THE HAMM’S BUILDING OFFICE LEASE 1550 BRYANT STREET SAN FRANCISCO, CALIFORNIA AE-HAMM’S PROPERTY OWNER LLC —Landlord— JAVA DETOUR, INC. —Tenant—
THE
▇▇▇▇’▇ BUILDING
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
AE-▇▇▇▇’▇
PROPERTY OWNER LLC
—Landlord—
JAVA
DETOUR, INC.
—Tenant—
This
Lease (“Lease”) is entered into between AE-▇▇▇▇’▇ PROPERTY OWNER LLC, a Delaware
limited liability company (“Landlord”), and JAVA DETOUR, INC., a Delaware
corporation (“Tenant”).
Recitals
A. Landlord
is the owner of real property (“Real Property”) located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and the building (“Building”) located on it. The Real
Property and the Building are collectively the “Property.”
B. Landlord
desires to lease to Tenant, and Tenant desires to lease from Landlord the
Premises (as defined below) for the Term (as defined below) and subject to
the
terms, covenants, agreements, and conditions in this Lease.
For
good
and valuable consideration the receipt and adequacy of which are acknowledged,
the parties agree as follows:
Basic
Lease Information
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Date:
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As
of August 16, 2007
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Landlord:
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AE-▇▇▇▇’▇
PROPERTY OWNER, L.L.C., a Delaware limited liability company
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Tenant:
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JAVA
DETOUR, INC., a Delaware corporation
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Premises:
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That
portion of the 5th floor designated on Exhibit
A
and known as Suite 500.
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Rentable
Area of Premises:
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2,829
rentable square feet
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Commencement
Date:
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September
1, 2007.
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Termination
Date:
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February
29, 2012
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Base
Rent
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Months
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Monthly
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Annual
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||||
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1-6
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$
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-0-
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$
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-0-
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||||||
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7-18
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$
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9,253.19
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$
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111,038.25
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||||||
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19-30
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$
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9,488.94
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$
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113,867.25
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||||||
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31-42
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$
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9,724.69
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$
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116,696.25
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||||||
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43-54
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$
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9,960.44
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$
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119,525.25
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||||||
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Upon
Lease execution, Tenant shall pay the seventh month’s rent in the amount
of $9,253.19 to Landlord.
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1
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Base
Year:
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Calendar
Year 2007
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Security
Deposit:
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Upon
Lease execution, Tenant shall pay the Security Deposit in the amount
of
$8,015.50 to Landlord.
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Tenant’s
Percentage Share
Of
Operating Expenses
Escalations
and Tenant’s
Percentage
Share of
Property
Tax Escalations:
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1.55%
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Parking
Spaces:
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1
parking space at prevailing rates
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Exhibits:
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Exhibit
A Description
of Premises
Exhibit
B Work
Letter
Exhibit
C Omitted
Exhibit
D Rules
and Regulations
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Tenant’s
Address for Notice:
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▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Landlord’s
Address for Notice:
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AE-▇▇▇▇’▇
Property Owner LLC
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇
With
a copy to:
▇▇▇▇▇
▇. ▇▇▇▇
▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLP
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Cornish
& ▇▇▇▇▇ Commercial
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Tenant’s
Broker:
Landlord’s
Broker:
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▇▇▇▇▇
& ▇▇▇▇▇ Company
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2
Section
1. Definitions.
As
used
in this Lease, the following terms shall have the meanings specified in this
Section 1.
Alterations
is
defined in Section 8.
Base
Operating Expenses means
the
Operating Expenses paid or incurred by Landlord in the Base Year.
Base
Property Taxes means
the
amount of Property Taxes for the tax year ending June 30 of the Base
Year.
Base
Rent means
the
Base Rent as set forth in the Basic Lease Information.
Base
Year means
the
calendar year specified in the Basic Lease Information as the Base
Year.
Building
means
the
building constructed on the Real Property known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, commonly known as the ▇▇▇▇’▇ Building, any property
interest in the area of The ▇▇▇▇’▇ Building and all other improvements on or
appurtenances to the Real Property or the streets abutting the Real Property.
The Building includes, but is not limited to, an office building with twelve
(12) floors of office space and an open-air parking lot located as shown on
the
attached site plan.
Common
Area means
the
total area on a floor consisting of rest rooms, janitor, telephone and
electrical closets, mechanical areas, public corridors providing access to
tenant space, public stairs, elevator shafts and pipe shafts, together with
their enclosing walls.
Deposit
is
defined in Section 23.
Escalation
Rent is
defined in Section 4(a).
Event
of Default is
defined in Section 18.
Landlord’s
Work is
defined in Exhibit
B.
Legal
Requirements is
defined in Section 14.
Tenant’s
Percentage Share means
the
percentage figure specified as Tenant’s Percentage Share in the Basic Lease
Information. Tenant’s Percentage Share has been obtained by dividing the net
rentable area of the Premises, as specified in the Basic Lease Information,
by
the total net rentable area of the Building, which is 182,352 square feet,
and
multiplying that quotient by one hundred (100). In the event the rentable area
of the Premises is increased or decreased by the addition to or deletion from
the Premises of any office space, Tenant’s percentage share shall be
appropriately adjusted. For the purposes of Section 4, Tenant’s Percentage Share
shall be based on the number of days during the calendar year in which this
change occurs.
3
Operating
Expenses means
(a)
all reasonable costs of management, operation and maintenance of the Building
determined by generally accepted accounting principles, including without
limitation: wages, salaries and payroll burden of employees directly involved
in
the operation and/or maintenance of the Building, excluding employees above
the
rank of Building Manager, property management fees and other related
compensation; janitorial, maintenance, security and other services; Building
office rent or rental value for a building office as small as reasonably
practical to operate the building; power, water, waste disposal and other
utilities; materials and supplies; maintenance and repairs (including the repair
and replacement of glass and return to normal and the roof covering or
membrane); permit and license costs; insurance premiums and the deductible
portion of any insured loss under Landlord’s insurance; accounting, legal or
other professional fees of independent service providers who are not employees
of Landlord incurred in connection with operating the Building and the
calculation of Operating Expenses and Property Taxes; and (b) the cost of any
capital improvements made to the Building by Landlord after the Base Year,
the
cost to be amortized over the useful life of the capital improvements, together
with interest on the unamortized balance at the rate equal to that paid by
Landlord on funds borrowed for the purpose of constructing or installing those
capital improvements. Operating expenses shall not include: property taxes;
depreciation on the Building; costs of tenant improvements or leasing expenses
for other tenants in the building; real estate brokers’ commissions; interest;
expenses incurred by Landlord in enforcing leases of other tenants in the
Building, and capital items other than those referred to in clause (b); expenses
for which Landlord is actually reimbursed including principal, interest,
amortization or other payments on any mortgages or loans to Landlord or
encumbering the Building or the Real Property, and any refinancings thereof;
costs payable only by specific tenants for non-standard services; attorneys’
fees, costs, disbursements and other expenses incurred in connection with the
negotiations or disputes with tenants, prospective tenants, purchasers or
mortgagees of the Building; costs incurred in connection with the sale,
financing, refinancing, mortgaging, selling or change of ownership of the
Building or the Real Property; and costs of Landlord’s general corporate
overhead, organizational fees and partnership expenses. Actual Operating
Expenses for both the Base Year and each subsequent calendar year will be
adjusted to equal Landlord’s reasonable estimate of Operating Expenses had
ninety-five (95) percent of the Building been occupied during the entirety
of
such year.
Premises
means
the
portion of the Building located on the floor or floors specified in the Basic
Lease Information which is cross-hatched on the Floor plan or plans attached
to
this Lease as Exhibit
A.
Property
Taxes means
all
real property taxes and general, special or district assessments or other
governmental impositions, of whatever kind, imposed on or by reason of the
ownership or use of the Property; governmental charges, fees or assessments
for
police, fire or other governmental services; service payments in lieu of taxes
and taxes and assessments of every kind levied in addition to, in lieu of or
in
substitution for existing or additional real or personal property taxes on
the
Property; and all reasonable real estate tax consultant expenses and attorney
fees of consultants and attorneys who are not employees of Landlord incurred
for
the purpose of maintaining an equitable assessed valuation of the Building
or
contesting the validity of any taxes, assessments or charges described above.
There shall be excluded from the definition of Property Taxes all income taxes,
inheritance, franchise, corporate, capital or other tax assessments upon
Landlord.
4
Rentable
Area means
the
rentable area of the Premises specified on the Basic Lease Information. If
any
office space is added to or deleted from the Premises, the rentable area of
the
space added or deleted shall mean: (a) as to an entire floor added to or deleted
from the Premises, all areas within outside permanent Building walls, measured
to the inside glass surface of outside permanent Building walls, including
rest
rooms; janitor, telephone, and electrical closets; allocated mechanical areas
and columns and projections necessary to the Building, but excluding public
stairs, elevator shafts, and pipe shafts, together with their enclosing walls;
(b) as to a portion of a floor added to or deleted from the Premises, the
aggregate of the usable area of the portion of the floor added to or deleted
from the Premises, plus the result obtained by multiplying the area of the
Common Area on this floor by a fraction, the numerator of which is the aggregate
of the usable area of the portion of the floor added to or deleted from the
Premises and the denominator of which is the usable area of all tenant space
on
the floor.
Tenant
Delay means
any
delay in the substantial completion of the work described in Exhibit B which
occurs as a result of (i) special work, changes, alterations or additions
requested by Tenant in the design or finish in any part of the Premises after
approval of the Design Documents; as described in the Workletter);
(ii) Tenant’s delay in submitting plans, supplying information, approving
plans, specifications or estimates, giving authorizations or otherwise;
(iii) Tenant’s failure to approve and pay for such Tenant Work as Landlord
undertakes to complete at Tenant’s expense; or (iv) the failure to perform
or comply with any obligation or condition of Exhibit B.
Term
is
defined in Section 3 of this Lease.
Section
2. Premises.
(a) Landlord
leases to Tenant and Tenant leases from Landlord for the Term, the Premises,
subject to the terms, covenants, agreements, and conditions set forth in this
Lease.
(b) During
the Term of this Lease, Tenant shall have the right to use the number of Parking
Spaces set forth in the Basic Lease Information at the prevailing rate for
such
spaces as determined by Landlord from time to time in its sole discretion.
Landlord may change the rental rate charged from time-to-time upon not less
than
thirty (30) days’ notice to Tenant. The right to use the Parking Spaces under
this Lease shall terminate upon the occurrence of an Event of Default under
the
Lease or upon thirty (30) day’s notice from Landlord to Tenant if Landlord
ceases or reduces parking operations. Tenant agrees that the Landlord shall
not
be responsible in any way for any loss, damage, theft or other damages arising
out of the use of Landlord’s parking facilities. The use of the parking spaces
shall be subject to such rules and regulations as Landlord may establish from
time to time.
Section
3. Term;
Condition of Premises.
(a) The
term
(“Term”) of this Lease shall commence on the Commencement Date and, unless
sooner terminated as later provided, shall end on the Termination
Date.
(b) Except
for the Landlord’s Work described in the Work Letter attached to this Lease as
Exhibit
B
which
Landlord shall complete at Landlord’s sole cost and expense, Landlord shall
deliver to Tenant the Premises on the Commencement Date “as is”, in its then
existing condition. Tenant is responsible for the installation and maintenance
of all cabling serving the Premises.
5
(c) If
Landlord does not deliver the Premises to Tenant on or before the Commencement
Date for any reason other than as a result of a Tenant Delay, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any loss
or
damage resulting from nondelivery but Tenant shall not be required to pay Base
Rent until the Premises have been delivered to Tenant. If Landlord does not
deliver the Premises to Tenant within sixty (60) days after the
Commencement Date, then Tenant, as its sole remedy, shall have the right to
terminate this Lease by written notice to Landlord, given with seventy (70)
days after the Commencement Date. Tenant shall have no right to terminate this
Lease if the delay in delivery of the Premises is caused by Tenant
Delay.
Section
4. Rental.
(a) Tenant
shall pay to Landlord throughout the Term as rental for the Premises the Base
Rent. In addition to the Base Rent, for each calendar year subsequent to the
Base Year the Base Rent shall be increased by (i) Tenant’s Percentage Share of
the total dollar increase, if any, in Operating Expenses paid or incurred by
Landlord in that year over the Base Year Operating Expenses and (ii) Tenant’s
Percentage Share of the total dollar increase, if any, in Property Taxes paid
or
incurred by Landlord in that year over the Base Year Property Taxes. The
increased rental due pursuant to this Section 4(a) is the Escalation
Rent.
(b) Monthly
Rental shall be paid to Landlord, in advance, on or before the first day of
the
eighth month of this Lease and on or before the first day of each successive
calendar month during the Term of this Lease. In the event the Term of this
Lease commences on a day other than the first day of a calendar month or ends
on
a day other than the last day of a calendar month, the monthly rental for the
first and last fractional months of the Term of this Lease shall be
appropriately prorated.
(c) All
sums
of money due to Landlord under this Lease, not specifically characterized as
rental, shall constitute additional rent and shall be due within thirty (30)
days after receipt by Tenant of a billing. If any sum is not paid when due,
it
shall be collectible as additional rent with the next installment of rental
falling due.
(d) Tenant
acknowledges that late payment of rent and other sums due under this Lease
after
the expiration of any applicable cure period under Section 18(a) will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be difficult to ascertain. These costs include, but are not limited
to, processing and accounting charges and late charges which may be imposed
on
Landlord by the terms of any trust deed covering the Premises. Accordingly,
if
any installment of rent or any other sums due from Tenant are not received
within five (5) business days of its due date, or if a cure period is applicable
under Section 18(a), prior to the expiration of the cure period, Tenant shall
pay to Landlord a late charge equal to ten percent (10%) of the overdue amount.
The parties agree that the late charge represents a fair and reasonable estimate
of the costs Landlord will incur because of late payment. Acceptance of the
late
charge by Landlord shall not constitute a waiver of Tenant’s default for the
overdue amount, nor prevent Landlord from exercising the other rights and
remedies granted under this Lease.
6
|
______
[Initials of landlord]
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______
[Initials of Tenant]
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(e) If
any
installment of rent or any other sums due from Tenant are not received within
five (5) business days of its due date, or if a cure period is applicable under
Section 18(a), prior to the expiration of the cure period, such amount will
thereafter bear interest until paid at the rate of ten percent (10%) per year.
However, interest shall not be payable on late charges incurred by Tenant nor
on
any amounts on which late charges are paid by Tenant to the extent this interest
would cause the total interest to be in excess of that legally permitted.
Payment of interest shall not excuse or cure any default by Tenant.
(f) All
payments due shall be paid to Landlord, without deduction or offset, in lawful
money of the United States of America at Landlord’s address for notices under
this Lease or to another person or at another place as Landlord may designate
by
notice to Tenant. Tenant may make payments by wire or electronic funds transfer
it so elects, and Landlord shall make available to Tenant the necessary account
information for such transfers. If Tenant pays by check and the check is
returned for non-sufficient funds more than once, upon request of the Landlord,
the Tenant shall make future payments by cashier’s check.
Section
5. Escalation
Rent.
Escalation
Rent shall be paid monthly on an estimated basis, with subsequent annual
reconciliation, in accordance with the following procedures:
(a) No
later
than fifteen (15) days after the end of the Base Year and no later than fifteen
(15) days after the end of each subsequent calendar year, or as soon after
that
time as practicable, Landlord shall give Tenant notice of Landlord’s estimate of
any Escalation Rent due under Section 4(a) for the ensuing calendar year with
respect to (i) Operating Expenses and/or (ii) Property Taxes. On or before
the
first day of each month during the ensuing calendar year, Tenant shall pay
to
Landlord one-twelfth (1/12th) of the estimated Escalation Rent. If Landlord
fails to give notice as required in this Section, Tenant shall continue to
pay
on the basis of the prior year’s estimate until the month after that notice is
given. If at any time it appears to Landlord that the Escalation Rent for
Operating Expenses and/or Property Taxes for the current calendar year will
vary
from the estimate, Landlord may, by notice to Tenant, revise the estimate for
that year, and subsequent payments by Tenant for that year shall be based on
the
revised estimate.
(b) Within
ninety (90) days after the close of each calendar year, or as soon after the
ninety (90) day period as practicable, Landlord shall deliver to Tenant a
statement of (i) the actual Escalation Rent for that calendar year with respect
to Operating Expenses and (ii) the actual Escalation Rent for that calendar
year
with respect to Property Taxes. At Tenant’s request, Landlord shall provide
Tenant reasonable supporting detail underlying the calculations of Operating
Expenses and/or Property Taxes. If Landlord’s statement discloses that Tenant
owes an amount that is less than the estimated payments for the calendar year
for either Operating Expenses or Property Taxes previously made by Tenant,
Landlord shall credit the excess first against any sums then owed by Tenant,
and
then against the next payments of rental due. If Landlord’s statement discloses
that Tenant owes an amount that is more than the estimated payments for the
calendar year previously made by Tenant for either Operating Expenses or
Property Taxes, Tenant shall pay the deficiency to Landlord within thirty (30)
days after delivery of the statement. In no event shall Tenant owe any
Escalation Rent for the Base Year.
7
(c) Landlord
shall maintain at all times during the term of this Lease, at the office of
Landlord in the Building or such other office as Landlord may designate full,
complete and accurate books of account and records prepared in accordance with
generally accepted accounting principles with respect to Escalation Rent, and
shall retain such books and records, as well as contracts, bills, vouchers,
and
checks, and such other documents as are reasonably necessary to properly audit
the Escalation Rent. Upon reasonable notice from Tenant, Landlord shall make
available for Tenant’s inspection (or inspection performed by Tenant’s
accountant and/or consultants) at Landlord’s office in the Building, during
normal business hours, Landlord’s books and records relating to the Escalation
Rent for the previous calendar year. If Tenant’s inspection reveals that Tenant
was overcharged for Escalation Rent for Operating Expenses or Escalation Rent
for Property Taxes and Landlord does not dispute such findings, the amount
of
the overcharge shall be promptly refunded to Tenant.
(d) The
amount of Escalation Rent for Operating Expenses and the amount of Escalation
Rent for Property Taxes for any fractional year in the Term shall be
appropriately prorated. The proration of Operating Expenses for the calendar
year in which termination occurs shall be calculated on the basis of a fraction
of the Operating Expenses for that entire calendar year; the proration of
Property Taxes for the calendar year in which termination occurs shall be
calculated on the basis of a fraction of the Property Taxes for that entire
calendar year, but shall exclude any Property Taxes attributable to any increase
in the assessed valuation of the Building occurring after termination. The
termination of this Lease shall not affect the obligations of the parties
pursuant to Section 5(b) to be performed after the termination.
Section
6. Use
and Access to Premises.
The
Premises shall be used for general office use. In no event shall (i) the maximum
floor load exceed 40 pounds per rentable square foot, including personnel,
furniture and equipment or (ii) the occupancy of the Premises exceed one person
per 250 rentable square feet of space nor more than one computer/printer/monitor
per person, in each case without Landlord’s prior written consent. Tenant shall
not do or permit to be done on the Premises, nor bring or keep or permit to
be
brought or kept in the Premises, anything (a) which is prohibited by or in
conflict with any law, ordinance, or governmental rule or, (b) which is
prohibited by the standard form of fire insurance policy or, (c) which will
increase the existing rate of or affect fire or other insurance on the Building
or its contents or cause a cancellation of any insurance policy covering the
Building or any part of it or its contents. Tenant shall not use or store in
the
Premises any hazardous or toxic substances, with the sole exception of
reasonably necessary substances that are kept in reasonably necessary quantities
for normal office operations, provided that their use and storage are in
accordance with applicable laws. Tenant shall not do or permit anything to
be
done on the Premises that will obstruct or interfere with the rights of other
tenants of the Building, or injure or annoy them, or use or allow the Premises
to be used for any unlawful purposes, nor shall Tenant cause, maintain, or
permit any nuisance or waste on or about the Premises. Tenant shall have access
to the Premises 24 hours a day, 365 days a year, subject however to force
majeure events.
8
Section
7. Services.
(a) Landlord
shall maintain the Common Areas of the Building, including lobbies, stairs,
elevators, corridors, rest rooms, all exterior landscaping, windows, the
mechanical, plumbing, and electrical equipment serving the Building, and the
structure itself, in reasonably good order and condition so as to meet the
reasonable needs of Tenant, except for damage, excluding normal wear and tear,
caused by the Tenant. Damage caused by Tenant, other than normal wear and tear
by Tenant, shall be repaired by Landlord at Tenant’s expense. The standard of
maintenance shall be equal to that of other office buildings of a similar class
in San Francisco, California. If Landlord engages an outside vendor to perform
a
work order or provide equipment or services for or on behalf of Tenant, Landlord
shall charge an administrative fee equal to 15% of the cost of such work
order.
(b) Landlord
shall furnish (i) electricity for normal business use, including lighting and
the operation of office machines (“Base Electricity”), (ii) heat and air
conditioning, to the extent reasonably required for the comfortable occupancy
by
Tenant in Tenant’s use of the Premises during the period from 7:00 a.m. to 7:00
p.m. on weekdays, except holidays, or a shorter period as may be prescribed
by
applicable policies or regulations adopted by any utility or governmental
agency, (iii) elevator service, (iv) lighting replacement, for building standard
lights, (v) rest room supplies, (vi) window washing with reasonable frequency,
(vii) water for the rest rooms and kitchen areas, and (viii) security guard
services and daily janitor services during the times and in the manner that
these services are customarily furnished in comparable office buildings in
the
area (“Standard Utilities and Services”). Landlord may establish reasonable
measures to conserve energy and water, including but not limited to, automatic
light shut off after hours and efficient lighting forms, so long as these
measures do not unreasonably interfere with Tenant’s use of the Premises. If
Tenant uses more than its allocable share of the Standard Utilities and
Services, Tenant shall pay for any non-standard utilities or services used.
If
Landlord determines that Tenant is using electricity in excess of the Base
Electricity, Landlord shall have the right either (i) to install a meter, at
Tenant’s cost, to measure the amount of electricity consumption in the Premises
or (ii) to reasonably estimate the amount of electricity usage in excess of
the
Base Electricity and Tenant shall pay all such costs in excess of the Base
Electricity.
(c) Landlord
shall not be in default under this Lease, nor be liable for any damages
resulting from, nor shall the required rental be abated because of (i) any
reasonably necessary installation, use, or interruption of use of any equipment
in connection with furnishing the previously listed services, (ii) failure
to
furnish or delay in furnishing these services, when failure or delay is caused
by accident or conditions beyond the reasonable control of Landlord or by
necessary repairs or improvements to the Premises or to the Building, or (iii)
the limitation, curtailment, rationing, or restrictions on use of water,
electricity, gas, or any other form of energy serving the Premises or the
Building. Landlord shall use reasonable efforts to diligently remedy
interruptions in the furnishing of these services. Notwithstanding the
foregoing, Landlord shall make reasonable efforts not to disrupt Tenant’s use of
the Premises.
9
Section
8. Alterations.
Tenant
shall not make or allow any alterations, additions, or improvements to the
Premises or any part of the Premises (“Alterations”), without Landlord’s prior
written consent, which shall not be unreasonably withheld, conditioned or
delayed, subject to all the terms and conditions of this Lease. Landlord may
in
its discretion withhold or condition approval of Alterations that affect the
building systems or structure of the Building. Subject to the requirements
of
the Rules and Regulations attached as Exhibit
D
and the
Tenant Construction Standards and Requirements attached as Schedule 1 to the
Rules and Regulations, no Landlord consent shall be required for Tenant’s
installation of furnishings, fixtures, equipment, or decorative improvements,
none of which shall either (a) cost more than Five Thousand Dollars ($5,000.00)
in the aggregate, or (b) affect Building systems or the structure of the
Building, and the repainting or recarpeting of the Premises, provided that
Tenant provide Landlord seven (7) days notice prior to commencing such work.
If
and to the extent that any Alterations require improvements to the Premises
or
to the Building to comply with applicable Legal Requirement (“Compliance
Improvements”), if Tenant elects to undertake such Alterations, Tenant shall be
responsible for the payment of the costs of all such Compliance Improvements.
All Alterations shall immediately become Landlord’s property and, at the end of
the Term, shall remain on the Premises without compensation to Tenant, unless
Landlord elects by notice to Tenant at the time of installation to have Tenant
remove any Alterations that are peculiar to Tenant’s use of the Premises and are
not normally required or used by other tenants. In this event, Tenant shall
bear
the cost of restoring the Premises to their condition prior to the installment
of the Alterations. All Alterations shall comply with the requirements of the
Rules and Regulations which are Exhibit
D
and the
Tenant Construction Standards and Requirements which is Schedule 1 to the Rules
and Regulations.
Section
9. Repairs;
Landlord’s Reservation of Rights.
(a) Tenant
shall periodically inspect the Premises to identify any conditions that are
dangerous or in need of maintenance or repair. Tenant shall promptly provide
Landlord with notice of any such conditions. Tenant shall, at its sole cost
and
expense, perform all maintenance and repairs to the Premises that are not
Landlord’s express responsibility under this Lease, and keep the Premises in
good condition and repair, reasonable wear and tear excepted. Tenant’s repair
and maintenance obligations include, without limitation, repairs to: (a) floor
covering; (b) window coverings; (c) interior partitions; (d) doors; (e) the
interior side of demising walls; (f) electronic, phone and data cabling and
related equipment that is installed by or for the exclusive benefit of Tenant
(collectively, “Cable”); (g) supplemental air conditioning units, kitchens,
including hot water heaters, plumbing, and similar facilities exclusively
serving Tenant; and (h) Alterations. To the extent Landlord is not reimbursed
by
insurance proceeds, Tenant shall reimburse Landlord for the cost of repairing
damage to the Building caused by the acts of Tenant, Tenant Related Parties
and
their respective contractors and vendors.
(b)
If
Tenant fails to make any repairs to the Premises for more than 15 days after
notice from Landlord (although notice shall not be required in an emergency),
Landlord may make the repairs, and Tenant shall pay the reasonable cost of
the
repairs, together with an administrative charge in an amount equal to 15% of
the
cost of the repairs. Tenant hereby waives all right to make repairs at the
expense of Landlord or in lieu thereof to vacate the Premises and its other
similar rights as provided in California Civil Code Sections 1932(1), 1941
and
1942 or any other Legal Requirement (whether now or hereafter in effect). In
addition to the foregoing, Tenant shall be responsible for repairing all special
tenant fixtures and improvements, including garbage disposals, showers,
plumbing, and appliances.
10
(c) If
Landlord performs any work to the Premises at Tenant’s request or provides any
additional services (“Additional Work”) to Tenant, including without limitation
repairs to appliances or fixtures within Tenant’s Premises, Tenant shall pay the
reasonable cost of the Additional Work, together with an administrative charge
in an amount equal to 15% of the cost of the Additional Work.
(d) Tenant
accepts the Premises as being in the condition in which Landlord is obligated
to
deliver the Premises, subject to the tenant improvements, if any, that Landlord
has agreed to make. Landlord has no obligation and has made no promise to alter,
remodel, improve, repair, decorate, or paint the Premises or any part of them,
except as specifically set forth in Section 3. Landlord has made no
representations respecting the condition of the Premises or the Building, except
as specifically set forth in this Lease.
(e) Landlord
reserves the right, at any time and from time to time, without the same
constituting an actual or constructive eviction, but provided that Landlord
does
not unreasonably interfere with Tenant’s use and occupancy of the building, to
(i) make alterations, additions, repairs, improvements to or in, or to decrease
the size of area of all or any part of the Building, the fixtures and equipment
therein, the heating, ventilation, air-conditioning, plumbing, electrical,
fire
protection, life safety, security and all mechanical systems of the building
(“Building Systems”), the common areas and all other parts of the Building; (ii)
to change the arrangement and/or location of entrances or passageways, doors
and
doorways, corridors, elevators, stairs, toilets and other public parts of the
Building and to create additional rentable areas through use or enclosure of
common areas; (iii) to change the Building’s name or street address or to change
the room number or numbers of the Premises; (iv) to install, affix and maintain
any and all signs on the exterior and interior of the Building.
Section
10. Damage
or Destruction.
(a) In
the
event the Premises or any portion of the Building necessary for Tenant’s
occupancy are damaged by fire, earthquake, act of God, the elements, or other
casualty, within thirty (30) days after that event, Landlord shall notify Tenant
of the estimated time, in Landlord’s reasonable judgment, required for repair or
restoration. If the estimated time is one hundred and fifty (150) days or less
after the commencement of the physical work and one hundred and eighty (180)
days or less after the casualty event, Landlord shall proceed promptly and
diligently to adjust the loss with applicable insurers, to secure all required
governmental permits and approvals, and to repair or restore the Premises or
the
portion of the Building necessary for Tenant’s occupancy. This Lease shall
remain in full force, except that for the time unusable, Tenant shall receive
a
proportionate rental abatement for that part of the Premises rendered unusable
in the conduct of Tenant’s business.
(b) If
the
estimated time for repair or restoration is in excess of one hundred and fifty
(150) days after the commencement of the physical work or one hundred and eighty
(180) days after the casualty event, Tenant or Landlord may elect to terminate
this Lease as of the date of the casualty event by giving notice to the other
party within fifteen (15) days following receipt of Landlord’s written notice of
the estimated time for repair.
11
(c) Notwithstanding
the foregoing, Landlord’s obligation to restore or repair the Building shall be
limited to the amount of insurance proceeds actually received by Landlord for
such reconstruction or repair.
Section
11. Subrogation.
Landlord
and Tenant shall each obtain from their respective insurers under all policies
of fire, theft, public liability, worker’s compensation, and other insurance
maintained during the term of this Lease covering the Building, or any portion
of it, or operations in it, a waiver of all rights of subrogation that the
insurer of one party might have against the other party. Landlord and Tenant
shall each indemnify the other against any loss or expense, including reasonable
attorney fees, resulting from the failure to obtain this waiver.
Section
12. Insurance.
(a) Public
Liability.
Tenant,
at its own cost and expense, shall keep and maintain in full force and effect
during the Term the following insurance coverages, written by an insurance
company licensed by and admitted to issue insurance in the State of California,
with a general policyholders’ rating of “A” or better and a financial size
ranking of “Class VIII” or higher, in the most recent edition of Best’s
Insurance Guide, in the form customary to the locality, (i) commercial general
liability insurance, including contractual liability coverage, insuring Tenant’s
activities with respect to the Premises and/or the Building against loss, damage
or liability for personal injury or death of any person or loss or damage to
property occurring in, upon or about the Premises, with a minimum coverage
of
Two Million Dollars ($2,000,000) per occurrence/Three Million Dollars
($3,000,000) general aggregate, (ii) fire damage legal liability insurance
and
personal/advertising injury insurance (which shall not be subject to the
contractual liability exclusion), each in the minimum amount of One Million
Dollars ($1,000,000), (iii) medical payments insurance in the minimum amount
of
Ten Thousand Dollars ($10,000), (iv) worker’s compensation insurance in
statutory amounts, and (v) if Tenant operates owned, leased or non-owned
vehicles on the Property, comprehensive automobile liability insurance with
a
minimum coverage of $1,000,000 per occurrence/Two Million Dollars ($2,000,000)
general aggregate.
(b) Insurance
Certificates.
Tenant
shall furnish to Landlord, on or before the Commencement Date and thereafter
prior to the expiration of each policy, an original certificate of insurance
issued by the insurance carrier of each policy of insurance carried by Tenant
pursuant to this Section. The certificates shall expressly provide that the
policies shall not be cancelable or subject to reduction of coverage or
otherwise be subject to modification except after thirty (30) days’ prior
written notice to the parties named as insureds. Landlord, its successors and
assigns, and any nominee of Landlord holding any interest in the Premises,
including, without limitation, Landlord’s members, Landlord’s property manager,
Landlord’s parking operator, and the holder of any fee or leasehold mortgage,
shall be named as an additional insured under each policy of insurance
maintained by Tenant pursuant to this Lease. The policies and certificates
shall
further provide that the coverage shall be primary, and that any coverage
carried by Landlord shall be secondary and noncontributory with respect to
Tenant’s policy.
12
Section
13. Indemnification.
Tenant
waives all claims against Landlord for damage to any property or injury or
death
of any person on the Premises arising at any time and from any cause except
to
the extent resulting from the gross negligence or willful misconduct of
Landlord. Tenant shall indemnify and hold Landlord harmless from and defend
Landlord against all claims, liability, damage, or loss arising out of any
injury or death of any person or damage to or destruction of property to the
extent attributable to the action or inaction of Tenant, its agents,
contractors, or employees, except to the extent resulting from the gross
negligence or willful misconduct of Landlord or its agents, contractors, or
employees. Tenant shall also hold Landlord harmless from any liability, cost,
or
expense arising from Tenant’s use or storage on the property of any hazardous or
toxic substance. These indemnity obligations shall include reasonable attorney
fees, investigation costs, and all other reasonable costs incurred by the
indemnified party from the first notice that any claim or demand is to be made
or may be made. The provisions of this Section shall survive the termination
of
this Lease for any event occurring prior to the termination.
Section
14. Compliance
with Legal Requirements.
(a) At
Tenant’s sole cost, Tenant shall promptly comply with all laws and governmental
rules now or later in force; with the requirements of any board of fire
underwriters or other similar body now or in the future constituted; with any
direction or occupancy certificate issued by public officers (“Legal
Requirements”), insofar as they relate to (i) the use, or occupancy of the
Premises or (ii) to Alterations undertaken by Tenant, except that Tenant shall
not be responsible for (a) structural changes or changes to the electrical,
mechanical, or plumbing systems of the Building in connection with the Tenant
Improvements constructed in accordance with Exhibit
B
and (b)
work necessitated by defects in the construction of the Building. Landlord
shall
comply in a timely manner with all Legal Requirements that are not Tenant’s
responsibility under this Section to the extent noncompliance would adversely
affect Tenant’s use or occupancy of the Premises.
(b) Tenant
acknowledges that Landlord has advised Tenant that certain fire-proofing and
insulating materials used in the construction of the Building contain asbestos
or asbestos-containing materials (collectively, “Asbestos”).
If any
Legal Requirements impose mandatory or voluntary controls or guidelines with
respect to Asbestos or if Landlord otherwise so elects, Landlord may, in its
sole discretion, comply with such mandatory or voluntary controls or guidelines,
or elect to make such alterations or remove such Asbestos in compliance with
all
Legal Requirements. Such compliance or the making of alterations, and the
removal of all or a portion of such Asbestos, whether in the Premises or
elsewhere in the Building, shall not, in any event constitute a breach by
Landlord of any provision of this Lease, relieve Tenant of the obligation to
pay
any Rent due under this Lease, constitute or be construed as a constructive
or
other eviction of Tenant, or constitute or be construed as a breach of Tenant’s
quiet enjoyment.
Tenant
also acknowledges that Landlord has promulgated Building regulations and
procedures governing the manner in which Tenant may undertake Alterations to
the
Premises in those areas where Asbestos may be located, and such regulations
and
procedures may be modified, amended or supplemented from time to time. Prior
to
undertaking any Alterations in or around the Premises, Tenant shall notify
Landlord, in writing, of the exact nature and location of the proposed
Alterations and shall promptly supply such additional information regarding
the
proposed Alterations as Landlord shall request. After receipt of Tenant’s
notice, Landlord shall, to the extent appropriate, supply Tenant with the
Building regulations and procedures for working in areas where there is a risk
of coming into contact with Asbestos. Tenant shall strictly comply with all
such
Building regulations and procedures established by Landlord and with all
applicable Requirements. Landlord shall have the right at all times to monitor
the work for compliance with the Building regulations and procedures. If
Landlord determines that any of the Building regulations and/or procedures
are
not being strictly complied with, Landlord may immediately require the cessation
of all work being performed in or around the Premises until such time as
Landlord is satisfied that the applicable regulations and procedures will be
observed. Landlord’s monitoring of any work in or around the Premises shall not
be deemed a certification by Landlord of compliance with any Requirements or
of
the Building regulations and procedures or a waiver by Landlord of its right
to
require strict compliance with such Building regulations and procedures nor
shall such monitoring relieve Tenant from any liabilities relating to such
work.
The
indemnity obligations of Tenant set forth in Section 13 above shall not be
applicable with respect to the presence of the Asbestos, unless exacerbated
by
Tenant.
13
(c) Tenant
agrees to take all proper and necessary action to cause the Premises to be
used
and occupied in compliance with the Americans With Disabilities Act of 1990
(“ADA”). Tenant shall also be responsible for the cost of all work required to
ensure that the Premises and the Building comply with the ADA if the obligation
to do such work is due to Tenant’s use of the Premises or to any Alterations
(including the initial Alterations) installed or constructed in the
Premises.
Section
15. Assignment
and Subletting.
(a) Except
as
otherwise expressly permitted by this Lease, Tenant shall not, without the
prior
written consent of Landlord, which shall not be unreasonably withheld or
delayed, assign or hypothecate this Lease or any interest in this Lease, sublet
the Premises or any part of them, or license the use of the Premises by any
party other than Tenant. For purposes of this Article, an assignment shall
be
deemed to include a change in the majority control of Tenant, resulting from
any
transfer, sale or assignment of shares of stock of Tenant occurring by operation
of Law or otherwise, including the merger or consolidation of Tenant into
another entity. If Tenant is a partnership, any change in the partners of Tenant
shall be deemed to be an assignment. Neither this Lease nor any interest in
this
Lease shall be assignable without the consent of Landlord, which shall not
be
unreasonably withheld or delayed. Any of the previous acts without consent
shall
be void and shall, at the option of Landlord, constitute a default under this
Lease. Landlord shall respond to Tenant’s request for sublease within fifteen
(15) days of receiving a written request from Tenant and receipt of
documentation regarding description and financial condition of proposed Tenant
and other necessary information as required by Landlord, failing which Landlord
shall be deemed to have disapproved such request by Tenant. Tenant shall not
be
required to obtain Landlord’s consent for any assignment or subletting to any
entity that controls, is controlled by, or is under common control with Tenant,
provided the owners of such entity are exactly the same as those of
Tenant.
14
(b) No
sub-lessee shall have a right to further sublet without Landlord’s prior
consent, which may not be unreasonably withheld, and any assignment by a
sublessee of the sublease shall be subject to Landlord’s prior consent in the
same manner as if Tenant were entering into a new sublease.
(c) In
the
case of an assignment or subletting, fifty percent (50%) of any sums or economic
consideration received by Tenant as a result of the assignment or subletting
shall be paid to Landlord after first deducting (i) in the case of a sublet,
the
rental due under this Lease, prorated to reflect only rental allocable to the
sublet portion of the Premises, (ii) any tenant improvements paid for by Tenant,
and (iii) the cost of any real estate commissions, reasonable attorney fees,
or
other third party professional services paid by Tenant in connection with the
assignment or subletting.
(d) Regardless
of Landlord’s consent, no subletting or assignment shall release or alter
Tenant’s obligation or primary liability to pay the rental and perform all other
obligations under this Lease. Consent to one assignment or subletting shall
not
be deemed consent to any subsequent assignment or subletting. In the event
of
default by any assignee or successor of Tenant in the performance of any of
the
terms of this Lease, after notice of default to Tenant pursuant to Section
18
and the expiration of any applicable cure period, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against the assignee
or successor.
(e) If
Tenant
assigns this Lease, sublets the Premises, or requests the consent of Landlord
to
any assignment, subletting, hypothecation, or other action requiring Landlord’s
consent under this Lease, Tenant shall pay Landlord’s reasonable attorney fees
incurred in connection with the action, not to exceed $1,000.00.
(f) Despite
any other provision of this Article 15, Landlord has the option, by written
notice to Tenant (Recapture Notice) within thirty (30) days after receiving
any
request for assignment or subletting, to recapture the subject space by
terminating this Lease for the Subject Space or taking an assignment or a
sublease of the subject space from Tenant, unless Tenant rescinds its request
for assignment or subletting in writing within fifteen (15) days after its
receipt of Landlord’s Recapture Notice, in which case such recapture shall be
null and void. A timely Recapture Notice that is not rescinded by Tenant
terminates this Lease or creates an assignment or a sublease for the subject
space for the same term as the proposed assignment or subletting, effective
as
of the date specified in the request for assignment or subletting. If Landlord
declines or fails timely to deliver a Recapture Notice, Landlord shall have
no
further right under this Section 15 to the subject space unless it becomes
available again after assignment or subletting by Tenant.
Section
16. Rules
and Regulations.
Tenant
shall comply with the Rules and Regulations attached to and incorporated in
this
Lease as Exhibit
D,
and
with the Tenant Construction Standards and Regulations which is Schedule 1
to
the Rules and Regulations, and after notice, with all reasonable modifications
and additions to these Rules and Regulations, from time to time promulgated
in
writing by Landlord, all of which shall be uniformly applicable to all tenants
and occupants of the Building. Landlord shall not be responsible to Tenant
for
the nonperformance of any of these Rules and Regulations by any other tenant
or
occupant of the Building, but Landlord shall take reasonable steps to enforce
any Rules and Regulations, the nonperformance of which by other tenants
materially and adversely affects Tenant in the use of the Premises. However,
if
any rule conflicts with any term, covenant, or condition of this Lease, this
Lease shall prevail. In addition, no rule, or any subsequent amendments to
it
adopted by Landlord shall alter, reduce, or adversely affect any of Tenant’s
rights or enlarge Tenant’s obligations under this Lease.
15
Section
17. Entry
by Landlord.
Landlord
may enter the Premises at reasonable hours with no less than twenty-four (24)
hours advance written notice to Tenant to (a) inspect the Premises; (b) exhibit
the Premises to prospective purchasers, or lenders, or within the last nine
(9)
months of the Term, to tenants; (c) determine whether Tenant is complying with
all obligations under this Lease; (d) and 24 hour notice to Tenant to supply
janitorial service and any other services to be provided by Landlord under
this
Lease; (e) post notices of nonresponsibility; and (f) make repairs or perform
maintenance required of Landlord by this Lease, make repairs to any adjoining
space or utility services, or make repairs, alterations, or improvements to
any
other portion of the Building. However, all this work shall be done as promptly
as reasonably possible and cause as little interference to Tenant as reasonably
possible. Subject to Landlord’s undertakings in the previous sentence, Tenant
waives any damage claims for inconvenience to or interference with Tenant’s
business or loss of occupancy or quiet enjoyment of the Premises caused by
Landlord’s entry. At all times Landlord shall have a key with which to unlock
the doors on the Premises, excluding Tenant’s vaults, safes, and similar areas
designated as secure areas in writing by Tenant in advance. In an emergency,
Landlord shall have the right to use any means that Landlord deems proper to
open Tenant’s doors and enter the Premises. Entry to the Premises by Landlord in
an emergency shall not be construed as a forcible or unlawful entry, a detainer,
or an actual or constructive eviction of Tenant. Notwithstanding the foregoing,
Landlord shall provide Tenant with twenty-four (24) hours notice prior to
entering the Premises, except in the event of an emergency, Landlord may enter
the Premises without providing such notice.
Section
18. Events
of Default.
The
following events shall constitute events of default under this Lease (each
an
Event of Default):
(a) failure
by Tenant to pay when due any Base Rent or other sum payable under this Lease
when due, and such failure continues for a period of three (3) days after
written notice is provided to Tenant;
(b) a
default
by Tenant in the performance of any of the terms, covenants, agreements, or
conditions in this Lease, other than a default by Tenant in the payment when
due
of any rent or other sum payable under this Lease, and the continuation of
the
default beyond thirty (30) days after written notice by Landlord is provided
to
Tenant, provided however that if the default is curable and requires more than
thirty (30) to remedy, Tenant shall not be in default if it commences to cure
within such thirty (30) day period and proceeds to complete the cure within
sixty (60) days;
16
(c) the
bankruptcy or insolvency of Tenant, a transfer by Tenant in fraud of creditors,
an assignment by Tenant for the benefit of creditors, or the commencement of
proceedings of any kind by or against Tenant under the Federal Bankruptcy Act
or
under any other insolvency, bankruptcy, or reorganization act, unless Tenant
is
discharged from voluntary proceedings within ninety (90) days;
(d) the
appointment of a receiver for a substantial part of Tenant’s
assets;
(e) the
abandonment of the Premises for a period in excess of 60 days; and
(f) the
levy
upon this Lease or any estate of Tenant under this Lease by attachment or
execution and the failure to have the attachment or execution vacated within
sixty (60) days.
Section
19. Termination
upon Default.
On
occurrence of any Event of Default by Tenant, Landlord may, in addition to
any
other rights and remedies given here or by law, terminate this Lease and
exercise remedies relating to it without further notice or demand in accordance
with the following provisions:
(a) Landlord
may continue this Lease in full force and effect, and this Lease shall continue
in full force and effect as long as Landlord does not terminate Tenant’s right
to possession, and Landlord shall have the right to collect rent when due as
set
forth in California Civil Code Section 1951.4. During the period Tenant is
in
default, Landlord may enter the Premises and relet them, or any part of them,
to
third parties for Tenant’s account, provided that any rental in excess of the
monthly rental due hereunder shall be payable to Landlord. Tenant shall be
liable immediately to Landlord for all costs Landlord incurs in reletting the
Premises, including, without limitation, broker’s commissions, expenses of
cleaning and redecorating the Premises required by the reletting and like costs.
Reletting may be for a period shorter or longer than the remaining Term of
this
Lease. Tenant shall pay to Landlord the rent and other sums due under this
Lease
on the dates the rent is due, less the rent and other sums Landlord receives
from any reletting. No act by Landlord allowed by this paragraph shall terminate
this Lease unless Landlord notifies Tenant in writing that Landlord elects
to
terminate this Lease.
(b) Landlord
may terminate Tenant’s right to possession of the Premises at any time by giving
written notice to that effect. No act by Landlord other than giving written
notice to Tenant shall terminate this Lease. Acts of maintenance, efforts to
relet the Premises or the appointment of a receiver on Landlord’s initiative to
protect Landlord’s interest under this Lease shall not constitute a termination
of Tenant’s right to possession. On termination, Landlord has the right to
remove all personal property of Tenant and store same at Tenant’s cost and to
recover from Tenant as damages: (i) The worth at the time of award of any unpaid
rent which has been earned at the time of such termination; plus (ii) The worth
at the time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount of
such
rental loss Tenant proves could have been reasonably avoided; plus (iii) The
worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus (iv) Any other
amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant’s failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom. As used in
subparagraphs (i) and (ii) above, the “worth at the time of award” is computed
by allowing interest at the then prevailing discount rate of the Federal Reserve
Bank of San Francisco plus five percent (5%). As used in subparagraph (iii)
above, the “worth at the time of award” is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time
of
award plus one percent (l%).
17
(c) No
waiver
of any default of Tenant hereunder shall be implied from any acceptance by
Landlord of any rent or other payments due hereunder or any omission by Landlord
to take any action on account of such default if such default persists or is
repeated and no express waiver shall affect defaults other than as specified
in
said waiver. The consent or approval of Landlord to or of any act by Tenant
requiring Landlord’s consent or approval shall not be deemed to waive or render
unnecessary Landlord’s consent or approval to or of any subsequent similar acts
by Tenant.
Section
20. Eminent
Domain.
If
all or
any part of the Premises are taken through eminent domain, this Lease shall
terminate for the part taken as of the date of taking. For a partial taking,
either Landlord or Tenant shall have the right to terminate this Lease for
the
balance of the Premises by written notice to the other within thirty (30) days
after the taking. However, Tenant’s right to terminate arises only if the
portion of the Premises taken substantially handicaps, impedes, or impairs
Tenant’s use of the balance of the Premises. In the event of any taking,
Landlord shall be entitled to all compensation, damages, income, rent, awards,
or any interest that may be paid in connection with the taking, except for
any
portion specifically awarded to Tenant for moving expenses, trade fixtures,
equipment, and any leasehold improvements in the Premises to the extent of
the
then unamortized value of these improvements for the remaining term of the
Lease
as determined in the award. However, Tenant shall have no claim against Landlord
for the value of any unexpired term of this Lease or otherwise, other than
for
prepaid rent. In the event of a partial taking of the Premises that does not
result in a termination of this Lease, the subsequent monthly rental shall
be
equitably reduced.
Section
21. Estoppel
Certificate.
At
any
time with at least ten (10) days’ prior notice by Landlord, Tenant shall
execute, acknowledge, and deliver to Landlord a certificate in a form
satisfactory to Landlord certifying: (a) that this Lease is unmodified and
in
full force or, if there have been modifications, that this Lease is in full
force, as modified, together with the date and nature of each modification,
(b)
the amount of the Base Rent, most recent Escalation Rent, if any, and the date
to which the rent has been paid, (c) that no notice has been received by Tenant
of any default that has not been cured, except defaults specified in the
certificate, (d) that no default of Landlord is claimed by Tenant, except
defaults specified in the certificate, and (e) other matters as may be
reasonably requested by Landlord. Any certificate may be relied on by
prospective purchasers, mortgagees, or beneficiaries under any deed of trust
on
the Building or any part of it.
18
Section
22. Surrender
of Premises; Holding Over.
(a) Upon
the
Termination Date, Tenant shall surrender and vacate the Premises immediately
and
deliver possession thereof to Landlord in a clean, good and tenantable
condition, ordinary wear and tear, and damage caused by Landlord excepted.
Tenant shall deliver to Landlord all keys to the Premises. All improvements
in
and to the Premises, including any Alterations (collectively, “Leasehold
Improvements”) shall remain upon the Premises at the end of the Term without
compensation to Tenant. Landlord, however, by written notice to Tenant at least
30 days prior to the Termination Date, may require Tenant, at its expense,
to
remove (a) any Cable installed by or for the benefit of Tenant, and (b) any
Landlord Work or Alterations that, in Landlord’s reasonable judgment, are of a
nature that would require removal and repair costs that are materially in excess
of the removal and repair costs associated with standard office improvements
(collectively referred to as “Required Removables”). Required Removables shall
include, without limitation, internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications. The designated Required Removables shall be removed by Tenant
before the Termination Date. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to perform
its
obligations in a timely manner, Landlord may perform such work at Tenant’s
expense. Tenant, at the time it requests approval for a proposed Alteration,
may
request in writing that Landlord advise Tenant whether the Alteration or any
portion of the Alteration is a Required Removable. Within 10 days after receipt
of Tenant’s request, Landlord shall advise Tenant in writing as to which
portions of the Alteration are Required Removables. If any of the Tenant
Additions which were installed by Tenant involved the lowering of ceilings,
raising of floors or the installation of specialized wall or floor coverings
or
lights, then Tenant shall also be obligated to return such surfaces to their
condition prior to the commencement of this Lease. Tenant shall also be required
to close any staircases or other openings between floors. In the event
possession of the Premises is not delivered to Landlord when required hereunder,
or if Tenant shall fail to remove those items described above, Landlord may
(but
shall not be obligated to), at Tenant’s expense, remove any of such property and
store, sell or otherwise deal with such property, and undertake, at Tenant’s
expense, such restoration work as Landlord deems necessary or
advisable.
(b) If,
without objection by Landlord, Tenant holds possession of the Premises after
expiration of the term of this Lease, Tenant shall become a tenant from
month-to-month on the terms specified in this Lease, except those pertaining
to
term, option to extend, but at a monthly rental negotiable between the Parties,
payable in advance on or before the first day of each month. Each party shall
give the other notice of intention to terminate the tenancy at least one (1)
month prior to the date of termination of a monthly tenancy.
(c) If,
over
Landlord’s objection, Tenant holds possession of the Premises after expiration
of the term of this Lease or expiration of the holdover tenancy, Tenant shall
be
deemed to be a tenant-at-sufferance and, without limiting the liability of
Tenant for unauthorized occupancy of the Premises, Tenant shall indemnify
Landlord and any replacement tenant for the Premises for any damages or loss
suffered by either Landlord or the replacement tenant resulting from Tenant’s
failure to vacate the Premises in a timely manner. The monthly rental shall
be
at two hundred percent (200%) of the then prevailing monthly rental paid by
Tenant.
19
Section
23. Security
Deposit.
Tenant
has deposited with Landlord the sum specified in the Basic Lease Information
(Deposit). The Deposit shall be held by Landlord as security for the faithful
performance by Tenant of all provisions of this Lease. If Tenant fails to pay
rent or other sums due under this Lease or defaults with respect to any
provision of this Lease, Landlord may use, apply, or retain all or any portion
of the Deposit for the payment of rent or other sums in default, for the payment
of any other sums to which Landlord may become obligated because of Tenant’s
default, or to compensate Landlord for any loss or damage that Landlord may
suffer because of the Tenant’s actions. If Landlord uses or applies the Deposit,
Tenant shall, within ten (10) days after written demand, deposit cash with
Landlord in an amount sufficient to restore the Deposit to the full amount,
and
Tenant’s failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep the Deposit separate from Landlord’s general
accounts. If Tenant performs all of Tenant’s obligations under this Lease, the
Deposit or the amount not applied by landlord shall be returned, without
interest, to Tenant or at Landlord’s option, to the last assignee, if any, of
Tenant’s interest under this Lease at the expiration of the Term and after
Tenant has vacated the Premises. No trust relationship is created between
Landlord and Tenant with respect to the Deposit. To the fullest extent permitted
by law, Tenant waives any and all rights of Tenant under the provisions of
Section 1950.7 of the California Civil Code or other Law regarding security
deposits.
Section
24. Landlord’s
Liability.
Notwithstanding
any other term or provision of this Lease, the liability of the Landlord for
its
obligations under this lease is limited solely to Landlord’s interest in the
Property, and the rents, issues, and profits derived therefrom, as the same
may
from time to time be encumbered, and no personal liability shall at any time
be
asserted or enforceable against any other assets of Landlord or against
Landlord’s stockholders, directors, officers or partners on account of any of
the Landlord’s actions or obligations under this Lease. In addition, in the
event of the conveyance of title to the Building or the Project, then from
and
after the date of such conveyance, Landlord shall be relieved of all liability
with respect to Landlord’s obligations to be performed under this
Lease.
Section
25. Brokers.
Landlord
and Tenant represent and warrant to each other that in the negotiating or making
of this Lease, neither it nor anyone acting on its behalf has dealt with any
real estate broker or finder who might be entitled to a fee or commission for
this Lease other than the Brokers identified the Basic Lease Information, whose
commission is to be paid by Landlord pursuant to a separate agreement with
such
brokers. Landlord and Tenant agree to indemnify and hold the other harmless
from
any claim or claims, including costs expenses and attorney’s fees incurred by
the other, asserted by any other broker or finder for a commission based upon
any dealings with or statements made by the indemnifying party or its
representatives.
Section
26. Smoking.
Smoking
in the building is prohibited.
20
Section
27. Entire
Agreement.
There
are
no oral agreements between Landlord and Tenant affecting this Lease, and this
Lease supersedes and cancels all previous negotiations, arrangements, brochures,
agreements, and oral or written understandings between Landlord and Tenant
or
displayed by Landlord to Tenant with respect to the subject matter of this
Lease. This Lease shall not be amended or modified except pursuant to a writing
executed by Landlord and Tenant. There are no representations between Landlord
and Tenant other than those contained in this Lease. All implied warranties,
including implied warranties of merchantability and fitness, are
excluded.
Section
28. Illegality
or Unenforceability of Portion of Lease.
If
any
provision of this Lease is determined to be illegal or unenforceable, this
determination shall not affect any other provision of this Lease, and all other
provisions shall remain in full force and effect.
Section
29. Governing
Law.
This
Lease shall be governed by and construed pursuant to law of the State of
California.
Section
30. Quiet
Enjoyment.
Landlord
agrees to and shall in the commencement of this Lease place Tenant in quiet
possession of the Premises and shall secure it in the quiet possession thereof
against all persons lawfully claiming the same during the lease
term.
Section
31. Signage.
Tenant
shall have the right to building standard signage in the ground floor lobby
and
at the entrance to Tenant’s Premises.
Section
32. Subordination.
This
Lease shall be subject and subordinate at all times to (i) all ground and
underlying leases which now exist or may hereafter be executed affecting the
Property, (ii) the lien of any mortgages or deeds of trust in any amount or
amounts whatsoever now or hereafter placed on or against the Property, or on
Landlord’s interest or estate therein, or portion thereof, or on or against any
ground or underlying lease and (iii) any Declaration of Covenants, Conditions
and Restrictions or similar instrument now or hereafter recorded affecting
the
Property, all without the necessity of the execution and delivery of any further
instruments on the part of Tenant to effectuate such subordination; provided,
however, that any such future encumbrance shall provide that so long as Tenant
is not in default, the terms of this Lease and Tenant’s occupancy of the
Premises shall not be affected by termination proceedings in respect to such
ground or underlying lease or foreclosure or other proceedings under such
mortgages or deeds of trust, Tenant hereby agreeing at the written request
of
the landlord under such ground or underlying lease or the purchaser of the
Building in such foreclosure or other proceedings, to attorn to such landlord
or
to such purchaser or, at such landlord’s or such purchaser’s option, to enter
into a new lease for the balance of the Term upon the same terms and provisions
as are contained in this Lease. Notwithstanding the foregoing, Tenant will
execute and deliver upon demand such further instrument or instruments
evidencing such subordination of this Lease to the lien of any such mortgage
or
mortgages or deeds of trust as may be required by Landlord, so long as such
agreement recognizes that Tenant’s possession of the Premises will not be
disturbed upon any foreclosure of such mortgage or deed of trust as long as
Tenant is not in default hereunder.
21
Section
33. Attorneys
Fees.
If
either
party hereto brings an action to enforce the terms hereof or declare the rights
of the parties hereunder, the prevailing party in any such action, on trial
or
appeal, shall be entitled to recover from the other party the reasonable costs
and attorneys’ fees incurred in connection with such action. For purposes of
this provision, in any action or proceeding instituted by Landlord based upon
any default or alleged default by Tenant hereunder, Landlord shall be deemed
the
prevailing party if: (i) judgment is entered in favor of Landlord or (ii) prior
to trial or judgment Tenant shall pay all or substantially all of the Rent
and
charges claimed by Landlord, eliminate the condition(s), cease the act(s) or
otherwise cure the omission(s) claimed by Landlord to constitute a default
by
Tenant hereunder. Any expenses incurred in collection of sums due, whether
action is brought or not, and any attorneys’ fees incurred in collection payment
will be charged to Tenant.
Section
34. Relocation
of Tenant.
At
any
time after the date of this Lease, Landlord may substitute for the Premises,
other premises in the Building (the “New Premises”), in which event the New
Premises shall be deemed to be the Premises for all purposes under this Lease,
provided that (i) the New Premises shall be substantially similar to the
Premises in area and configuration; (ii) if Tenant is then occupying the
Premises, Landlord shall pay the actual and reasonable expenses of physically
moving Tenant, its property and equipment to the New Premises, along with a
supply of new stationery, business cards, and the like reflecting the address
of
the new Premises, not to exceed Five Hundred Dollars ($500.00); (iii) Landlord
shall give Tenant not less than sixty (60) days’ prior written notice of such
substitution; and (iv) Landlord, at its expense, shall improve the New Premises
with improvements substantially similar to those in the Premises at the time
of
such substitution, if the Premises are then improved.
Section
35. Notices.
All
notices, demands or requests provided for or permitted to be given pursuant
to
this Lease must be in writing and shall be personally delivered, sent by Federal
Express or other reputable overnight courier service, or mailed by first class,
registered or certified United States mail, return receipt requested, postage
prepaid. All notices, demands or requests to be sent pursuant to this Lease
shall be deemed to have been properly given or served by delivering or sending
the same in accordance with this Section, addressed to the parties hereto at
their respective addresses listed in the Basic Lease Information. Notices,
demands or requests sent by mail or overnight courier service as described
above
shall be effective upon deposit in the mail or with such courier service.
However, the time period in which a response to any such notice, demand or
request must be given shall commence to run from (i) in the case of delivery
by
mail, the date of receipt on the return receipt of the notice, demand or request
by the addressee thereof, or (ii) in the case of delivery by Federal Express
or
other overnight courier service, the date of acceptance of delivery by an
employee, officer, director or partner of Landlord or Tenant. Rejection or
other
refusal to accept or the inability to deliver because of changed address of
which no notice was given, as indicated by advice from Federal Express or other
overnight courier service or by mail return receipt, shall be deemed to be
receipt of notice, demand or request sent. Notices may also be served by
personal service upon any officer, director or partner of Landlord or Tenant,
and shall be effective upon such service. By giving to the other party at least
thirty (30) days written notice thereof, either party shall have the right
from
time to time during the term of this Lease to change their respective addresses
for notices, statements, demands and requests, provided such new address shall
be within the United States of America.
22
Section
36. Tenant
Authority.
Tenant
represents and warrants to Landlord that it has full authority and power to
enter into and perform its obligations under this Lease, that the person
executing this Lease is fully empowered to do so, and that no consent or
authorization is necessary from any third party. Landlord may request that
Tenant provide Landlord evidence of Tenant’s authority.
Section
37. Exhibits.
The
exhibits specified in the Basic Lease Information are attached to this Lease
and
by this reference made a part of it.
Section
38. Option
to Renew.
(a) Exercise
of Option to Renew.
Tenant
shall have one (1) five (5) year option to renew the Term of this Lease (the
“Option
to Renew”).
Tenant
shall only have the right to exercise the Option to Renew if: (a) no monetary
default has occurred at any time; (b) not more than two (2) Events of Default
have occurred at any time during the Term; (c) no event has occurred at the
time
of Tenant’s exercise of the Option to Renew that with notice and the passage of
time would constitute a default; and (d)Tenant has not assigned this Lease
or
subleased any portion of the Premises, even if Landlord’s consent has been
obtained or is not required under this Lease with respect thereto, and whether
by operation of law or otherwise. Tenant shall exercise the Option to Renew,
if
at all, by providing Landlord with written notice of Tenant’s unconditional and
irrevocable election to exercise the Option to Renew at least twelve (12) months
prior to the expiration of the Term. Tenant’s notice shall be given in
accordance with the notice provision of this Lease, and Tenant shall be required
to provide documentation that the Option to Renew was timely exercised in order
to effectively exercise the Option to Renew.
(b) Base
Rent Under Option to Renew.
If
Tenant validly exercises the Option to Renew in accordance with Section 38(a),
then the Base Rent shall be the fair market rental value of the Premises, as
determined under Section 38(c) below, but in no event less than the Base Rent
as
of the expiration of the Term.
23
(c) Procedure
for Determination of Base Rent Under Option to Renew.
Within
thirty (30) days after receiving notification from Tenant of its intention
to
exercise the Option to Renew, provided that Tenant has validly exercised the
Option to Renew, Landlord shall provide Tenant with Landlord's written statement
of the new proposed Base Rent for each year of the term of the Option to Renew
(the “Option
Term”).
If
Tenant, in good faith, disagrees or otherwise disputes Landlord's determination
of the new Base Rent for each year of the Option Term, then it must do so within
thirty (30) days after receiving Landlord's notification of the same, otherwise,
Landlord’s determination shall be binding. If Tenant properly disputes
Landlord’s determination, then the parties shall seek to determine the new Base
Rent for each year of the Option Term by way of good faith negotiations
concluded within thirty (30) days after the date of Tenant's notice of dispute.
If, after such good faith negotiations, the parties are still not able to agree
upon the Base Rent for each year of the Option Term, then the determination
of
Base Rent shall be determined by arbitration in accordance with the following
procedures (the “Arbitration
Procedures”):
(i)
Each
party shall, at their own expense, designate a real estate broker with at least
ten (10) years experience in leasing comparable commercial properties in the
San
Francisco market;
(ii)
The two
(2) real estate brokers shall each select a similarly qualified, independent
real estate broker, whose expenses shall be shared equally by Landlord and
Tenant;
(iii) The
three
(3) real estate brokers shall, after soliciting, accepting and reviewing such
information and documentation as they may deem necessary and appropriate,
including that submitted by either party, within thirty (30) days after
appointment, prepare a statement of what they consider the fair market value
of
the Base Rent should be, taking into account (i) the prevailing market rental
for similar space in other buildings in the City of San Francisco and
immediately surrounding areas that are of comparable quality, and (ii) all
pertinent factors typically considered by qualified brokers, including but
not
limited to the length of term, use, quality of services provided, operating
expense payments, location and/or floor level within the applicable building,
definition of net rentable areas, leasehold improvements provided, quality,
age
and location of the applicable building, tenant clientele of the Building,
and
the time the particular rate under consideration became effective;
and
(iv) Once
the
three (3) real estate brokers reach their conclusions, then the two (2) closest
figures for Base Rent shall be averaged (with the third statement not utilized),
and the amount so calculated being the Base Rent amount which shall be binding
on the parties for the term specified by the Option to Renew.
If
either
party fails to designate their real estate broker as set forth in this Section
within twenty-one (21) days, then the real estate broker selected by the other
party shall act alone and his/her determination shall be
binding.
24
The
parties have executed this Lease as of the date first set forth
above.
|
Landlord:
|
Tenant:
|
|
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AE-▇▇▇▇’▇
PROPERTY OWNER LLC,
|
JAVA
DETOUR, INC.,
|
|
|
a
Delaware limited liability company
|
a
Delaware corporation
|
|
By:
|
AE-▇▇▇▇’▇
Manager LLC,
|
|||
|
a
Delaware limited liability company
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
||
|
Its
manager
|
||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇
|
Its:
|
Chief
Executive Officer
|
||
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
||||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
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Its:
|
Vice
President
|
||||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇
|
||||
|
Its:
|
Chief
Financial Officer
|
25
EXHIBIT
A
DESCRIPTION
OF THE PREMISES
1
EXHIBIT
B
Workletter
Agreement
1. Landlord
will paint the interior office walls an accent color selected by Tenant. The
interior brick will be left exposed.
1
EXHIBIT
C
OMITTED
1
EXHIBIT
D
RULES
AND REGULATIONS
1. ACCESS:
The sidewalks, halls, passages, exits, entrances, elevators, and stairways
of
the Building shall not be obstructed by any of the tenants or used for any
purpose other than for ingress to and egress from their respective Premises.
The
halls, passages, exits, entrances, elevators, and stairways are not for the
general public, and Landlord shall in all cases retain the right to control
and
prevent access to them by all persons whose presence in the judgment of Landlord
would be prejudicial to the safety, character, reputation, and interests of
the
Building and its tenants. However, nothing herein shall be construed to prevent
access to persons with whom any tenant normally deals in the ordinary course
of
business, unless these persons are engaged in illegal activities. No tenant,
no
employer or invited guest shall go on the roof of the Building without the
prior
consent of Landlord and said consent shall not be unreasonably
withheld.
2. SIGNS:
A
sign, placard, picture, name, advertisement, or notice visible from the exterior
of any tenant’s Premises shall not be inscribed, painted, affixed, or otherwise
displayed by any tenant on any part of the Building without the prior written
consent of Landlord. Landlord will adopt and furnish to tenants general
guidelines relating to signs inside the Building on the office floors. Material
visible from outside the Building will not be permitted.
3. PREMISES
USES:
a. The
Premises of each tenant 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 by any tenant on the Premises, except that (a) each tenant may
establish and operate a lunchroom facility for use by tenant’s employees, and
(b) each tenant may use and install food and beverage vending machines and
Underwriters’ Laboratory approved microwave ovens and equipment for brewing
coffee, tea, hot chocolate, and similar beverages, provided that adequate
provisions are made for venting and control of odors and all facilities and
equipment are in accordance with all applicable federal, state, and city laws,
codes, ordinances, rules, and regulations.
b. Except
with the prior consent of Landlord, no tenant shall sell, or permit the sale
at
retail, of newspapers, magazines, periodicals, theater tickets, or any other
goods or merchandise to the general public in the Premises, nor shall any tenant
carry on, permit, or allow any employee or other person to carry on the business
of stenography, typewriting, 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 of any tenant be used for manufacturing of any kind,
or
any business or activity other than that specifically provided for in the
tenant’s lease.
4. JANITORIAL
SERVICE: No tenant shall employ any person other than Landlord’s janitorial
service for cleaning the Premises, unless otherwise approved by Landlord. No
person other than those approved by Landlord shall be permitted to enter the
Building to clean it. No tenant shall cause any unnecessary labor because of
carelessness or indifference in the preservation of good order and cleanliness.
Janitor service will not be furnished on nights when rooms are occupied after
9:30 p.m. unless, by prior arrangement with Landlord, service is extended to
a
later hour for specifically designated rooms.
1
5. KEYS:
Landlord will furnish each tenant, free of charge, two keys to each door lock
in
the Premises. Landlord may make a reasonable charge for any additional keys.
No
tenant shall have any keys made. No tenant shall alter any lock or install
a new
or additional lock or any bolt on any door of the premises without the prior
consent of Landlord which will not be unreasonably withheld. The tenant shall
in
each case furnish Landlord with a key for any lock. Each tenant, upon the
termination of the tenancy, shall deliver to Landlord all keys to doors in
the
Building that have been furnished to the tenant.
6. FREIGHT
ELEVATOR: The freight elevator shall be available for use by all tenants in
the
Building, subject to reasonable scheduling, as Landlord deems appropriate.
The
persons employed to move equipment in or out of the Building must be acceptable
to Landlord. Landlord shall have the right to prescribe the weight, size, and
position of all equipment, materials, furniture, or other property brought
into
the Building. Heavy objects shall, if considered necessary by Landlord, stand
on
wood strips of a thickness necessary to properly distribute the weight. Landlord
will not be responsible for loss of or damage to any property from any cause,
and all damage done to the Building by moving or maintaining property shall
be
repaired at the expense of the tenant. Scheduling of the freight elevator for
move ins and outs must be done through the Management Office or Lobby Security
in order to provide door control to the vendor.
7. FOUL,
FLAMMABLE AND NOXIOUS SUBSTANCES: No tenant shall use or keep in the Premises
or
the Building any kerosene, gasoline, or inflammable or combustible fluid or
material other than limited quantities reasonably necessary for the operation
or
maintenance of office equipment, and may not, without Landlord’s prior written
approval, use any method of heating or air conditioning other than that supplied
by Landlord. No tenant shall use or keep any foul, noxious, or hazardous 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 because of noise, odors, or vibrations, or interfere in any way
with other tenants or those having business in the Building.
8. BUILDING
NAME, ADDRESS: Landlord shall have the right, exercisable without notice and
without liability to any Tenant, to change the name and street address of the
Building.
9. BUILDING
ACCESS: Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 7:00 a.m. and at all hours on Saturdays, Sundays, and
legal holidays any person who does not present a proper access card or other
identification as a tenant or an employee of a tenant, or who does not otherwise
present proper authorization by a tenant for access to the premises. Each tenant
shall be responsible for all persons for whom it authorizes access and shall
be
liable to Landlord for all acts of these 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 an action advisable in Landlord’s
opinion, Landlord reserves the right to prevent access to the Building during
the continuance of the circumstance by any action Landlord deems
appropriate.
2
10. DIRECTORY:
A directory of the Building will be provided to display the name and location
of
tenants, their subtenants, and a reasonable number of the principal officers
and
employees of tenants, and Landlord reserves the right to exclude any other
names. Any additional name that a tenant desires to have added to the directory
shall be subject to Landlord’s approval and may be subject to a
charge.
11. 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 exterior window in the Building without the prior
consent of Landlord. If consented to by Landlord, these items shall be installed
on the office side of the standard window covering and shall in no way be
visible from the exterior of the Building.
12. DELIVERY
COMPANIES: Messenger services and suppliers of bottled water, food, beverages,
and other products or services shall be subject to reasonable regulations as
may
be adopted by Landlord.
13. DOOR
/
APPLIANCE SECURITY: Each tenant shall see that the doors of the premises are
closed and locked and that all water faucets or apparatus, cooking facilities,
and office equipment, excluding office equipment required to be operative at
all
times, are shut off before the tenant or employees leave the Premises at night,
so as to prevent waste or damage. For any default or carelessness in this regard
the tenant shall be responsible for any damage sustained by other tenants or
occupants of the Building or Landlord. On multiple-tenancy floors, tenants
shall
keep the doors to the Building corridors closed at all times except for ingress
and egress.
14. RESTROOM
USE: The toilets, urinals, wash bowls, and other rest room facilities shall
not
be used for any purpose other than that for which they were constructed. No
foreign substance of any kind shall be thrown in them, and the expense of any
breakage, stoppage, or damage resulting from the violation of this rule shall
be
borne by the tenant who, or whose employees or invitees, have caused
it.
15. MOTORCYCLES,
SCOOTERS, BICYCLES: No motorcycles or motor scooters shall be parked or stored
anywhere in the Building other than the garage of the Building, and no bicycles
may be parked or stored anywhere in the Building other than in facilities
provided in the garage or other areas designated by Landlord from time to
time.
16. HAND
TRUCK, DOLLY USE: Hand trucks or other material handling equipment, except
those
equipped with rubber tires and side guards, may not be used in any portion
of
the Building unless approved by Landlord.
17. REFUSE:
Each tenant shall store refuse within that tenant’s premises. No material of a
nature that it may not be disposed of in the ordinary and customary manner
of
removing and disposing of refuse in the city of San Francisco without being
in
violation of any law or ordinance governing this disposal shall be placed in
the
refuse boxes or receptacles. All refuse disposal shall be made only through
entryways and elevators provided for these purposes and at the times Landlord
shall designate.
3
18. NO
SOLICITING: Canvassing, peddling, soliciting, and distributing handbills or
any
other written materials in the Building is prohibited, and each tenant shall
cooperate to prevent this type of occurrence.
19. NO
SMOKING: Smoking of cigarettes, cigars, pipes, or any other form of tobacco
is
prohibited in the Building. Tenant shall not permit its employees, guest or
invitees to smoke in any portion of the Building or Premises.
20. TENANT
REQUESTS: The requirements of the tenants will be attended to on application
by
telephone, facsimile or letter or in person at the office of the Building.
Employees of Landlord shall not perform any work or do anything outside of
their
regular duties unless under special instructions from Landlord.
21. MOVES:
All moves in and out of the building must be scheduled at least two weeks in
advance with Management Office. The name, phone number and contact person of
the
Moving Company is required. The freight elevator will be reserved for the move.
If two moves occur on the same day, the freight elevator must be shared. The
Moving Company must furnish a Certificate of Insurance at least 48 hours in
advance of the move, naming both Landlord and Landlord’s Management Company as
co-insureds. Any after-hours moves must be approved beforehand with the
Management Office.
22. AFTER
HOURS EVENTS: Any after hours events, including classes, presentations, parties,
open houses, etc., to which members of the public have been invited need to
be
coordinated with the Management Office two to four weeks in advance of the
event. An “after hours event” is defined as an event which takes place, or still
be in process after 5:00pm Monday through Friday or on the weekend. Additional
Security must be hired for such an event and the cost billed to the Tenant.
▇▇▇▇’▇ Management Office hires the security officers from the security company
currently servicing our building.
23. ALCOHOLIC
BEVERAGES: Any tenant who plans to serve alcoholic beverages in the ▇▇▇▇’▇
Building must obtain a Certificate of Insurance that includes Liquor Liability
coverage, and furnish proof of same to the Management Office.
24. NO
OPEN
FLAMES: No open flames are allowed at any time. This includes candles for
ambiance, as well as open flames in warming plates or other catering equipment.
Open flames are strictly prohibited in the ▇▇▇▇’▇ Building. The ▇▇▇▇’▇ Life
Safety Director must inspect (at the start of the event) any warming equipment
used by a caterer servicing the ▇▇▇▇’▇ tenant event.
25. LOADING
DOCK USE: If a tenant needs access to the loading dock for items being moved
in
or out, please contact the Management Office to get approval. The Management
Office will then schedule and coordinate the use with the
tenant.
4
26. NOTIFICATION
OF VENDOR WORK: All tenants must notify Management Office at least 24 hours
in
advance of vendors scheduled to do work in their suite, except in an emergency.
In an emergency, prompt notification must be given to the Management Office
as
soon as the vendor has been scheduled. If this is a new vendor, such vendor
must
supply the Management Office with an Original Certificate of Insurance that
meets building requirements prior
to doing any work in
a
Tenant’s suite. These vendors include phone vendors, furniture vendors, moving
companies, vendors doing tenant improvement or alteration work (see below),
or
any other service providers.
27. TENANT
IMPROVEMENTS / ALTERATIONS: No tenant improvements, alterations or other
construction or modification work can take place without the prior written
consent of the Management Office.
28. DOGS
AND
OTHER PETS: Tenant may bring pets into the Building subject to such reasonable
Rules and Regulations and regulations as Landlord may establish so that they
do
not disturb other tenants of the Building. Pets other than dogs must receive
specific written permission from Landlord. All dogs entering the building must
be up to date on vaccinations and wearing a rabies tag. All dogs must be quiet
and under control at all times. A responsible person must accompany dogs at
all
times. Please ask before you allow your dog to approach another dog, or before
you attempt to pet someone else’s dog; this is to insure the safety of tenants
and visitors, as not all dogs are “approachable”. All dogs walking within the
common areas of the building such as the lobby, elevators, hallways and
restrooms must be leashed at all times. We reserve the right to ask anyone
with
an overly aggressive or destructive dog to leave.
29. WAIVER:
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant, so long as Tenant’s use of the Premises is not
adversely affected by the waiver, and no waiver by Landlord shall be construed
as a waiver of the Rules and Regulations in favor of any other tenant, nor
prevent Landlord from later enforcing any of the Rules and Regulations against
any of the tenants of the Building.
30. EFFECT:
These Rules and Regulations are in addition to, and shall not be construed
to
modify or amend, in whole or in part, the terms, covenants, agreements, and
conditions of any lease of Premises in the Building.
31. COMPLIANCE:
Tenant shall comply with these Rules and Regulations and after notice, with
all
reasonable modifications and additions to these Rules and Regulations, from
time
to time promulgated in writing by Landlord. Landlord shall not be responsible
to
Tenant for the nonperformance of any of these Rules and Regulations by any
other
tenant or occupant of the Building, but Landlord shall take reasonable steps
to
enforce any Rules and Regulations, the nonperformance of which by other tenants,
materially and adversely affects Tenant in the use of the Premises. However,
if
any rule conflicts with any term, covenant, or condition of this Lease, this
Lease shall prevail. In addition, no rule, or any subsequent amendments to
it
adopted by Landlord shall alter, reduce, or adversely affect any of Tenant’s
rights or enlarge Tenant’s obligations under this Lease.
32. CHANGES:
Landlord reserves the right to make other reasonable Rules and Regulations
as
Landlord judges may be needed for the safety, care, and cleanliness of the
Building, and for the preservation of good order, provided that Tenant’s use and
occupancy of the Premises shall not be adversely affected by other Rules and
Regulations.
5
Schedule
1
Tenant
Construction Standards And Requirements
Tenants
and its contractors shall follow the Construction Standards and Requirements
when doing any Alterations, Tenant Work or construction in the Building. Each
contractor must sign these Tenant Construction Standards and Requirements prior
to its commencement of any work to acknowledge that it will abide by these
standards and requirements. ALL WORK OF ANY KIND, INCLUDING CABLING,
INSTALLATION OF WORK STATIONS, MOVE-INS/OUTS, CONSTRUCTION, ETC. MUST BE
COORDINATED AND APPROVED IN WRITING BY THE MANAGEMENT OFFICE PRIOR TO START
OF
WORK. IN ADDITION, A CERTIFICATE OF INSURANCE FOR THE VENDOR MUST BE ON FILE
WITH THE MANAGEMENT OFFICE.
|
1.
|
APPROVAL
OF PLANS AND SPECIFICATIONS: Except as otherwise expressly set forth
in
the Lease or the Workletter (if any), all work and all space plans,
construction drawings, details, changes to the drawings must have
the
prior written approval of Landlord before any construction begins.
Construction and design-build drawings for OTI-l, 2, 3, & 4 are to be
approved in writing by the Management Office before drawings are
submitted
for permit. Overlaying of the ceiling lighting, mechanical, and fire
sprinkler drawings is to be done before any work starts, to eliminate
any
conflict of installation between these
trades.
|
|
2.
|
PERMITS,
INSPECTIONS AND TESTING: All work in the Building must be permitted
by the
City of San Francisco and Tenant shall provide a copy of all permits
to
the Management Office. Separate electrical permit is to be taken
out by
the Electrified Furniture Partition installers. "Whips" for electrified
furniture are to be approved by the City Electrical Inspector. The
Fire
Inspector/ Electrical Inspector shall approve the location and number
of
emergency lights and exit lights. All preliminary testing and City
inspection testing of the fire alarm horns is to be done during
non-business hours. Testing is to be done in the morning before 8:00
and
scheduled with the Management Office at least 48 hours in
advance.
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|
3.
|
EMERGENCY
CIRCUIT WIRING: All emergency circuit wiring is to be in its own
separate
conduit per code.
|
|
4.
|
ADA
COMPLIANCE: All sinks and sink cabinets are to meet ADA
requirements.
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|
5.
|
EMERGENCY
LIGHTING: Emergency / Night Light and strobe light are required in
all
conference rooms per S.F .F .D. All emergency lights and exit lights
are
to be tied into the building's emergency
generator.
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|
6.
|
SMOKE
AND FIRE ALARMS: All fire alarm wiring is to be in its own separate
conduit per code. Smoke and duct detectors are to be installed per
S.F.
Fire Department requirements.
|
6
|
7.
|
PERFORMANCE
OF LIFE SAFETY WORK AND LIFE SAFETY REQUIREMENT: All life safety
work must
be coordinated with the building’s Life Safety Contractor. Contact
Building Chief Engineer via the Management Office for relevant
information.
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|
8.
|
STRUCTURAL
ENGINEER: The building’s Structural Engineer must be contacted for all
structural questions and to review all structural drawings. Contact
Building Chief Engineer via Management Office for relevant information.
|
|
9.
|
EXTERIOR
WINDOW WALLS: If the exterior window wall of the building is to be
modified in any way (i.e., to accommodate outside air), details are
to be
submitted and approved in writing by the Building Management Office
before
material is ordered and work is
started.
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|
10.
|
HAZARDOUS
MATERIALS: Tenant and/or its contractors should make no assumptions
concerning the presence or absence of hazardous or toxic materials,
including lead paint and other substances. Any construction work
which
disturbs existing conditions shall be brought to the attention of
Landlord
immediately to enable Landlord to schedule tests and/or cleanup work,
if
any, which it deems necessary.
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|
11.
|
INSURANCE
CERTIFICATES: Prior to beginning any work in the Building, all contractors
performing work in the Building shall furnish Landlord a Certificate
of
Insurance in the required insurance limits, conforming to the requirements
set forth in the Lease.
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|
12.
|
SECURITY:
All contractors, subcontractors, workers, employees and delivery
persons
must sign in and out at the Security Desk whenever in the
Building.
|
|
13.
|
COVERING
OF FLOORS: All common area flooring is to be covered in the area
of
construction. Walls and doors are to be protected against damage
as
needed. Dampened (not wet) scrap carpet is to be used to wipe feet
when
leaving the construction area. The contractor is responsible for
keeping
the carpet damp.
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|
14.
|
USE
OF FREIGHT ELEVATOR AND LOADING DOCK: All contractors, subcontractors,
workers, employees and delivery persons are to use the Freight Elevator
only. All stocking of materials must be done through the loading
dock
only.
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|
15.
|
NORMAL
CONSTRUCTION HOURS AND AFTER HOURS WORK: Normal construction hours
are
from 7:00 a.m. to 6:30 p.m. Monday through Friday. Work during
non-business hours is to be scheduled with the Management Office
48 hours
in advance.
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|
16.
|
LIMITATION
OF PERFORMANCE OF CERTAIN WORK: No roto-hammering, core drilling,
or loud
noise is allowed from 8:00 a.m. to 5:30 p.m. Monday through Friday.
Any of
the above must be scheduled with the Management Office at least 48
hours
before work starts. No gas-powered equipment is allowed in the Building.
All power shut-downs are to be approved in writing by the Building
Management Office and all affected tenants before any shut down
occurs.
|
7
|
17.
|
MECHANICAL
/ ELECTRICAL ROOMS: Locations of all equipment in the mechanical
/
electrical rooms must be approved in writing by the Management Office
before work starts or any equipment is ordered or installed. Absolutely
no
storage is allowed in any mechanical / electrical rooms. If storage
is
required within a tenant space, a separate room is to be built for
this.
All penetrations in fire-rated walls are to be sealed with approved
material and methods. Any electrical work done is to have a permit
and be
inspected by the City.
|
|
18.
|
CONDENSATE
PIPES: Condensate pumps are not allowed unless written approval has
been
given by the Management Office. Condensate piping is to be tied into
the
main condensate drain by "gravity fed"
means.
|
|
19.
|
GENERAL:
All demolition and haul out to be done during non-business hours.
Masonite
must be laid over common area halls for protection during haul-out
or
haul-in. Mats must be kept at entrance to the work area for workmen
to
wipe their feet to prevent dust and debris from entering common
areas.
|
|
20.
|
KEYS
AND MASTER LOCKS: All electronic locks (if used) are to have a manual
key
override, keyed to the building master and approved by the Fire
Department.
|
|
21.
|
PHONE/DATE
CABLE: All phone / data cable installed in the Building common areas
is to
be in metal conduits. Locations of conduit supports or strapping
is to be
approved by the Facility Manager before work starts. All penetrations
in
fire-rated walls are to be sealed with approved material and methods.
All
phone equipment installed in the phone room is to be labeled with
the
tenant’s name and suite number.
|
|
22.
|
PAINTING:
Because of a sensitive Fire Alarm system, NO SPRAY PAINTING IS ALLOWED
unless scheduled one week in advance. No oil-based paint is to be
used
(latex only.) Use appropriate coverings to protect fixtures, carpet,
base
boards, windowpanes and windowsills, and all furnishings. In addition,
any
paint splatter is to be cleaned up completely. Do not clean brushes,
roller pans or any other painting supplies in the restrooms. It is
preferred that painting be done during non-business hours. If this
is done
during normal business hours, the ▇▇▇▇’▇ Building reserves the right to
stop the painting if tenants complain of the odor or
fumes.
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|
23.
|
HEAT
PUMPS: Heat pumps are to be TRANE, unless written approval has been
given
by the Management Office. Heat pump locations are to be approved
in
writing by the Management Office before heat pumps are ordered. The
size
of the heat pumps must meet all the heating and cooling needs of
the
Tenant. Heat pump rooms are to be insulated for sound. Heat pumps
are to
be placed in such a way for easy access to filters, motors, belts,
compressors and all other maintenance needs, such access to be
pre-approved by Management Office.
|
|
24.
|
THERMOSTATS:
Thermostats are to be mercury bulb, Honeywell Tradeline, #Y594G-1252
multistage heat pump thermostats.
|
|
25.
|
SUPPLY
AIR REGISTERS AND DUCTS: The supply air registers and ducts are to
be
designed and sized so that air noise is not an issue with
Tenant.
|
8
|
26.
|
WORKSHOP:
Any area to be used as a workshop is to be approved in writing by
the
Management Office.
|
|
27.
|
SUBMITTAL
LOG: A submittal log is to be kept of all finishes, including but
not
limited to: paint, carpet, base, carpet seaming diagram, lighting,
sand-blasted glass, doors (stain & grain), frames and hardware,
occupancy sensors, electric locks, T -Stats, heat pumps, OTI-l, 2,
3,
& 4 drawings. These submittals have to be approved in writing by the
Tenant and the Management Office before material is
ordered.
|
|
28.
|
SCHEDULING
OF MOVES: All moves in and out of the Building must be scheduled
at least
two weeks in advance with Management Office. The name, phone number
and
contact person of the moving company is required. The freight elevator
will be reserved for the move; however, if two moves are scheduled
to
occur on the same day, the freight elevator will be shared. The moving
company must furnish a Certificate of Insurance at least 48 hours
in
advance of the move, naming both Landlord and Landlord’s Management
Company as co-insureds.
|
|
29.
|
GUARANTY
OF CONSTRUCTION: All contractors shall provide a written guaranty
of all
work and material for a period of at least one year from date of
final
building inspection.
|
|
30.
|
AS
BUILT DRAWINGS: As-Built drawings of Electrical, Mechanical, Fire
Sprinklers, Life Safety and architectural are to be submitted to
the
Management Office upon completion of
work.
|
CONTRACTOR:
The
undersigned has read the Tenant Construction Building Standards and Requirements
and agrees to abide by them.
|
Date
|
|
Company
|
|
Signature
|
|
Name
Printed
|
|
Its
|
9
TABLE
OF CONTENTS
|
Page
|
||
|
SECTION
1.
|
DEFINITIONS
|
3
|
|
SECTION
2.
|
PREMISES
|
5
|
|
SECTION
3.
|
TERM;
CONDITION OF PREMISES
|
5
|
|
SECTION
4.
|
RENTAL
|
6
|
|
SECTION
5.
|
ESCALATION
RENT
|
7
|
|
SECTION
6.
|
USE
AND ACCESS TO PREMISES
|
8
|
|
SECTION
7.
|
SERVICES
|
9
|
|
SECTION
8.
|
ALTERATIONS
|
10
|
|
SECTION
9.
|
REPAIRS;
LANDLORD’S RESERVATION OF RIGHTS
|
10
|
|
SECTION
10.
|
DAMAGE
OR DESTRUCTION
|
11
|
|
SECTION
11.
|
SUBROGATION
|
12
|
|
SECTION
12.
|
INSURANCE
|
12
|
|
SECTION
13.
|
INDEMNIFICATION
|
13
|
|
SECTION
14.
|
COMPLIANCE
WITH LEGAL REQUIREMENTS
|
13
|
|
SECTION
15.
|
ASSIGNMENT
AND SUBLETTING
|
14
|
|
SECTION
16.
|
RULES
AND REGULATIONS
|
15
|
|
SECTION
17.
|
ENTRY
BY LANDLORD
|
16
|
|
SECTION
18.
|
EVENTS
OF DEFAULT
|
16
|
|
SECTION
19.
|
TERMINATION
UPON DEFAULT
|
17
|
|
SECTION
20.
|
EMINENT
DOMAIN
|
18
|
|
SECTION
21.
|
ESTOPPEL
CERTIFICATE
|
18
|
|
SECTION
22.
|
SURRENDER
OF PREMISES; HOLDING OVER
|
19
|
|
SECTION
23.
|
SECURITY
DEPOSIT
|
20
|
|
SECTION
24.
|
LANDLORD’S
LIABILITY
|
20
|
|
SECTION
25.
|
BROKERS
|
20
|
|
SECTION
26.
|
SMOKING
|
20
|
|
SECTION
27.
|
ENTIRE
AGREEMENT
|
21
|
|
SECTION
28.
|
ILLEGALITY
OR UNENFORCEABILITY OF PORTION OF LEASE
|
21
|
|
SECTION
29.
|
GOVERNING
LAW
|
21
|
|
SECTION
30.
|
QUIET
ENJOYMENT
|
21
|
|
SECTION
31.
|
SIGNAGE
|
21
|
|
SECTION
32.
|
SUBORDINATION
|
21
|
i
TABLE
OF CONTENTS (cont.)
|
Page
|
||
|
SECTION
33.
|
ATTORNEYS
FEES
|
22
|
|
SECTION
34.
|
RELOCATION
OF TENANT
|
22
|
|
SECTION
35.
|
NOTICES
|
22
|
|
SECTION
36.
|
TENANT
AUTHORITY
|
23
|
|
SECTION
37.
|
EXHIBITS
|
23
|
|
SECTION
38.
|
OPTION
TO RENEW
|
23
|
Exhibit
A—Legal Description
Exhibit
B—Work Letter
Exhibit
C—Omitted
Exhibit
D—Rules and Regulations
ii