Exhibit 10.19
XXXXX BUILDING DEVELOPMENT PARTNERS
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
THIS LEASE executed this 31st day of May 1996, between XXXXX BUILDING
DEVELOPMENT PARTNERS, a California general partnership (hereinafter "Landlord"),
and, Perfect Market, Inc., DBA; City Search, A Delaware Corporation,
(hereinafter "Tenant" without distinction as to number or gender).
RECITALS
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A. Pursuant to the provisions of that certain Lease ("the Master
Lease") dated January 10, 1986, between Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx
Xxxx and Xxxxx Xxxxx (who, along with their successors and assignees, are
referred to herein collectively as "Owner") and Landlord, Landlord has leased
that certain improved real property and the improvements thereon (collectively,
the "Building") commonly known as 680-Eighth Street, in the City and County of
San Francisco, California and described more fully in Exhibit A attached hereto
and incorporated herein.
B. This Lease is a sublease of part of the Building and, as such, is
expressly made subject to all of the terms and provisions of the Master Lease
and the rights of the Owner thereunder.
C. A copy of the Master Lease and any amendments thereto is
available for inspection at reasonable times at the office of the Landlord.
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, Landlord and Tenant hereby
agree as follows:
1. Premises. Landlord hereby leases to Tenant and Tenant hereby
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hires from and takes from Landlord those certain premises (the "Premises")
situated in the building, more particularly described as follows: Suite 240
consisting of approximately 5,200 rentable square feet on the second floor, as
set forth in Exhibit B attached and incorporated herein. The Building in which
the Premises are located contains approximately 76,500 rentable square feet. The
Premises consist of 6.8% of the total rentable square footage of the Building.
2. Term. The term of this lease shall be for Three (3) years and
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fifteen (15) days, commencing on June 15, 1996 and ending on June 30, 1999. If
the term of the Lease extends beyond December 31, 2010, the effectiveness of any
portion of the term of this Lease after such date is conditioned upon Landlord's
exercising its option to extend the term of the Master Lease beyond such date.
See paragraph 34 for option terms.
3. Rent. The rent under this Lease shall be paid in monthly
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installments in advance, payable on the first day of each month, which Tenant
agrees to pay to Landlord, at the office of the Landlord, or such other place or
places as may be designated from time to time by Landlord, in United States
Legal Tender, as follows:
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Period Rent per Month
June 15, 1996 through June 30, 1996 $3,900.00
July 1, 1996 through June 30, 1997 7,800.00
July 1, 1997 through June 30, 1998 8,034.00
July 1, 1998 through June 30, 1999 8,275.00
It is hereby mutually understood and agreed that the above letting and
hiring is upon the following terms and conditions.
4. The Master Lease. Tenant hereby recognizes that the estate of
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Landlord in the Premises and the Building is that of the "Lessee" under the
Master Lease. Tenant agrees that all rights, power, privileges and options
granted to Tenant by this Lease are subject to the provisions of the Master
Lease and no such right, power, privilege or option may be exercised or enjoyed
by Tenant if and to the extent that the exercise or enjoyment thereof would not
be permitted by, or would violate the terms of, the Master Lease, and that
Tenant will not commit or suffer any act of omission or commission which would
violate any of the terms or conditions of the Master Lease.
5. Delivery of Possession. If Tenant occupies the Premises prior to
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the commencement of the term, such occupancy shall not advance the termination
date. Tenant at its option, along with any of its vendors, contractors, agents,
etc., shall be permitted to enter the Premises at any time during normal
business hours prior to the Commencement Date, with no obligation to pay rent,
for the purpose of installing furniture fixtures, and equipment, provided that
Tenant does not interfere or delay Landlord's work. Landlord agrees that Tenant
shall receive 5 days of free rent for each day premises are delivered late
(beyond the expected June 15, 1996 (at 11 a.m.) delivery date).
6. Payment of Rent. Tenant agrees to pay Landlord the rental herein
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reserved at the time and in the manner herein provided without any demand
therefore or deduction or offset therefrom whatsoever, free of any and all
claims and demands against Landlord of any kind or character, except as
specifically provided in Paragraph 15.6 of this Lease.
7. Use of Premises. The Premises shall be used, occupied and
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conducted exclusively as and for offices and for no other purpose (see paragraph
29). No unusual or heavy machinery or equipment which will by reason of its
weight, vibration or noise (a) affect the structure of the Building, (b)
constitute a nuisance, or (c) affect or disturb the quiet use and possession of
any part of the Building by Landlord or any other tenant in the Building, shall
be maintained in or upon the Premises. The Premises shall be used, occupied and
conducted by Tenant without any annoyance, disturbance, detriment or injury to
Landlord or to any of the tenants of Landlord in, or occupants of, or other
persons lawfully in, other parts of the Building or to the business of such
other tenants, occupants or persons. Tenant shall not maintain or permit or
suffer to be maintained or permitted any nuisance or waste in or about the
Premises, or bring or keep anything therein which will in any way affect or
increase fire or other insurance on the Building or any of its contents. Tenant
will not use or allow the Premises to be used for any unlawful, immoral or
objectionable purpose, See paragraph 29.
8. Assignment and Subletting. Tenant agrees not to assign this Lease
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or any interest therein nor to sublet the whole or any part of the Premises
unless and until the area encompassed by the proposed sublease or assignment is
first offered in writing to Landlord for a period of ten (10) days, with
Landlord having the
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option to take said proposed assigned or sublet space for its own account and to
relet the same for its own account and proportionately abating Tenant's rent
during the term of said proposed sublease or assignment. If Landlord chooses not
to exercise this option, Tenant with Landlord's written consent first obtained
may sublet or assign all or a portion of the Premises, providing the proposed
sublessee or assignee first pays in advance two months' rent which will be
applied to the rent due during the last two months of the proposed subleasing or
assignment and provided further that, in the event said sublessee or assignee
pays rent (or other form of compensation however designated) greater than that
due from Tenant, said excess shall be paid over to Landlord by Tenant as
received and the same shall constitute additional rent due Landlord from Tenant
under this Lease. Consent to any assignment or subletting shall apply only in
the given instance and a further assignment or subletting by Tenant or its
assignee or subtenant shall be made only after obtaining Landlord's prior
written consent as provided in Section 8. Nothing contained herein will obligate
Landlord to consent to any proposed assignment or sublease if the proposed
sublessee or assignee does not meet Landlord's reasonable financial criteria or
would otherwise be considered an undesirable tenant, because of its business or
business reputation, the character of the Building and the types and mix of
other tenants. Upon any subletting, nothing contained herein shall be construed
to relieve Tenant of any of its obligations contained in this Lease including,
without limitation, the obligation to pay rent. Tenant shall not require
Landlord's consent to sublease Premises or assign the lease to a bona fide
subsidiary or affiliate of the Tenant.
9. Acceptance, Alterations, Repairs and Inspection. Landlord shall,
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at its sole cost, keep, repair and maintain the structural portions of the
Building, common areas in the Building, exterior walls and roof of the Building,
Building utility systems and sidewalks adjacent to the Building in good and
sanitary order, condition and repair, except where said conditions exist because
of the lack of ordinary care by Tenant, in which case Tenant shall promptly
reimburse Landlord for any expenses incurred in connect herewith. Tenant shall,
at its sole cost and expense, keep the premises in good and sanitary order,
condition and repair, except where such disrepair is due to a violation of the
Lease by Landlord, in which case Landlord shall make such repair. By entry
hereunder, and subject to the completion of any improvements referred to in
Exhibit C, Tenant accepts the Premises and the Building as being in good and
sanitary order, condition and repair and agrees that on the last day of the term
of this Lease or, upon sooner termination of this Lease, to surrender to
Landlord all of the Premises in the same condition as when received, reasonable
wear and tear thereof excepted. Unless otherwise provided by written agreement,
all additions to, improvements and alterations of premises, except movable
furniture and trade fixtures, shall become the property of Landlord at
Landlord's option, and shall remain upon and be surrendered with the premises.
Tenant shall not make any additions or improvements to or alterations or
modifications of the premises without the prior written consent of Landlord,
which shall not be unreasonably withheld. As a condition to any such consent
Landlord may, among other things, require performance or completion bonds for
the work, copies of plans and specifications and other relevant information.
Notwithstanding the foregoing, Tenant may make non structural additions,
improvements, alterations or modifications to the Premises with an aggregate
cost not exceeding One Thousand Dollars ($1,000.00) in any six month period
without seeking Landlord's prior consent. Tenant shall keep the Premises and the
Building free from any liens arising out of any work performed, materials
furnished, or obligations incurred by Tenant. Tenant agrees that if it shall
make any repairs, alterations, modifications or improvements, after having
obtained Landlord's consent where required, it will not commence such
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action until two (2) days after written notice to Landlord in order that
Landlord may post appropriate notices of non responsibility to avoid any
liability for liens. Tenant will at all times permit such notices to be posted
and remain posted until the completion and acceptance of the work. If Tenant
fails to remove any liens promptly, Landlord may, at its option, do so, in which
case Tenant shall immediately upon demand reimburse Landlord for all such
amounts paid and costs and expenses incurred. All such amounts shall constitute
additional rent due Landlord from Tenant under this lease.
10. Compliance with Law. Tenant shall, at its sole cost and expense,
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comply with all the requirements of all Municipal, State and Federal authorities
now in force or which may hereinafter be in force pertaining to the Premises,
and shall faithfully observe in the use of the premises all Municipal ordinances
and State and Federal statutes now in force or which may hereinafter be in
force. The judgment of any court of competent jurisdiction, or the admission of
Tenant in any action or proceeding against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such ordinance or statute in the
use of the Premises shall be conclusive of the fact as between Landlord and
Tenant. Nothing contained in this Section 10 shall require Tenant to make any
structural changes or any changes affecting Building utility systems. Tenant
will not be responsible for the cost of compliance with the Americans with
Disabilities Act or any comparable State or Local statute.
11. Exculpation of Landlord and Owner. Tenant waives all claims
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against Landlord, Owner and their agents and employees for damage to person or
property arising from any reason, except that Landlord shall be liable for
damage to Tenant from the negligent or willful acts or omissions of Landlord or
its agents or employees.
12. Indemnity. Tenant on behalf of itself, its agents, its
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employees, its guests and invitees shall defend and indemnify and hold Landlord,
Owner and their agents and employees harmless from and against all damages,
which result from the acts or omissions of Tenant or its agents or employees,
including reasonable attorneys' fees, arising out of any damage to any such
person or their property occurring in, on or about the Premises or the Building,
unless such damages result from Landlord's negligent or willful acts or
omissions.
13. Liability and Property Insurance. Landlord agrees to carry and
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keep in force during the term hereof a standard fire and extended coverage
insurance policy of the Building. Tenant agrees to take out and keep in force
during the term hereof, at Tenant's expense, (a) bodily injury and property
damage liability insurance in companies and through brokers approved by Landlord
(with at least a Best A-Rating) to protect against any liability to the public
incident to the use of or resulting from any accident occurring in or about the
Premises or the Building, the liability under such insurance to be not less that
One Million Dollars ($1,000,000.00) for any one person injured or $1,000,000.00
for any one accident and (b) property insurance of $1,000,000.00 covering loss
or damage to the Premises (including any improvements constructed). These
policies (1) shall name Owner (Xxxxxxx & Xxxxx Xxxxxx, Xxxxxx and Xxxxxx Xxxx,
Xxxxxx & Xxxxxxx Xxxxxxxx, THE XXXX LIVING TRUST U/A DATED 4/15/91 and THE
XXXXXXX AND XXXXXX XXXXXXXX LIVING TRUST U/A DATED 8/24/90) and Landlord (Xxxxx
Building Development Partners) and such lenders, if any, as may be designated by
Landlord, as additional insureds, (2) a certificate of insurance is to be
delivered to the Landlord upon issuance and renewal
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and (3) shall contain a written obligation on the part of the insurance carriers
to notify Landlord in writing thirty (30) days prior to any cancellation
thereof. Notwithstanding the foregoing, Owner, Landlord and their lenders, if
any, need not be named as additional insureds for Tenant's furniture, equipment
and personal property. Tenant agrees that, if it does not keep such insurance in
full force and effect, Landlord may, at its option, take out the necessary
insurance and pay the premium. In such a case, Tenant shall reimburse Landlord
for the amount so paid and such amount shall constitute additional rent due
Landlord from Tenant under this Lease. The policies provided for herein together
with proof of payment of premium therefore shall be delivered to Landlord within
ten (10) days after the date of execution of this Lease, and renewal
certificates and proof of payment of premiums therefor shall be delivered to
Landlord not less than fifteen (15) days prior to the renewal date of any such
insurance policies.
14. Defaults: Remedies. 14.1 Defaults. The occurrence of any one or
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more of the following events shall constitute a material default and breach of
this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant:
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant here under, within five (5) days of
written notice following the date such amount is due;
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this lease to be observed or performed by Tenant
other than described in Section 14.1(b)above, where such failure shall continue
for a period of thirty (30) days after written notice from Landlord to Tenant,
provided, however, that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, the Tenant shall not be
deemed to be in default if Tenant commences such cure within said 30-day period
and thereafter diligently prosecutes such cure to completion;
(d) (i) The making by Tenant of any general arrangement for the
benefit of creditors;
(ii) The filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for re-organization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against the
Tenant, the same is dismissed within sixty (60) days);
(iii) The appointment of a trustee or receiver to take possession of
all or substantially all of Tenant's assets located at the premises or of
Tenant's interest in this Lease.
(iv) The attachment, execution or other judicial seizure of all or
substantially all of Tenant's assets located at the premises or of Tenant's
interest in this lease where such seizure is not discharged within thirty (30)
days.
(e) The discovery by Landlord that any financial statement given to
Landlord by Tenant, any sublessee or assignee of Tenant, any successor in
interest of Tenant or any guarantor of Tenant's obligations here under, or any
of them, was materially false.
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14.2 Remedies. In the event of any such material default or breach by
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Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default or breach take any of the following
actions:
(a) Terminate Tenant's right to possession of the Premises by any
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such event, Landlord shall
be entitled to recover from Tenant: (1) the worth at the time of award of the
unpaid rent which had been earned at the time of termination: (2) the worth at
the time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided: (3) the worth
at the time of award of the amount by which the unpaid rent for the balance of
the term after the time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided; and (4) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
(b) Have this Lease continue in effect for so long as Landlord does
not terminate this Lease and Tenant's right to possession of the Premises, in
which event Landlord shall have the right to enforce all of Landlord's rights
and remedies under this Lease, including the right to recover the rent as it
becomes due under this Lease.
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the State of California.
(d) The "worth at the time of award" of the amounts referred to in
Sections 14.2(a)(1) and 14.2(a)(2) above shall be computed by allowing interest
at the maximum annual interest rate allowed by law for business loans (not
primarily for personal, family or household purposes) not exempt from the usury
law at the time of termination or, if there is no such maximum annual interest
rate, at the Bank of America N.T. & S.A. "Prime Rate" charged on such
termination then in effect plus two (2) percentage points. The "worth at the
time of award" of the amount referred to in Section 14.2(a)(3) above shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award plus one percent (1%) per annum.
For the purpose of determining unpaid rent under Sections 14.2(a)(1), (2) and
(3) above, such unpaid rent shall be the rent payable by Tenant in accordance
with all of the provisions of this Lease.
14.3 Default by Landlord. Landlord shall not be in default unless
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Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than thirty (30) days after written notice by Tenant
to Landlord and to any lenders whose names and addresses shall have been
theretofore furnished to Tenant in writing, specifying wherein Landlord has
failed to perform such obligation, provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
the performance, then Landlord shall not be in default if Landlord commences the
performance within such 30-day period and thereafter diligently prosecutes the
same to completion. Tenant's sole remedy in the event of Landlord's default
shall be in damages. Tenant shall not have the right to any rent abatement or
reduction, but may terminate this Lease if Landlord fails to cure its default.
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15. Damage or Destruction.
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15.1 Partial Damage -- Insured. Subject to the provisions of Sections
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15.3, 15.4 and 15.5, if the Premises are damaged and such damage was caused by a
casualty covered under any insurance policy required to be maintained by Tenant
pursuant to Section 13 or any insurance policy carried by Landlord, Landlord
shall first apply the proceeds paid under any such policy of insurance to the
repair of such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. Notwithstanding the foregoing to the
contrary, Landlord shall have no duty to repair or replace Tenant's fixtures,
equipment, personal property, alterations or improvements to the Premises,
including without limitation those described in Exhibit C, and Tenant shall
promptly, at its sole cost and expense, repair and replace such items, unless
such damage results from Landlord's negligent or willful acts.
15.2 Partial Damage -- Uninsured. Subject to the provisions of
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Sections 15.3, 15.4 and 15.5, if the Premises are damaged, except by a negligent
or willful act of Tenant or Landlord (in which event Tenant or landlord shall
make all required repairs at its own expense), and such damage was caused by a
casualty not covered under an insurance policy required to be maintained by
Tenant under Section 13, or otherwise maintained by Landlord, Landlord may, at
its option, either (i) repair such damage as soon as reasonably possible, at
Landlord's expense, in which event this lease shall continue in full force and
effect, or (ii) give written notice to Tenant within sixty (60) days after the
date of the occurrence of such damage of Landlord's intention to cancel and
terminate this Lease as of the date of occurrence of such damage. In the event
Landlord elects to give such notice of Landlord's intention to cancel and
terminate this Lease, Tenant shall have the right within ten (10) days after
receipt of such notice to give written notice to Landlord of Tenant's intention
to repair such damage at Tenant's expense, without reimbursement from Landlord,
in which event this Lease shall continue in full force and effect and Tenant
shall proceed to make such repairs as soon as is reasonably possible. If Tenant
does not give such notice within such 10-day period, this Lease shall be
canceled and terminated as of the date of the occurrence of such damage.
Notwithstanding the foregoing to the contrary, if Landlord elects to repair the
premises after an uninsured casualty, Landlord shall have no duty to repair or
replace any of Tenant's fixtures, equipment, personal property or alterations or
improvements to the Premises, including without limitation those described in
Exhibit C, and Tenant shall promptly, at its sole cost and expense, repair and
replace such items unless such damage was caused by a negligent or willful act
of landlord.
15.3 Total Destruction. If at any time during the term hereof the
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Premises are totally destroyed from any cause whether or not covered by
insurance required to be maintained under this Lease (including any total
destruction required by an authorized public authority), this Lease shall
automatically terminate as of the date of such total destruction.
15.4 Damage Near End of Term. If the Premises are partially destroyed
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or damaged during the last one (1) year of the term of this Lease, Landlord may,
at Landlord's option, cancel and terminate this Lease as of the date of the
occurrence of such damage by giving written notice to Tenant of Landlord's
election to do so within sixty (60) days after the date of the occurrence of
such damage.
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15.5 Damage to Building. In the event of any casualty to the Building
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(whether or not including damage to the Premises), the repair or restoration of
which would in Landlord's reasonable judgment cost in excess of fifty percent
(50%) of the full replacement cost of the Building, Landlord may, at its option,
terminate this Lease by written notice given to Tenant within sixty (60) days of
the date of such damage.
15.6 Abatement of Rent: Tenant's Remedies. (a) If the Premises are
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partially destroyed or damage and Landlord or Tenant repairs or restores them
pursuant to the provisions of this Section 15, the rent payable here under for
the period during which such damage, repair or restoration continues shall be
abated in proportion to the degree to which Tenant's use of the Premises is
impaired. Except for abatement of rent, if any, Tenant shall have no right to
claim against Landlord for any damage suffered by reason of such damage,
destruction, repair or restoration except where such damage or destruction was
the result of Landlord's negligence.
(b) If Landlord shall be obligated to repair or restore the Premises
under the provisions of this Section 15, it shall commence said repairs within
sixty (60) days after such obligation accrues, unless prevented by any
governmental agency, Acts of God, labor interruptions or strikes or events of a
similar nature, and if Landlord fails to commence such repair or restoration
within said sixty (60) day period, Tenant may, at its option, cancel and
terminate this Lease by giving Landlord written notice of Tenant's election to
do so at any time prior to the commencement of such repair or restoration. In
such event, this Lease shall terminate as of the date of such notice.
15.7 Termination -- Advance Payments. Upon termination of this lease
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pursuant to this Section 15, an equitable adjustment shall be made concerning
advance rent and any advance payment made by Tenant to Landlord. Landlord shall,
in addition, return to Tenant so much of Tenant's security deposit as has not
theretofore been applied by Landlord.
15.8 Waiver. Tenant waives the provisions of California Civil Code
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Sections 1932(2) and 1933(4) which relate to termination of leases when the
thing leased is destroyed and agrees that such event shall be governed by the
terms of this Lease.
16. Holding Over. On the last day of the term of this Lease or sooner
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termination of this Lease, Tenant agrees to peacefully and quietly surrender and
yield possession of the premises unto Landlord in as good order, state and
condition as the same were at the time of delivery of possession of the premises
to Tenant, reasonable use and wear and tear thereof excepted. Should Tenant hold
over said term hereby created with the consent of Landlord, such tenancy shall
be deemed to be merely one from month-to-month, at a monthly rental of one
hundred ten percent (110%) of the monthly rental in effect at the end of the
term of this Lease and upon all the other terms and conditions contained in this
Lease.
17. Non-Waiver. The waiver of any breach of this Lease by either of
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the parties or the failure or omission of the parties to exercise and remedy for
a violation of any of its terms, conditions or covenants shall in no way be
deemed to be a consent by the parties to such violation and shall in no way
estop or prevent the parties from exercising any of their rights under this
Lease thereafter either for
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such or any subsequent violation of any term, condition or covenant. The
acceptance or payment of rent here under shall not be, and shall not be
construed to be, a waiver of any breach, term, covenant or condition of this
Lease.
18. Utilities and Services.
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(a) Landlord agrees to furnish power to the premises, and heat and
air for the normal use of the premises.
(b) Landlord shall provide Tenant with after-hours control of heating,
ventilation and air conditioning (HVAC) for the Premises. Landlord shall install
a new electrical submeter in Tenant's Premises.
(c) Landlord to pay twelve cents (SO.12) per month, per usable square
foot, for Tenant's utilities service. Tenant to pay any additional cost for said
monthly service.
(d) Normal janitorial service shall be provided to the premises, and
the common areas of the Building, five nights per week.
The foregoing services and utilities shall be provided in an amount
and at such times customarily used in similar type buildings in the geographical
area in which the Landlord competes. The interruption or curtailment of any such
services caused by any event beyond the control of Landlord, including repairs,
renewals, improvements, alterations, strikes, lockouts, accidents, inability to
obtain fuel or supplies, or voluntary or involuntary governmental regulation
shall not constitute eviction or disturbance of Tenant's use of the Premises and
shall not entitle Tenant to abatement of rent or any other claim against
Landlord. Landlord shall use its best efforts at all times to continue said
service to the common areas.
19. Security Deposit. Tenant has, contemporaneously with the execution
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of this Lease, deposited with Landlord the sum of $7,800.00 (Seven Thousand
Eight Hundred Dollars) receipt of which is hereby acknowledged by Landlord. This
sum shall be held by Landlord as security for the faithful performance by Tenant
on all of the terms, covenants and conditions of this Lease by Tenant to be kept
and performed during the term hereof. If at any time during the term of this
Lease any of the rent herein reserved shall be overdue and unpaid or any other
sum payable by Tenant to Landlord here under shall be overdue and unpaid,
the Landlord May, at its option (but Landlord shall not be required to),
appropriate and apply any portion of said $7,800.00 to the payment of any such
overdue rent or other sum. In the event of the failure of Tenant to keep and
perform all of the terms, covenants and conditions of this Lease to be kept and
performed by Tenant, then at the option of Landlord, it may, after terminating
this Lease, appropriate and apply said entire $7,800.00 (or so much thereof as
may be necessary) to compensate Landlord for all loss or damage sustained or
suffered by Landlord due to such breach on the part of Tenant. Should the entire
$7,800.00 (or any portion thereof) be appropriated or applied by Landlord for
the payment of overdue rent or other sums then due and payable to Landlord by
Tenant here under, then Tenant shall, upon written demand of Landlord, forthwith
remit to Landlord a sufficient amount in cash to restore said security to the
original sum of $7,800.00. Tenant's failure to do so within ten (10) days after
receipt of such demand shall constitute a breach of this Lease. Should Tenant
comply with all of said terms, covenants and conditions and promptly pay all
of the rental herein provided as it falls due, and all other sums payable by
Tenant to Landlord here under, then said
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falls due, and all other sums payable by Tenant to Landlord here under, then
said sum shall be returned in full to Tenant at the end of the term of this
Lease or upon the earlier termination of the Lease under the provisions of
Section 15 hereof.
20. Operating Expenses and Property Taxes. (a) Landlord shall pay for
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the cost of insurance for the Building, water and sewer, elevator, maintenance
management, scavenger and other services and expenses related to the Premises
and the Building. Landlord shall also pay for PG&E, scavenger and janitorial for
the common areas of the Building.
(b) Tenant shall be responsible for paying its proportionate share of
increases in actual operating expenses and real property taxes for the Premises
above a Base Year of 1996. Said increases shall not exceed ten percent (10%) in
any given year. Tenant shall not be required to pay for any capital repairs or
alterations other than those which may be required by applicable codes, law or
regulations which become effective after lease commencement, and only then
depreciated over the useful life of the repair or alteration. Tenant shall not
pay operating expense and real estate tax increases until after the first
anniversary of the Commencement Date of the lease. Tenant shall be entitled to
review the documentation for such expenses.
21. Building Directory/Signage. Landlord, at its cost, shall place,
--------------------------
construct and maintain a directory, which shall be located in the lobby of the
Building, exclusively for the display of the names of tenants in the Building
and their respective suite numbers.
(a) Tenant and Landlord shall agree on all signage requested by
Tenant, which signage must comply with Building standards already in place. All
signage shall be furnished and installed at Tenant's expense. Landlord shall
cooperate, without charge to Tenant, in assisting Tenant in obtaining any
required government approvals.
22. Parking. Landlord agrees Super Parking, Inc., a tenant of
-------
Landlord, shall provide twenty five (25) parking stalls in the surface parking
lots adjacent to and within one block of the Building. The rate charged to
Tenant by Super Parking, Inc. for these parking stalls shall be $75.00 per month
per stall for the first year of the lease, subject to fair market increases not
to exceed three percent (3%) per annum.
23. Real Property Taxes. Landlord shall be responsible for the payment
-------------------
of all "real property" taxes on the property of which the Premises is a part
during the lease term. Tenant shall not be responsible for any increase in taxes
due to a sale or transfer of the property. "Real property tax" as used herein
shall include all real estate and personal property taxes (excluding any
personal property taxes assessed any other tenant of the Building), assessments
and any and all other impositions, fees and charges, whether extraordinary or
ordinary, general or special, which may at any time or from time to time during
the term of this Lease be levied or assessed or imposed or charged against or
with respect to, or become a lien against, (i) the Premises, (ii) the Building,
(iii) the land on which the Building is located, (iv) any part of the foregoing,
(v) this Lease, (vi) the operation of the Building or the Premises or any part
thereof by Landlord, Tenant, or Owner (including, without limitation, any and
all payroll, transit impact, housing fund, child care funds, license, business
and occupation taxes, fees, charges and other impositions), and any taxes or
other impositions imposed in lieu of said taxes, assessments, fees, charges and
other impositions, and any taxes, assessments, fees and other impositions
imposed
10
upon the rental here under or under the Master Lease by any government authority
having jurisdiction thereover. Without limiting the generality of the foregoing,
"real property" tax shall also include all taxes on Owner or Landlord measured
by gross receipts from the Building levied during the term hereof under the
provisions of the Gross Receipts Tax Ordinance of the City and County of San
Francisco as from time to time amended, or any statutory successor, or under the
provisions of any statute, ordinance or regulation of any other governmental
body. "Real property" taxes shall be prorated at the commencement and at the
expiration of the term hereof. "Real property" taxes shall not include any
estate or inheritance taxes or any net income tax of Landlord or owner unless
the same is imposed in lieu of or as a replacement for what would otherwise be a
"real property" tax, or any taxes which Landlord is not required to pay under
the terms of the Master Lease.
24. Personal Property Taxes.
-----------------------
(a) Tenant shall pay prior to deliquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property (collectively "personal property") of Tenant contained in the Premises
or elsewhere. When possible, Tenant shall cause all personal property to be
assessed and billed separately from the Premises, Building or land on which they
are located.
(b) If any of Tenant's personal property shall be assessed with any
real property of Owner or Landlord, Tenant shall pay Landlord the taxes
attributable to Tenant's personal property within ten (10) days after receipt of
a written statement setting forth the taxes applicable.
25. Rental Adjustments. See paragraph 3.
------------------
26. Condemnation. If the Premises or any portion thereof are taken
------------
under power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than fifteen percent (15%)
of the floor area of the Premises is taken by condemnation, Tenant may, at
Tenant's option, to be exercised in writing only within ten (10) days after
Landlord shall have given Tenant written notice of such taking (or in the
absence of such notice, within ten [10] days after the condemning authority
shall have taken possession), terminate this Lease as of the date the condemning
authority takes such possession. If Tenant does not terminate the Lease in
accordance with the foregoing, the Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in the proportion of the floor area taken bears to the total floor area
of the Premises. Any award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the power
of eminent domain shall be the property of Landlord, whether such award shall be
made as compensation for diminution in value of the leasehold or for the taking
of the fee (or any interest therein), or as severance damages; provided,
however, that Tenant shall be entitled to any award for loss of or damage to
Tenant's trade fixtures and removable personal property, Tenant's relocation
expenses and interruption of Tenant's business. In the event that this Lease is
not terminated by reason of such condemnation, Landlord shall, to the extent of
severance damages received by Landlord in connection with such condemnation,
repair any damage to the Premises caused by such condemnation except to the
extent that Tenant has been reimbursed therefor by the condemning authority.
Tenant shall pay any amount in excess of
11
such severance damages required to complete such repair. If there is a
condemnation of any portion of the Building or the land on which the Building is
located, and such taking is of so much of the Building that Landlord determines
that it cannot resonably and economically operate the Building for the purpose
for which it was operated prior to such condemnation, Landlord may, in such an
event terminate this Lease by giving Tenant written notice thereof with ninety
(90) days of the date of such condemnation and, in such a case, any award will
be located as provided above.
27. Attornment. See Exhibit E Recognition and Attornment Agreement.
----------
28. General Provisions.
------------------
28.1 Estoppel Certificate. (a) Tenant shall at any time upon not less
--------------------
than ten (10) days prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing certifying (i) that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and that this Lease, as so modified, is in full force and
effect) and the date to which the rent and other charges are paid in advance, if
any, (ii) that there are not, to Tenant's knowledge, any uncured defaults on the
part of Landlord hereunder, or specifying such defaults if any are claimed, and
(iii) such other matters as may be reasonably requested by Landlord. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Land and improvements in which the Premises are located or
any interest therein.
(b) Tenant's failure to deliver such statement within such time shall
be a material breach of this Lease and shall be conclusive upon the Tenant (i)
that this Lease is in full force and effect, without modification except as may
be represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one month's rent has been
paid in advance.
(c) If Landlord desires to finance or refinance its interest in the
property and improvements upon which the Premises are located, or any parts
thereof, Tenant hereby agrees to deliver to any lender designated by Landlord
such financial statements of Tenant as may be reasonably required by lender.
Such statements shall include the past three (3) years' financial statements of
Tenant. All such financial statements shall be received by Landlord in
confidence and shall be used only for the purposes herein set forth.
28.2 Severability. If the invalidity of any provision of this Lease is
------------
determined by a court of competent jurisdiction, it shall in no way affect the
validity of any other provision hereof.
28.3 Late Charges. Tenant hereby acknowledges that the late payment
------------
by Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amounts of which would be
impossible to ascertain. Such cost include, but are not limited to, processing
and accounting charges, late charges which may be imposed upon Landlord by the
terms of the Master Lease or any mortgage or deed of trust covering Landlord's
interest in the property on which the Premises is located, interest penalties
and lost opportunity. Accordingly, if any installment of rent or an other sum
due from Tenant shall not be received by Landlord within five (5) days after
such amount shall be due, Tenant shall pay Landlord a late charge equal to Five
Hundred Dollars
12
($500.00) The parties hereby agree that such late charge represent 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 after Tenant's first late
payment shall in no event constitute a waiver of Tenant's default with respect
to such overdue amount nor prevent Landlord from exercising any other rights and
remedies granted hereunder.
28.4 Interest on Past-Due Obligations. Except as expressly provided
--------------------------------
herein, any amount due Landlord and not paid when due shall bear interest from
the date due at a rate equal to the lesser of (a) three percent (3%) above the
reference rate or the publicly announced prime rate of interest charged on such
due date by the San Francisco Main Office of Bank of America, N.T. & S.A. (or
any successor bank thereto) to substantial commercial borrowers for ninety (90)
day loans or (b) the maximum rate permitted by law. Such payment of interest
shall not excuse or cure any default by Tenant under this Lease; provided,
however, that interest shall not be payable on late charges incurred by Tenant.
28.5 Time is of the Essence. Time is of the essence.
----------------------
28.6 Captions. Section headings in this Lease are for convenience
--------
purposes only and shall not be interpreted as a substantive part of this Lease.
28.7 Recording. Tenant shall not record this Lease or any memorandum
---------
of this Lease without Landlord's prior written consent, and such recordation
shall, at the option of Landlord, constitute a noncurable default of Tenant
hereunder.
28.8 Cumulative Remedies. No remedy or election hereunder shall be
-------------------
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
28.9 Covenants and Conditions. Each provision of this Lease
------------------------
performable by Tenant shall be deemed both a covenant and a condition.
28.10 Binding Effect: Choice of Law. Subject to any provisions hereof
-----------------------------
restricting assignment or subletting by Tenant, this Lease shall bind the
parties, their personal representatives, successors and assigns. This Lease
shall be governed by the laws of the State of California.
28.11 Subordination. (a) This Lease, at Landlord's option, shall be
-------------
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the real property of
which the Premises are a part (or upon Landlord's leasehold interest in such
real property) and to any and all advance made on the security thereof and to
all renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Tenant's right to quiet possession
of the Premises shall not be disturbed by Landlord or any person succeeding to
Landlord's interest in the Premises if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such mortgage,
deed of trust or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
13
recording thereof.
(b) Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney-in-fact and in Tenant's name, place and stead, to
do so.
28.12 Waiver of Subrogation. So long as the applicable policy is not
---------------------
affected and the cost thereof is not increased thereby, each of the parties
hereto does hereby waive its entire right of recovery against the other for
any damages caused by an occurrence insured against such party and the rights of
any insurance carrier to be subrogated to the rights of the insured under the
applicable policy.
28.13 Modification of Public Areas. Landlord shall have the right to
----------------------------
change or modify public areas of the Building wherein the Premises are located
so long as said changes or modifications do not materially interfere with or
affect Tenant's quiet enjoyment.
28.14 Quitclaim Deed. At the expiration of the term of this Lease or
--------------
its earlier termination under the terms hereof, Tenant, upon Landlord's written
request, shall provide within ten (10) days a quitclaim deed in favor of
Landlord or its assigns whereby Tenant releases any and all of its interest in
the Premises or the land and improvements of which the Premises are a part.
28.15 Merger. The voluntary or other surrender of the Lease by Tenant,
------
or a mutual cancellation thereof, or a termination by Landlord, shall not work
as a merger, and shall, at the option of Landlord, operate as an assignment to
Landlord of any or all subtenancies.
28.16 Corporate Authority. If any party executing this Lease is a
-------------------
corporation, such individual executing this Lease on behalf of said corporation
represents and warrants that she/he is duly authorized to execute and deliver
this Lease on behalf of said corporation.
28.17 Quiet Possession. Upon Tenant paying the fixed rent reserved
----------------
hereunder and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall
have quiet possession of the premises for the entire term hereof subject to all
of the provisions of this Lease.
28.18 Advertisements and Signs. Landlord reserves the exclusive
------------------------
right to use the exterior walls and roof of the Premises and the Building and
access thereto and Tenant shall not inscribe, paint or affix any signs,
advertisements, placards or awnings on the exterior walls, windows or roof of
the Premises or the Building without prior written consent of Landlord. It is
understood and agreed that any sign so placed on the premises or building with
consent of Landlord shall be removed by Tenant at termination of this Lease and
any damage or injury to the Premises resulting therefrom shall be repaired by
Tenant at its sole cost. In the event of the failure of Tenant to remove such
signs or repair any damage resulting there from, Landlord may remove said signs
and repair at the Tenant's expense.
28.19 Auctions. Tenant shall hold no auction upon the Premises without
--------
14
the prior written consent of Landlord.
28.20 Entry by Landlord and Owner. Tenant shall permit Owner and
---------------------------
Landlord and their agents to enter into and upon the premises with twenty four
(24) hour notice to Tenant, except in the case of emergency, for the purpose of
inspecting the same, for the purpose of showing the Premises to prospective
tenants, prospective buyers, lenders and insurance carriers, and for the purpose
of maintaining the Building in which the Premises are situated, or for the
purpose of making repairs.
28.21 Cost of Suit. If either party becomes a party to any
------------
litigation concerning this Lease, the Premises, or the Building or the land
thereunder, by reason of any act or omission of the other party or its
authorized representatives, and not by any act or omission of the party that
becomes a party to that litigation or any act or omission of its authorized
representatives, the party that causes the other party to become involved in the
litigation shall be liable to that party for reasonable attorneys' fees and
court costs incurred by it in the litigation as fixed by a court of competent
jurisdiction. If either party commences an action against the other party
arising out of or in connection with this Lease, the prevailing party shall be
entitled to have and recover from the losing party reasonable attorneys' fees
and costs of suit as fixed by a court of competent jurisdiction.
28.22 Notices. All notices or demands to be given to Landlord or
-------
Tenant shall be deemed sufficiently served if the same is in writing and is
enclosed in a sealed envelope and is delivered personally or is deposited in the
United States Mail, certified or registered mail, return receipt requested,
postage prepaid and addressed to the Tenant at City Search, 0000 Xxxx Xxxxxx,
Xxxxx 000, Xx Xxxxxxxx, XX 00000, and to Landlord at 000 Xxxxxx Xx., Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000. Any such notice shall be deemed to have been served
and received upon such personal delivery or upon such mailing; provided,
however, if such notice pertains to the change of address of either party, such
notice shall be deemed to have been served only upon actual receipt thereof.
28.23 Sale or Transfer of Premises. If Landlord sells or transfers all
----------------------------
or any portion of its interest in the land and improvements of which Premises
are a part, Landlord, on consummation of the sale or transfer, shall be released
and discharged from any liability under this Lease upon the transfer of all
prepaid rent and any unexpended security deposit to Landlord's successor.
28.24 Financial Statements. Tenant shall cause to be furnished to
--------------------
Landlord within ten (10) days of preparation its most current financial
statement and balance sheet prepared in accordance with generally accepted
accounting principles. Said information as a minimum shall be furnished not less
frequently than annually.
28.25 Brokerage. Xxxxxx X. Xxxxxxx, Inc. is acting as Tenant's
---------
exclusive agent in this transaction. Landlord shall pay to Xxxxxx X. Xxxxxxx,
Inc. a brokerage commission of five percent (5%) of the fully serviced rental
paid by Tenant during the initial lease term. The first half of the commission
will be due and payable upon complete execution of the lease. The second half
will be due and payable sixty (60) days from the Commencement Date of the lease.
28.26 Exhibits. Exhibits A through E inclusive, are incorporated in
--------
15
this Lease and made a part hereof.
28.27 Integrated Agreements -- Modification. This Lease contains all
-------------------------------------
the agreements of the parties and cannot be amended or modified except by a
written agreement executed by all parties or their successors.
28.28 Rules and Regulations. The Commencement of the lease term is
----------------------
expressly conditioned upon Landlord being able to complete the desired
remodeling to his satisfaction and further conditioned upon Landlord being able
to obtain all of the necessary permits. Tenant shall comply with Landlord's
rules and regulations for the Building attached hereto as Exhibit D and to such
modifications and amendments thereto as may be made by Landlord after the date
of this Lease.
28.29 Joint and Several Liability. All of the terms, covenants and
---------------------------
conditions contained in this Lease to be performed by either party, if such
party shall consist of more than one person or organization, shall be deemed
joint and several.
29. Primary Use. In no event shall the premises be used for any
-----------
purpose other than as described in paragraph 7 herein.
30. Insolvency or Bankruptcy. The appointment of a receiver to take
------------------------
possession of all or substantially all of the assets of Tenant or of the
operations of Tenant in the demised premises, or a general assignment by Tenant
for the benefit of creditors, or the filing of proceedings in insolvency or
bankruptcy by or against Tenant shall entitle Landlord, at its option to
terminate the lease; provided, however, if Tenant cures its insolvency or
bankruptcy within thirty (30) days of written notice thereof, the lease shall
not terminate.
31. Freight Movement. Furniture, merchandise and other bulk objects
----------------
shall be brought into and removed from the Building only through the freight
entrance, and the time and manner of movement of such objects shall be subject
to reasonable requirements of Landlord. Freight movement to and from the
premises shall be accomplished as promptly as possible. Such moving shall be at
Tenant's sole expense. No such objects shall be brought into or removed from the
Building during any major market exhibition without the prior written consent of
Landlord.
32. Prior Entry. Tenant shall have the right to install telephone and
-----------
computer cables, and equipment so long as Tenant performs such work through a
licensed contractor and said work is done in a good workmanlike manner to City
and County specifications. Lessee shall be responsible for all costs and
expenses occasioned by such installation and work. In such event, lessee shall
be bound by all of the terms, covenants and conditions of this Lease Agreement.
33. Option Premises/Right of First Refusal. Suite 244, the option
--------------------------------------
premises (600 rentable square feet, approximately). Tenant shall have the option
to lease the Option Premises, by providing written notice to Landlord within one
hundred twenty (120) days of the Commencement Date of the lease. The Option
Premises shall be leased under the same terms and conditions as the Initial
Premises, including Tenant Improvements to be determined. The Commencement Date
for the Option Premises shall be within sixty (60) days of the date the option
is exercised.
(a) Tenant shall be granted the continuing Right of First Refusal to
lease
16
Option Premises and contiguous space to the Premises, that is or comes available
throughout the initial lease or renewal term, including the Option Premises.
The Lease of Suite 255 expires on May 31, 2001. The Lease of Suite
231 expires on June 30, 1997 and there is one (1) three (3) year option, which
if exercised, expires on June 30, 2000.
(b) Landlord shall provide written notifications to Tenant of all good
faith acceptable offers received for any space that comes available pursuant to
this right of first refusal. Tenant shall have seven (7) business days in which
to elect to lease such space, or any portion thereof, at the terms presented in
such written notification from the Landlord, including rent at fair market
value. Landlord, at Landlord's sole cost, shall construct in the First Refusal
premises tenant improvements of the same quality and scope as those constructed
in the Initial Premises. In the event Tenant elects not to exercise its right to
lease any such space, Landlord may offer such space to third parties upon
substantially the same terms and conditions that it offered the space to Tenant.
34. Option To Extend. Tenant shall have the right to renew the lease
----------------
for one (1) three (3) year period. Notice for the renewal option shall be given
to Landlord in writing no later than four (4) months prior to the expiration of
the prior term. If said Option is exercised by Tenant, the rent shall be
increased by 3% at the end of years three (3), four (4), and five (5).
Executed at San Francisco, California, on May 31, 1996.
------
LANDLORD TENANT
XXXXX BUILDING DEV. PARTNERS
[SIGNATURE ILLEGIBLE] /s/ Xxxxxx Xxxxxx
---------------------------- --------------------------------
For Xxxx Xxxxxxxxxx Xxxxxx Xxxxxx
General Partner Chief Operating Officer
Perfect Market, Inc.
17
ALL OF THE REAL PROPERTY SITUATE IN THE CITY AND COUNTY OF SAN FRANCISCO,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL ONE:
----------
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHWESTERLY LINE OF
XXXXXXXX STREET AND THE SOUTHWESTERLY LINE OF EIGHTH STREET IN THE CITY OF SAN
FRANCISCO; THENCE SOUTH 45 DEGREES 08 FEET 40 INCHES (THE BEARING OF SAID
NORTHWESTERLY LINE OF XXXXXXXX STREET BEING TAKEN AS SOUTH 45 DEGREES 08 FEET 40
INCHES WEST FOR THE PURPOSE OF THIS DESCRIPTION) ALONG SAID NORTHWESTERLY LINE
OF XXXXXXXX STREET, A DISTANCE OF 81.75 FEET TO THE POINT OF BEGINNING OF THE
PROPERTY TO BE DESCRIBED; THENCE FROM SAID POINT OF BEGINNING SOUTH 45 DEGREES
08 FEET 40 INCHES WEST ALONG SAID NORTHWESTERLY LINE OF XXXXXXXX STREET, A
DISTANCE OF 18.53 FEET TO THE POINT OF INTERSECTION OF SAID NORTHWESTERLY LINE
OF XXXXXXXX STREET AND THE NORTHERLY LINE OF DIVISION STREET; THENCE SOUTH 25
DEGREES 39 FEET 21 INCHES WEST ALONG SAID NORTHERLY LINE OF DIVISION STREET, A
DISTANCE OF 207.19 FEET TO A POINT ON THE EASTERLY LINE OF THAT CERTAIN PARCEL
OF LAND CONVEYED BY THE WESTERN PACIFIC RAILROAD COMPANY TO THE STATE OF
CALIFORNIA, BY DEED RECORDED FEBRUARY 26, 1952, IN BOOK 5876, PAGE 453 OFFICIAL
RECORDS OF SAN FRANCISCO COUNTY; THENCE NORTHWESTERLY ALONG A 1147.0 FOOT RADIUS
CURVE TO THE LEFT (THE CENTER OF SAID CURVE BEARS SOUTH 23 DEGREES 06 FEET 03
INCHES WEST) THROUGH AN ANGLE OF 4 DEGREES 59 FEET 48 INCHES, AN ARC DISTANCE OF
100.03 FEET; THENCE NORTHEASTERLY ALONG A 372.745 FOOT RADIUS CURVE TO THE RIGHT
(THE CENTER OF SAID CURVE BEARS SOUTH 65 DEGREES 15 FEET 13 INCHES EAST) THROUGH
AN ANGLE OF 9 DEGREES 39 FEET 53 INCHES, AN ARC DISTANCE OF 62.88 FEET; THENCE
TANGENT TO SAID CURVE NORTH 34 DEGREES 24 FEET 40 INCHES EAST, A DISTANCE OF
141.77 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF EIGHTH STREET; THENCE
SOUTH 44 DEGREES 51 FEET 20 INCHES EAST ALONG SAID SOUTHWESTERLY LINE OF EIGHTH
STREET, A DISTANCE OF 166.30 FEET; THENCE SOUTH 45 DEGREES 08 FEET 40 INCHES
WEST, A DISTANCE OF 81.75 FEET; THENCE SOUTH 44 DEGREES 51 FEET 20 INCHES EAST,
A DISTANCE OF 93.0 FEET TO THE POINT OF BEGINNING, CONTAINING 39, 808 SQUARE
FEET, MORE OR LESS, AND BEING A PORTION OF 000 XXXX XXXXX XX. 000.
PARCEL TWO:
----------
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHWESTERLY LINE OF
XXXXXXXX STREET AND THE SOUTHWESTERLY LINE OF EIGHTH STREET IN THE CITY AND
COUNTY OF SAN FRANCISCO; THENCE FROM SAID POINT OF BEGINNING SOUTH 45 DEGREES 08
FEET 40 INCHES WEST (THE BEARING OF SAID NORTHWESTERLY LINE OF XXXXXXXX STREET
BEING TAKEN AS SOUTH 45 DEGREES 08 FEET 40 INCHES WEST FOR THE PURPOSE OF THIS
DESCRIPTION) ALONG SAID NORTHWESTERLY LINE OF XXXXXXXX STREET, A DISTANCE OF
81.75 FEET TO A POINT ON THE NORTHEASTERLY LINE OF PARCEL CONVEYED BY THE
WESTERN PACIFIC RAILROAD COMPANY TO X.X. XXXXXXX, TRUSTEE FOR THE HEIRS OF THE
PRINCIPALS OF XXX XXXXX WHOLESALE LIQUORS, BY DEED RECORDED OCTOBER 18, 1955, IN
BOOK 6717 OF OFFICIAL RECORDS, AT PAGES 161 TO 166, INCLUSIVE IN THE OFFICE OF
THE RECORDER OF THE CITY AND COUNTY OF SAN FRANCISCO; THENCE NORTH 44 DEGREES 51
FEET 20 INCHES WEST ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 93.00 FEET;
THENCE AT A RIGHT ANGLE NORTH 45 DEGREES 08 FEET 40 INCHES EAST ALONG THE
SOUTHEASTERLY LINE OF SAID PARCEL CONVEYED TO X.X. XXXXXXX, TRUSTEE, A DISTANCE
OF 81.75 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF EIGHTH STREET; THENCE
SOUTH 44 DEGREES 51 FEET 20 INCHES EAST ALONG SAID SOUTHWESTERLY LINE OF EIGHTH
STREET, A DISTANCE OF 93.00 FEET TO THE POINT OF BEGINNING.
BEING PART OF 000 XXXX XXXXX XX. 000.
EXHIBIT "A"
PARCEL THREE
------------
BEGINNING AT THE MOST NORTHERLY CORNER OF THAT CERTAIN PARCEL OF LAND
CONVEYED BY THE WESTERN PACIFIC RAILROAD COMPANY, TO X. X. XXXXXXX, TRUSTEE FOR
XXXXXX XXXXX, XXXXXXX XXXXX, XXXXXX XXXXX AND XXXXXX XXXXX, AS RECORDED OCTOBER
18, 1955 IN VOLUME 6717, AT PAGES 161 TO 166 INCLUSIVE, OFFICIAL RECORDS, OF THE
CITY AND COUNTY OF SAN FRANCISCO, SAID POINT OF BEGINNING, ALSO BEING ON THE
SOUTHERLY LINE OF 8TH STREET, SAID CITY OF SAN FRANCISCO; THENCE FROM SAID POINT
OF BEGINNING SOUTH 34 DEGREES 24 FEET 40 INCHES WEST ALONG THE WESTERLY LINE OF
SAID PARCEL CONVEYED TO X.X. XXXXXXX, TRUSTEE, A DISTANCE OF 141.77 FEET; THENCE
CONTINUING ALONG SAID WEST LINE ON THE ARC OF A CURVE TO THE LEFT HAVING A
RADIUS OF 372,745 FEET (THE CENTER OF SAID CURVE BEARS SOUTH 55 DEGREES 35 FEET
20 INCHES EAST), THROUGH A CENTRAL ANGLE OF 9 DEGREES 39 FEET 53 INCHES, AN ARC
DISTANCE OF 62.88 FEET, TO A POINT ON THE NORTHEASTERLY LINE OF THE PARCEL OF
LAND CONVEYED BY THE WESTERN PACIFIC RAILROAD COMPANY TO THE STATE OF
CALIFORNIA, AS RECORDED FEBRUARY 26, 1952 IN VOLUME 5876, AT PAGE 453, OFFICIAL
RECORDS OF THE CITY AND COUNTY OF SAN FRANCISCO; THENCE NORTHERLY AND WESTERLY
ALONG SAID NORTHEASTERLY PROPERTY LINE ALONG THE ARC OF A CURVE TO THE LEFT
HAVING A RADIUS OF 1,147.00 FEET (THE CENTER OF SAID CURVE BEARS SOUTH 78
DEGREES 06 FEET 15 INCHES WEST), THROUGH A CENTRAL ANGLE OF 4 DEGREES 59 FEET 29
INCHES, AN ARC DISTANCE OF 99.92 FEET; THENCE ON THE ARC OF A CURVE TO THE RIGHT
HAVING A RADIUS OF 372.245 FEET (THE CENTER OF SAID CURVE BEARS SOUTH 73 DEGREES
57 FEET 51 INCHES EAST), THROUGH A CENTRAL ANGLE OF 24 DEGREES 11 FEET 13
INCHES, AN ARC DISTANCE OF 157.14 FEET, TO A POINT ON THE SOUTHERLY LINE OF 8TH
STREET; THENCE SOUTH 44 DEGREES 51 FEET 20 INCHES EAST ALONG SAID SOUTHERLY LINE
OF 8TH STREET, A DISTANCE OF 68.49 FEET TO THE POINT OF BEGINNING.
BEING A PORTION OF 100 VARA BLACK 420.
RESERVING FROM Parcel One of said real property (i) the free-standing sign
on the southerly portion of said Parcel One and (ii) an easement of ingress and
egress from Division Street across said Parcel One and of use of the area within
said Parcel One immediately surrounding said sign for the purposes of operating,
maintaining, repairing and replacing said sign for the benefit of Grantors,
their assigns, agents and invitees.
EXHIBIT C
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Landlord shall provide Tenant's improvements as follows:
1. Three (3) private offices with sliding glass doors.
2. Two (2) conference rooms with glass windows (panels).
3. Four, fifty four inch (54") high walls.
4. Open kitchen with sink, counter and cabinetry.
5. Vinyl tile in kitchen.
6. Supply room or shelving.
7. Carpet throughout of Tenant's choice (not to exceed $15.00 per square
yard) installed.
8. Painting throughout in colors of Tenant's choice with Landlord
approval.
9. The exposed structural columns within the Premises shall be
"fired-out" with a finish acceptable to Tenant.
10. Lighting sufficient to illuminate desk-heights surfaces.
11. Electrical outlets, located at a ratio of one (1) outlet per twelve
(12) lineal feet of partition for the office areas, including the
fifty four (54") high walls. Landlord agrees to install conduit (for
cabling) at each electrical outlet.
12. Electrical outlets shall be fifty percent (50%) duplex and fifty
percent (50%) fourplex. Four dedicated outlets will be installed.
13. Tenant to plan, install, and pay for all telephone equipment, computer
cables, and computer equipment.
14. Landlord shall improve to building standard the appearance of the
secondary entrance of the stairway from Eighth Street.
15. See Exhibit C-1 for Tenant's floor plan.
16. Landlord agrees that all improvements shall be to the standard of
Suite 244.
EXHIBIT C-1(a)
[EIGHTH STREET -- PARTIAL SECOND FLOOR PLAN]
EXHIBIT B
[EIGHTH STREET -- PARTIAL SECOND FLOOR PLAN]
EXHIBIT C-1(b)
PERFECT MARKET/CITY SEARCH
[EIGHTH STREET -- PARTIAL SECOND FLOOR PLAN]
EXHIBIT D
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RULES AND REGULATIONS
---------------------
1. The sidewalks, halls, passages, exits, entrances, elevators 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, 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.
2. No sign, placard, picture, name, advertisement or notice visible
from the exterior of any tenant's premises shall be inscribed, painted, affixed
of otherwise displayed by any tenant on any part of the building without the
prior written consent of Landlord. Landlord will adopt and furnish to tenant
general guidelines relating to signs inside the building on the office floors.
Tenant agrees to conform to such guidelines, but may request approval of
Landlord for modifications, which approval will not be unreasonably withheld.
All approved signs of 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. Landlord may from time to time replace the
directory sign with a new sign of equal or better quality. Landlord may, from
time to time, remove and/or relocate signs placed outside of any tenant's
premises.
3. The premises shall not be used for lodging. No cooking shall be
done or permitted by any tenant on the premises, except that use by the tenant
of Underwriters's Laboratory approved 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. Landlord will furnish each tenant free of charge a key to each
door lock in the premises. Landlord may make a
EXHIBIT D
---------
-1-
reasonable charge for any additional keys. No tenant shall have any duplicate
keys made without prior written approval of Landlord, 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 written consent of Landlord. 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 tenant.
5. 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 written approval, use any
method of heating or air conditioning other than 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.
6. Landlord shall have the right, exercisable without notice and
without liability to any tenant, to change the name and street address of the
building.
7. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed, no foreign substance of any kind whatsoever shall be thrown therein
and the expense of any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused it.
8. The Premises shall not be used for manufacturing of any kind, or
any business or activity other than that specifically provided for in Tenant's
lease.
EXHIBIT D
---------
-2-
9. 110 tenant shall install any radio or television antenna,
loudspeaker, or other device on the roof or exterior walls of the building.
10. There shall not be used in any space, or in the public halls of
the building, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other material handling
equipment as Landlord may approve. No other vehicles of any kind shall be
brought by any tenant into the Building or kept in or about its premises.
11. EACH TENANT SHALL STORE ALL ITS TRASH AND GARBAGE WITHIN ITS
------------------------------------------------------------
PREMISES.
--------
12. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in the City
of San Francisco without being in violation of any low or ordinance governing
such disposal. All garbage and refuse disposal shall be made only through
entryways and elevators provided for such purposes and at such times as Landlord
shall designate.
13. 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.
14. Landlord may waive any 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.
15. 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.
16. 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.
EXHIBIT D
---------
-3-
EXHIBIT E
RECOGNITION AND ATTORNMENT AGREEMENT
This Agreement ("Agreement") is made on __________________________________, 19__
between Xxxxxxx Xxxxxx, THE XXXX LIVING TRUST U/A DATED 4/15/91 and XXXXXXX,
AND XXXXXX XXXXXXXX LIVING TRUST U/A DATED 8/24/90 (collectively
"Masterlandlord"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx 0X, Xxxxx Xxxxxx,
XX 00000, XXXXX BUILDING DEVELOPMENT PARTNERS, a California General Partnership
("Landlord"), whose address is 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, and
Perfect Market, Inc. DBA: City Search ("Tenant"), whose address is
-------------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000 who agree as follows:
----------------------------
Xxx Xxxxxxxxx, XX 00000
1. RECITALS. This Agreement is made with reference to the following facts
and objectives.
(a) Master Landlord is the owner in fee of improved real property
located in the City of San Francisco, County of San Francisco, commonly known as
000 Xxxxxx Xxxxxx.
(b) On January 10, 1986, Master Landlord leased to Landlord and
Landlord leased from Master Landlord, the real property described in this
Agreement. The lease between Master Landlord and Landlord shall be referred to
as 'the Master Lease.
(c) Landlord and Tenant are contemplating entering into a sublease of
a part of the real property (the "Premises"), a copy of which sublease Master
Landlord has received. The sublease shall be referred to as the "Lease".
(d) The parties desire, under the provisions set forth in this
Agreement, to assute to Tenant possession of the Premises for the entire term of
the Lease even if Landlord defaults under the Master Lease or the Master Lease
terminates before expiration of the Lease.
2. MASTER LANDLORD'S CONSENT TO LEASE. Master Landlord consents to Landlord
and Tenant entering into the Lease, without waiver of the restriation in the
Master Lease concerning further assignment or subletting.
3. ATTORNMENT. If after expiration of the applicable period that Landlord
has in which to cure its defaults, Landlord defaults under the Master Lease, the
Master Landlord shall notify the Tenant of the default. On receipt of the notice
from Master Landlord, Tenant shall attorn to Master Landlord and perform all
Tenant's obligations under the Lease directly to Master Landlord as if Master
Landlord were the Landlord under the Lease. If Tenant is not, at the time of the
notice, in default, Master Landlord shall continue to recognize the estate of
Tenant created under the Lease. If Tenant is not in default, the Lease shall
continue with the same force and effect as if Master Landlord and Tenant had
entered into a Lease on the same provisions as those contained in the Lease.
4. TERMINATION OF MASTER LEASE BY DESTRUCTION OR CONDEMATION. If Master
Lease terminates as provided in paragraphs 18 & 20 of the Master Lease, the
Lease shall also terminate on the date that the Master Lease terminates.
5. TENANT'S LIABILITY TO LANDLORD. From the date Tenant attorns to Master
Landlord as provided in this Agreement, Tenant shall not be further liable to
Landlord for performance under the Lease, and Landlord shall return to Tenant,
immediately on Tenant's demand, the security deposit plus accrued interest and
other prepaid sums the Tenant paid to Landlord under provisions of the Lease.
6. CONDITIONS OF MASTER LANDLORD'S RECOGNITION AND TENANT'S ATTORNMENT.
Master, Landlord's obligation to recognize Tenant's rights under the Lease, and
Tenant's obligation to attorn to Master Landlord, are subject to the following:
(a) Master Landlord and Tenant, from the date of recognition and
attornment, shall have the same rights that can be enforced against each other
as Landlord and Tenant have that can be enforced against each other under the
Lease. Master Landlord shall not be liable for any act or omission of Landlord
and its authorized representatives, shall not be subject to any offsets or
defenses that Tenant has against Landlord, and shall not be bound by any prepaid
rent, security deposit or other prepaid sum that Tenant has paid in advance to
Landlord.
(b) Master Landlord and Tenant immediately shall enter into a written
agreement with the same provisions as those in the Lease, except for any changes
that are necessary because of the substitution of Master Landlord in the place
of Landlord.
7. AMENDMENT OF LEASE. Landlord and Tenant shall not enter into any
agreement that amends the Lease without Master Landlord's consent. Any amendment
of the Lease in violation of this provision shall have no force or effect on
Master Landlord.
8. MISCELLANEOUS.
(a) No Effect on Master Lease. Nothing in this Agreement shall be
deemed to change in any manner the provisions of the Master Lease between Master
Landlord and Landlord, or to waive any right that Master Landlord may now have
or later acquire against Landlord by reason of the Master Lease.
(b) Attorney's Fees. If any commences an action against any of the
other parties arising out of or in connection with this Agreement, the
prevailing party shall be entitled to recover from the losing party reasonable
attorney's fees and costs of suit.
(c) Notice. Any notice, demand, request, consent, approval, or
communication that any party desires or is required to give to another party or
any other person shall be in writing and either served personally or sent by
prepaid, first-class-mail. Any notice, demand, request, consent, approval, or
communication that any party desires or is required to give to the other party
at the address set forth in the introductory paragraph of this Agreement. Any
party may change its address by notifying the other parties of the change of
Address. Notice shall be deemed communicated within forty-eight(48) hours from
the time of mailing if mailed as provided in this paragraph.
(d) Successors. This Agreement shall be binding on and inure to the
benefit of the parties and their successors.
MASTER LANDLORD LANDLORD TENANT
By______________________ By [SIGNATURE ILLEGIBLE] By [SIGNATURE ILLEGIBLE]
-------------------- --------------------
Title___________________ Title Agent for Title COO
----------------- ----------------
Xxxx Baungerton
General Partner
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