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EXHIBIT 10.23
000 Xxxxxxxxxx Xxxxxx
OFFICE LEASE
February 4 , 1994
LANDLORD: TENANT:
The Equitable Xxxxxxxxxx Company Xxxxxx & Co., Inc.
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Office Lease
BASIC LEASE INFORMATION
Article:
A. Date: February 4, 1994
B. Landlord: The Equitable Montgomery Company
C. Tenant: Xxxxxx & Company, Inc.
D. Building (Paragraph 1(a)): 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx
E. Premises (Paragraph 1(b)): A portion of the 12th floor consisting of
approximately 3,524 rentable square feet,
presently known as Suite 1230 as outlined on
Exhibit "A" attached to this Lease.
F. Term Commencement (Paragraph 2): March 15, 1994 or upon substantial
completion of the Work as defined
in Addendum to this Lease.
G. Term Expiration (Paragraph 2): September 14, 1999
H. Base Rent (Paragraph 3(a)):
Months 1 - 24: $4,845.50 per month; $58,146.00 per annum
Months 25 - 36: $5,065.75 per month; $60,789.00 per annum
Months 37 - 48: $5,168.53 per month; $62,022.40 per annum
Months 49 - 66: $5,432.83 per month; $65,194.00 per annum
I. Base Year (Paragraph 1(c)): 1994
J. Tenant's Percentage Share (Paragraph 1(h)): .91%
K. Security Deposit (Paragraph 32): $5,432.83
L. Tenant's Address 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
for Notices (Paragraph 14): Xxx Xxxxxxxxx, XX 00000
M. Landlord's Address
for Notices (Paragraph 14):
with a copy to:
000 Xxxxxxxxxx Xxxxxx, Xxxxxx of the Building Equitable Real Estate
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Investment Management, Inc.
Attention: Property Manager Xxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Vice President
Asset Management
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N. Brokers (Paragraph 39): Xxxxxxx & Wakefield of California, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
O. Exhibit(s) and Addendum (Paragraph 41):
Exhibit "A" - Demised Premises
Exhibit "B" - Rules & Regulations
Exhibit "C" - Improvement Of The Premises
Addendum
The provisions of the Lease identified above in parentheses are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the event
of any conflict between any Basic Lease Information and the Lease, the latter
shall control.
TENANT LANDLORD
Xxxxxx & Company, Inc. The Equitable Xxxxxxxxxx Company
-------------------------------- -----------------------------------------
By: The Equitable Life Assurance Society
/s/ Xxxxxxx X. Xxxxxx of the United States-Managing Venturer
--------------------------------
By Xxxxxxx X. Xxxxxx By /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------ --------------------------------------
Xxxxxxxxxxx X. Xxxxxx
Its President Its Attorney-in-Fact
-------------------------- -------------------------------------
Date 2/9/94 Date 2/26/94
---------------------------- ------------------------------------
By____________________________ By____________________________
Its__________________________ Its__________________________
Date__________________________ Date__________________________
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TABLE OF CONTENTS
1. Definitions.............................................................................1
2. Term; Condition Of Premises.............................................................2
3. Rental..................................................................................3
4. Escalation Rent Payments................................................................4
5. Use.....................................................................................5
6. Services................................................................................5
7. Impositions Payable By Lessee...........................................................6
8. Alterations.............................................................................7
9. Liens...................................................................................8
10. Repairs.................................................................................8
11. Destruction Or Damage...................................................................8
12. Insurance...............................................................................9
13. Subrogation............................................................................10
14. Indemnification........................................................................10
15. Compliance With Legal Requirements.....................................................11
16. Assignment And Subletting..............................................................11
17. Rules; No Discrimination...............................................................13
18. Entry By Landlord......................................................................14
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19. Events Of Default......................................................................14
20. Termination Upon Default...............................................................15
21. Continuation After Default.............................................................16
22. Other Relief...........................................................................16
23. Landlord's Right To Cure Defaults......................................................16
24. Attorneys' Fees........................................................................16
25. Eminent Domain.........................................................................17
26. Subordination..........................................................................17
27. No Merger..............................................................................18
28. Sale...................................................................................18
29. Estoppel Certificate...................................................................18
30. No Light, Air, Or View Easement........................................................18
31. Holding Over...........................................................................18
32. Security Deposit.......................................................................19
33. Waiver.................................................................................19
34. Notices And Consents...................................................................19
35. Complete Agreement.....................................................................19
36. Corporate Authority....................................................................20
37. Partnership Authority..................................................................20
38. Limitation Of Liability To Building....................................................20
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39. Brokers................................................................................20
40. Miscellaneous..........................................................................20
41. Exhibits...............................................................................21
41. Additional Provisions..................................................................21
Exhibit A - Demised Premises
Exhibit B - Rules and Regulations
Exhibit C - Improvement of the Premises
Addendum
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OFFICE LEASE
THIS LEASE, dated February 4, 1994, for purposes of reference only, is
made and entered into by and between The Equitable Xxxxxxxxxx Company
("Landlord") and Xxxxxx & Company, Inc. ("Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord
the premises described in paragraph 1(b) below for the term and subject to the
terms, covenants, agreements and conditions hereinafter set forth, to each and
all which Landlord and Tenant hereby mutually agree.
1. DEFINITIONS. Unless the context otherwise specifies or requires, the
following terms shall have the meanings herein specified:
(a) The term "Building" shall mean the land and other real
property described in the Basic Lease Information, as well as any property
interest in the area of the streets bounding the parcel described in the Basic
Lease Information, and all other improvements on or appurtenances to said parcel
or said streets.
(b) The term "Premises" shall mean the portion of the Building
located on the floor(s) specified in the Basic Lease Information which is
crosshatched on the floor plan(s) attached to this Lease as Exhibit A.
(c) The term "Base Year" shall mean the calendar year specified
in the Basic Lease Information as the Base Year.
(d) The term "Operating Expenses" shall mean (1) all costs of
management, operation and maintenance of the Building, including, without
limitation: wages, salaries and payroll of employees; property management fees;
janitorial, maintenance, guard and other services; Building office rent or
rental value; power, water, waste disposal and other utilities; materials and
supplies; maintenance, replacements and repairs; insurance premiums and the
deductible portion of any insured loss; and depreciation on personal property;
and (2) the cost of any capital improvements made to the Building by Landlord
after the Base Year that are reasonably anticipated to reduce other Operating
Expenses or are required for the health and safety of tenants, or made to the
Building by Landlord after the date of this Lease that are required under any
governmental law or regulation that was not in effect as of the date of this
Lease, such cost or allocable portion thereof to be amortized over such
reasonable period as Landlord shall determine together with interest on the
unamortized balance at the rate of 10% per annum or such higher rate as may have
been paid by Landlord on funds borrowed for the purpose of constructing such
capital improvements. Operating Expenses shall not include: Property
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Taxes; depreciation on the Building other than depreciation on exterior window
covering provided by Landlord and carpeting in public corridors and common
areas; costs of tenants' improvements; real estate brokers' commissions;
interest (except as stated in clause (2) above); and capital items other than
those referred to in clause (2) above. If less than 95% of the total rentable
area of the Building is occupied during the Base Year or any calendar year
during the term of this Lease, then actual Operating Expenses for such year
shall be adjusted to equal Landlord's reasonable estimate of Operating Expenses
had 95% of the total rentable area of the Building been occupied. Landlord and
Tenant acknowledge that certain of the costs of management, operation and
maintenance of the Building and certain of the costs of the capital improvements
referred to in clause (2) above may be allocated exclusively to a single
component of the Building (e.g., to an office area, a retail area or a parking
facility) and certain of such costs may be allocated among such components. The
determination of such costs and their allocation shall be in accordance with
generally accepted accounting principles applied on a consistent basis. All
operating expense calculations shall be determined in accordance with generally
accepted accounting principles applied on a consistent basis. All operating
expense calculations shall be determined in accordance with GAAP.
(e) The term "Base Operating Expenses" shall mean the Operating
Expenses paid or incurred by Landlord in the Base Year.
(f) The term "Property Taxes" shall mean all real property taxes
and assessments (and any tax levied against the Building or the rents earned in
connection with the Building wholly or partly in lieu thereof) levied against
the Building, and all real estate tax consultant expenses and attorneys' fees
incurred for the purpose of maintaining an equitable assessed valuation of the
Building.(1)
(g) The term "Base Property Taxes" shall mean the amount of
Property Taxes paid by Landlord allocable to the Base Year.
(h) The term "Tenant's percentage share" shall mean the
percentage figure specified in the Basic Lease Information.
2. TERM; CONDITION OF PREMISES. The term of this Lease shall commence
and, unless sooner terminated as hereinafter provided, shall end on the dates
respectively specified in the Basic Lease Information. Unless otherwise agreed
by Landlord and Tenant in this Lease, Landlord shall deliver the Premises to
Tenant on March 15, 1994 or upon substantial completion. If Landlord has
undertaken in this Lease to make any alterations to the Premises prior to
commencement of the term and the alterations are completed prior to the date set
forth in the Basic Lease Information for commencement of the term, if Tenant
desires to take occupancy in
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(1) Property taxes shall not include interest on taxes or penalties resulting
from Landlord's failure to pay taxes.
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advance of such date and Landlord consents to such prior occupancy, Landlord
shall deliver the Premises to Tenant on such advance date as shall be mutually
approved by Landlord and Tenant and, notwithstanding anything to the contrary
contained herein, the term of the Lease shall commence upon such delivery. If
Landlord, for any reason whatsoever, cannot deliver the Premises to Tenant at
the commencement of the term, this Lease shall not be void or voidable, nor
shall Landlord be liable to Tenant for any loss or damage resulting therefrom,
but in that event rental shall be waived for the period between the commencement
of the term and the time when Landlord delivers the Premises to Tenant. No delay
in delivery of the Premises shall operate to extend the term hereof.
3. RENTAL.
(a) Tenant shall pay to Landlord throughout the term of this
Lease as rental for the Premises the sum specified in the Basic Lease
Information as the Base Rent, provided that the rental payable during each
calendar year subsequent to the Base Year shall be the Base Rent, increased by
Tenant's percentage share of the total dollar increase, if any, in Operating
Expenses paid or incurred by Landlord in such year over the Base Operating
Expenses, and also increased by Tenant's percentage share of the total dollar
increase, if any, in Property Taxes paid by Landlord in such year over the Base
Property Taxes. Tenant acknowledges that the Basic Lease Information may set
forth different percentage shares of Operating Expenses and Property Taxes or a
single percentage share applicable to both. The increased rental due pursuant to
this paragraph (a) is hereinafter referred to as "Escalation Rent."
(b) Rental shall be paid to Landlord on or before the first day
of the term hereof and on or before the first day of each and every successive
calendar month thereafter during the term hereof. 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 hereof shall be appropriately
prorated.
(c) All sums of money due from Tenant hereunder not specifically
characterized as rental shall constitute additional rent, and if any such sum is
not paid when due it shall nonetheless be collectible as additional rent with
the next installment of rental thereafter falling due, but nothing contained
herein shall be deemed to suspend or delay the payment of any sum of money at
the time it becomes due and payable hereunder, or to limit any other remedy of
Landlord.
(d) Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder after the expiration of any
applicable grace period described in Paragraph 19(a) will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
difficult to ascertain. Such 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 encumbrances covering the Building and the Premises. Accordingly,
if any installment of rent or any other sums due from Tenant shall not be
received by Landlord prior to the expiration of any applicable grace period
described in Paragraph 19(a), Tenant shall pay to Landlord a late charge equal
to 2% of such overdue amount. The parties hereby agree that such
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late charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder.
(e) Any amount due from Tenant, if not paid when first due
following the expiration of any grace period provided for, if any, hereunder
shall bear interest from the date due until paid at an annual rate equal to 4%
over the annual prime rate of interest announced publicly by Citibank, N.A., in
New York, New York from time to time (but in no event in excess of the maximum
rate of interest permitted by law), provided that interest shall not be payable
on late charges incurred by Tenant nor on any amounts upon which late charges
are paid by Tenant to the extent such interest would cause the total interest to
be in excess of that legally permitted. Payment of interest shall not excuse or
cure any default hereunder by Tenant.
(f) All payments due from Tenant shall be paid to Landlord,
without deduction or offset, in lawful money of the United States of America at
Landlord's address for notices hereunder, or to such other person or at such
other place as Landlord may from time to time designate by notice to Tenant.
4. ESCALATION RENT PAYMENTS.
(a) With respect to each calendar year during the term of this
Lease subsequent to the Base Year, Tenant shall pay to Landlord as additional
rent, at the times hereinafter set forth, an amount equal to the Escalation
Rent. Prior to or anytime after the commencement of any calendar year subsequent
to the Base Year Landlord may, but shall not be required to, notify Tenant of
Landlord's estimate of the amount, if any, of the Escalation Rent for such
current year. Tenant shall pay to Landlord on the first day of each calendar
month during such current calendar year one-twelfth (1/12) of the amount of any
such estimated Escalation Rent for such current calendar year payable by Tenant
hereunder. If at any time or times Landlord determines that the amount of any
Escalation Rent payable by Tenant for the current year will vary from its
estimate by more than 5%, Landlord may, by notice to Tenant, revise Landlord's
estimate for such year, and subsequent payments by Tenant for such year shall be
based on such revised estimate. Following the close of each calendar year,
Landlord shall deliver to Tenant a statement of the actual amount of Escalation
Rent for the immediately preceding year, accompanied by a statement made by an
accounting or auditing officer designated by Landlord showing the Operating
Expenses and Property Taxes on the basis of which Escalation Rent was
determined. The statement of said accounting or auditing officer shall be final
and binding upon Landlord and Tenant. All amounts payable by Tenant as shown on
said statement, less any amounts theretofore paid by Tenant on account of
Landlord's earlier estimate of Escalation Rent for such calendar year made
pursuant to this paragraph 4, shall be paid by or, if Tenant theretofore shall
have paid more than such amounts, reimbursed to Tenant within ten (10) days
after delivery of said statement to Tenant.
(b) If this Lease shall terminate on a day other than the last
day of a calendar year, the amount of any Escalation Rent payable by Tenant for
the calendar year in which the Lease
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terminates shall be prorated on the basis by which the number of days from the
commencement of said calendar year to and including said date on which this
Lease terminates bears to 365 and shall be due and payable when rendered
notwithstanding termination of this Lease. Escalation Rent allocable to the
calendar year in which this Lease terminates shall be deemed to have been
incurred evenly over the entire twelve-month period of that calendar year.
5. USE. The Premises shall be used for general office purposes and no
other. Tenant shall not do or permit to be done in or about the Premises, nor
bring or keep or permit to be brought or kept therein, anything which is
prohibited by or would in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated, or which is prohibited by the standard form of fire insurance
policy, or would in any way increase the existing rate of or affect any fire or
other insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy covering the Building or any part thereof
or any of its contents. Tenant shall not do or permit anything to be done in or
about the Premises which would in any way obstruct or interfere with the rights
of other tenants of the Building, or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable
purposes, nor shall Tenant cause, maintain or permit any nuisance or waste in,
on or about the Premises.
6. SERVICES.
(a) Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, corridors and restrooms,
windows, mechanical, plumbing and electrical equipment, and the structure itself
in reasonably good order and condition except for damage occasioned by the act
of Tenant, its employees, agents, contractors or invitees, which damage shall be
repaired by Landlord at Tenant's expense.
(b) Landlord shall furnish the Premises with (1) electricity for
lighting and the operation of customary office machines, (2) heat and air
conditioning to the extent reasonably required for the comfortable occupancy by
Tenant in its use of the Premises during the period from 8 a.m. to 6 p.m. on
weekdays (except holidays), or such shorter periods as may be prescribed by any
applicable policies or regulations adopted by any utility or governmental
agency, (3) elevator service, (4) lighting replacement (for building standard
lights), (5) restroom supplies, (6) window washing with reasonable frequency,
and (7) security guards and services and daily janitor service during the times
and in the manner that such services are customarily furnished in comparable
office buildings in the area. Landlord may establish reasonable measures to
conserve energy, including but not limited to, automatic switching of lights
after hours, so long as such measures do not unreasonably interfere with
Tenant's use of the Premises. Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from, nor shall the
rental herein reserved be abated by reason of (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the foregoing services, (ii) failure to furnish or delay in furnishing any such
services when such failure or delay is caused by accident or any condition
beyond the reasonable control of Landlord or by the making of 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
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of energy serving the Premises or the Building. Landlord shall use reasonable
efforts diligently to remedy any interruption in the furnishing of such
services.
(c) Whenever heat-generating equipment or lighting other than
building standard lights are used in the Premises by Tenant which affect the
temperature otherwise maintained by the air conditioning system, Landlord shall
have the right, after notice to Tenant, to install supplementary air
conditioning facilities in the Premises or otherwise modify the ventilating and
air conditioning system serving the Premises, and the cost of such facilities
and modifications shall be borne by Tenant. Tenant shall also pay the cost of
providing all cooling energy to the Premises in excess of that required for
normal office use or during hours requested by Tenant when air conditioning is
not otherwise furnished by Landlord. If there is installed in the Premises
lighting requiring power in excess of that required for normal office use in the
Building or if there is installed in the Premises equipment requiring power in
excess of that required for normal desk-top office equipment or normal copying
equipment. Tenant shall pay for the cost of such excess power, together with the
cost of installing any additional risers or other facilities that may be
necessary to furnish such excess power to the Premises.
(d) In the event that Landlord, at Tenant's request, provides
services to Tenant that are not otherwise provided for in this Lease. Tenant
shall pay Landlord's reasonable charges for such services upon billing therefor.
7. IMPOSITIONS PAYABLE BY LESSEE. In addition to the monthly rental and
other charges to be paid by Tenant hereunder, Tenant shall pay or reimburse
Landlord for any and all of the following items thereinafter collectively
referred to as "Impositions"), whether or not now customary or in the
contemplation of the parties hereto taxes (other than local, state and federal
personal or corporate income taxes measured by the net income of Landlord from
all sources), assessments (including, without limitation, all assessments for
public improvements, services or benefits, irrespective of when commenced or
completed), excises, levies, business taxes, license, permit, inspection and
other authorization fees, transit development fees, assessments or charges for
housing funds, service payments in lieu of taxes and any other fees or charges
of any kind, which are levied, assessed, confirmed or imposed by any public
authority, but only to the extent the Impositions are (a) upon, measured by or
reasonably attributable to the cost value of Tenant's equipment, furniture,
fixtures and other personal property located in the Premises, or the cost or
value of any leasehold improvements made in or to the Premises by or for Tenant,
regardless of whether title to such improvements shall be in Tenant or Landlord;
(b) upon or measured by the monthly rental or other charges payable hereunder,
including, without limitation, any gross receipts tax levied by the City and
County of San Francisco, the State of California, the Federal Government or any
other governmental body with respect to the receipt of such rental; (c) upon,
with respect to or by reason of the development, possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (d) upon this transaction or any document to
which Tenant is a party creating or transferring an interest or an estate in the
Premises. In the event that it shall not be lawful for Tenant to reimburse
Landlord for the Impositions but it is lawful to increase the monthly rental to
take into account Landlord's payment of the Impositions, the monthly rental
payable to
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Landlord shall be revised to net Landlord the same net return without
reimbursement of the Impositions as would have been received by Landlord with
reimbursement of the Impositions.
8. ALTERATIONS.
(a) Tenant shall make no alterations, additions or improvements
to the Premises or install fixtures in the Premises without first obtaining
Landlord's consent, which consent shall not be unreasonably withheld. In no
event, however, may the Tenant make any alterations, additions or improvements
or install fixtures which in Landlord's reasonable judgment might adversely
affect the structural components of the Building or Building mechanical, utility
or life safety systems. At the time such consent is requested, Tenant shall
furnish to Landlord a description of the proposed work, an estimate of the cost
thereof and such information as shall reasonably be requested by Landlord
substantiating Tenant's ability to pay for such work. Landlord, at its sole
option, may require as a condition to the granting of such consent to any work
costing in excess of $10,000, that Tenant provide to Landlord, at Tenant's sole
cost and expense, a lien and completion bond in an amount equal to one and
one-half (1 1/2) times any and all estimated costs of the proposed work, to
insure Landlord against any liability for mechanics' and materialmen's liens and
to insure completion of the work. Before commencing any work, Tenant shall give
Landlord at least five (5) days written notice of the proposed commencement of
such work in order to give Landlord an opportunity to prepare, post and record
such notice as may be permitted by law to protect Landlord's interest in the
Premises and the Building from mechanics' and materialmen's liens. Within a
reasonable period following completion of any work for which plans and
specifications were required to obtain a building permit for such work, Tenant
shall furnish to Landlord "as built" plans showing the changes made to the
Premises.
(b) Any alterations, additions or improvements to the Premises
shall be made by Tenant at Tenant's sole cost and expense, and any contractor or
other person selected by Tenant to make the same shall be subject to Landlord's
prior approval, which approval shall not be unreasonably withheld Tenant's
contractor and its subcontractors shall employ union labor to the extent
necessary to insure, so far as may be possible, the progress of the alterations,
additions or improvements and the performance of any other work or the provision
of any services in the Building without interruption on account of strikes, work
stoppage or similar causes of delay. All work performed by Tenant shall comply
with the laws, rules, orders, directions, regulations and requirements of all
governmental entities having jurisdiction over such work and shall comply with
the rules, orders, directions, regulations and requirements of any nationally
recognized board of insurance underwriters. All alterations, additions and
improvements shall immediately become Landlord's property and, at the end of the
term hereof, shall remain on the Premises without compensation to Tenant;
provided, however, that if Landlord at the time of consenting to the making of
such alterations, additions and improvements reserved the right to have Tenant
remove such alterations, additions and improvements, Tenant shall, prior to the
end of the term, at its sole cost and expense, remove the alterations, additions
and improvements and repair and restore the Premises to their condition at the
commencement of the term. Notwithstanding the foregoing, Tenant shall not be
required to remove any improvements installed by other parties prior to the
commencement of the term.
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(c) Tenant acknowledges that there may be asbestos-containing
fireproofing material in the Building and on the Premises. Upon request by
Tenant, Landlord shall provide Tenant with all material information then in
Landlord's possession regarding such fireproofing material. No work affecting
such fireproofing material shall be made without compliance with all applicable
procedures, including procedures promulgated by Landlord, relating to work
involving material containing asbestos.
9. LIENS. Tenants shall keep the Premises and the Building free from any
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant. Landlord shall have the right to post and keep posted on the
Premises any notices that may be provided by law or which Landlord may deem to
be proper for the protection of Landlord, the Premises and the Building from
such liens.
10. REPAIRS. By entry hereunder, Tenant accepts the Premises as being in
the condition in which Landlord is obligated to deliver the Premises, provided
that such acceptance shall not extend to latent defects which are not
discoverable through a diligent inspection of the Premises. Tenant shall, at all
times during the term hereof and at Tenant's sole cost and expense, keep the
Premises in good condition and repair, ordinary wear and tear and damage thereto
by fire, earthquake, act of God or the elements excepted. Tenant hereby waives
all rights to make repairs at the expense of Landlord or in lieu thereof to
vacate the Premises. Tenant shall at the end of the term hereof surrender to
Landlord the Premises and all Alterations thereto in the same condition as when
received, ordinary wear and tear and damage by fire, earthquake, act of God or
the elements excepted. Landlord had no obligation and has made no promise to
alter, remodel, improve, repair, decorate or paint the Premises or any part
thereof, except as specifically herein set forth. No representations respecting
the condition of the Premises or the Building have been made by Landlord to
Tenant, except as specifically herein set forth. Landlord agrees to repair and
maintain the structural components of the Building, including but not limited to
the foundation, bearing and exterior walls, sub-flooring and roof, as well as
the elevators, the electrical, mechanical, plumbing, sewage, heating,
ventilating and air conditioning systems, the Common Areas. Tenant shall be
responsible for the repair and maintenance of any supplemental air conditioning
equipment installed by Tenant or Tenant's contractor within the Premises. Tenant
shall provide Landlord a copy of the maintenance agreement for such equipment
within thirty (30) days of such installation.
Landlord shall use reasonable efforts to enforce construction
warranties' obtained from the initial tenant improvements to the Premises.
11. DESTRUCTION OR DAMAGE.
(a) In the event the Premises or the portion of the Building
necessary for Tenant's use and enjoyment of the Premises are damaged by fire,
earthquake, act of God, the elements or other casualty, Landlord shall repair
the same, subject to the provisions of this paragraph hereinafter set forth, if
(i) such repairs can, in Landlord's opinion, be made within a period of 120 days
after commencement of the repair work, (ii) the cost of repairing damage for
which Landlord is not insured shall be less than ten percent (10%) of the then
full insurable value of the
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Premises with respect to repairing any damage to the Premises or five percent
(5%) of the then full insurable value of the Building with respect to repairing
any damage to other areas of the Building, and (iii) the damage or destruction
does not occur during the last twelve (12) months of the term of this Lease or
any extension thereof. This Lease shall remain in full force and effect except
that so long as the damage or destruction is not caused by the fault or
negligence of Tenant, its contractors, agents, employees or invitees, an
abatement of rental shall be allowed Tenant for such part of the Premises as
shall be rendered unusable by Tenant in the conduct of its business during the
time such part is so unusable.
(b) As soon as is reasonably possible following the occurrence of
any damage, Landlord shall notify Tenant of the estimated time and cost required
for the repair or restoration of the Premises or the portion of the Building
necessary for Tenant's occupancy. If, in Landlord's opinion, such repairs cannot
be made within 120 days as set forth in paragraph (a)(i) above. Landlord or
Tenant may elect by written notice to the other within 30 days after Landlord's
notice of estimated time and cost is given, to terminate this Lease effective as
of the date of such damage or destruction. If Landlord is not obligated to
effect the repair based upon the circumstances set forth in paragraphs (a)(ii)
or (a)(iii) above. Landlord shall have the right to terminate this Lease, by
written notice to Tenant within 30 days after Landlord's notice of time and cost
is given, effective as of the date of such damage or destruction. If neither
party so elects to terminate this Lease, this Lease shall continue in full force
and effect, but the rent shall be partially abated as hereinabove in this
paragraph provided, and Landlord shall proceed diligently to repair such damage.
(c) A total destruction of the Building shall automatically
terminate this Lease. Tenant waives California Civil Code Sections 1932(2) and
1933(4) providing for termination of hiring upon destruction of the thing hired.
(d) In no event shall Tenant be entitled to any compensation or
damages from Landlord, specifically including, but not limited to, any
compensation or damages for (i) loss of the use of the whole or any part of the
Premises, (ii) damage to Tenant's personal property in or improvements to the
Premises, or (iii) any inconvenience, annoyance or expense occasioned by such
damage or repair (including moving expenses and the expense of establishing and
maintaining any temporary facilities).
(e) Landlord, in repairing the Premises, shall not be required to
repair any injury or damage to the personal property of Tenant, or to make any
repairs to or replacement of any alterations, additions, improvements or
fixtures installed on the Premises by or for Tenant.
12. INSURANCE.
(a) Tenant agrees to procure and maintain in force during the
term hereof, at Tenant's sole cost and expense, (i) personal injury liability
insurance with limits of not less than $1,000,000 per person and $1,000,000 per
occurrence for injuries to or death of persons occurring in, on or about the
Premises or the Building, and (ii) property damage liability insurance with a
limit of not less than $1,000,000 per accident. All such insurance policies
shall name Landlord, Landlord's managing agent and any other party designated by
Landlord as
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additional insureds; shall insure the performance by Tenant of its indemnity
obligations set forth in paragraph 14 of this Lease; shall insure Landlord's and
Landlord's managing agent's contingent liability as respects acts or omissions
of Tenant; shall be issued by insurance companies licensed to do business in the
State of California and otherwise reasonably acceptable to Landlord; and shall
provide that such insurance may not be cancelled nor amended without thirty (30)
days prior written notice to Landlord. Tenant may carry said insurance under a
blanket policy, provided however, said insurance by Tenant shall include an
endorsement confirming application to and coverage of Landlord.
(b) A copy of each policy of insurance shall be delivered to
Landlord by Tenant prior to commencement of the term of this Lease and upon each
renewal of such insurance.
(c) Tenant shall, prior to and throughout the term of this Lease,
procure from each of its insurers under all policies of fire, theft, public
liability, workers' compensation and any other insurance policies of Tenant now
or hereafter existing, pertaining in any way to the Premises or the Building or
any operation therein, a waiver, as set forth in paragraph 13 of this Lease, of
all rights of subrogation which the insurer might otherwise, if at all, have
against Landlord or any officer, agent or employee of Landlord (including
Landlord's managing agent).
(d) Throughout the term of the Lease and any extension thereof,
Landlord shall maintain all risk and liability insurance in amounts and with
such deductibles as other comparable buildings in the San Francisco Financial
District.
13. SUBROGATION. Landlord and Tenant shall each obtain from its
respective insurers under all policies of fire, theft, public liability,
workers' compensation and other insurance maintained by either of them at any
time during the term hereof insuring or covering the Building or any portion
thereof or operations therein, a waiver of all rights of subrogation which the
insurer of one party might have against the other party, and Landlord and Tenant
shall each indemnify the other against and reimburse the other for any and all
loss or expense, including reasonable attorneys' fees, resulting from the
failure to obtain such waiver.
14. INDEMNIFICATION. Tenant hereby waives all claims against Landlord
for damage to any property or injury or death of any person in, upon or about
the Premises arising at any time and from any cause other than principally by
reason of gross negligence or will act of Landlord, its employees or
contractors, and Tenant shall hold Landlord harmless from and reimburse Landlord
for any and all damage to any property or injury to or death of any person
arising from the use or occupancy of the Premises by Tenant or Tenant's failure
to perform its obligations under this Lease, except such as is caused
principally by gross negligence or willful act of Landlord, its contractors or
employees. The foregoing indemnity obligation of Tenant shall include reasonable
attorneys' fees, investigation costs and all other reasonable costs and expenses
incurred by Landlord from the first notice that injury, death or damage has
occurred or that any claim or demand is to be made or may be made. The
provisions of this paragraph shall survive the termination of this Lease with
respect to any damage, injury or death occurring prior to such termination.
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15. COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant, at its sole cost and
expense, shall promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted, with any direction or
occupancy certificate issued pursuant to any law by any public officer or
officers, as well as the provisions of all recorded documents affecting the
Premises (including, without limitation, any ground lease, mortgage or
covenants, conditions and restrictions), insofar as any thereof relate to or
affect the condition, use or occupancy of the Premises, including structural
utility system and life safety system changes necessitated by Tenant's acts, use
of the Premises or by improvements made by or for Tenant.
16. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior consent of Landlord,
which consent shall not be unreasonably withheld by Landlord, transfer, assign
or hypothecate this Lease or any interest herein, sublet the Premises or any
part thereof, or permit the use of the Premises by any party other than Tenant.
This Lease shall not, nor shall any interest herein, be assignable as to the
interest of Tenant by operation of law without the consent of Landlord, which
consent shall not be unreasonably withheld. Any of the foregoing acts without
such consent shall be void and shall, at the option of Landlord, terminate this
Lease. In connection with each consent requested by Tenant, Tenant shall submit
to Landlord the terms of the proposed transaction, the identity of the parties
to the transaction, the proposed documentation for the transaction, and all
other information reasonably requested by Landlord concerning the proposed
transaction and the parties involved.
(b) If the Tenant is a privately held corporation, or is an
unincorporated association or partnership, the transfer, assignment, or
hypothecation of any stock or interest in such corporation, association, or
partnership in excess of fifty percent (50%) in the aggregate shall be deemed an
assignment or transfer within the meaning and provisions of this paragraph 16.
If Tenant is a publicly held corporation, the public trading of stock in Tenant
shall not be deemed an assignment or transfer within the meaning of this
paragraph.
(c) Without limiting the other instances in which it may be
reasonable for Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for Landlord to
withhold its consent in the following instances:
(1) if at the time consent is requested or at any time
prior to the granting of consent, Tenant is in default under this Lease or would
be in default under this Lease but for the pendency of any grace or cure period
under paragraph 19 below;
(2) if the proposed assignee or sublessee is a
governmental agency;
(3) if, in Landlord's reasonable judgment, the use of the
Premises by the Proposed assignee or sublessee would not be comparable to the
types of office use by other tenants in the Building, would entail any
alterations which would lessen the value of the
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leasehold improvements in the Premises, would result in more than a reasonable
number of occupants per floor, would require increased services by Landlord or
would conflict with any so-called "exclusive" or percentage leases then in favor
of another tenant of the Building;
(4) if, in Landlord's reasonable judgment, the financial
worth of the proposed assignee or sublessee does not meet the credit standards
applied by Landlord for other tenants under leases with comparable terms, or the
character, reputation, or business of the proposed assignee or sublessee is not
consistent with the quality of the other tenancies in the Building;
(5) if the subletting would result in the division of the
Premises into three or more units; and
(6) if the proposed assignee or sublessee is an existing
tenant of the Building.
(d) If at any time during the term of this Lease Tenant desires
to assign its interest in this Lease or sublet all or part of the Premises,
Tenant shall give notice to Landlord setting forth the terms of the proposed
assignment or subletting ("Tenant's Notice"). Landlord shall have the option,
exercisable by notice given to Tenant within thirty (30) days after Tenant's
Notice is given (Landlord's Option Period"), either (1) to consent to the
assignment in which event the provisions of paragraph (g) shall be applicable,
or to consent to the subletting in which event the provisions of paragraph (h)
shall be applicable; (2) to become the assignee or sublessee of Tenant (instead
of the entity specified in Tenant's Notice) upon the terms set forth in Tenant's
Notice; (3) in the event of a proposed assignment, to terminate this Lease and
to retake possession of the Premises; or (4) in the event of a proposed
subletting of the entire Premises, or a portion of the Premises for all or
substantially all of the remainder of the term, to terminate this Lease with
respect to, and to retake possession of, such space, together with, if only a
portion of the Premises is involved, such rights of access to and from such
portion as may be reasonably required for its use and enjoyment. If Landlord
does not exercise one of such options, Tenant shall be free for a period of 120
days after Landlord's Option Period, to assign its entire interest in this Lease
or to sublet such space to the entity specified in Tenant's Notice upon the
terms set forth therein or to any third party upon the same terms set forth in
Tenant's Notice, subject to obtaining Landlord's prior consent as hereinabove
provided.
(e) Notwithstanding the provisions of paragraphs (a) and (b)
above, Tenant may assign this Lease or sublet the Premises or any portion
thereof, with prior notice to Landlord but without the necessity of Landlord's
consent and without extending any option to Landlord pursuant to paragraph (d)
above, to any corporation which controls, is controlled by or is under common
control with Tenant, to any corporation resulting from the merger or
consolidation with Tenant, or to any person or entity which acquires all the
assets of Tenant as a going concern of the business that is being conducted on
the Premises.
(f) No sublessee (other than Landlord if it exercises its option
pursuant to paragraph (d) above) shall have a right further to sublet without
Landlord's prior consent, which Tenant acknowledges may be withheld in
Landlord's absolute discretion, and any assignment by
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a sublessee of its sublease shall be subject to Landlord's prior consent in the
same manner as if Tenant were entering into a new sublease. No sublease, once
consented to by Landlord, shall be modified or terminated by Tenant without
Landlord's prior consent, which consent shall not be unreasonably withheld.
(g) In the case of an assignment to an entity other than
Landlord, 50% of any sums or other economic consideration received by Tenant as
a result of such assignment shall be paid to Landlord after first deducting the
unamortized cost of leasehold improvements paid for by Tenant, and the cost of
any real estate commissions or legal fees not to exceed $1,500 incurred by
Tenant in connection with such assignment.
(h) In the case of a subletting to an entity other than Landlord,
50% of any sums or economic consideration received by Tenant as a result of such
subletting shall be paid to Landlord after first deducting (1) the rental due
hereunder, prorated to reflect only rental allocable to the sublet portion of
the Premises, (2) the cost of leasehold improvements made to the sublet portion
of the Premises at Tenant's cost, amortized over the term of this Lease except
for leasehold improvements made for the specific benefit of the sublessee, which
shall be amortized over the term of the sublease, and (3) the cost of any real
estate commissions or legal fees not to exceed $1,500 incurred by Tenant in
connection with such subletting, amortized over the term of the sublease.
(i) Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation or alter the primary liability of
Tenant to pay the rental and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of rental by Landlord from any other person
shall not be deemed to be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee of Tenant or
any successor of Tenant in the performance of any of the terms hereof, Landlord
may proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or successor. Landlord may consent to subsequent
assignments or subletting of this Lease or amendments or modifications to this
Lease with assignees of Tenant, without notifying Tenant, or any successor of
Tenant, and without obtaining its or their consent thereto, and such action
shall not relieve Tenant of liability under this Lease.
(j) In the event Tenant shall assign this Lease or sublet the
Premises or request the consent of Landlord to any assignment, subletting,
hypothecation or other action requiring Landlord's consent hereunder, then
Tenant shall pay Landlord's then reasonable and standard processing fee and
Landlord's reasonable attorneys' fees incurred in connection therewith.
17. RULES; NO DISCRIMINATION. Tenant shall faithfully observe and comply
with the rules and regulations annexed to this Lease, and after notice thereof,
all reasonable modifications thereof and additions thereto from time to time
promulgated in writing by Landlord. Landlord shall not be responsible to Tenant
for the nonperformance by any other tenant or occupant of the Building of any of
said rules and regulations. Tenant specifically covenants and agrees that Tenant
shall not discriminate against or segregate any person or group of persons on
account of
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race, sex, creed, color, national origin, or ancestry in the occupancy, use,
sublease, tenure or enjoyment of the Premises.
18. ENTRY BY LANDLORD. Landlord may enter the Premises at reasonable
hours to (a) inspect the same; (b) exhibit the same to prospective purchasers,
lenders or tenants, provided, however, that Landlord shall only exhibit the
Premises to prospective tenants during the final 90 days of Tenant's occupancy
of the Premises; (c) determine whether Tenant is complying with all its
obligations hereunder; (d) supply janitor service and any other service to be
provided by Landlord to Tenant hereunder; (e) post notices of nonresponsibility;
and (f) make repairs required of Landlord under the terms hereof or repairs to
any adjoining space or utility services or make repairs, alterations or
improvements to any other portion of the Building; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any inconvenience to or interference with Tenant's
business or any loss of occupancy or quiet enjoyment of the Premises occasioned
by such entry. Landlord shall at all times have and retain a key with which to
unlock all of the doors in, on or about the Premises (excluding Tenant's vaults,
safes and similar areas designated in writing by Tenant in advance); and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open Tenant's doors in an emergency in order to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord in an emergency
shall not be construed or deemed to be a forcible or unlawful entry into or a
detainer of the Premises or an eviction, actual or constructive, of Tenant from
the Premises or any portion thereof.
19. EVENTS OF DEFAULT. The following events shall constitute Events of
Default under this Lease:
(a) a default by Tenant in the payment when due of any rent or
other sum payable hereunder and the continuation of such default for a period of
10 days after the same is due, provided that if Tenant has failed three or more
times in any twelve-month period to pay any rent or other sum within 10 days
after the due date, no grace period shall thereafter be applicable hereunder.
(b) a default by Tenant in the performance of any of the other
terms, covenants, agreements or conditions contained herein and, if the default
is curable, the continuation of such default for a period of 20 days after
notice by Landlord or beyond the time reasonably necessary for cure if the
default is of a nature to require more than 20 days to remedy, provided that if
Tenant has defaulted in the performance of the same obligation three or more
times in any twelve-month period and notice of such default has been given by
Landlord in each instance, no cure period shall thereafter be applicable
hereunder.
(c) the bankruptcy or insolvency of Tenant, transfer by Tenant in
fraud of creditors, an assignment by Tenant for the benefit of creditors, or the
commencement of any proceedings of any kind by or against Tenant under any
provision of the Federal Bankruptcy Act or under any other insolvency,
bankruptcy or reorganization act unless, in the event any such proceedings are
involuntary, Tenant is discharged from the same within 60 days thereafter;
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(d) the appointment of a receiver for a substantial part of the
assets of Tenant;
(e) the abandonment of the Premises; and
(f) the levy upon this Lease or any estate of Tenant hereunder by
any attachment or execution and the failure to have such attachment or execution
vacated within 20 days thereafter.
20. TERMINATION UPON DEFAULT. Upon the occurrence of any Event of
Default by Tenant hereunder, Landlord may, at its option and without any further
notice or demand, in addition to any other rights and remedies given hereunder
or by law, terminate this Lease and exercise its remedies relating thereto in
accordance with the following provisions:
(a) Landlord shall have the right, so long as the Event of
Default remains uncured, to give notice of termination to Tenant, and on the
date specified in such notice this Lease shall terminate.
(b) In the event of any such termination of this Lease, Landlord
may then or at any time thereafter by judicial process, re-enter the Premises
and remove therefrom all persons and property and again repossess and enjoy the
Premises, without prejudice to any other remedies that Landlord may have by
reason of Tenant's default or of such termination.
(c) In the event of any such termination of this Lease, and in
addition to any other rights and remedies Landlord may have, Landlord shall have
all of the rights and remedies of a landlord provided by Section 1951.2 of the
California Civil Code. The amount of damages which Landlord may recover in event
of such termination shall include, without limitation, (1) the worth at the time
of award (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) of
the amount by which the unpaid rent for the balance of the term after the time
of award exceeds the amount of rental loss that Tenant proves could be
reasonably avoided, (2) all legal expenses and other related costs incurred by
Landlord following Tenant's default, (3) all costs incurred by Landlord in
restoring the Premises to good order and condition, or in remodeling, renovating
or otherwise preparing the Premises for reletting, and (4) all costs (including,
without limitation, any brokerage commissions) incurred by Landlord in reletting
the Premises.
(d) After terminating this Lease, Landlord may remove any and all
personal property located in the Premises and place such property in a public or
private warehouse or elsewhere at the sole cost and expense of Tenant. In the
event that Tenant shall not immediately pay the cost of storage of such property
after the same has been stored for a period of thirty (30) days or more,
Landlord may sell any or all thereof at a public or private sale in such manner
and at such times and places as Landlord in its sole discretion may deem proper,
without notice to or demand upon Tenant, Tenant waives all claims for damages
that may be caused by Landlord's removing or storing or selling the property as
herein provided, and Tenant shall indemnify and hold Landlord free and harmless
from and against any and all losses, costs and damages, including without
limitation all costs of court and attorneys' fees of Landlord occasioned
thereby.
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(e) In the event of the occurrence of any of the events specified
in paragraph 19(c) of this Lease, if Landlord shall not choose to exercise, or
by law shall not be able to exercise, its rights hereunder to terminate this
Lease, then, in addition to any other rights of Landlord hereunder or by law,
(1) Landlord may discontinue the services provided pursuant to paragraph 6 of
this Lease, unless Landlord has received compensation in advance for such
services in the amount of Landlord's reasonable estimate of the compensation
required with respect to such services, and (2) neither Tenant, as
debtor-in-possession, nor any trustee or other person (collectively, the
"Assuming Tenant") shall be entitled to assume this Lease unless on or before
the date of such assumption, the Assuming Tenant (a) cures, or provides adequate
assurance that the Assuming Tenant will promptly cure, any existing default
under this Lease, (b) compensates, or provides adequate assurance that the
Assuming Tenant will promptly compensate, Landlord for any pecuniary loss
(including, without limitation, attorneys' fees and disbursements) resulting
from such default, and (c) provides adequate assurance of future performance
under this Lease. For purposes of this subparagraph (c), "adequate assurance" of
such cure, compensation or future performance shall be effected by the
establishment of an escrow fund for the amount at issue or by bonding.
21. CONTINUATION AFTER DEFAULT. Even though Tenant has breached this
Lease and abandoned the Premises, this Lease shall continue in effect for so
long as Landlord does not terminate Tenant's right to possession, and Landlord
may enforce all rights and remedies under this Lease, including the right to
recover the rental as it becomes due under this Lease. Acts of maintenance or
preservation or efforts to relet the Premises or the appointment of a receiver
upon initiative of Landlord to protect Landlord's interest under this Lease
shall not constitute a termination of Tenant's right to possession.
22. OTHER RELIEF. The remedies provided for in this Lease are in
addition to any other remedies available to Landlord at law or in equity by
statute or otherwise.
23. LANDLORD'S RIGHT TO CURE DEFAULTS. All agreements and provisions to
be performed by Tenant under any of the terms of this Lease shall be at its sole
cost and expense and without any abatement of rental. If Tenant shall fail to
pay any sum of money, other than rental, required to be paid by it hereunder or
shall fail to perform any other act on its part to be performed hereunder and
such failure shall continue for 20 days after notice thereof by Landlord, or
such longer period as may be allowed hereunder, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such other act on Tenant's part
to be made or performed as in this Lease provided. All sums so paid by Landlord
(with interest at an annual rate equal to four percent (4%) over the annual
prime rate of interest announced publicly by Citibank, N.A., in New York, New
York from time to time, but in no event in excess of the maximum interest rate
permitted by law) and all necessary incidental costs shall be payable to
Landlord on demand.
24. ATTORNEYS' FEES. If as a result of any breach or default in the
performance of any of the provisions of this Lease, Landlord uses the services
of an attorney in order to secure compliance with such provisions or recover
damages therefor, or to terminate this Lease or evict Tenant, Tenant shall
reimburse Landlord upon demand for any and all reasonable attorneys' fees
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and expenses so incurred by Landlord, provided that if Tenant shall be the
prevailing party in any legal action brought by Landlord against Tenant, Tenant
shall be entitled to recover reasonable attorneys' fees and expenses incurred by
Tenant.
25. EMINENT DOMAIN. If all or any part of the Premises shall be taken as
a result of the exercise of the power of eminent domain, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the case of
a partial taking, either Landlord or Tenant shall have the right to terminate
this Lease as to the balance of the Premises by notice to the other within 30
days after such date, provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the Premises
taken shall be of such extent and nature as substantially to handicap, impede or
impair Tenant's use of the balance of the Premises. In the event of any taking,
Landlord shall be entitled to any and all compensation, damages, income, rent,
awards, or any interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease or otherwise. In the event of a
partial taking of the Premises which does not result in a termination of this
Lease, the monthly rental thereafter to be paid shall be equitably reduced.
26. SUBORDINATION.
(a) This Lease shall be subject and subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the Building and to any and all advances made on the
security thereof or Landlord's interest therein, and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding the foregoing, if any mortgagee, trustee or ground lessor shall
elect to have this Lease prior to the lien of its mortgage or deed of trust or
prior to its ground lease, and shall give notice thereof to Tenant, this Lease
shall be deemed prior to the mortgage, deed of trust, or ground lease, whether
this Lease is dated prior or subsequent to the date of the mortgage, deed of
trust or ground lease or the date of recording thereof. In the event any
mortgage or deed of trust to which this Lease is subordinate is foreclosed or a
deed in lieu of foreclosure is given to the mortgagee or beneficiary, Tenant
shall attorn to the purchaser at the foreclosure or to the grantee under the
deed in lieu of foreclosure; in the event any ground lease to which this Lease
is subordinate is terminated, Tenant shall attorn to the ground lessor. Tenant
agrees to execute any documents required to effectuate such subordination, to
make this Lease prior to the lien of any mortgage or deed of trust or ground
lease, or to evidence such attornment.
(b) In the event any mortgage or deed of trust to which this
Lease is subordinate is foreclosed or a deed in lieu of foreclosure is given to
the mortgagee or beneficiary, or in the event any ground lease to which this
Lease is subordinate is terminated, this Lease shall not be barred, terminated,
cut off or foreclosed nor shall the rights and possession of Tenant hereunder be
disturbed if Tenant shall not then be in default in the payment of rental and
other sums due hereunder or otherwise be in default under the terms of this
Lease, and if Tenant shall attorn to the purchaser, grantee, or ground lessor as
provided in paragraph (a) above or, if requested, enter into a new lease for the
balance of the term hereof upon the same terms and provisions as are contained
in this Lease. Tenant's covenant under paragraph (a) above to subordinate this
Lease to any ground lease, mortgage, deed of trust or other hypothecation
hereafter executed is
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conditioned upon each such senior instrument containing the commitments
specified in this paragraph (b).
27. NO MERGER. The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, shall not work a merger, and shall, at the
option of Landlord, terminate all or any existing subleases or subtenancies, or
operate as an assignment to it of an or all such subleases or subtenancies.
28. SALE. In the event the original Landlord hereunder, or any successor
owner of the Building, shall sell or convey the Building, all liabilities and
obligations on the part of the original Landlord, or such successor owner, under
this Lease accruing thereafter shall terminate, and thereupon all such
liabilities and obligations shall be binding upon the new owner. Tenant agrees
to attorn to such new owner.
29. ESTOPPEL CERTIFICATE. At any time and from time to time but on not
less than 10 days prior notice by Landlord, Tenant shall execute, acknowledge,
and deliver to Landlord, promptly upon request, a certificate certifying (a)
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that this Lease is in full force and effect, as modified,
and stating the date and nature of each modification), (b) the date, if any, to
which rental and other sums payable hereunder have been paid, (c) that no notice
has been received by Tenant of any default which has not been cured, except as
to defaults specified in the certificate, and (d) such other matters as may be
reasonably requested by Landlord. Any such certificate may be relied upon by any
prospective purchaser, mortgagee or beneficiary under any deed of trust on the
Building or any part thereof.
30. NO LIGHT, AIR, OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which may be erected on lands adjacent to
the Building shall in no way affect this Lease or impose any liability on
Landlord.
31. HOLDING OVER.
(a) 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 upon the terms herein specified but at a monthly
rental equivalent to 150% of the then prevailing monthly rental paid by Tenant
at the expiration of the term of this Lease, payable in advance on or before the
first day of each month. Each party shall give the other notice at least one
month prior to the date of termination of such monthly tenancy of its intention
to terminate such tenancy.
(b) If, over Landlord's objection, Tenant holds possession of the
Premises after expiration of the term of this Lease or expiration of its
holdover tenancy, without limiting the liability of Tenant for its unauthorized
occupancy of the Premises, Tenant shall pay rent at a monthly rental equivalent
to 200% of the then prevailing monthly rental paid by Tenant at the expiration
of the term of this Lease and 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 timely to vacate the
Premises.
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32. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum
specified in the Basic Lease Information (the "deposit"). The deposit shall be
held by Landlord as security for the faithful performance by Tenant of all the
provisions of this Lease to be performed or observed by Tenant. If Tenant fails
to pay rent or other sums due hereunder (after the expiration of any applicable
grace period) or otherwise defaults with respect to any provisions of this Lease
(after the expiration of any applicable grace period), Landlord may use, apply
or retain all or any portion of the deposit for the payment of any rent or other
sum in default or for the payment of any other sum to which Landlord may become
obligated by reason of Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer thereby. If Landlord so uses or applies all
or any portion of the deposit, Tenant shall within 10 days after demand therefor
deposit cash with Landlord in an amount sufficient to restore the deposit to the
full amount thereof 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 its
general accounts. If Tenant performs all of Tenant's obligations hereunder, the
deposit, or so much thereof as has not theretofore been 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 hereunder) at the expiration of the
term hereof, and after Tenant has vacated the Premises. No trust relationship is
created herein between Landlord and Tenant with respect to the deposit.
33. WAIVER. The waiver by Landlord of any agreement, condition or
provision herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other agreement, condition or provision herein
contained, nor shall any custom or practice which may grow up between the
parties in the administration of the terms be construed to waive or to lessen
the right of Landlord to insist upon the performance by Tenant in strict
accordance with such terms. The subsequent acceptance of rental hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any agreement, condition or provision of this Lease, other than the failure of
Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge of the preceding breach at the time of acceptance of the rental.
34. NOTICES AND CONSENTS. All notices, consents, demands and other
communications from one party to the other that are given pursuant to the terms
of this Lease shall be in writing and shall be deemed to have been fully given
when deposited in the United States mail, certified or registered, postage
prepaid, and addressed as follows: to Tenant at the address specified in the
Basic Lease Information, or to such other place as Tenant may from time to time
designate in a notice to Landlord; to Landlord at the address specified in the
Basic Lease Information, or to such other place as Landlord may from time to
time designate in a notice to Tenant; or, in the case of Tenant, delivered to
Tenant at the Premises. Tenant hereby appoints as its agent to receive the
service of all dispossessory or distraint proceedings and notices thereunder the
person in charge of or occupying the Premises at the time, and, if no person
shall be in charge of or occupying the same, then such service may be made by
attaching the same on the main entrance of the Premises.
35. COMPLETE AGREEMENT. There are no oral agreements between Landlord
and Tenant affecting this Lease, and this Lease supersedes and cancels any and
all previous negotiations, arrangements, brochures, agreements, and
understandings if any, between Landlord and Tenant
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or displayed by Landlord to Tenant with respect to the subject matter of this
Lease, the Building or related facilities. There are no representations between
Landlord and Tenant other than those contained in this Lease and all reliance
with respect to any representation is solely upon such representations. All
implied warranties, including implied warranties of merchantability and fitness,
are excluded.
36. CORPORATE AUTHORITY. If Tenant signs as a corporation, each of the
persons executing this Lease on behalf of Tenant warrants that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in California, that the corporation has full right and authority to
enter into this Lease, and that each and both of the persons signing on behalf
of the corporation were authorized to do so.
37. PARTNERSHIP AUTHORITY. If Tenant is a partnership, joint venture, or
other unincorporated association, each individual executing this Lease on behalf
of Tenant warrants that this Lease is binding on Tenant and that each and both
of the persons signing on behalf of Tenant were authorized to do so.
38. LIMITATION OF LIABILITY TO BUILDING. The liability of Landlord to
Tenant for any default by Landlord under this Lease or arising in connection
with Landlord's operation, management, leasing, repair, renovation, alteration,
or any other matter relating to the Building or the Premises, shall be limited
to the interest of Landlord in the Building. Tenant agrees to look solely to
Landlord's interest in the Building for the recovery of any judgment against
Landlord, and Landlord shall not be personally liable for any such judgment or
deficiency after execution thereon. The limitations of liability contained in
this paragraph 38 shall apply equally and inure to the benefit of Landlord, its
successors and their respective, present and future partners of all tiers,
beneficiaries, officers, directors, trustees, shareholders, agents and
employees, and their respective heirs, successors and assigns. Under no
circumstances shall any present or future general partner of Landlord (if
Landlord is a partnership) or individual trustee or beneficiary (if Landlord or
any partner of Landlord is a trust) have any liability for the performance of
Landlord's obligations under this Lease.
39. BROKERS. Tenant and Landlord each confirms and represents to the
other party that each party has contacted and dealt with solely the broker
identified in the Basic Lease Information and that no other broker has
participated in the negotiation of this Lease or is entitled to any commission
in connection with this Lease.
40. MISCELLANEOUS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. Time is of the essence of this Lease and each and all of its
provisions. Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant. The agreements, conditions and provisions herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
executors, administrators, successors and assigns of the parties hereto. Tenant
shall not, without the consent of Landlord, use the name of the Building for any
purpose other
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than as the address of the business to be conducted by Tenant in the Premises.
If any provision of this Lease shall be determined to be illegal or
unenforceable, such determination shall not affect any other provision of this
Lease and all such other provisions shall remain in full force and effect. This
Lease shall be governed by and construed pursuant to the laws of the State of
California.
41. EXHIBITS. The exhibit(s) and addendum, if any, specified in the
Basic Lease Information are attached to this Lease and by this reference made a
part hereof.
41. ADDITIONAL PROVISIONS.
IN WITNESS WHEREOF, the parties have executed this Lease on the
respective dates indicated below:
TENANT
Xxxxxx & Company, Inc.
----------------------------------
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
By Xxxxxxx X. Xxxxxx
--------------------------------
Its President
----------------------------
By____________________________
Its__________________________
Date of Execution
by Tenant: 2/9/94
LANDLORD
The Equitable Xxxxxxxxxx Company
By: The Equitable Life Assurance Society
of the United States-Managing Venturer
By /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxxxxx X. Xxxxxx
Its Attorney-in-Fact
-------------------------------
By_________________________________
Its_______________________________
Date of Execution
by Landlord: 2/26/94
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DIAGRAM
Exhibit "A"
Diagram Demised Property
Suite _______
Xxxxxx & Company, Inc.
Lease dated February 4, 1994
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EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, halls, passages, exits, entrances, shopping malls,
elevators, escalators and stairways of the Building shall not be obstructed by
any of the tenants or used by them for any purpose other than for ingress to and
egress from their respective Premises. The halls, passages, exits, entrances,
shopping malls, elevators, escalators and stairways are not for the general
public, and Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of Landlord would
be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal activities. No tenant and no employee or invitee of any tenant shall go
upon the roof of the Building except such roof or portion thereof as may be
contiguous to the Premises of a particular tenant and may be designated in
writing by Landlord as a roof deck or roof garden area.
2. No sign, placard, picture, name, advertisement or notice visible from
the exterior of any tenant's Premises shall 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. Each
tenant shall conform to such guidelines, but may request approval of Landlord
for modifications, which approval will not be unreasonably withheld. All
approved signs or lettering on doors shall be printed, painted, affixed or
inscribed at the expense of the tenant by a person approved by Landlord, which
approval will not be unreasonably withheld. Material visible from outside the
Building will not be permitted.
3. The Premises shall not be used for the storage of merchandise held
for sale to the general public or for lodging. No cooking shall be done or
permitted by an tenant on the Premises, except that use by the tenant of food
and beverage vending machines and Underwriters' Laboratory approved microwave
ovens and equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, provided that such use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
4. No tenant shall employ any person or persons other than Landlord's
janitorial service for the purpose of cleaning the Premises, unless otherwise
approved by Landlord. No person or persons other than those approved by Landlord
shall be permitted to enter the Building for the purpose of cleaning the same.
No tenant shall cause any unnecessary labor by reason of such tenant's
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.
5. Landlord will furnish each tenant free of charge with two keys to
each door lock in its Premises. Landlord may make a reasonable charge for any
additional keys. No tenant shall have
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any keys made. No tenant shall alter any lock or install a new or additional
lock or any bolt on any door of its Premises without the prior consent of
Landlord. The tenant shall in each case furnish Landlord with a key for any such
lock. Each tenant, upon the termination of its tenancy, shall deliver to
Landlord all keys to doors in the Building which shall have been furnished to
the tenant.
6. The freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. The persons employed to move such 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 such thickness as is necessary
properly to distribute the weight. Landlord will not be responsible for loss of
or damage to any such property from any cause, and all damage done to the
Building by moving or maintaining such property shall be repaired at the expense
of the tenant.
7. 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 thereof reasonably necessary for the operation or maintenance
of office equipment, or, without Landlord's prior approval, use any method of
heating air conditioning other than that supplied by Landlord. No tenant shall
use or keep or permit to be used or kept any foul or noxious gas or substance in
the Premises, or permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the Building
by reason of noise, odors or vibrations, or interfere in any way with other
tenants or those having business therein.
8. 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. Landlord reserves the right to exclude from the Building between the
hours of 6 P.M. and 7 A.M. and at all hours on Saturdays, Sundays and legal
holidays all persons who do not present a pass to the Building signed by
Landlord. Landlord will furnish passes to persons for whom any tenant requests
the same in writing. Each tenant shall be responsible for all persons for whom
it requests passes and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other circumstances rendering such
action advisable in Landlord's opinion, Landlord reserves the right to prevent
access to the Building during the continuance of the same by such action as
Landlord may deem appropriate.
10. The directory of the Building will be provided for the display of
the name and location of tenants and a reasonable number of the principal
officers and employees of tenants, and Landlord reserves the right to exclude
any other names therefrom. Any additional name which a tenant desires to have
added to the directory shall be subject to Landlord's approval and may be
subject to a charge therefor.
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11. 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, such 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. Messenger services and suppliers of bottled water, food, beverages,
and other products or services shall be subject to such reasonable regulations
as may be adopted by Landlord. Landlord may establish a central receiving
station in the Building for delivery and pick-up by all messenger services, and
may limit delivery and pick-up at tenant Premises to Building personnel.
13. Each tenant shall see that the doors of its 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 its employees leave the Premises at night, so as
to prevent waste or damage, and 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, all tenants
shall keep the doors to the Building corridors closed at all times except for
ingress and egress.
14. The toilets, urinals, wash bowls and other restroom facilities shall
not be used for any purpose other than that for which they were constructed, no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the tenant who, or whose employees or invitees, shall have
caused it.
15. Except with the prior consent of Landlord, no tenant shall sell, or
permit the sale at retail, of newspapers, magazines, periodicals, theatre
tickets or any other goods or merchandise to the general public in or on the
Premises, nor shall any tenant carry on, or 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 such tenant's lease.
16. No tenant shall install any antenna, loudspeaker, or other device on
the roof or exterior walls of the Building.
17. There shall not be used in any portion of the Building, by any
tenant or its invitees, any hand trucks or other material handling equipment
except those equipped with rubber tires and side guards unless otherwise
approved by Landlord.
18. Each tenant shall store its refuse within its Premises. No material
shall be placed in the refuse boxes or receptacles if such material is of such
nature that it may not be disposed of in the ordinary and customary manner of
removing and disposing of refuse in the City and County of San Francisco without
being in violation of any law or ordinance governing such disposal. All
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refuse disposal shall be made only through entryways and elevators provided for
such purposes and at such times as Landlord shall designate.
19. Canvassing, peddling, soliciting, and distribution of handbills or
any other written materials in the Building are prohibited, and each tenant
shall cooperate to prevent the same.
20. The requirements of the tenants will be attended to only upon
application by telephone 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. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
22. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of Premises in the Building.
23. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of good
order therein.
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EXHIBIT C
IMPROVEMENT OF THE PREMISES
1. The Work. Landlord, through Landlord's contractor, shall construct
and install in the Premises, substantially in accordance with plans, working
drawings and specifications ("Tenant's Plans") prepared by Landlord's architects
and engineers and approved by Tenant, the improvements ("The Work") described in
Tenant's Plans (except work described in paragraph 6 hereof). Tenant's Plans
shall be based upon and derived from the preliminary architectural plans
prepared by Xxxxxx Xxx, dated December 9, 1993 and revised December 20, 1993
(P1), including the modification or deletion of notes No. 1 and No. 4 based on
the final costs of performing The Work. The costs of preparing Tenant's Plans
and performing The Work shall be paid by Landlord, as set forth in this Exhibit
C. The Work shall be performed in a good and workmanlike manner and in
accordance with applicable laws and regulations. The quantities, character and
manner of construction and installation of The Work shall be subject to all
limitations and restrictions imposed by laws, regulations and guidelines
relating to health, safety, the environment, handicapped persons and
conservations of energy adopted by any public or government authority.
2. Tenant's Plans and Construction.
(a) As soon as reasonably possible Landlord shall submit Tenant's Plans
to Tenant for Tenant's written approval. Tenant shall have two (2) working days
to review Tenant's Plans and submit to Landlord any changes, comments, and
revisions to the same. Tenant's Plans and any revisions thereto requested by
Tenant, shall be prepared by Landlord's architect and shall comply with all
applicable codes, laws, ordinances, rules and regulations and shall be in a form
sufficient to secure the approval of all government authorities with
jurisdiction over the approval thereof. If Tenant approves Tenant's Plan,
Landlord shall deliver to Tenant an estimate ("Cost Estimate") of the cost of
completing The Work in the Premises (which Cost Estimate shall include the cost
of preparing Tenant's Plans). Tenant shall either (i) approve the Cost Estimate
by written notice to Landlord, (ii) request additional changes to Tenant's
Plans, whereby Landlord shall revise Tenant's Plans in accordance with Tenant's
request and resubmit to Tenant for its approval both the revised Tenant's Plans
and revised Cost Estimate. Any changes to Tenant's Plans prior to Tenant's
approval of the Cost Estimate shall be not considered a change pursuant to
Paragraph 4 of this Exhibit C. Tenant's approval or Tenant's Plans shall
constitute authorization for Landlord to perform The Work substantially in
accordance with Tenant's Plans. In the absence of such authorization, Landlord
shall not be obligated to commence The Work. Landlord's contractor shall
complete The Work in the Premises substantially in accordance with Tenant's
Plans.
(b) All interior decorating services, such as the selection of colors of
wall paint, wall coverings, carpeting and all other decorator selection work,
required by Tenant shall be provided by Tenant at Tenant's expense.
3. Landlord's Contribution. As Landlord's Contribution for the costs of
preparing Tenant's Plans and performing The Work, Landlord shall provide Tenant
an allowance
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"Landlord's Contribution" in an amount not to exceed $60,789.00. Landlord shall
pay Landlord's Contribution directly to Landlord's architects, engineers,
consultants or suppliers or to Landlord's contractor for the account of Tenant,
in installments, or as professional services are rendered, or The Work is
performed. Landlord's Contributions shall include all architectural fees for
Tenant's Plans. If costs incurred in preparing Tenant's Plans and performing The
Work exceed Landlord's Contribution, and provided that The Work is constructed
in accordance with Tenant's Plans, Tenant shall pay to Landlord, as Additional
Rent ("Additional Rent") an amount up to and not exceeding Ten Thousand Dollars
and 00/100 cents ($10,000.00) ("Additional Contribution"). Tenant shall pay the
Additional Rent to Landlord (payable at the same time and place as monthly
installments of Base Rent), in equal monthly installments, amortized over a five
(5) year period, with interest at 9% per annum, commencing on the first day of
the sixth (6th) full calendar month of the Term, with any residual due upon
expiration of the Term. If any cost associated with preparing Tenant's Plans and
performing The Work exceeds Landlord's Contribution and Additional Contribution,
then Tenant shall be liable for, and pay the costs after completion of The Work
within thirty (30) days of Landlord's written notice that such cost are due and
payable.
4. Changes. If Tenant requests any change in The Work subsequent to
Tenant's approval of Tenant's Plans, Tenant shall request such change in a
written notice to Landlord. Each such request shall be accompanied, if
necessary, by plans, drawings and specifications prepared by Landlord's
architects or engineers, at Tenant's expense, necessary to show and explain such
change from the previously approved Tenant's Plans. Landlord shall have
Landlord's contractor give Tenant an estimate of the construction cost, if any,
for such change. Landlord shall have Landlord's contractor also give Tenant an
estimate of the delay in substantial completion of The Work, if any, which will
be incurred for such change and which Tenant shall be liable for in accordance
with Paragraph 5 below. Tenant shall, within five (5) business days after
receipt of such estimate, notify Landlord in writing to proceed or not to
proceed with such change. If Tenant approves the estimate and requests the
change be constructed then Tenant shall be liable for, and pay to Landlord as
Additional Rent (at such times and in such manner as provided in Paragraph 3)
the actual cost of The Work. In the absence of such written notice to proceed,
Landlord shall not be obligated to make the change requested by Tenant and
Landlord shall proceed with The Work in accordance with the previously approved
Tenant's Plans.
5. Delay. Tenant shall be liable for, and shall pay all costs and
expenses incurred by Landlord in connection with any delay ("Tenant Delay") in
the commencement or completion of The Work caused by (i) Tenant's failure
promptly to approve Tenant's Plans, (ii) Tenant's requirement of additional or
different work, (iii) interruption of The Work in question to accommodate
performance of other Tenant requested work outside the scope of The Work in
question , (iv) any changes, additions, or alterations to The Work which are
requested by Tenant as to which Landlord has notified Tenant that such change
will cause a delay, (v) Tenant's failure to take any action required of Tenant
under the Lease or this Addendum, (vi) any interruption or interference in the
construction caused by Tenant or its architects, planners, engineers,
contractors, subcontractors, laborers or suppliers, or (vii) any other delay
requested or caused by Tenant.
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6. Other Work by Tenant. All work not within the scope of the normal
construction trades employed on the Building, such as the furnishing and
installing of furniture, telephone and computer equipment and wiring, and office
equipment, shall be furnished and installed by Tenant at Tenant's expense.
Tenant shall adopt a schedule in conformance with the schedule of Landlord's
contractors and conduct Tenant's work in such a manner as to maintain harmonious
labor relations and as not to interfere with or delay the work of Landlord's
contractors. Tenant's contractors, subcontractors and labor shall be acceptable
to and approved in writing by Landlord (which shall not be unreasonably
withheld) and shall be subject to the administrative supervision of Landlord's
general contractor. Landlord shall provide reasonable access and entry to the
Premises to Tenant and Tenant's contractors and subcontractors and reasonable
opportunity and time and reasonable use of facilities to enable Tenant to adapt
the Premises for Tenant's use.
7. Requirements. Any work performed at the Building or on the Premises
by Tenant or Tenant's contractor in connection with improvements shall be
subject to the following additional requirements:
(a) Such work shall not proceed until Landlord has approved
(which shall not be unreasonably withheld or delayed) in writing: (i) Tenant's
contractor, (ii) the amount and coverage of public liability and property damage
insurance, with Landlord named as an additional insured, carried by Tenant's
contractor, (iii) complete and detailed plans and specifications for such work,
and (iv) a schedule for The Work.
(b) All work shall be done in conformity with a valid permit when
required, a copy of which shall be furnished to Landlord before such work is
commenced. In any case, all such work shall be performed in accordance with all
applicable laws. Notwithstanding any failure by Landlord to object to any such
work, Landlord shall have no responsibility for Tenant's failure to comply with
applicable laws.
(c) All work by Tenant or Tenant's contractor shall be done with
union labor in accordance with all union labor agreements applicable to the
trades being employed.
(d) All work by Tenant or Tenant's contractor shall be scheduled,
on a reasonable basis, through Landlord.
(e) Tenant or Tenant's contractor shall arrange for necessary
utility, hoisting and elevator service, on a nonexclusive basis, with Landlord's
contractor and shall pay such reasonable costs for such services as may be
charged by Landlord's contractor. Landlord shall have the right to require any
necessary movement of materials by the elevator to be done after regular working
hours at the expense of Tenant.
(f) Tenant's entry on the Premises for any purpose, including,
without limitation, inspection or performance of improvement work by Tenant,
prior to the Commencement of the term shall be subject to all of the covenants
of this Lease except the payment of rent. Entry by Tenant shall include entry by
Tenant's officers, employees, contractors, licensees, agents, servants, guests,
invitees or visitors.
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ADDENDUM TO OFFICE LEASE
This Addendum to Office Lease shall constitute a part of that certain
000 Xxxxxxxxxx Xxxxxx Office Lease dated February 4, 1994 (the "Lease") between
The Equitable Xxxxxxxxxx Company ("Landlord") and Xxxxxx & Company, Inc.
("Tenant"). Landlord and Tenant desire to amend the Lease as hereinafter
provided.
NOW, THEREFORE, notwithstanding anything to the contrary contained in
the Lease, Landlord and Tenant agree as follows:
1. Definitions. The definitions in the Lease shall also apply to this
Addendum unless herein otherwise indicated.
2. Rent Credit. Notwithstanding anything to the contrary in the Lease,
Base Rent shall be abated during the first five (5) months of the Lease Term.
Accordingly, no Base Rental or operating expenses shall be payable for the first
five (5) months of the term of the Lease. Thereafter, throughout the term of the
Lease, base annual rental shall be as provided in Article H of the Basic Lease
Information and Paragraph 3(a) of the Lease and shall be due and payable in
accordance with the terms of the Lease.
3. Term Commencement and Substantial Completion. Notwithstanding any
provision of the Lease to the contrary, the commencement date for the term of
the Lease shall be the date of Substantial Completion of the Work constituting
the improvements to the Premises as defined in Exhibit C to this Lease. Landlord
and Tenant shall use reasonable efforts to effect
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Substantial Completion of the Work constituting the improvements to the Premises
by March 15, 1994. "Substantial Completion" shall be defined as the condition of
the improvements when (i) the Work has been performed substantially in
accordance with Tenant's Plans as defined in Exhibit C to this Lease (except for
finishing details of construction, decoration, mechanical and other adjustments
or items commonly found on an architectural punch list, all of which do not
materially interfere with Tenant's permitted use of the demised Premises) and
Substantial Completion shall be deemed to have occurred notwithstanding a
requirement on the part of the contractor to complete "punch list" or similar
corrective work, and (ii) a certificate of occupancy with respect to the demised
Premises has been issued by the City and County of San Francisco, if required.
If Landlord is delayed in substantially completing any Work as a result of any
Tenant Delay, (as defined in Exhibit C to this Lease) then the date of
Substantial Completion of such Work shall be deemed to have been the date upon
which such Work would have been substantially completed in the absence of such
Tenant Delay. Landlord will diligently pursue completion of all punch list
items. As and when requested by Tenant, Landlord will give Tenant the
contractor's then best estimate of the date of Substantial Completion of any
Work then in progress. The date of Substantial Completion of any Work shall be
fixed by Landlord in a notice to Tenant, which notice shall state that the
demised Premises are, or prior to the date stated in such notice will be,
substantially complete. Tenant agrees to acknowledge in writing all dates of
Substantial Completion of Work with respect to the demised Premises as well as
the date upon which the term of the Lease commenced, as and when requested to do
so by Landlord. By occupying the demised Premises, Tenant accepts the demised
Premises as being in the condition
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in which Landlord is obligated to deliver the demised Premises, subject only to
the completion or correction of "Punch list" items.
4. Option to Extend Term. Subject to the provisions of this Paragraph,
Tenant shall have the option to extend the term of this Lease (the "Extension
Option") for a period of five (5) years (the "Renewal Term") provided that:
(a) Tenant gives Landlord written notice of Tenant's intention to
exercise the Extension Option no later than nine (9) months prior to the
expiration of the term of the Lease, and;
(b) At the time of the aforesaid notice, at the time the
Extension Option is exercised and at the commencement of the Renewal Term, the
Lease must be in full force and effect, Tenant must not be then in default under
the Lease, Tenant shall not have been in monetary default (for more than ten
(10) days after written notice of such default from Landlord) or in material
nonmonetary default from Landlord, or if the cure of such default reasonably
requires more than thirty (30) days, Tenant shall not have commenced to cure the
same within thirty (30) days after written notice of such default from Landlord
and shall not have diligently proceeded to complete such cure) more than three
times during the last five years of the initial term of the Lease or at any time
during the last five years of the initial term for more than thirty days,
Tenant's interest under the Lease must not have been assigned by operation of
law or otherwise, Tenant must be in occupancy of the entire demised Premises,
and Tenant must not have sublet any portion thereof; and
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(c) All of the terms, covenants and conditions of the Lease shall
remain in effect during the Renewal Term, except that (i) no rent concessions or
renewal or expansion option shall be included and (ii) the base annual rental
shall be at fair market rental value of the demised Premises for the Renewal
Term, meaning the monthly rental rate per square foot prevailing at the
commencement of the Renewal Term for five (5) year leases then being entered
into for comparable space in first class buildings in the San Francisco
Financial District and used for comparable purposes.
Within thirty (30) days after Landlord's receipt of the Tenant's notice
specified in subparagraph (a) above, Landlord and Tenant shall meet, negotiate
and attempt to agree upon the fair market rental value for the demised Premises
for the Renewal Term. If Landlord and Tenant have not agreed in writing on such
fair market value within sixty (60) days of Landlord's receipt of Tenant's
notice specified in subparagraph (as) above, then, upon written notice of either
party to the other requesting a determination of such fair market rental value
by real estate brokers such fair market rental value shall be determined by real
estate brokers in accordance with the terms of Paragraph 5 of this Addendum.
5. Determination of Fair Market Rental Value. Whenever, pursuant to this
Addendum, fair market rental is to be determined by real estate brokers, the
procedures of this Paragraph 5 shall apply.
Each party shall select (and pay the fees of) a disinterested real
estate broker with at least five (5) years of commercial real estate office
leasing experience in the City and County of San Francisco. Each party shall,
within ten (10) days after the notice of request for the determination
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of fair market rental value by brokers, notify the other party of the name and
address of the real estate broker selected by such party. The two brokers
selected shall attempt to determine the fair market rental value of the demised
Premises for the Renewal Term. If either Landlord or Tenant shall fail timely to
so appoint a broker, the appointed broker shall select the second broker
(subject to the above selection criteria) within ten (10) days after the failure
of Landlord or Tenant, as the case may be, to so appoint. Such brokers shall,
within thirty (30) days after the appointment of the last of them to be
appointed, complete their determinations of fair market value and submit their
reports to Landlord and Tenant. If the valuations vary by 5% or less of the
higher value, the fair market rental value shall be the average of the values.
If the values vary by more than 5% of the higher value, the two brokers shall,
within ten (10) days after submission of the last of the reports, appoint a
third broker who shall be similarly qualified. If the two brokers shall be
unable to agree timely on the selection of a third broker, then the third broker
shall be appointed by the presiding Judge of the Superior Court for the City and
County of San Francisco. The third broker shall, within thirty (30) days after
his or her appointment, choose as the fair market rental value of the demised
Premises for the Renewal Term one of the values calculated by the other two
brokers and notify Landlord and Tenant of his or her choice. The third broker
shall have no right to propose a middle ground. Landlord and Tenant shall each
pay the respective fees of its selected broker, or of the broker selected on its
behalf by the other's selected broker if Landlord or Tenant shall fail to timely
appoint, as provided above. The fees of a third broker, if there be one, shall
be paid one-half by Landlord and one-half by Tenant.
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6. Relocation Expense Allowance. Within thirty (30) days of the date of
Tenant's occupancy in Premises, Landlord shall reimburse Tenant, upon Tenant
forwarding copies of paid invoices to Landlord, up to Four Thousand Four Hundred
and Five Dollars and 00/100 cents ($4,405.00) for costs associated with Tenant's
move to the new Premises. Relocation expenses shall be defined as Tenant moving
costs strictly limited to relocating Tenant's furniture and personal property to
the Premises. Such moving costs shall not include telephone systems, telephone
cabling or data cabling costs.
7. Irrevocable Standby Letter of Credit.
(a) In addition to the security deposit in the amount of
$5,432.83 to be provided pursuant to Paragraph 32 of the Lease, Tenant shall
provide Landlord on March 1, 1994, and maintain in effect throughout the term of
the Lease (subject to Paragraph B below), an Irrevocable Standby Letter of
Credit in the amount of $30,000.00 (the "Letter of Credit"), issued in favor of
the Equitable Xxxxxxxxxx Company as beneficiary ("EMC") by a banking institution
acceptable to EMC. EMC shall be entitled to draw down upon the Letter of Credit
in whole or in part as and to the extent that Landlord would be entitled to use
or apply all or any portion of the security deposit under Paragraph 32 of the
Lease; provided, however, EMC may not draw down upon any portion of the Letter
of Credit until after the expiration of any applicable grace period provided to
Tenant hereunder. If EMC draws down upon any portion of the Letter of Credit as
provided herein, Tenant shall restore the Letter of Credit to the full amount
then required by the terms of this Paragraph 7. The terms of the Letter of
Credit shall entitle Landlord to draw upon the Letter of Credit in whole or in
part upon certification from any individual purportedly acting for Landlord that
it is entitled under the Lease to make such draw, and shall further entitle
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Landlord to draw down the entire amount of the Letter of Credit in the event
Tenant fails to deliver to Landlord thirty (30) days prior to the expiration
date of the current Letter of Credit a renewal Letter of Credit effective as of
the expiration of the current term of the Letter of Credit. The initial term of
the Letter of Credit shall be one (1) year, and Tenant shall renew it for
successive one-year periods thereafter, subject to subparagraph (b) below. The
issuer of the Letter of Credit shall provide Landlord with not less than
forty-five (45) days' notice prior to cancellation. If Landlord is entitled to
draw down the entire Letter of Credit based on a failure to renew, until such
time as the Letter of Credit has been renewed, Landlord shall deposit the
proceeds in an interest bearing money market account at Xxxxx Fargo Bank or
another Federally Insured Bank or Savings and Loan. Interest shall be retained
in such account. Landlord may thereafter withdraw funds directly from such
account as and to the extent Landlord would have been entitled to draw upon the
Letter of Credit. Landlord shall bear no liability whatsoever for any loss of
principal, interest or measure of interest in such account. Any funds remaining
in such account on the date that the Letter of Credit would otherwise expire
shall be returned to Tenant.
(b) In the event that no event of default has occurred under the
Lease and is continuing, no monetary event of the default has occurred under the
Lease (whether or not such event of default shall be continuing), and no facts
or circumstances then exist that would, with the passage of time, the giving of
notice, or both, constitute an event of default, the amount of the Letter of
Credit shall be reduced to zero effective as of the close of the twenty fifth
(25th) calendar month of the Lease Term.
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8. Time is of the Essence. Time is of the essence of the obligations of
the Tenant under the Lease and under this Addendum.
9. Conflicts. If there are any conflicts between the provisions of the
Lease and this Addendum, the provisions of this Addendum shall prevail.
10. Ratification of Lease. Landlord and Tenant hereby ratify and confirm
all of the provisions of the Lease as amended by this Addendum.
TENANT
Xxxxx & Company, Inc.
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
ITS: President
----------------------------------
DATE: 2/9/94
----------------------------------
BY: Xxxxxxx X. Xxxxxx
----------------------------------
ITS: President
----------------------------------
DATE: 2/9/94
----------------------------------
LANDLORD
The Equitable Xxxxxxxxxx Company
-------------------------------------
BY: The Equitable Life Assurance
Society of the United States
--------------------------------
(Managing Venturer)
BY: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------
ITS: Attorney-in-Fact
--------------------------------
DATE: 2/26/94
-------------------------------
BY:_________________________
ITS:_________________________
DATE:_______________________
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