in
accordance with Building standards such demising walls as are necessary (x) to
construct a public corridor so as to convert the floor to a multi-tenant floor
and (y) to convert the restrooms on such floor (including access thereto) to
restrooms which will serve the entire floor, as opposed to only the Premises,
and (b) to make such revisions, if any, are necessary, to properly light, heat,
cool and ventilate the public corridor and public restrooms.
15
12.3 If
Landlord does not exercise the rights set forth in Section 12.2 above, Landlord
shall not unreasonably withhold its consent to a proposed assignment or
sublease. Notwithstanding the foregoing, and without limiting or excluding other
reasons for withholding Landlord's consent, Landlord shall have the right to
withhold consent if:
(a) the
proposed assignee or subtenant or the use of the Premises to be made by the
proposed assignee or subtenant is not consistent with the character and nature
of other tenants and uses in the Building or is prohibited by this
Lease;
(b) if it is
not demonstrated to the satisfaction of Landlord that the proposed assignee or
subtenant is financially able to perform all of the obligations of Tenant under
this Lease (as evidenced by financial statements and business and credit
references acceptable to Landlord);
(c) such
sublease or assignment is not in form and of substance reasonably satisfactory
to Landlord;
(d) such
sublease or assignment conflicts in any manner with this Lease, including, but
not limited to, the use permitted hereunder;
(e) the
proposed subtenant or assignee is a governmental entity or a medical
office;
(f) the
character of the business to be conducted within the Premises by the proposed
subtenant or assignee is likely to substantially increase the expenses or costs
or providing Building services, or the burden on existing janitorial services or
elevators in the Building;
(g) the
proposed subtenant or assignee is (x) an existing tenant of the Building with
whom Landlord is then negotiating (or has within the immediately preceding six
(6) months negotiated) with respect to the occupancy of space in the Building or
(y) is an entity which is not an occupant of the Building with whom Landlord is
then negotiating (or has within the immediately preceding six (6) months
negotiated) with regarding the occupancy of space within the Building
(notwithstanding the foregoing, Landlord will not withhold its consent solely
because the proposed subtenant or assignee is an occupant of the Building if
Landlord does not have space available for lease in the Building that is
comparable to the space Tenant desires to sublet or assign. Landlord shall be
deemed to have comparable space if it has, or will have, space available on any
floor of the Building that is approximately the same size as the space Tenant
desires to sublet or assign within two (2) months of the proposed commencement
of the proposed sublease or assignment).
(h) the
sublease or assignment would cause Landlord to breach any recorded covenants or
contractual obligations to which the Building or Landlord is
subject.
Tenant
agrees that the instrument by which any assignment or sublease to which Landlord
consents is accomplished shall expressly provide that the assignee or subtenant
will perform all of the covenants to be performed by Tenant under this Lease (in
the case of a sublease, only insofar as such covenants relate to the portion of
the Premises subject to such sublease) as and when performance is due after the
effective date of the assignment or sublease and that Landlord will have the
right to enforce such covenants directly against such assignee or subtenant. Any
purported assignment or sublease without an instrument containing the foregoing
provisions shall be void. Tenant shall in all cases remain liable for the
performance by any assignee or subtenant of all such covenants.
16
12.4 If
Landlord consents in writing, Tenant may complete the intended assignment or
sublease subject to the following covenants: (a) the assignment or sublease
shall be on the same terms as set forth in the written notice given by Tenant to
Landlord, (b) no assignment or sublease shall be valid and no assignee or
subtenant shall take possession of the Premises or any part thereof until an
executed duplicate original of such assignment or sublease has been delivered to
Landlord, (c) no assignee or subtenant shall have a right further to assign or
sublease, and (d) fifty percent (50%) of all "excess rent" (as hereinafter
defined) derived from such assignment or sublease shall be paid to Landlord.
Such excess rent shall be deemed to be, and shall be paid by Tenant to Landlord
as, additional rent. Tenant shall pay such excess rent to Landlord immediately
as and when such excess rent becomes due and payable to Tenant. As used in this
Section 12.4, "excess rent" shall mean the amount by which the total money and
other economic consideration to be paid by the assignee or subtenant as a result
of an assignment or sublease, whether denominated rent or otherwise, exceeds, in
the aggregate, the total amount of rent which Tenant is obligated to pay to
Landlord under this Lease (prorated to reflect the rent allocable to the portion
of the Premises subject to such assignment or sublease), less only the
reasonable costs paid by Tenant for additional improvements installed in the
portion of the Premises subject to such assignment or sublease by ▇▇▇▇▇▇ at
Tenant's sole cost and expense for the specific assignee or subtenant in
question and reasonable leasing commissions paid by ▇▇▇▇▇▇ in connection with
such assignment or sublease, without deduction for carrying costs due to vacancy
or otherwise. Such costs of additional improvements and leasing commissions
shall be amortized without interest over the Term of such assignment or
sublease.
12.5 No
assignment or sublease whatsoever shall release Tenant from Tenant's obligations
and liabilities under this Lease or alter the primary liability of Tenant to pay
all rent and to perform all obligations to be paid and performed by ▇▇▇▇▇▇. The
acceptance of rent by Landlord from any other person or entity shall not be
deemed to be a waiver by Landlord of any provision of this Lease. Consent to one
assignment or sublease shall not be deemed consent to any subsequent assignment
or sublease. If any assignee, subtenant or successor of Tenant defaults in the
performance of any obligation to be performed by Tenant under this Lease,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. ▇▇▇▇▇▇▇▇ may consent to
subsequent assignments or subleases or amendments or modifications to this Lease
with assignees, subtenants or successors of ▇▇▇▇▇▇, without notifying Tenant or
any successor of ▇▇▇▇▇▇ and without obtaining any consent thereto from Tenant or
any successor of ▇▇▇▇▇▇, and such action shall not release Tenant from liability
under this Lease.
12.6 So long
as Tenant is not entering into the Permitted Transfer for the purpose of
avoiding or otherwise circumventing the remaining terms of this Article 12,
Tenant may assign its entire interest under this Lease, without the consent of
Landlord, to (i) an affiliate, subsidiary, or parent of Tenant, or a
corporation, partnership or other legal entity wholly owned by Tenant
(collectively, an “Affiliated Party”), or (ii) a successor to Tenant by
purchase, merger, consolidation or reorganization, provided that all of the
following conditions are satisfied (each a "Permitted Transfer"): (1) Tenant is
not in default under this Lease; (2) Tenant shall give Landlord written notice
at least 30 days prior to the effective date of the proposed Permitted Transfer;
(3) with respect to a proposed Permitted Transfer to an Affiliated Party, Tenant
continues to have a net worth equal to or greater than Tenant's net worth at the
date of this Lease; and (4) with respect to a purchase, merger, consolidation or
reorganization or any Permitted Transfer which results in Tenant ceasing to
exist as a separate legal entity, (a) Tenant’s successor shall own all or
substantially all of the assets of Tenant, and (b) 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. Tenant’s notice to Landlord
shall include information and documentation showing that each of the above
conditions has been satisfied. If requested by Landlord, ▇▇▇▇▇▇’s successor
shall sign a commercially reasonable form of assumption agreement. As used
herein, (A) “parent” shall mean a company which owns a majority of Tenant’s
voting equity; (B) "subsidiary" shall mean an entity wholly owned by Tenant or
at least 51% of whose voting equity is owned by Tenant; and (C) “affiliate”
shall mean an entity controlled by, controlling or under common control with
Tenant. Notwithstanding the foregoing, if any parent, affiliate or subsidiary to
which this Lease has been assigned or transferred subsequently sells or
transfers its voting equity or its interest under this Lease other than to
another parent, subsidiary or affiliate of the original Tenant named hereunder,
such sale or transfer shall be deemed to be a Transfer requiring the consent of
Landlord hereunder.
17
ARTICLE
13
Rules
and Regulations
13.1 Tenant
shall faithfully observe and comply with the rules and regulations (the "Rules
and Regulations") set forth in Exhibit
C attached
hereto and, after notice thereof, all modifications thereof and additions
thereto from time to time made in writing by Landlord. If there is any conflict,
this Lease shall prevail over the Rules and Regulations and any modifications
thereof or additions thereto. Landlord shall not be liable to Tenant or
responsible for the noncompliance by any other tenant or occupant of the
Building with any Rules and Regulations.
ARTICLE
14
Entry
by Landlord
14.1 Landlord
shall have the right to enter the Premises at all reasonable times and upon
reasonable advance written or telephonic notice (except in the case of emergency
or the provision of janitorial services) to (a) inspect the Premises, (b)
exhibit the Premises to prospective purchasers, lenders or tenants, (c)
determine whether Tenant is performing all of Tenant's obligations, (d) supply
any service to be provided by Landlord, (e) post notices of nonresponsibility,
and (f) make any repairs to the Premises, or make any repairs to any adjoining
space or utility services, or make any repairs, alterations or improvements to
any other portion of the Building. Tenant waives all claims for damages for any
injury or inconvenience to or interference with ▇▇▇▇▇▇'s business, any loss of
occupancy or quiet enjoyment of the Premises or any other loss occasioned by
such entry. All locks for all doors in, on or about the Premises (excluding
Tenant's vaults, safes and similar special security areas designated in writing
by Tenant) shall be keyed to the master system for the Building. Landlord shall
at all times have a key to unlock all such doors and Landlord shall have the
right to use any and all means which Landlord may deem proper to open such doors
in an emergency to obtain entry to the Premises. Any entry to the Premises
obtained by Landlord by any of such means shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or constructive, of Tenant from the Premises or
any portion thereof.
18
ARTICLE
15
Events
of Default and Remedies
15.1 The
occurrence of any one or more of the following events ("Event of Default") shall
constitute a breach of this Lease by Tenant:
(a) Tenant
fails to pay any Base Rent, additional monthly rent or additional rent or other
amount of money or charge payable by Tenant hereunder as and when such rent
becomes due and payable and such failure continues for more than five (5) days
after ▇▇▇▇▇▇▇▇ gives written notice thereof to Tenant; or
(b) Tenant
fails to perform or breaches any other agreement or covenant of this Lease to be
performed or observed by Tenant as and when performance or observance is due and
such failure or breach continues for more than ten (10) days after Landlord
gives written notice thereof to Tenant; provided, however, that if, by the
nature of such agreement or covenant, such failure or breach cannot reasonably
be cured within such period of ten (10) days, an Event of Default shall not
exist as long as Tenant commences with due diligence and dispatch the curing of
such failure or breach within such period of ten (10) days and, having so
commenced, thereafter prosecutes with diligence and dispatch and completes the
curing of such failure or breach; or
(c) Tenant
(i) files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency
or other debtors' relief law of any jurisdiction, (ii) makes an assignment for
the benefit of its creditors, (iii) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers of Tenant or of any
substantial part of Tenant's property, or (iv) takes action for the purpose of
any of the foregoing; or
(d) Without
consent by ▇▇▇▇▇▇, a court or government authority enters an order, and such
order is not vacated within thirty (30) days, (i) appointing a custodian,
receiver, trustee or other officer with similar powers with respect to Tenant or
with respect to any substantial part of Tenant's property, or (ii) constituting
an order for relief or approving a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy, insolvency or other debtors' relief law of any
jurisdiction, or (iii) ordering the dissolution, winding-up or liquidation of
Tenant; or
(e) This
Lease or any estate of Tenant hereunder is levied upon under any attachment or
execution and such attachment or execution is not vacated within thirty (30)
days; or
(f) Tenant
intentionally abandons the Premises; provided that ▇▇▇▇▇▇’s vacation of the
Premises pursuant to strategic changes within Tenant’s business shall not
constitute an abandonment for purposes of this subsection 15.1(f), so long as
Tenant has provided advance written notice to Landlord and otherwise continues
to fulfill all obligations of Tenant hereunder; or
(g) Tenant
fails to timely execute and deliver any instruments or certificates required
under Articles 18 or 19 below, it being understood and agreed that no additional
notice or grace period shall be required for such failure to constitute an Event
of Default.
19
15.2 If an
Event of Default occurs, Landlord shall have the right at any time to give a
written termination notice to Tenant and, on the date specified in such notice,
Tenant's right to possession shall terminate and this Lease shall terminate.
Upon such termination, Landlord shall have the right to recover from
Tenant:
(a) The worth
at the time of award of all unpaid rent which had been earned at the time of
termination;
(b) The worth
at the time of award of the amount by which all unpaid rent which would have
been earned after termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided;
(c) The worth
at the time of award of the amount by which all unpaid rent for the balance of
the Term of this Lease (calculated, in the case of Operating Expenses, by
assuming annual increases at the average annual increase over the three (3)
calendar year period immediately preceding such termination of the Consumer
Price Index, All Items, San Francisco - Oakland - San ▇▇▇▇) after the time of
award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; and
(d) All other
amounts necessary to compensate Landlord for all the detriment proximately
caused by ▇▇▇▇▇▇'s failure to perform all of Tenant's obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom. The "worth at the time of award" of the amounts referred to in
clauses (a) and (b) above shall be computed by allowing interest at the maximum
annual interest rate allowed by law for business loans (not primarily for
personal, family or household purposes) not exempt from the usury law at the
time of termination or, if there is no such maximum annual interest rate, at the
rate of eighteen percent (18%) per annum. The "worth at the time of award" of
the amount referred to in clause (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%). For the purpose of determining unpaid rent
under clauses (a), (b) and (c) above, the rent reserved in this Lease shall be
deemed to be the total rent payable by Tenant under Articles 3 and 5
hereof.
15.3 Even
though Tenant has breached this Lease, Landlord shall also have the right
provided in California Civil Code Section 1951.4 ("lessor may continue lease in
effect after ▇▇▇▇▇▇'s breach and abandonment and recover rent as it becomes due,
if lessee has the right to sublet or assign, subject only to reasonable
limitations") which allows Landlord to continue this Lease in effect for so long
as Landlord does not terminate Tenant's right to possession, and Landlord shall
have the right to enforce all its rights and remedies under this Lease,
including the right to recover all rent as it becomes due under this Lease. Acts
of maintenance or preservation or efforts to relet the Premises or the
appointment of a receiver upon initiative of Landlord to protect ▇▇▇▇▇▇▇▇'s
interest under this Lease shall not constitute a termination of Tenant's right
to possession unless written notice of termination is given by Landlord to
Tenant. If Landlord exercises its rights under California Civil Code Section
1951.4 as described herein, Landlord as attorney-in-fact for Tenant may from
time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the Term of this Lease) and at such rent and upon such
other terms as Landlord in its sole discretion may deem advisable, with the
right to make alterations and repairs to the Premises. Upon each such
subletting, Tenant shall be immediately liable for payment to Landlord of, in
addition to Base Rent and additional rent due hereunder, the cost of such
subletting and such alterations and repairs incurred by Landlord and the amount,
if any, by which the Base Rent and additional rent owing hereunder for the
period of such subletting (to the extent such period does not exceed the Term)
exceeds the amount to be paid as Base Rent and additional rent for the Premises
for such period pursuant to such subletting. For all purposes set forth in this
Section 15.3, Landlord is hereby irrevocably appointed attorney-in-fact for
Tenant, with power of substitution. No taking possession of the Premises by
Landlord as attorney-in-fact for Tenant shall be construed as an election on
Landlord's part to terminate this Lease or Tenant's right to possession unless a
written notice of such intention is given to Tenant. No action taken by Landlord
pursuant to this Section 15.3 shall be deemed a waiver of any default by Tenant
and, notwithstanding any such subletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous
default.
20
15.4 The
remedies provided for in this Lease are in addition to all other remedies
available to Landlord at law or in equity by statute or otherwise.
15.5 All
agreements and covenants to be performed or observed by Tenant under this Lease
shall be at Tenant's sole cost and expense and without any abatement of rent. If
Tenant fails to pay any sum of money to be paid by Tenant or to perform any
other act to be performed by Tenant under this Lease, Landlord shall have the
right, but shall not be obligated, and without waiving or releasing Tenant from
any obligations of Tenant, to make any such payment or to perform any such other
act on behalf of Tenant in accordance with this Lease. All sums so paid by
▇▇▇▇▇▇▇▇ and all necessary incidental costs shall be deemed additional rent
hereunder and shall be payable by Tenant to Landlord on demand, together with
interest on all such sums from the date of expenditure by Landlord to the date
of repayment by ▇▇▇▇▇▇ at the maximum annual interest rate allowed by law for
business loans (not primarily for personal, family or household purposes) not
exempt from the usury law at the date of expenditure or, if there is no such
maximum annual interest rate, at the rate of eighteen percent (18%) per annum.
Landlord shall have, in addition to all other rights and remedies of Landlord,
the same rights and remedies in the event of the nonpayment of such sums plus
interest by ▇▇▇▇▇▇ as in the case of default by ▇▇▇▇▇▇ in the payment of
rent.
15.6 If Tenant
abandons or surrenders the Premises, or is dispossessed by process of law or
otherwise, any movable furniture, equipment, trade fixtures or personal property
belonging to Tenant and left in the Premises shall be deemed to be abandoned, at
the option of Landlord, and Landlord shall have the right to sell or otherwise
dispose of such personal property in any commercially reasonable
manner.
15.7 Tenant
waives all rights of redemption or relief from forfeiture under California Code
of Civil Procedure Sections 1174 and 1179, and under any other present or future
law, in the event Tenant is evicted or Landlord otherwise lawfully takes
possession of the Premises by reason of any Event of Default.
ARTICLE
16
Damage
or Destruction
16.1 If the
Building or the Premises, or any part thereof, is damaged by fire or other
casualty before the Commencement Date or during the Term of this Lease, and this
Lease is not terminated pursuant to Section 16.2 hereof, Landlord shall repair
such damage and restore the Building and the Premises to substantially the same
condition in which the Building and the Premises existed before the occurrence
of such fire or other casualty and this Lease shall, subject to this Section
16.1, remain in full force and effect. If such fire or other casualty damages
the Premises or common areas of the Building necessary for Tenant's use and
occupancy of the Premises and during the period the Premises are rendered
unusable by such damage, Tenant shall be entitled to a reduction in Base Rent in
the proportion that the area of the Premises rendered unusable by such damage
bears to the total area of the Premises. Landlord shall not be obligated to
repair any damage to, or to make any replacement of, Tenant's improvements,
alterations or additions or any movable furniture, equipment, trade fixtures or
personal property in the Premises. Tenant shall, at Tenant's sole cost and
expense, repair and replace ▇▇▇▇▇▇'s improvements, alterations, additions,
furniture, and personal property and all such movable furniture, equipment,
trade fixtures and personal property. Such repair and replacement by Tenant
shall be done in accordance with Article 9 hereof. Tenant hereby waives
California Civil Code Sections 1932(2) and 1933(4).
21
16.2 If the
Building or the Premises, or any part thereof, is damaged by fire or other
casualty before the Commencement Date or during the Term of this Lease and (a)
such fire or other casualty occurs during the last twelve (12) months of the
Term of this Lease and the repair and restoration work to be performed by
Landlord in accordance with Section 16.1 hereof cannot, as reasonably estimated
by ▇▇▇▇▇▇▇▇, be completed within two (2) months after the occurrence of such
fire or other casualty, or (b) the insurance proceeds received by Landlord in
respect of such damage are not adequate to pay the entire cost, as reasonably
estimated by Landlord, of the repair and restoration work to be performed by
Landlord in accordance with Section 16.1 hereof, or (c) the repair and
restoration work to be performed by Landlord in accordance with Section 16.1
hereof cannot, as reasonably estimated by Landlord, be completed within six (6)
months after the occurrence of such fire or other casualty, then, in any such
event, Landlord shall have the right, by giving written notice to Tenant within
sixty (60) days after the occurrence of such fire or other casualty, to
terminate this Lease as of the date of such notice. If Landlord does not
exercise the right to terminate this Lease in accordance with this Section 16.2,
Landlord shall repair such damage and restore the Building and the Premises in
accordance with Section 16.1 hereof and this Lease shall, subject to Section
16.1 hereof, remain in full force and effect. A total destruction of the
Building shall automatically terminate this Lease effective as of the date of
such total destruction.
ARTICLE
17
Eminent
Domain
17.1 If any
part, but less than all, of the Premises is taken by exercise of the power of
eminent domain before the Commencement Date or during the Term of this Lease,
Landlord and, if a substantial portion of the Premises is taken and the
remaining portion of the Premises is not reasonably suitable for Tenant's
purposes, Landlord and Tenant each shall have the right, by giving written
notice to the other within thirty (30) days after the date of such taking, to
terminate this Lease. If either Landlord or Tenant exercises such right to
terminate this Lease in accordance with this Section 17.1, this Lease shall
terminate as of the date of such taking. If neither Landlord nor Tenant
exercises such right to terminate this Lease in accordance with this Section
17.1, this Lease shall terminate as to the portion of the Premises so taken as
of the date of such taking and shall remain in full force and effect as to the
portion of the Premises not so taken, and the Base Rent and Tenant's Percentage
Share shall be reduced as of the date of such taking in the proportion that the
area of the Premises so taken bears to the total area of the Premises. If all of
the Premises is taken by exercise of the power of eminent domain before the
Commencement Date or during the Term of this Lease, this Lease shall terminate
as of the date of such taking.
22
17.2 If all or
any part of the Premises is taken by exercise of the power of eminent domain,
all awards, compensation, damages, income, rent and interest payable in
connection with such taking shall, except as expressly set forth in this Section
17.2, be paid to and become the property of Landlord, and Tenant hereby assigns
to Landlord all of the foregoing. Without limiting the generality of the
foregoing, Tenant shall have no claim against Landlord or the entity exercising
the power of eminent domain for the value of the leasehold estate created by
this Lease or any unexpired Term of this Lease. Tenant shall have the right to
claim and receive directly from the entity exercising the power of eminent
domain only the share of any award determined to be owing to Tenant for the
taking of improvements installed in the portion of the Premises so taken by
Tenant at Tenant's sole cost and expense based on the unamortized cost actually
paid by Tenant for such improvements, for the taking of Tenant's movable
furniture, equipment, trade fixtures and personal property, for loss of
goodwill, for interference with or interruption of Tenant's business, or for
removal and relocation expenses.
17.3 Notwithstanding
Sections 17.1 and 17.2 hereof to the contrary, if the use of all or any part of
the Premises is taken by exercise of the power of eminent domain during the Term
of this Lease on a temporary basis for a period less than the Term of this Lease
remaining after such taking, this Lease shall continue in full force and effect,
Tenant shall continue to pay all of the rent and to perform all of the covenants
of Tenant in accordance with this Lease, to the extent reasonably practicable
under the circumstances, and the condemnation proceeds in respect of such
temporary taking shall be paid to Tenant.
17.4 As used
in this Article 17, a "taking" means the acquisition of all or part of the
Premises for a public use by exercise of the power of eminent domain and the
taking shall be considered to occur as of the earlier of the date on which
possession of the Premises (or part so taken) by the entity exercising the power
of eminent domain is authorized as stated in an order for possession or the date
on which title to the Premises (or part so taken) vests in the entity exercising
the power of eminent domain. Tenant hereby waives California Code of Civil
Procedure Sections 1265.110 through 1265.160.
ARTICLE
18
Subordination,
Merger and Sale
18.1 This
Lease and all rights of Tenant hereunder are subject and subordinate to all
underlying leases now or hereafter in existence, and to any supplements,
amendments, modifications, and extensions of such leases heretofore or hereafter
made and to any deeds to secure debt, mortgages, or other security instruments
which now or hereafter cover all or any portion of the Building or any interest
of Landlord therein, and to any advances made on the security thereof, and to
any increases, renewals, modifications, consolidations, replacements, and
extensions of any of such mortgages. This provision is declared by Landlord and
Tenant to be self- operative and no further instrument shall be required to
effect such subordination of this Lease. Upon demand, ▇▇▇▇▇▇ shall execute,
acknowledge, and deliver to Landlord any further instruments and certificates
evidencing such subordination as Landlord, and any mortgagee or lessor of
Landlord shall reasonably require, and if Tenant fails to so execute,
acknowledge and deliver such instruments within ten (10) days after ▇▇▇▇▇▇▇▇'s
request, Landlord is hereby empowered to do so in Tenant's name and on Tenant's
behalf; Tenant hereby irrevocably appoints Landlord as ▇▇▇▇▇▇'s agent and
attorney-in-fact for the purpose of executing, acknowledging, and delivering any
such instruments and certificates. Tenant shall not unreasonably withhold,
delay, or defer its written consent to reasonable modifications in this Lease
which are a condition of any construction, interim or permanent financing for
the Building provided that such modifications do not increase the obligations of
Tenant hereunder or materially and adversely affect ▇▇▇▇▇▇'s use and enjoyment
of the Premises.
23
18.2 Notwithstanding
the generality of the foregoing provisions of Section 18.1, any mortgagee (or
beneficiary under a deed of trust) or lessor of Landlord shall have the right at
any time to subordinate any such mortgage, deed of trust or underlying lease to
this Lease, or to any of the provisions hereof, on such terms and subject to
such conditions as such mortgagee or lessor of Landlord may consider appropriate
in its discretion. At any time, before or after the institution of any
proceedings for the foreclosure of any such mortgage, or the sale of the
Building under any such mortgage, or the termination of any underlying lease,
Tenant shall, upon request of such mortgagee or any person or entities
succeeding to the interest of such mortgagee or the purchaser at any foreclosure
sale ("Successor Landlord"), automatically become the Tenant (or if the Premises
has been validly subleased, the subtenant) of the Successor Landlord, without
change in the terms or other provisions of this Lease (or, in the case of a
permitted sublease, without change in this Lease or in the instrument setting
forth the terms of such sublease); provided, however, that the Successor
Landlord shall not be (i) bound by any payment made by Tenant of rent or for
more than one (1) month in advance, except for a security deposit previously
paid to Landlord (and then only if such security deposit has been deposited with
and is under the control of the Successor Landlord), (ii) bound by any
termination, modification, amendment or surrender of the Lease done without the
Successor Landlord's consent, (iii) liable for any damages or subject to any
offset or defense by Tenant to the payment of rent by reason of any act or
omission of any prior landlord (including Landlord), or (iv) personally or
corporately liable, in any event, beyond the limitations on landlord liability
set forth in this Lease. This agreement of Tenant to attorn to a Successor
Landlord shall survive any such foreclosure sale, trustee's sale conveyance in
lieu thereof or termination of any underlying lease. Tenant shall upon demand at
any time, before or after any such foreclosure or termination execute,
acknowledge, and deliver to the Successor Landlord any written instruments and
certificates evidencing such attornment as such Successor Landlord may
reasonably require.
18.3 The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger and shall, at the option of Landlord, terminate
all or any existing subleases or subtenancies or operate as an assignment to
Landlord of any or all such subleases or subtenancies.
18.4 If the
original Landlord hereunder, or any successor owner of the Building, sells or
conveys the Building, all liabilities and obligations on the part of the
original Landlord, or such successor owner, under this Lease accruing after such
sale or conveyance shall terminate and the original Landlord, or such successor
owner, shall automatically be released therefrom, and thereupon all such
liabilities and obligations shall be binding upon the new owner. ▇▇▇▇▇▇ agrees
to attorn to such new owner.
24
ARTICLE
19
Estoppel
Certificate
19.1 At any
time and from time to time, Tenant shall, within fifteen (15) days after written
request by ▇▇▇▇▇▇▇▇, execute, acknowledge and deliver to Landlord a certificate
certifying: (a) that this Lease is unmodified and in full force and effect (or,
if there have been modifications, that this Lease is in full force and effect as
modified, and stating the date and nature of each modification); (b) the
Commencement Date and the Expiration Date determined in accordance with Article
2 hereof and the date, if any, to which all rent and other sums payable
hereunder have been paid; (c) that no notice has been received by Tenant of any
default by Tenant hereunder which has not been cured, except as to defaults
specified in such certificate; (d) that Landlord is not in default under this
Lease, except as to defaults specified in such certificate; and (e) such other
matters as may be reasonably requested by Landlord or any actual or prospective
purchaser or mortgage lender. Tenant shall indemnify, defend, protect and hold
Landlord from and against any and all loss, cost, damage or liability of any
kind incurred by Landlord as a result of Tenant's failure to timely comply with
the provisions of this Section 19.1, if such failure to timely comply is within
the reasonable control of Tenant Any such certificate may be relied upon by
Landlord and any actual or prospective purchaser or mortgage lender of the
Building or any part thereof. At any time and from time to time, Tenant shall,
within fifteen (15) days after written request by ▇▇▇▇▇▇▇▇, deliver to Landlord
copies of all current financial statements (including, without limitation, a
balance sheet, an income statement, and an accumulated retained earnings
statement), annual reports, and other financial and operating information and
data of Tenant prepared by Tenant in the course of Tenant's business. Unless
available to the public, Landlord shall disclose such financial statements,
annual reports and other information or data only to actual or prospective
purchasers or mortgage lenders of the Building or any part thereof, and
otherwise keep them confidential unless other disclosure is required by
law.
ARTICLE
20
Holding
Over
20.1 Should
Tenant continue to hold the Premises after the expiration or earlier termination
of this Lease, such holding over, unless otherwise agreed to by Landlord in
writing, shall constitute and be construed as a tenancy at sufferance at monthly
installments of rent equal to two hundred percent (200%) of the monthly Base
Rent rate, Operating Expenses and Property Taxes in effect as of the date
immediately preceding the expiration or earlier termination, and subject to all
of the other terms, charges and expenses set forth herein except any right to
renew this Lease or to expand the Premises or any right to additional services.
Tenant shall also be liable to Landlord for all damage which Landlord suffers
because of any holding over by ▇▇▇▇▇▇, and ▇▇▇▇▇▇ shall indemnify, defend,
protect and hold Landlord harmless from and against any and all loss, cost,
damage or liability arising out of such holding over, including without
limitation, all claims made by any other tenant or prospective tenant against
Landlord resulting from delay by Landlord in delivering possession of the
Premises to such other tenant or prospective tenant. The provisions of this
Article 20 shall survive the expiration or earlier termination of this
Lease.
ARTICLE
21
Security
Deposit
21.1 Upon
signing this Lease, Tenant shall pay to Landlord (a) an amount equal to the Base
Rent, Operating Expenses and Property Taxes for the first month of the Term of
this Lease, which amount Landlord shall apply to the Base Rent, Operating
Expenses, Property Taxes and Tenant's utilities for such first month, and (b)
the amount of the deposit specified in the Basic
Lease Information (the
"Deposit"). The Deposit shall be held by Landlord as security for the
performance by ▇▇▇▇▇▇ of all of the covenants of this Lease to be performed by
▇▇▇▇▇▇, and Tenant shall not be entitled to interest thereon. If Tenant fails to
perform any of the covenants of this Lease to be performed by ▇▇▇▇▇▇, then
Landlord shall have the right, but no obligation, to apply the Deposit, or so
much thereof as may be necessary, to cure any such failure by ▇▇▇▇▇▇. If
Landlord applies the Deposit or any part thereof to cure any such failure by
▇▇▇▇▇▇, then Tenant shall immediately pay to Landlord the sum necessary to
restore the Deposit to the full amount required by this Section 21.1. Any
remaining portion of the Deposit shall be returned to Tenant upon termination of
this Lease. Upon termination of the original Landlord's or any successor owner's
interest in the Premises or the Building, the original Landlord or such
successor owner shall be released from further liability with respect to the
Deposit upon the original Landlord's or such successor owner's complying with
California Civil Code Section 1950.7.
25
ARTICLE
22
Waiver
22.1 The
waiver by Landlord or Tenant of any breach of any covenant in this Lease shall
not be deemed to be a waiver of any subsequent breach of the same or any other
covenant in this Lease, nor shall any custom or practice which may become
established between Landlord and Tenant in the administration of this Lease be
construed to waive or to lessen the right of Landlord or Tenant to insist upon
the performance by Landlord or Tenant in strict accordance with this Lease. The
subsequent acceptance of rent hereunder by ▇▇▇▇▇▇▇▇ or the payment of rent by
Tenant shall not waive any preceding breach by Tenant of any covenant in this
Lease, nor cure any Event of Default, nor waive any forfeiture of this Lease or
unlawful detainer action, other than the failure of Tenant to pay the particular
rent so accepted, regardless of Landlord's or Tenant's knowledge of such
preceding breach at the time of acceptance or payment of such rent.
ARTICLE
23
Notices
23.1 All
requests, approvals, consents, notices and other communications given by
Landlord or Tenant under this Lease shall be properly given only if made in
writing and either deposited in the United States mail, postage prepaid,
certified with return receipt requested, delivered via nationally recognized
overnight courier or delivered by hand (which may be through a messenger or
recognized delivery or courier service) and addressed as follows: To Landlord at
the address of Landlord specified in the Basic
Lease Information, or at
such other place as Landlord may from time to time designate in a written notice
to Tenant; to Tenant, before the Commencement Date, at the address of Tenant
specified in the Basic
Lease Information, and
after the Commencement Date, at the Premises, or at such other place as Tenant
may from time to time designate in a written notice to Landlord. Such requests,
approvals, consents, notices and other communications shall be effective on the
date of receipt (evidenced by the certified mail receipt) if sent via certified
mail, on the next business day following deposit with the courier, if sent via
overnight courier or on the date of delivery if hand delivered (unless such date
is a weekend or holiday, in which event delivery shall be deemed to have
occurred on the next business day).
26
ARTICLE
24
Waiver
of Jury Trial
24.1 Landlord
and Tenant shall and do hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, ▇▇▇▇▇▇'s use or occupancy of the Premises,
or any statutory remedy.
ARTICLE
25
Telephone
Service
25.1 Landlord
shall have no responsibility for providing to Tenant any telephone equipment,
including wiring, within the Premises or for providing telephone service or
connections from the utility to the Premises, except as required by
law.
25.2 Tenant
shall not alter, modify, add to or disturb any telephone wiring in the Premises
or elsewhere in the Building without the Landlord's prior written consent.
Tenant shall be liable to Landlord for any damage to the telephone wiring in the
Building due to the act, negligent or otherwise, of Tenant or any employee,
contractor or other agent of Tenant. Tenant shall have no access to the
telephone closets within the Building, except in the manner and under procedures
established by Landlord. Tenant shall promptly notify Landlord of any actual or
suspected failure of telephone service to the Premises.
25.3 All costs
incurred by Landlord for the installation, maintenance, repair and replacement
of telephone wiring within the Building shall be an Operating Expense unless
Landlord is reimbursed for such costs by other tenants of the
Building.
25.4 Landlord
shall not be liable to Tenant and Tenant waives all claims against Landlord
whatsoever, whether for personal injury, property damage, loss of use of the
Premises, or otherwise, due to the interruption or failure of telephone services
to the Premises. Tenant hereby holds Landlord harmless and agrees to indemnify,
protect and defend Landlord from and against any liability for any damage, loss
or expense due to any failure or interruption of telephone service to the
Premises for any reason. ▇▇▇▇▇▇ agrees to obtain loss of rental insurance
adequate to cover any damage, loss or expense occasioned by the interruption of
telephone service.
ARTICLE
26
Miscellaneous
26.1 The words
"Landlord" and "Tenant" as used herein shall include the plural as well as the
singular. The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." If there is more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several. Time
is of the essence of this Lease and each and all of its provisions. Submission
of this instrument for examination or signature by ▇▇▇▇▇▇ does not constitute a
reservation of or option for lease, and it is not effective as a lease or
otherwise until execution and delivery by both Landlord and Tenant. Subject to
Article 12 hereof, this Lease shall benefit and bind ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ and the
personal representatives, heirs, successors and assigns of Landlord and ▇▇▇▇▇▇.
Tenant shall not use the name or likeness of the Building for any purpose
whatsoever other than as the address of Tenant at the Premises. If any provision
of this Lease is determined to be illegal or unenforceable, such determination
shall not affect any other provision of this Lease and all such other provisions
shall remain in full force and effect. If Tenant requests the consent or
approval of Landlord to any assignment, sublease or other action by ▇▇▇▇▇▇,
Tenant shall pay to Landlord on demand, as additional rent, all costs and
expenses, including reasonable attorneys' fees and disbursements, incurred by
Landlord in connection therewith. This Lease shall be governed by and construed
in accordance with the laws of the State of California.
26.2 Tenant
acknowledges that the late payment by Tenant of any monthly installment of Base
Rent or additional monthly rent will cause Landlord to incur costs and expenses,
the exact amount of which is extremely difficult and impractical to fix. Such
costs and expenses will include administration and collection costs and
processing and accounting expenses. Therefore, if any monthly installment of
Base Rent or additional monthly rent is not received by Landlord when due,
Tenant shall immediately pay to Landlord a late charge equal to five percent
(5%) of such delinquent installment. Landlord and Tenant agree that such late
charge represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered by ▇▇▇▇▇▇'s failure to make
timely payment. In no event shall such late charge be deemed to grant to Tenant
a grace period or extension of time within which to pay any monthly rent or
prevent Landlord from exercising any right or enforcing any remedy available to
Landlord upon Tenant's failure to pay each installment of monthly rent due under
this Lease in a timely fashion, including the right to terminate this Lease. All
amounts of money payable by Tenant to Landlord hereunder, if not paid when due,
shall bear interest from the due date until paid at the maximum annual interest
rate allowed by law for business loans (not primarily for personal, family or
household purposes) not exempt from the usury law at such due date or, if there
is no such maximum annual interest rate, at the rate of eighteen percent (18%)
per annum.
26.3 If there
is any legal action or proceeding between Landlord and Tenant to enforce this
Lease or to protect or establish any right or remedy under this Lease, the
unsuccessful party to such action or proceeding shall pay to the prevailing
party all costs and expenses, including reasonable attorneys' fees and
disbursements, incurred by such prevailing party in such action or proceeding
and in any appeal in connection therewith. If such prevailing party recovers a
judgment in any such action, proceeding or appeal, such costs, expenses and
attorneys' fees and disbursements shall be included in and as a part of such
judgment.
26.4 Exhibit
A (Plan(s)
Outlining the Premises), Exhibit
B (Work
Agreement) and Exhibit
C (Rules
and Regulations) are attached to and made a part of this Lease.
26.5 Tenant
warrants and represents to Landlord that ▇▇▇▇▇▇ has negotiated this Lease
directly with the real estate broker(s) specified in the Basic
Lease Information and has
not authorized or employed, or acted by implication to authorize or to employ,
any other real estate broker or salesman to act for Tenant in connection with
this Lease.
27
26.6 If Tenant
is a corporation, Tenant and each person executing this Lease on behalf of
Tenant represents and warrants to Landlord that (a) Tenant is duly incorporated
and validly existing under the laws of its state of incorporation, (b) Tenant is
qualified to do business in California, (c) Tenant has full corporate right,
power and authority to enter into this Lease and to perform all of Tenant's
obligations hereunder, and (d) each person signing this Lease on behalf of the
corporation is duly and validly authorized to do so.
26.7 Landlord
shall have the right, at any time and from time to time before the Commencement
Date and during the Term of this Lease, by giving at least thirty (30) days'
prior written notice to ▇▇▇▇▇▇, to substitute other space in the Building with
views substantially similar to the views offered from the Premises, as
determined by Tenant in Tenant’s reasonable discretion (the "Substitute
Premises") for the Premises and to relocate Tenant to the Substitute Premises.
Landlord shall designate the effective date for the substitution of the
Substitute Premises for the Premises and the relocation of Tenant to the
Substitute Premises in such notice. The area of the Substitute Premises shall be
approximately comparable to the area of the Premises. Landlord shall, at
Landlord's expense before such effective date, construct and install in the
Substitute Premises improvements substantially similar in quality and quantity
to the improvements in the Premises. Landlord shall pay the reasonable costs of
moving Tenant's movable furniture, equipment, trade fixtures and personal
property from the Premises to the Substitute Premises, as well as the cost of
replacement of Tenant’s existing stock of stationary, sales materials, business
cards, directories, and all other related address-sensitive materials. As of the
effective date for the substitution of the Substitute Premises for the Premises
and the relocation of Tenant to the Substitute Premises, Tenant shall vacate the
Premises and move to the Substitute Premises, and the Substitute Premises shall
be substituted for the Premises under this Lease. Landlord and Tenant each
shall, promptly after such effective date, execute and deliver to the other an
amendment to this Lease which sets forth the substitution of the Substitute
Premises for the Premises, with an appropriate new Exhibit A, and the effective
date of such substitution, but the Substitute Premises shall be substituted for
the Premises on such effective date whether or not such amendment is
executed.
26.8 There are
no oral agreements between Landlord and Tenant affecting this Lease, and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, offers, agreements and understandings, oral or written, if any,
between Landlord and Tenant or displayed by Landlord to Tenant with respect to
the subject matter of this Lease, the Premises or the Building. There are no
representations between Landlord and Tenant or between any real estate broker
and Tenant other than those expressly set forth in this Lease and all reliance
with respect to any representations is solely upon representations expressly set
forth in this Lease. This Lease may not be amended or modified in any respect
whatsoever except by an instrument in writing signed by Landlord and
Tenant.
26.9 Tenant
shall have the right to Tenant’s Percentage Share of ground floor directory
board signage identifying Tenant. Further, Landlord will install Building
standard directory signage identifying Tenant on the eleventh (11th) floor
of Building and at the entry to the Premises.
IN
WITNESS WHEREOF,
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have executed this Lease as of the date first hereinabove
written.
|
TENANT: |
LANDLORD: | ||||
|
APTIMUS,
INC.,
a
Washington corporation |
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇
▇▇▇▇▇▇▇▇ corporation | ||||
|
By: |
By: |
||||
|
Its: |
Its: |
||||
|
By: |
By: |
||||
|
Its: |
Its: |
||||
28
EXHIBIT
A
Plan(s)
Outlining
the Premises
EXHIBIT
B
Work
Agreement
This Work
Agreement (“Agreement”) is attached to and made a part of the Lease by and
between 100 Spear Street Owners Corp. (“Landlord”) and Aptimus (“Tenant”) for
space located within the building commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the “Lease”).
1. General:
(a) Purpose. The
purpose of this Agreement is to set forth the manner in which the interior
improvements in the Premises (the “Tenant Improvements”) are to be constructed,
who will design and construct the Tenant Improvements and the allocation of the
cost of the Tenant Improvements.
(b) Terms. All
terms used herein and not herein defined shall have the same meaning as the
defined terms in the Lease.
(c) Lease
Provisions. The
provisions of the Lease are hereby incorporated into this
Agreement.
2. Worklist:
Landlord, at its sole cost and expense shall perform the Tenant Improvements in
accordance with the following work list (the "Worklist") using Building Standard
methods, materials and finishes:
| ITEM | QUANTITY |
| A. Repaint Premises | A. As required |
| B. Recarpet Premises | B. As required |
| C. Replace millwork in kitchen area | C. As required |
Landlord
shall enter into a direct contract for the Tenant Improvements with a general
contractor of Landlord’s choosing. In addition, Landlord shall have the right to
select and/or approve of any subcontractors used in connection with the Tenant
Improvements.
3. Costs:
Landlord shall be responsible for the cost of construction of only those
improvements set forth on the Worklist. The amount referred to above shall be
referred to herein as “Landlord’s Costs.” Any costs above Landlord’s Costs shall
be borne by Tenant.
4. Substantially
Complete: As used
herein, the terms “Substantially Complete” or “Substantial Completion” shall
mean that the Tenant Improvements have been completed, notwithstanding the fact
that minor details of construction, mechanical adjustments or decorations which
do not materially interfere with Tenant’s use of the Premises remain to be
performed (items normally referred to as “punchlist” items). The Premises shall
be deemed Substantially Complete even though Tenant’s furniture, telephones,
telexes, telecopiers, photocopy machines, computers and other business machines
or equipment have not been installed, the purchase and installation of which
shall be Tenant’s sole responsibility and which shall be carried out pursuant to
the terms of Paragraph 7 below. Landlord shall cause the punchlist items to be
corrected as soon as reasonably possible and practical, but ▇▇▇▇▇▇▇▇’s failure
to complete such items as of the date of Substantial Completion of the Premises
shall in no event delay the Commencement Date.
5. Tenant’s
Representative:
___________________ shall act as Tenant’s representative in all matters to be
covered by this Agreement. Such representative shall act on behalf of Tenant in
connection with the issuance of any approvals or disapprovals to be made or
given by Tenant under the terms of this Agreement and the making of any other
communications required or permitted under the terms of this Agreement. Landlord
shall be entitled to rely upon any approval or disapproval issued, or other
communication made, by ▇▇▇▇▇▇’s representative.
6. ▇▇▇▇▇▇▇▇’s
Representative: ▇▇▇▇
▇▇▇▇▇▇▇ shall act as Landlord’s representative in all matters to be covered by
this Agreement. Such representative shall act on behalf of Landlord in
connection with the issuance of any approvals or disapprovals to be made or
given by Landlord under the terms of this Agreement and the making of any other
communications required or permitted under the terms of this Agreement. Tenant
shall be entitled to rely upon any approval or disapproval issued, or other
communication made, by ▇▇▇▇▇▇▇▇’s representative.
7. Tenant’s
Work: Any
items of work not shown on the Worklist including, for example, the installation
of telephone service or furnishings (including wiring and cabling connections or
installations) for which Tenant contracts separately, and at Tenant’s sole cost
and expense (hereinafter “Tenant’s Work”), shall be subject to Landlord’s
policies and schedules and shall be conducted in such a way as not to hinder,
cause any disharmony with or delay any work of improvement in the Building.
Tenant’s suppliers, contractors, workmen and mechanics shall be subject to
approval by Landlord prior to the commencement of their work, which approval
shall not be unreasonably withheld, delayed or conditioned, and shall be subject
to ▇▇▇▇▇▇▇▇’s administrative control while performing their work. Tenant shall
cause its suppliers and contractors to engage only labor that is harmonious and
compatible with other labor working in the Building. In the event of any labor
disturbance caused by persons employed by Tenant or ▇▇▇▇▇▇’s contractor, Tenant
shall immediately, and at Tenant’s sole cost and expense, take all actions
necessary to eliminate such disturbance. If at any time any supplier,
contractor, ▇▇▇▇▇▇▇ or mechanic performing Tenant’s Work hinders or delays any
other work of improvement in the Building or performs any work which may or does
impair the quality, integrity or performance of any portion of the Building,
Tenant shall, at Tenant’s sole cost and expense, cause such supplier,
contractor, ▇▇▇▇▇▇▇ or mechanic to leave the Building and remove all his tools,
equipment and materials immediately upon written notice delivered to Tenant and
Tenant shall reimburse Landlord for any repairs or corrections of the Tenant
Improvements or Tenant’s Work or of any portion of the Building caused by or
resulting from the work of any supplier, contractor, ▇▇▇▇▇▇▇ or mechanic with
whom ▇▇▇▇▇▇ contracts. Landlord shall give access to ▇▇▇▇▇▇’s suppliers,
contractors, workmen and mechanics prior to the Commencement Date so as to
achieve timely completion and occupancy of the Premises. Tenant shall be
responsible for any hoisting charges associated with ▇▇▇▇▇▇’s Work.
8. Default: Any
material default by Tenant under the terms of this Agreement which continues
fifteen (15) days after notice from Landlord shall constitute a default under
the Lease to which this Agreement is attached, and shall entitle Landlord to
exercise all remedies set forth in the Lease. Tenant shall have any and all
rights to remedy such default pursuant to the provisions of the
Lease.
EXHIBIT
C
Rules
and Regulations
1. Common
Areas. The
sidewalks, halls, passages, exits, entrances, elevators and stairways of the
Building shall not be obstructed by Tenant or used for any purpose other than
for ingress to and egress from the Premises. The halls, passages, exits,
entrances, elevators and stairways are not for the general public and Landlord
shall in all cases have the right to control and prevent access thereto of all
persons (including, without limitation, messengers or delivery personnel not
wearing uniforms) whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation or interests of the Building
and its tenants. Neither Tenant nor any agent, employee, contractor, invitee or
licensee of Tenant shall go upon the roof of the Building. Landlord shall have
the right at any time, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement or location of entrances or passage-ways, doors or doorways,
corridors, elevators, stairs, toilets and common areas of the
Building.
2. Signs. No
sign, placard, picture, name, advertisement or notice visible from the exterior
of the Premises shall be inscribed, painted, affixed or otherwise displayed by
Tenant on any part of the Building or the Premises without the prior written
consent of Landlord. Landlord will adopt and furnish to tenants general
guidelines relating to signs inside the Building. ▇▇▇▇▇▇ agrees to conform to
such guidelines. All approved signs or lettering shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved by Landlord.
Material visible from outside the Building will not be permitted.
3. Prohibited
Uses. The
Premises shall not be used for the storage of merchandise held for sale to the
general public or for lodging. No cooking shall be done or permitted on the
Premises except that private use by Tenant of microwave ovens and Underwriters'
Laboratory-approved equipment for brewing coffee, tea, hot chocolate and similar
beverages will be permitted, provided that such use is in accordance with all
applicable federal, state and municipal laws, codes, ordinances, rules and
regulations. Tenant shall not place any load on the floors of the Building
exceeding fifty (50) pounds per square foot, live or dead load. Tenant shall not
use electricity for lighting, machines or equipment in excess of four (4) ▇▇▇▇▇
per square foot.
4. Janitorial
Service. Tenant
shall not employ any person other than the janitor of Landlord for the purpose
of cleaning the Premises unless otherwise agreed to by Landlord in writing.
Except with the written consent of Landlord, no persons other than those
approved by Landlord shall be permitted to enter the Building for the purpose of
cleaning the Premises. Tenant shall not cause any unnecessary labor by reason of
▇▇▇▇▇▇'s carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property in the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitor or any other employee or any other
person.
5. Keys.
Landlord will furnish Tenant without charge with two (2) keys to each door lock
provided in the Premises by Landlord. Landlord may make a reasonable charge for
any additional keys. Tenant shall not have any such keys copied or any keys
made. Tenant shall not alter any lock or install a new or additional lock or any
bolt on any door of the Premises. Tenant, upon the termination of this Lease,
shall deliver to Landlord all keys to doors in the Building.
6. Moving
Procedures.
Landlord shall designate appropriate entrances for deliveries or other movement
to or from the Premises of equipment, materials, supplies, furniture or other
property, and Tenant shall not use any other entrances for such purposes. All
moves shall be scheduled and carried out during non-business hours of the
Building. All persons employed and means or methods used to move equipment,
materials, supplies, furniture or other property in or out of the Building must
be approved by Landlord prior to any such movement. Landlord shall have the
right to prescribe the maximum weight, size and position of all equipment,
materials, furniture or other property brought into the Building. Heavy objects
shall, if considered necessary by Landlord, stand on a platform of such
thickness as is necessary properly to distribute the weight. Landlord will not
be responsible for loss of or damage to any such property from any cause, and
all damage done to the Building by moving or maintaining such property shall be
repaired at the expense of Tenant.
7. No
Nuisances. Tenant
shall not use or keep in the Premises or the Building any kerosene, gasoline or
inflammable or combustible fluid or material other than limited quantities
thereof reasonably necessary for the operation or maintenance of office
equipment. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord. Tenant shall not use or keep or permit to be
used or kept any foul or noxious gas or substance in the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors or vibrations, or interfere in any way with other tenants or those having
business in the Building, nor shall any animals be brought or kept in the
Premises or the Building.
8. Change
of Address.
Landlord shall have the right, exercisable without notice and without liability
to Tenant, to change the name or street address of the Building or the room or
suite number of the Premises.
9. Business
Hours.
Landlord establishes the hours of 8 A.M. to 6 P.M. Monday through Friday, except
union holidays and legal holidays, as reasonable and usual business hours for
the purposes of Section 7.1 of this Lease. If Tenant requests electricity or
heat or air conditioning or any other services during any other hours or on any
other days, and if Landlord is able to provide the same, Tenant shall pay
Landlord such charge as Landlord shall establish from time to time for providing
such services during such hours. Any such charges which Tenant is obligated to
pay shall be deemed to be additional rent under this Lease.
10. Access
to Building.
Landlord reserves the right to exclude from the Building during the evening,
night and early morning hours beginning at 6 P.M. and ending at 8 A.M. Monday
through Friday, and at all hours on Saturdays, Sundays, union holidays and legal
holidays, all persons who do not present identification acceptable to Landlord.
Tenant shall provide Landlord with a list of all persons authorized by Tenant to
enter the Premises and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other circumstances rendering such
action advisable in Landlord's opinion, Landlord reserves the right to prevent
access to the Building during the continuance of the same by such action as
Landlord may deem appropriate, including closing doors.
11. Building
Directory. The
directory of the Building will be provided for the display of the name and
location of Tenant and a reasonable number of the principal officers and
employees of Tenant at the expense of Tenant. Landlord reserves the right to
restrict the amount of directory space utilized by ▇▇▇▇▇▇.
12. Window
Coverings. No
curtains, draperies, blinds, shutters, shades, screens or other coverings,
hangings or decorations shall be attached to, hung or placed in, or used in
connection with any window of the Building without the prior written consent of
Landlord. In any event, with the prior written consent of Landlord, such items
shall be installed on the office side of Landlord's standard window covering and
shall in no way be visible from the exterior of the Building. Tenant shall keep
window coverings closed when the effect of sunlight (or the lack thereof) would
impose unnecessary loads on the Building's air conditioning
systems.
13. Food
and Beverages. Tenant
shall not obtain for use in the Premises ice, drinking water, food, beverage,
towel or other similar services, except at such reasonable hours and under such
reasonable regulations as may be established by Landlord.
14. Procedures
When Leaving. Tenant
shall ensure that the doors of the Premises are closed and locked and that all
water faucets, water apparatus and utilities are shut off before Tenant and its
employees leave the Premises so as to prevent waste or damage. For any default
or carelessness in this regard, Tenant shall be liable and pay for all damage
and injuries sustained by Landlord or other tenants or occupants of the
Building. On multiple-tenancy floors, Tenant shall keep the doors to the
Building corridors closed at all times except for ingress and
egress.
15. Bathrooms. The
toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used
for any purpose other than that for which they were constructed, no foreign
substance of any kind whatsoever shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
paid by Tenant if caused by Tenant or its agents, employees, contractors,
invitees or licensees.
16. Prohibited
Activities. Except
with the prior written consent of Landlord, Tenant shall not sell at retail
newspapers, magazines, periodicals, theatre or travel tickets or any other goods
or merchandise to the general public in or on the Premises, nor shall Tenant
carry on or permit or allow any employee or other person to carry on the
business of stenography, typewriting, printing or photocopying or any similar
business in or from the Premises for the service or accommodation of occupants
of any other portion of the Building, nor shall the Premises be used for
manufacturing of any kind, or any business or activity other than that
specifically provided for in this Lease.
17. No
Antenna. Tenant
shall not install any radio or television antenna, loudspeaker, or other device
on the roof or exterior walls of the Building. No television or radio or
recorder shall be played in such a manner as to cause a nuisance to any other
tenant.
18. Vehicles. There
shall not be used in any space, or in the public halls of the Building, either
by Tenant or others, any hand trucks except those equipped with rubber tires and
side guards or such other material handling equipment as Landlord approves. No
other vehicles of any kind shall be brought by Tenant into the Building or kept
in or about the Premises.
19. Trash
Removal. Tenant
shall store all its trash and garbage within the Premises. No material shall be
placed in the trash boxes or receptacles if such material is of such nature that
it may not be disposed of in the ordinary and customary manner of removing and
disposing of office building trash and garbage in the City and County of San
Francisco without being in violation of any law or ordinance governing such
disposal. All garbage and refuse disposal shall be made only through entryways
and elevators provided for such purposes and at such times as Landlord shall
designate. Tenant shall crush and flatten all boxes, cartons and containers.
Tenant shall pay extra charges for any unusual trash disposal.
20. No
Soliciting.
Canvassing, soliciting, distribution of handbills or any other written material
and peddling in the Building are prohibited, and Tenant shall cooperate to
prevent the same.
21. Services. The
requirements of Tenant will be attended to only upon application in writing at
the office of the Building. Personnel of Landlord shall not perform any work or
do anything outside of their regular duties unless under special instructions
from Landlord.
22. Waiver.
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the
Building.
23. Supplemental
to Lease. These
Rules and Regulations are in addition to, and shall not be construed to in any
way modify or amend, in whole or in part, the covenants of this
Lease.
24. Amendments
and Additions.
Landlord reserves the right to make such other rules and regulations, and to
amend or repeal these Rules and Regulations, as in Landlord's judgment may from
time to time be desirable for the safety, care and cleanliness of the Building
and for the preservation of good order therein.