Exhibit 10.19
FIRST AMENDMENT TO LEASE
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THIS FIRST AMENDMENT TO LEASE ("Amendment") is made as of October 18, 1999,
by and between 188 EMBARCADERO ASSOCIATES, L.P., a California limited
partnership ("Landlord"), and MEDIAPLEX, a Delaware corporation ("Tenant").
Recitals
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A. Landlord and Tenant entered into a Lease Agreement dated September 8,
1999 (the "Existing Lease") by which Landlord leased to Tenant and Tenant leased
from Landlord Suite 600 (the "Existing Premises") containing approximately
10,557 square feet of rentable area on the 6th floor of the building known as
Bayside Plaza located at 000 Xxxxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Building").
B. As of the date of this Amendment, the Commencement Date of the Lease
has not been established.
C. Landlord and Tenant desire to amend the Lease to (i) provide for Tenant
to lease Suite 200 (the "Additional Space") containing approximately 11,094
square feet of rentable area on the 2nd floor of the Building; and (ii) make
certain other changes in the Lease, all upon and subject to the terms and
conditions set forth in this Amendment. The approximate configuration and
location of the Additional Space is shown on Exhibit A.
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NOW THEREFORE, in consideration of the foregoing recitals and the mutual
agreements of the parties herein, Landlord and Tenant agree as follows:
1. Capitalized Terms. Capitalized terms not otherwise defined in this
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Amendment shall have the meaning given them in the Existing Lease.
2. Definition of Lease. The Existing Lease, as further amended by this
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Amendment, is herein called the "Lease."
3. Leasing of Additional Space. Landlord leases to Tenant and Tenant leases
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from Landlord the Additional Space for a term commencing (the "Additional
Space Commencement Date") fourteen (14) days after the date Landlord
delivers possession of the Additional Space to Tenant, and unless sooner
terminated, expiring on the Expiration Date (as extended herein); provided,
however, in no event shall the Additional Space Commencement Date be
earlier than December 1, 1999. When the Additional Space Commencement Date
has been established, Landlord and Tenant shall at the request of either
party confirm the Additional Space Commencement Date and Expiration Date in
writing.
4. Expiration Date. The Term of the Lease is hereby extended to expire on the
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last day of the sixtieth (60th) full calendar month following the
Additional Space Commencement Date (the new "Expiration Date").
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5. Existing Tenant. Tenant acknowledges and agrees that the Additional Space
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is leased and occupied by an existing tenant (the "Existing Tenant") in
accordance with a lease which expires December 31, 2000. Landlord agrees to
use good faith efforts to regain possession of the Additional Space from
the Existing Tenant and to deliver possession of the Additional Space to
Tenant within thirty (30) days following the date Landlord and Tenant fully
execute this Amendment. If, despite Landlords good faith efforts, Landlord
is unable to deliver possession of the Additional Space to Tenant within
thirty (30) days following the date Landlord and Tenant fully execute this
Amendment, Landlord or Tenant shall each have the right to terminate this
Amendment by providing written notice of termination to the other and this
Amendment shall be of no further force and effect upon the parties hereto.
Such right of termination shall constitute Tenant's sole remedy for
Landlord's failure to deliver possession of the Additional Space. Landlord
shall not be liable for any claims, damages or liabilities if Landlord is
unable to deliver possession of the Additional Space to within thirty (30)
days following the date Landlord and Tenant fully execute this Amendment.
In the event Landlord tenders possession of the Additional Space to Tenant,
and Tenant accepts possession thereof, following thirty (30) days after the
date Landlord and Tenant fully execute this Amendment, Tenant's right to
terminate this Amendment shall become void.
6. Premises following the Additional Space Commencement Date. Commencing on
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the Additional Space Commencement Date and continuing through the
Expiration Date, except as a provision herein applies only to the
Additional Space, the Additional Space shall be included in the "Premises"
for all purposes under the Lease (and the "Premises" shall consist of both
the Existing Premises and the Additional Space, totaling approximately
21,651 square feet of rentable area).
7. Base Rent for Additional Space. In addition to the Base Rent payable by
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Tenant to Landlord for the Existing Premises, commencing on the Additional
Space Commencement Date and continuing until the Expiration Date, Tenant
shall pay the following Base Rent for the Additional Space:
Months following Additional
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Space Commencement Date: Base Rent:
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Months 01 -- 12: $50.00 per rentable square foot per year
Months 13 -- 24: $51.00 per rentable square foot per year
Months 25 -- 36: $52.00 per rentable square foot per year
Months 37 -- 48: $53.00 per rentable square foot per year
Months 49 -- 60: $54.00 per rentable square foot per year
8. Base Rent for Existing Premises. In accordance with the terms of this
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Amendment, the Term of the Lease has been extended for a short period of
time. The Existing Lease does not provide for Base Rent for the Existing
Premises during such short extension of the Term. Therefore, Tenant shall
pay Base Rent for the Existing Premises in accordance with the provisions
of the Existing Lease, except that beginning in the 49th full calendar
month following the Commencement Date for the Existing Premises and
continuing
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through the Expiration Date (as herein extended), Tenant shall pay Base Rent of
$51.00 per rentable square foot per year for the Existing Premises.
9. Condition of Additional Space. Tenant has inspected and examined the
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Additional Space and has elected to lease the Additional Space on a
strictly "AS IS" and with all faults basis, except that Landlord shall
within thirty (30) days following written notice from Tenant (a) repaint
the Additional Space with a color selected by Tenant from Building standard
paint, and (b) recarpet the Additional Space with a color selected by
Tenant from Building standard carpet. Landlord shall have no obligation to
perform any work to prepare the Additional Space for use or occupancy by
Tenant other than such (a) repainting, and (b) recarpeting contained above;
provided, however, if Tenant does not give Landlord written notice
requesting that Landlord repaint and recarpet the Additional Space, then
Landlord's obligation to repaint and recarpet the Additional Space shall
end one (1) year following the Additional Space Commencement Date. Tenant
shall be solely responsible for making any alterations or improvements to
the Additional Space required or desired by Tenant, subject to and in
accordance with the provisions of Article 6 - Alterations - of the Original
Lease, which Alterations may be made by Tenant at any time after Landlord
delivers possession of the Additional Space to Tenant, so long as the
installation of Tenant's Alterations do not interfere with Landlord's
painting and installation of carpet in the Additional Space.
10. Tenant's Share. From and after the Additional Space Commencement Date,
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Tenant's Share shall be 25.34%.
11. Letter of Credit. Upon execution of this Amendment, Tenant shall deliver to
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Landlord either (a) an amendment to the existing L/C increasing the Face
Amount by $100,000.00, or (b) a new L/C with a Face Amount of $100,000.00
(such amendment or new L/C being herein called the "Additional L/C"),
subject to the provisions of Section 36 of the Existing Lease, as amended
by this Paragraph 11. The Face Amount of the Additional L/C shall be
reduced to (i) $50,000.00 if and when Tenant satisfies the market valuation
provisions of Section 36 (b) of the Lease, and (ii) $25,000.00 if and when
Tenant satisfies the market valuation provisions of Section 36 (c) of the
Original Lease.
12. Parking. Effective upon the Additional Space Commencement Date, the number
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of parking spaces provided by Landlord to Tenant under the provisions of
Section 37 of the Original Lease is hereby increased from two (2) to four
(4) parking spaces. Two (2) of such four (4) parking spaces shall be one
(1) "tandem" parking space. Tenant shall pay Monthly Parking Rental for
each such parking space (whether or not tandem) in accordance with the
provisions of Section 37 of the Original Lease.
13. Brokers Landlord shall pay the fee or commission of CB Xxxxxxx Xxxxx (the
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"Broker") in accordance with Landlord's separate written agreement with the
Broker, if any. Tenant warrants and represents to Landlord that in the
negotiating or making of this Amendment neither Tenant nor anyone acting on
Tenant's behalf has dealt with any real estate broker or finder who might
be entitled to a fee or commission for this Amendment other than the
Broker. Tenant agrees to indemnify and hold Landlord harmless from any
claim or claims, including costs, expenses and attorney's fees incurred by
Landlord, asserted by
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any other broker or finder for a fee or commission, based upon any dealings
with or statements made by Tenant or its representatives.
14. Ratification of Existing Lease. Except as expressly amended by this
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Amendment, the Existing Lease remains in full force and effect without
modification. The Existing Lease and this Amendment are fully integrated
and each reference to any provision of the Existing Lease shall be deemed
to refer to such provision of the Existing Lease as it may be amended in
this Amendment. The Existing Lease and this Amendment constitute the entire
agreement between Landlord and Tenant regarding the subject matters
contained herein, and supersedes all prior or contemporaneous agreements,
understandings, proposals and other representations by or between Landlord
and Tenant, whether written or oral, all of which are merged herein. This
Amendment shall become effective as a binding agreement only if and when
Amendment executes this Amendment following execution by Tenant and
delivers a fully executed copy to Tenant.
15. Authority. Each of the persons executing this Amendment on behalf of Tenant
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warrants and represents that Tenant is a duly organized and validly
existing entity, that Tenant has full right and authority to enter into
this Amendment and that the persons signing on behalf of Tenant are
authorized to do so and have the power to bind Tenant to this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have entered into and executed this
Amendment as of date of this Amendment.
TENANT: LANDLORD:
MEDIAPLEX, 188 EMBARCADERO ASSOCIATES, L.P.,
a Delaware corporation a California limited partnership
By: /s/ Xxx Xxxxxxx By: CORNERSTONE HOLDINGS, LLC,
-------------------- a Delaware limited liability company,
Name: Xxx Xxxxxxx Manager
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Title: President By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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By: /s/ Xxxxxxx X. Xxxxxxx Title: Authorized Signatory
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Name: Xxxxxxx X. Xxxxxxx
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Title: Chairman & CEO
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EXHIBIT A
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ATTACHED TO AND FORMING A PART OF
FIRST AMENDMENT TO LEASE
DATED AS OF OCTOBER 18, 1999
BETWEEN
188 EMBARCADERO ASSOCIATES, L.P., AS LANDLORD,
AND
MEDIAPLEX, AS TENANT ("AMENDMENT")
THE ADDITIONAL SPACE
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[MAP APPEARS HERE]
INTIALS:
Landlord /SE/
______
Tenant /JE/
______
Exhibit A, Page 1
LEASE AGREEMENT
between
188 EMBARCADERO ASSOCIATES, L.P.
as "Landlord"
and
MEDIAPLEX
as "Tenant"
TABLE OF CONTENTS
SECTION PAGE
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1. PREMISES........................................................................... 4
2. TERM;POSSESSION.................................................................... 4
3. RENT............................................................................... 4
4. SECURITY DEPOSIT................................................................... 8
5. USE AND COMPLIANCE WITH LAWS....................................................... 9
6. TENANT IMPROVEMENTS & ALTERATIONS.................................................. 11
7. MAINTENANCE AND REPAIRS............................................................ 13
8. TENANT'S TAXES..................................................................... 14
9. UTILITIES AND SERVICES............................................................. 14
10. EXCULPATION AND INDEMNIFICATION.................................................... 16
11. INSURANCE.......................................................................... 17
12. DAMAGE OR DESTRUCTION.............................................................. 19
13. CONDEMNATION....................................................................... 20
14. ASSIGNMENT AND SUBLETTING.......................................................... 22
15. DEFAULT AND REMEDIES............................................................... 25
16. LATE CHARGE AND INTEREST........................................................... 27
17. WAIVER............................................................................. 27
18. ENTRY, INSPECTION AND CLOSURE...................................................... 27
19. SURRENDER AND HOLDING OVER......................................................... 28
20. ENCUMBRANCES....................................................................... 29
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS..................................... 30
22. NOTICES............................................................................ 30
23. ATTORNEYS' FEES.................................................................... 31
24. QUIET POSSESSION................................................................... 31
25. SECURITY MEASURES.................................................................. 31
26. FORCE MAJEURE...................................................................... 32
27. RULES AND REGULATIONS.............................................................. 32
28. LANDLORD'S LIABILITY............................................................... 32
29. CONSENTS AND APPROVALS............................................................. 32
30. WAIVER OF RIGHT TO JURY TRIAL...................................................... 34
31. BROKERS............................................................................ 35
32. RELOCATION OF PREMISES............................................................. 35
33. ENTIRE AGREEMENT................................................................... 35
34. MISCELLANEOUS...................................................................... 35
35. AUTHORITY.......................................................................... 36
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INDEX OF DEFINED TERMS
Additional Rent................. 7 Representatives....................... 10
Alterations..................... 12 Security Deposit...................... 8
Award........................... 21 Service Failure....................... 15
Base Operating Costs............ 5 Taxes................................. 6
Base Taxes...................... 5 Tenant................................ 4
Broker.......................... 36 Tenant Improvements................... 12
Building........................ 4 Tenant's Share........................ 7
Building Rules.................. 33 Tenant's Taxes........................ 14
Building Systems................ 9 Term.................................. 4
Business Days................... 15 Trade Fixtures........................ 13
Business Hours.................. 15 Transfer.............................. 22
Claims.......................... 17 Transferee............................ 24
Commencement Date............... 4 Visitors.............................. 10
Condemnation.................... 21
Condemnor....................... 21
Construction Rider.............. 12
Controls........................ 14
Date of Condemnation............ 21
Encumbrance..................... 30
Environmental Losses............ 10
Environmental Requirements...... 10
Event of Default................ 26
Expiration Date................. 4
Fees............................ 32
Handled by Tenant............... 10
Handling by Tenant.............. 10
Hazardous Materials............. 10
HVAC............................ 9
Interest Rate................... 28
Landlord........................ 4
Laws............................ 5
Mortgagee....................... 30
Operating Costs................. 5
Parking Facility................ 4
Permitted Hazardous Materials... 10
Permitted Transfer.............. 25
Permitted Transferee............ 25
Premises........................ 4
Project......................... 4
Property........................ 4
Property Manager................ 18
Proposed Transferee............. 23
Rent............................ 8
Rental Tax...................... 14
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BASIC LEASE INFORMATION
Lease Date: For identification purposes only, the date of this Lease is
September 8, 1999
Landlord: 188 EMBARCADERO ASSOCIATES, L.P., a California limited
partnership
Tenant: MEDIAPLEX, a Delaware corporation
Project: Bayside Plaza
Building Address: 000 Xxxxxxxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Rentable Area of
Building: Approximately 85,431 square feet
Premises: Floor: Six
Suite Number: 600
Rentable Area: Approximately 10,557 rentable square feet
Term: 60 full calendar months (plus any partial month at the
beginning of the Term)
Commencement Date: Earlier of(a) November 1, 1999, (b) the date upon which
Tenant, with Landlord's written permission, actually
occupies and conducts business in any portion of the
Premises
Expiration Date: The last day of the 60th full calendar month in the Term
Base Rent: Months 01 -- 12: $47.00 per rentable square foot per year
Months 13 -- 24: $48.00 per rentable square foot per year
Months 25 -- 36: $49.00 per rentable square foot per year
Months 37 -- 48: $50.00 per rentable square foot per year
Months 49 -- 60: $51.00 per rentable square foot per year
Base Year: The calendar year 2000
Tenant's Share: 12.36%
Security Deposit: (a) Cash of $43,107.75, plus
(b) a Letter of Credit in the amount of $100,000.00,
subject to, and in accordance with, the provisions of
Section 36 of this Lease.
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Landlord's Address for Payment of Rent: 188 Embarcadero Associates, L.P.
File 73100
X.X. Xxx 00000
Xxx Xxxxxxxxx, XX 00000-0000
Business Hours: 8:00 a.m. to 5:30 p.m. Monday through Friday (except Holidays)
Landlord's Address 188 EMBARCADERO ASSOCIATES, L.P.
for Notices: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Property Management
with a copy to:
188 EMBARCADERO ASSOCIATES, L.P.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Tenant's Address for Notices: 000 Xxxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Access Card Deposit: $15.00 per card
Broker(s): CB Xxxxxxx Xxxxx, Inc.
Guarantor(s): (NONE)
Property Manager: Cornerstone Properties Limited Partnership
dba Xxxxxx Cornerstone Properties Limited Partnership
Additional Provisions: 36. Letter of Credit
37. Parking
38. Extension Option
39. Tenant's Signage
Exhibits:
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Exhibit A: The Premises
Exhibit B: Construction Rider
Exhibit C: Building Rules
Exhibit D: Additional Provisions
Exhibit E: Approved Letter of Credit Form
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THIS LEASE is made as of the Lease Date set forth in the Basic Lease
Information, by and between the Landlord identified in the Basic Lease
Information ("Landlord"), and the Tenant identified in the Basic Lease
Information ("Tenant"). Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon the terms and subject to the conditions of this Lease, the office
space identified in the Basic Lease Information as the Premises (the
"Premises"), in the Building located at the address specified in the Basic Lease
Information (the "Building"). The approximate configuration and location of the
Premises is shown on Exhibit A. Landlord and Tenant agree that the rentable area
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of the Premises for all purposes under this Lease shall be the Rentable Area
specified in the Basic Lease Information. The Building, together with the
parking facilities serving the Building (the "Parking Facility"), and the
parcel(s) of land on which the Building and the Parking Facility are situated
(collectively, the "Property"), is part of the Project identified in the Basic
Lease Information (the "Project").
2. TERM; POSSESSION. The term of this Lease (the "Term") shall commence on the
Commencement Date as described below and, unless sooner terminated, shall expire
on the Expiration Date set forth in the Basic Lease Information (the "Expiration
Date"). The "Commencement Date" shall be the earlier of (a) November 1, 1999, or
(b) the date upon which Tenant, with Landlord's written permission, actually
occupies and conducts business in any portion of the Premises.
Tenant understands and agrees that the Premises are currently leased by another
tenant (the "Existing Tenant") in accordance with a lease which expires January
31, 2003. Landlord agrees to use its good faith efforts to negotiate a
termination of lease with the Existing Tenant and deliver possession of the
Premises to Tenant on or before November 1, 1999. If, despite Landlord's good
faith efforts, Landlord is unable to deliver possession of the Premises to
Tenant on or before November 2, 1999, Landlord or Tenant shall each have the
right to terminate this Lease by providing written notice of termination to the
other and this Lease shall be of no further force and effect upon the parties
hereto. Such right of termination shall constitute Tenant's sole remedy for
Landlord's failure to deliver possession of the Premises. Landlord shall not be
liable for any claims, damages or liabilities if Landlord is unable to deliver
possession of the Premises to Tenant by November 2, 1999. In the event Landlord
tenders possession of the Premises to Tenant, and Tenant accepts possession
thereof, after November 2, 1999, Tenant's right to terminate this Lease shall
become void.
3. RENT.
3.1 Base Rent. Tenant agrees to pay to Landlord the Base Rent set forth in
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the Basic Lease Information, without prior notice or demand, on the first day of
each and every calendar month during the Term, except that Base Rent for the
first full calendar month in which Base Rent is payable shall be paid upon
Tenant's execution of this Lease and Base Rent for any partial month at the
beginning of the Term shall be paid on the Commencement Date. Base Rent for any
partial
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month at the beginning or end of the Term shall be prorated based on the actual
number of days in the month.
If the Basic Lease Information provides for any change in Base Rent by
reference to years or months (without specifying particular dates), the change
will take effect on the applicable annual or monthly anniversary of the
Commencement Date (which won't necessarily be the first day of a calendar
month).
3.2 Additional Rent: Increases in Operating Costs and Taxes.
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(a) Definitions.
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(1) "Base Operating Costs" means Operating Costs for the calendar
year specified as the Base Year in the Basic Lease Information (excluding
therefrom, however, any Operating Costs of a nature that would not ordinarily be
incurred on an annual, recurring basis).
(2) "Base Taxes" means Taxes for the calendar year specified as
the Base Year in the Basic Lease Information.
(3) "Operating Costs" means all costs of managing, operating,
maintaining and repairing the Property, including all costs, expenditures, fees
and charges for: (A) operation, maintenance and repair of the Property
(including maintenance, repair and replacement of glass, the roof covering or
membrane, and landscaping); (B) utilities and services (including
telecommunications facilities and equipment, recycling programs and trash
removal), and associated supplies and materials; (C) compensation (including
employment taxes and fringe benefits) for persons who perform duties in
connection with the operation, management, maintenance and repair of the
Building, such compensation to be appropriately allocated for persons who also
perform duties unrelated to the Building; (D) property (including coverage for
earthquake and flood if carried by Landlord), liability, rental income and other
insurance relating to the Property, and expenditures for deductible amounts paid
under such insurance (not to exceed Fifty Thousand and 00/100 Dollars
[$50,000.00] in payments in any calendar year for deductible amounts under
Landlord's "all risk" or "special form" insurance policy insuring against fire
or other damage to the Building) and with expenditures for deductible amounts
paid in connection with losses caused by earthquake amortized over ten (10)
years; (E) licenses, permits and inspections; (F) complying with the
requirements of any law, statute, ordinance or governmental rule or regulation
or any orders pursuant thereto (collectively "Laws") either (i) not in effect as
of the Commencement Date or (ii) as any Laws in effect as of the Commencement
Date may be amended, changed, added to, interpreted or re-interpreted by
applicable governmental authority or court decision, or administrative ruling
subsequent to the Commencement Date; (G) amortization of capital improvements
required to comply with Laws, or which are intended to reduce Operating Costs or
improve the utility, efficiency or capacity of any Building System, with
interest on the unamortized balance at the rate paid by Landlord on funds
borrowed to finance such capital improvements (or, if Landlord finances such
improvements out of Landlord's funds without borrowing, the rate that Landlord
would have paid to borrow such funds, as reasonably determined by Landlord),
over such useful life as Landlord shall reasonably determine; (H) an office in
the Project for the management of the Property, including expenses of furnishing
and equipping such
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office and the rental value of any space occupied for such purposes; (I)
property management fees; (J) accounting, legal and other professional services
incurred in connection with the operation of the Property and the calculation of
Operating Costs and Taxes; (K) a reasonable allowance for depreciation on
machinery and equipment used to maintain the Property and on other personal
property owned by Landlord in the Property (including window coverings and
carpeting in common areas); (L) contesting the validity or applicability of any
Laws that may affect the Property; (M) the Building's share of any shared or
common area maintenance fees and expenses (including costs and expenses of
operating, managing, owning and maintaining the Parking Facility and the common
areas of the Project and any fitness center or conference center in the
Project); and (N) any other cost, expenditure, fee or charge, whether or not
hereinbefore described, which in accordance with generally accepted property
management practices would be considered an expense of managing, operating,
maintaining and repairing the Property. Operating Costs for any calendar year
during which average occupancy of the Building is less than one hundred percent
(100%) shall be calculated based upon the Operating Costs that would have been
incurred if the Building had an average occupancy of one hundred percent (100%)
during the entire calendar year.
Operating Costs shall not include (i) capital improvements or capital
expenditures (except as otherwise provided above); (ii) costs of special
services rendered to individual tenants (including Tenant) for which a special
charge is made; (iii) interest and principal payments on loans or indebtedness
secured by the Building; (iv) costs of improvements for Tenant or other tenants
of the Building; (v) costs of services or other benefits of a type which are not
available to Tenant but which are available to other tenants or occupants, and
costs for which Landlord is reimbursed by other tenants of the Building other
than through payment of tenants' shares of increases in Operating Costs and
Taxes; (vi) leasing commissions, attorneys' fees and other expenses incurred in
connection with leasing space in the Building or enforcing such leases; (vii)
depreciation or amortization, other than as specifically enumerated in the
definition of Operating Costs above; (viii) costs incurred by Landlord related
to the testing for, removal, transportation or storage of Hazardous Materials to
the extent not caused by Tenant's use of the Premises or Building; (ix) the
amount paid to subsidiaries or affiliates of Landlord for cost of services,
supplies or materials for the Premises to the extent the costs of such services,
supplies or materials exceed the competitive costs of such services, supplies or
materials if they were not provided by a subsidiary or affiliate of Landlord;
and (x) costs, fines or penalties incurred due to Landlord's violation of any
Law.
(4) "Taxes" means: all real property taxes and general, special or
district assessments or other governmental impositions, of whatever kind, nature
or origin, imposed on or by reason of the ownership or use of the Property;
governmental charges, fees or assessments for transit or traffic mitigation
(including area-wide traffic improvement assessments and transportation system
management fees), housing, police, fire or other governmental service or
purported benefits to the Property; personal property taxes assessed on the
personal property of Landlord used in the operation of the Property; service
payments in lieu of taxes and taxes and assessments of every kind and nature
whatsoever levied or assessed in addition to, in lieu of or in substitution for
existing or additional real or personal property taxes on the Property or the
personal property described above; any increases in the foregoing caused by
changes in assessed valuation, tax rate or other factors or circumstances; and
the reasonable cost of contesting by appropriate proceedings the amount or
validity of any taxes, assessments or charges described above. To the
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extent paid by Tenant or other tenants as "Tenant's Taxes" (as defined in
Section 8 - Tenant's Taxes), "Tenant's Taxes" shall be excluded from Taxes.
(5) "Tenant's Share" means the Rentable Area of the Premises divided
by the total Rentable Area of the Building, as set forth in the Basic Lease
Information. If the Rentable Area of the Building is changed or the Rentable
Area of the Premises is changed by Tenant's leasing of additional space
hereunder or for any other reason, Tenant's Share shall be adjusted accordingly.
(b) Additional Rent.
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(1) Tenant shall pay Landlord as "Additional Rent" for each calendar
year or portion thereof during the Term Tenant's Share of the sum of(x) the
amount (if any) by which Operating Costs for such period exceed Base Operating
Costs, and (y) the amount (if any) by which Taxes for such period exceed Base
Taxes.
(2) Prior to the end of the Base Year and each calendar year
thereafter, Landlord shall notify Tenant of Landlord's estimate of Operating
Costs, Taxes and Tenant's Additional Rent for the following calendar year.
Commencing on the first day of January of each calendar year and continuing on
the first day of every month thereafter in such year, Tenant shall pay to
Landlord one-twelfth (1/12th) of the estimated Additional Rent. If Landlord
thereafter estimates that Operating Costs or Taxes for such year will vary from
Landlord's prior estimate, Landlord may, by notice to Tenant, revise the
estimate for such year (and Additional Rent shall thereafter be payable based on
the revised estimate).
(3) As soon as reasonably practicable after the end of the Base Year
and each calendar year thereafter, Landlord shall furnish Tenant a statement
with respect to such year, showing Operating Costs, Taxes and Additional Rent
for the year, and the total payments made by Tenant with respect thereto. Unless
Tenant raises any objections to Landlord's statement within one hundred fifty
(150) days after receipt of the same, such statement shall conclusively be
deemed correct and Tenant shall have no right thereafter to dispute such
statement or any item therein or the computation of Additional Rent based
thereon. If Tenant does object to such statement, then Landlord shall provide
Tenant with reasonable verification of the figures shown on the statement and
the parties shall negotiate in good faith to resolve any disputes. Any objection
of Tenant to Landlord's statement and resolution of any dispute shall not
postpone the time for payment of any amounts due Tenant or Landlord based on
Landlord's statement, nor shall any failure of Landlord to deliver Landlord's
statement in a timely manner relieve Tenant of Tenant's obligation to pay any
amounts due Landlord based on Landlord's statement.
(4) If Tenant's Additional Rent as finally determined for any calendar
year exceeds the total payments made by Tenant on account thereof, Tenant shall
pay Landlord the deficiency within ten (10) Business Days of Tenant's receipt of
Landlord's statement. If the total payments made by Tenant on account thereof
exceed Tenant's Additional Rent as finally determined for such year, Tenant's
excess payment shall be credited toward the rent next due from Tenant under this
Lease. For any partial calendar year at the beginning or end of the Term,
Additional Rent shall be prorated on the basis of a 365-day year by computing
Tenant's Share of
-7-
the increases in Operating Costs and Taxes for the entire year and then
prorating such amount for the number of days during such year included in the
Term. Notwithstanding the termination of this Lease, Landlord shall pay to
Tenant or Tenant shall pay to Landlord, as the case may be, within ten (10)
Business Days after Tenant's receipt of Landlord's final statement for the
calendar year in which this Lease terminates, the difference between Tenant's
Additional Rent for that year, as finally determined by Landlord, and the total
amount previously paid by Tenant on account thereof.
If for any reason Base Taxes or Taxes for any year during the Term are reduced,
refunded or otherwise changed, Tenant's Additional Rent shall be adjusted
accordingly. If Taxes are temporarily reduced as a result of space in the
Building being leased to a tenant that is entitled to an exemption from property
taxes or other taxes, then for purposes of determining Additional Rent for each
year in which Taxes are reduced by any such exemption, Taxes for such year shall
be calculated on the basis of the amount the Taxes for the year would have been
in the absence of the exemption. The obligations of Landlord to refund any
overpayment of Additional Rent and of Tenant to pay any Additional Rent not
previously paid shall survive the expiration of the Term. Notwithstanding
anything to the contrary in this Lease, if there is at any time a decrease in
Taxes below the amount of the Taxes for the Base Year, then for purposes of
calculating Additional Rent for the year in which such decrease occurs and all
subsequent periods, Base Taxes shall be reduced to equal the Taxes for the year
in which the decrease occurs.
3.3 Payment of Rent. All amounts payable or reimbursable by Tenant under
---------------
this Lease, including late charges and interest (collectively, "Rent"), shall
constitute rent and shall be payable and recoverable as rent in the manner
provided in this Lease. All sums payable to Landlord on demand under the terms
of this Lease shall be payable within ten (10) Business Days after written
notice from Landlord of the amounts due. All rent shall be paid without offset,
recoupment or deduction in lawful money of the United States of America to
Landlord at Landlord's Address for Payment of Rent as set forth in the Basic
Lease Information, or to such other person or at such other place as Landlord
may from time to time designate.
4. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord the amount specified in the Basic Lease Information and the letter of
credit identified in Section 36 below as the Security Deposit (collectively, the
"Security Deposit", which term shall include amounts drawn on the letter of
credit), as security for the performance of Tenant's obligations under this
Lease. Landlord may (but shall have no obligation to) use the Security Deposit
or any portion thereof to cure any breach or default by Tenant under this Lease,
to fulfill any of Tenant's obligations under the Lease, or to compensate
Landlord for any damage it incurs as a result of Tenant's failure to perform any
of Tenant's obligations hereunder. In such event, Tenant shall pay to Landlord
on demand an amount sufficient to replenish the Security Deposit to the full
amount of the cash specified in the Basic Lease Information and the applicable
Face Amount (defined in Section 36 below) of the letter of credit. If at the
expiration or termination of this Lease, Tenant is not in default, has otherwise
fully performed all of Tenant's obligations under this Lease, and there are no
outstanding Claims (defined in Section 10.1 below, and including all existing
and potential Claims) for which Tenant is responsible, Landlord shall return to
Tenant the Security Deposit or the balance thereof then held by Landlord and not
applied as provided above within fifteen (15) Business Days following the
expiration or termination of this Lease. Landlord may commingle the Security
Deposit with Landlord's general and other funds. Landlord shall not be required
to pay
-8-
interest on the Security Deposit to Tenant. Tenant acknowledges that Landlord
has agreed to accept a letter of credit in lieu of an additional cash deposit as
an accommodation to Tenant and Tenant agrees that the letter of credit and all
amounts drawn thereunder shall be treated for all purposes under this Lease as
if a cash deposit had been tendered to Landlord upon the execution of this
Lease.
5. USE AND COMPLIANCE WITH LAWS.
5.1 Use. The Premises shall be used and occupied for general business
---
office purposes and for no other use or purpose. Tenant shall comply with all
present and future Laws relating to Tenant's use or occupancy of the Premises
(and make any repairs, alterations or improvements as required to comply with
all such Laws), and shall observe the "Building Rules" (as defined in Section 27
- Rules and Regulations), except that repairs or alterations required to comply
with Laws generally applicable to the condition of the Premises for use as
office space, and not required or caused by Tenant's particular use or
activities or by any Alterations made or proposed by Tenant, shall be made by
Landlord (and the cost thereof shall be included in or excluded from Operating
Costs as provided in Section 3.2(a)(3) above). Tenant shall not do, bring, keep
or sell anything in or about the Premises that is prohibited by, or that will
cause a cancellation of or an increase in the existing premium for, any
insurance policy covering the Property or any part thereof. Tenant shall not
permit the Premises to be occupied or used in any manner that will constitute
waste or a nuisance, or disturb the quiet enjoyment of or otherwise annoy other
tenants in the Building. Without limiting the foregoing, the Premises shall not
be used for educational activities, practice of medicine or any of the healing
arts, providing social services, for any governmental use (including embassy or
consulate use), or for personnel agency, customer service office, studios for
radio, television or other media, travel agency or reservation center operations
or uses. Tenant shall not, without the prior consent of Landlord, (i) bring into
the Building or the Premises anything that may cause substantial noise, odor or
vibration, overload the floors in the Premises or the Building or any of the
heating, ventilating and air-conditioning ("HVAC"), mechanical, elevator,
plumbing, electrical, fire protection, life safety, security or other systems in
the Building ("Building Systems"), or jeopardize the structural integrity of the
Building or any part thereof (ii) connect to the utility systems of the Building
any apparatus, machinery or other equipment other than typical office equipment;
or (iii) connect to any electrical circuit in the Premises any equipment or
other load with aggregate electrical power requirements in excess of 80% of the
rated capacity of the circuit.
5.2 Hazardous Materials.
-------------------
(a) Definitions.
-----------
(1) "Hazardous Materials" shall mean any substance: (A) that now
or in the future is regulated or governed by, requires investigation or
remediation under, or is defined as a hazardous waste, hazardous substance,
pollutant or contaminant under any governmental statute, code, ordinance,
regulation, rule or order, and any amendment thereto, including the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.
(S)9601 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C.
-- ---
(S)6901 et seq., or (B) that is toxic, explosive, corrosive, flammable,
------
radioactive, carcinogenic, dangerous or otherwise hazardous,
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(e) If any governmental authority promulgates or revises any Law or
imposes mandatory or voluntary controls or guidelines on Landlord or the
Property relating to the use or conservation of energy or utilities or the
reduction of automobile or other emissions or reduction or management of traffic
or parking on the Property (collectively "Controls"), to comply with such
Controls, whether mandatory or voluntary, or make any alterations to the
Property related thereto.
8. TENANT'S TAXES. "Tenant's Taxes" shall mean (a) all taxes, assessments,
license fees and other governmental charges or impositions levied or assessed
against or with respect to Tenant's personal property or Trade Fixtures in the
Premises, whether any such imposition is levied directly against Tenant or
levied against Landlord or the Property, (b) all rental, excise, sales or
transaction privilege taxes arising out of this Lease (excluding, however, state
and federal personal or corporate income taxes measured by the income of
Landlord from all sources) imposed by any taxing authority upon Landlord or upon
Landlord's receipt of any rent payable by Tenant pursuant to the terms of this
Lease ("Rental Tax"), and (c) any increase in Taxes attributable to inclusion of
a value placed on Tenant's personal property, Trade Fixtures or Alterations.
Tenant shall pay any Rental Tax to Landlord in addition to and at the same time
as Base Rent is payable under this Lease, and shall pay all other Tenant's Taxes
before delinquency (and, at Landlord's request, shall furnish Landlord
satisfactory evidence thereof). If Landlord pays Tenant's Taxes or any portion
thereof, Tenant shall reimburse Landlord upon demand for the amount of such
payment, together with interest at the Interest Rate from the date of Landlord's
payment to the date of Tenant's reimbursement.
9. UTILITIES AND SERVICES.
9.1 Description of Services. Landlord shall furnish to the Premises:
-----------------------
reasonable amounts of heat, ventilation and air-conditioning during the Business
Hours specified in the Basic Lease Information ("Business Hours") on weekdays
except public holidays ("Business Days"); reasonable amounts of electricity; and
janitorial services five days a week (except public holidays). Landlord shall
also provide the Building with normal fluorescent tube replacement, window
washing, elevator service, and common area toilet room supplies. Any additional
utilities or services that Landlord may agree to provide (including lamp or tube
replacement for other than Building Standard lighting fixtures) shall be at
Tenant's sole expense.
9.2 Payment for Additional Utilities and Services.
---------------------------------------------
(a) Upon request by Tenant in accordance with the procedures
established by Landlord from time to time for furnishing HVAC service at times
other than Business Hours on Business Days, Landlord shall furnish such service
to Tenant and Tenant shall pay for such services on an hourly basis at the then
prevailing rate established for the Building by Landlord; provided, however, the
rate shall be proportionately reduced to the extent other tenants in the
Building use the HVAC service during the same hours as used by Tenant.
(b) If the temperature otherwise maintained in any portion of the
Premises by the HVAC systems of the Building is affected as a result of (i) any
lights, machines or equipment used by Tenant in the Premises, or (ii) the
occupancy of the Premises by more than one person per 150 square feet of
rentable area, then Landlord shall have the right to install any machinery or
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equipment reasonably necessary to restore the temperature, including
modifications to the standard air-conditioning equipment. The cost of any such
equipment and modifications, including the cost of installation and any
additional cost of operation and maintenance of the same, shall be paid by
Tenant to Landlord upon demand.
(c) If Tenant's usage of electricity, water or any other utility
service exceeds the use of such utility Landlord determines to be typical,
normal and customary for the Building, Landlord may determine the amount of such
excess use by any reasonable means (including the installation at Landlord's
request but at Tenant's expense of a separate meter or other measuring device)
and charge Tenant for the cost of such excess usage. In addition, Landlord may
impose a reasonable charge for the use of any additional or unusual janitorial
services required by Tenant because of any unusual Tenant Improvements or
Alterations, the carelessness of Tenant or the nature of Tenant's business
(including hours of operation).
9.3 Interruption of Services. In the event of an interruption in, or
------------------------
failure or inability to provide any of the services or utilities described in
Section 9.1 - "Description of Services" (a "Service Failure"), such Service
Failure shall not, regardless of its duration, constitute an eviction of Tenant,
constructive or otherwise, or impose upon Landlord any liability whatsoever,
including, but not limited to, liability for consequential damages or loss of
business by Tenant or, except as provided herein, entitle Tenant to an abatement
of rent or to terminate this Lease.
(a) If any Service Failure not caused by Tenant or its Representatives
prevents Tenant from reasonably using a material portion of the Premises and
Tenant in fact ceases to use such portion of the Premises, Tenant shall be
entitled to an abatement of Base Rent and Additional Rent with respect to the
portion of the Premises that Tenant is prevented from using by reason of such
Service Failure in the following circumstances: (i) if Landlord fails to
commence reasonable efforts to remedy the Service Failure within ten (10)
Business Days following the occurrence of the Service Failure, and such failure
has persisted and continuously prevented Tenant from using a material portion of
the Premises during that period, the abatement of rent shall commence on the
eleventh Business Day following the Service Failure and continue until Tenant is
no longer so prevented from using such portion of the Premises; and (ii) if the
Service Failure in all events is not remedied within thirty (30) days following
the occurrence of the Service Failure and Tenant in fact does not use such
portion of the Premises for an uninterrupted period of thirty (30) days or more
by reason of such Service Failure, the abatement of rent shall commence no later
than the thirty-first day following the occurrence of the Service Failure and
continue until Tenant is no longer so prevented from using such portion of the
Premises.
(b) If a Service Failure is caused by Tenant or its Representatives,
Landlord shall nonetheless remedy the Service Failure, at the expense of Tenant,
pursuant to Landlord's maintenance and repair obligations under Section 7 -
"Maintenance and Repair" or Section 12.1 - "Landlord's Duty to Repair," as the
case may be, but Tenant shall not be entitled to an abatement of rent or to
terminate this Lease as a result of any such Service Failure.
(c) Notwithstanding Tenant's entitlement to rent abatement under the
preceding provisions, Tenant shall continue to pay Tenant's then current rent
until such time as Landlord and Tenant agree on the amount of the rent
abatement. If Landlord and Tenant are unable to agree on
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the amount of such abatement within ten (10) Business Days of the date they
commence negotiations regarding the abatement, then either party may submit the
matter to binding arbitration pursuant to Sections 1280 et seq. of the
-- ---
California
Code of Civil Procedure.
(d) In addition to the foregoing provisions, if there is a Service
Failure not caused by Tenant or its Representatives and such Service Failure
prevents Tenant from conducting its business in the Premises in the manner in
which Tenant intends to conduct such business, and (i) Landlord fails to
commence reasonable efforts to remedy the Service Failure within ninety (90)
days following the occurrence of the Service Failure, or (ii) the Service
Failure in all events is not remedied within one (1) year following its
occurrence and Tenant in fact does not conduct any business in the Premises for
an uninterrupted period of one (1) year or more, Tenant shall have the right to
terminate this Lease by written notice delivered to Landlord within ten (10)
Business Days following the event described in clauses (i) or (ii) above giving
rise to the right to terminate.
(e) Where the cause of a Service Failure is within the control of a
public utility or other public or quasi-public entity outside Landlord's
control, notification to such utility or entity of the Service Failure and
request to remedy the failure shall constitute "reasonable efforts" by Landlord
to remedy the Service Failure.
(f) Tenant hereby waives the provisions of California Civil Code
Section 1932(1) or any other applicable existing or future law, ordinance or
governmental regulation permitting the termination of this Lease due to such
interruption, failure or inability.
10. EXCULPATION AND INDEMNIFICATION.
10.1 Landlord's Indemnification of Tenant. Landlord shall indemnify,
------------------------------------
protect, defend and hold Tenant harmless from and against any claims, actions,
liabilities, damages, costs or expenses, including reasonable attorneys' fees
and costs incurred in defending against the same ("Claims") asserted by any
third party against Tenant for loss, injury or damage, to the extent such loss,
injury or damage is caused by the willful misconduct or negligent acts or
omissions of Landlord or its authorized representatives.
10.2 Tenant's Indemnification of Landlord. Tenant shall indemnify,
------------------------------------
protect, defend and hold Landlord and Landlord's authorized representatives
harmless from and against Claims arising from (a) the acts or omissions of
Tenant or Tenant's Representatives or Visitors in or about the Property, or (b)
any construction or other work undertaken by Tenant on the Premises (including
any design defects), or (c) any breach or default under this Lease by Tenant, or
(d) any loss, injury or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about the Premises during the Term,
excepting only Claims described in this clause (d) to the extent they are caused
by the willful misconduct or negligent acts or omissions of Landlord or its
authorized representatives.
10.3 Damage to Tenant and Tenant's Property. Landlord shall not be liable
--------------------------------------
to Tenant for any loss, injury or other damage to Tenant or to Tenant's property
in or about the Premises or the Property from any cause (including defects in
the Property or in any equipment in the Property; fire, explosion or other
casualty; bursting, rupture, leakage or overflow of any plumbing or other
-16-
pipes or lines, sprinklers, tanks, drains, drinking fountains or washstands in,
above, or about the Premises or the Property; or acts of other tenants in the
Property). Tenant hereby waives all claims against Landlord for any such loss,
injury or damage and the cost and expense of defending against claims relating
thereto, including any loss, injury or damage caused by Landlord's negligence
(active or passive) or willful misconduct. Notwithstanding any other provision
of this Lease to the contrary, in no event shall Landlord be liable to Tenant
for any punitive or consequential damages or damages for loss of business by
Tenant.
10.4 Survival. The obligations of the parties under this Section 10 shall
--------
survive the expiration or termination of this Lease.
11. INSURANCE.
11.1 Tenant's Insurance.
------------------
(a) Liability Insurance. Tenant shall maintain in full force
-------------------
throughout the Term, commercial general liability insurance providing coverage
on an occurrence form basis with limits of not less than Two Million Dollars
($2,000,000.00) each occurrence for bodily injury and property damage combined,
Two Million Dollars ($2,000,000.00) annual general aggregate, and Two Million
Dollars ($2,000,000.00) products and completed operations annual aggregate.
Tenant's liability insurance policy or policies shall: (i) include premises and
operations liability coverage, products and completed operations liability
coverage, broad form property damage coverage including completed operations,
blanket contractual liability coverage including, to the maximum extent
possible, coverage for the indemnification obligations of Tenant under this
Lease, and personal and advertising injury coverage; (ii) provide that the
insurance company has the duty to defend all insureds under the policy; (iii)
provide that defense costs are paid in addition to and do not deplete any of the
policy limits; (iv) cover liabilities arising out of or incurred in connection
with Tenant's use or occupancy of the Premises or the Property; (v) extend
coverage to cover liability for the actions of Tenant's Representatives and
Visitors; and (vi) designate separate limits for the Property. Each policy of
liability insurance required by this Section shall: (i) contain a cross
liability endorsement or separation of insureds clause; (ii) provide that any
waiver of subrogation rights or release prior to a loss does not void coverage;
(iii) provide that it is primary to and not contributing with, any policy of
insurance carried by Landlord covering the same loss; (iv) provide that any
failure to comply with the reporting provisions shall not affect coverage
provided to Landlord, its partners, property managers and Mortgagees; and (v)
name Landlord, its partners, the Property Manager identified in the Basic Lease
Information (the "Property Manager"), and such other parties in interest as
Landlord may from time to time reasonably designate to Tenant in writing, as
additional insureds. Such additional insureds shall be provided at least the
same extent of coverage as is provided to Tenant under such policies. All
endorsements effecting such additional insured status shall be at least as broad
as additional insured endorsement form number CG 20 11 01 96 promulgated by the
Insurance Services Office.
(b) Property Insurance. Tenant shall at all times maintain in effect
------------------
with respect to any Alterations and Tenant's Trade Fixtures and personal
property, commercial property insurance providing coverage, on an "all risk" or
"special form" basis, in an amount equal to at least 90% of the full replacement
cost of the covered property. Tenant may carry such insurance under a
-17-
blanket policy, provided that such policy provides coverage equivalent to a
separate policy. During the Term, the proceeds from any such policies of
insurance shall be used for the repair or replacement of the Alterations, Trade
Fixtures and personal property so insured. Landlord shall be provided coverage
under such insurance to the extent of its insurable interest and, if requested
by Landlord, both Landlord and Tenant shall sign all documents reasonably
necessary or proper in connection with the settlement of any claim or loss under
such insurance. Landlord will have no obligation to carry insurance on any
Alterations or on Tenant's Trade Fixtures or personal property.
(c) Requirements For All Policies. Each policy of insurance required
-----------------------------
under this Section 11.1 shall: (1) be in a form, and written by an insurer,
reasonably acceptable to Landlord, (ii) be maintained at Tenant's sole cost and
expense, and (iii) require at least thirty (30) days' written notice to Landlord
prior to any cancellation, nonrenewal or modification of insurance coverage.
Insurance companies issuing such policies shall have rating classifications of
"A" or better and financial size category ratings of "VII" or better according
to the latest edition of the A.M. Best Key Rating Guide. All insurance companies
issuing such policies shall be admitted carriers licensed to do business in the
state where the Property is located. Any deductible amount under such insurance
shall not exceed $5,000. Tenant shall provide to Landlord, upon request,
evidence that the insurance required to be carried by Tenant pursuant to this
Section, including any endorsement effecting the additional insured status, is
in full force and effect and that premiums therefor have been paid.
(d) Updating Coverage. Tenant shall increase the amounts of insurance
-----------------
as required by any Mortgagee, and, not more frequently than once every three (3)
years, as recommended by Landlord's insurance broker, if, in the opinion of
either of them, the amount of insurance then required under this Lease is not
adequate and such higher amount is standard for other first class office
buildings in San Francisco. Any limits set forth in this Lease on the amount or
type of coverage required by Tenant's insurance shall not limit the liability of
Tenant under this Lease.
(e) Certificates of Insurance. Prior to occupancy of the Premises by
-------------------------
Tenant, and not less than thirty (30) days prior to expiration of any policy
thereafter, Tenant shall furnish to Landlord a certificate of insurance
reflecting that the insurance required by this Section is in force, accompanied
by an endorsement showing the required additional insureds satisfactory to
Landlord in substance and form. Notwithstanding the requirements of this
paragraph, Tenant shall at Landlord's request provide to Landlord a certified
copy of each insurance policy required to be in force at any time pursuant to
the requirements of this Lease or its Exhibits.
11.2 Landlord's Insurance. During the Term, to the extent such coverages
--------------------
are available at a commercially reasonable cost, Landlord shall maintain in
effect insurance on the Building with responsible insurers, on an "all risk" or
"special form" basis, insuring the Building and the Tenant Improvements in an
amount equal to at least 90% of the replacement cost thereof, excluding land,
foundations, footings and underground installations. Landlord may, but shall not
be obligated to, carry insurance against additional perils and/or in greater
amounts.
11.3 Mutual Waiver of Right of Recovery & Waiver of Subrogation. Landlord
----------------------------------------------------------
and Tenant each hereby waive any right of recovery against each other and the
partners, managers,
-18-
members, shareholders, officers, directors and authorized representatives of
each other for any loss or damage that is covered by any policy of property
insurance maintained by either party (or required by this Lease to be
maintained) with respect to the Premises or the Property or any operation
therein, regardless of cause, including negligence (active or passive) of the
party benefiting from the waiver. If any such policy of insurance relating to
this Lease or to the Premises or the Property does not permit the foregoing
waiver or if the coverage under any such policy would be invalidated as a result
of such waiver, the party maintaining such policy shall obtain from the insurer
under such policy a waiver of all right of recovery by way of subrogation
against either party in connection with any claim, loss or damage covered by
such policy.
12. DAMAGE OR DESTRUCTION.
12.1 Landlord's Duty to Repair.
-------------------------
(a) If all or a substantial part of the Premises are rendered
untenantable or inaccessible by damage to all or any part of the Property from
fire or other casualty then, unless either party is entitled to and elects to
terminate this Lease pursuant to Sections 12.2 - Landlord's Right to Terminate
and 12.3 - Tenant's Right to Terminate, Landlord shall, at its expense, use
reasonable efforts to repair and restore the Premises and/or the Property, as
the case may be, to substantially their former condition to the extent permitted
by then applicable Laws; provided, however, that in no event shall Landlord have
any obligation for repair or restoration beyond the extent of insurance proceeds
received by Landlord for such repair or restoration, or for any of Tenant's
personal property, Trade Fixtures or Alterations.
(b) If Landlord is required or elects to repair damage to the Premises
and/or the Property, this Lease shall continue in effect, but Tenant's Base Rent
and Additional Rent shall be abated with regard to any portion of the Premises
that Tenant is prevented from using by reason of such damage or its repair from
the date of the casualty until substantial completion of Landlord's repair of
the affected portion of the Premises as required under this Lease. In no event
shall Landlord be liable to Tenant by reason of any injury to or interference
with Tenant's business or property arising from fire or other casualty or by
reason of any repairs to any part of the Property necessitated by such casualty.
12.2 Landlord's Right to Terminate. Landlord may elect to terminate this
-----------------------------
Lease following damage by fire or other casualty under the following
circumstances:
(a) If, in the reasonable judgment of Landlord, the Premises and the
Property cannot be substantially repaired and restored under applicable Laws
within one (1) year from the date of the casualty;
(b) If, in the reasonable judgment of Landlord, adequate proceeds are
not, for any reason, made available to Landlord from Landlord's insurance
policies (and/or from Landlord's funds made available for such purpose, at
Landlord's sole option) to make the required repairs;
(c) If the Building is damaged or destroyed to the extent that, in the
reasonable judgment of Landlord, the cost to repair and restore the Building
would exceed twenty-five percent
-19-
(25%) of the full replacement cost of the Building, whether or not the Premises
are at all damaged or destroyed; or
(d) If the fire or other casualty occurs during the last year of the
Term.
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of
this Section 12.2 occur or arise, Landlord shall give Tenant notice within one
hundred and twenty (120) days after the date of the casualty, specifying whether
Landlord elects to terminate this Lease as provided above and, if not,
Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease.
12.3 Tenant's Right to Terminate. If all or a substantial part of the
---------------------------
Premises are rendered untenantable or inaccessible by damage to all or any part
of the Property from fire or other casualty, and Landlord does not elect to
terminate as provided above, then Tenant may elect to terminate this Lease if
Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease is greater than one (1) year, in which event Tenant
may elect to terminate this Lease by giving Landlord notice of such election to
terminate within thirty (30) days after Landlord's notice to Tenant pursuant to
Section 12.2 - Landlord's Right to Terminate.
12.4 Waiver. Landlord and Tenant each hereby waive the provisions of
------
California Civil Code Sections 1932(2), 1933(4) and any other applicable
existing or future Law permitting the termination of a lease agreement in the
event of damage or destruction under any circumstances other than as provided in
Sections 12.2 - Landlord's Right to Terminate and 12.3 - Tenant's Right to
Terminate.
13. CONDEMNATION.
13.1 Definitions.
-----------
(a) "Award" shall mean all compensation, sums, or anything of value
awarded, paid or received on a total or partial Condemnation.
(b) "Condemnation" shall mean (i) a permanent taking (or a temporary
taking for a period extending beyond the end of the Term) pursuant to the
exercise of the power of condemnation or eminent domain by any public or quasi-
public authority, private corporation or individual having such power
("Condemnor"), whether by legal proceedings or otherwise, or (ii) a voluntary
sale or transfer by Landlord to any such authority, either under threat of
condemnation or while legal proceedings for condemnation are pending.
(c) "Date of Condemnation" shall mean the earlier of the date that
title to the property taken is vested in the Condemnor or the date the Condemnor
has the right to possession of the property being condemned.
-20-
13.2 Effect on Lease.
---------------
(a) If the Premises are totally taken by Condemnation, this Lease
shall terminate as of the Date of Condemnation. If a portion but not all of the
Premises is taken by Condemnation, this Lease shall remain in effect; provided,
however, that if the portion of the Premises remaining after the Condemnation
will be unsuitable for Tenant's continued use, then upon notice to Landlord
within thirty (30) days after Landlord notifies Tenant of the Condemnation,
Tenant may terminate this Lease effective as of the Date of Condemnation.
(b) If twenty-five percent (25%) or more of the Project or of the
parcel(s) of land on which the Building is situated or of the Parking Facility
or of the floor area in the Building is taken by Condemnation, or if as a result
of any Condemnation the Building is no longer reasonably suitable for use as an
office building, whether or not any portion of the Premises is taken, Landlord
may elect to terminate this Lease, effective as of the Date of Condemnation, by
notice to Tenant within thirty (30) days after the Date of Condemnation.
(c) If all or a portion of the Premises is temporarily taken by a
Condemnor for a period not extending beyond the end of the Term, this Lease
shall remain in full force and effect.
13.3 Restoration. If this Lease is not terminated as provided in Section
-----------
13.2 - Effect on Lease, Landlord, at its expense, shall diligently proceed to
repair and restore the Premises to substantially its former condition (to the
extent permitted by then applicable Laws) and/or repair and restore the Building
to an architecturally complete office building; provided, however, that
Landlord's obligations to so repair and restore shall be limited to the amount
of any Award received by Landlord and not required to be paid to any Mortgagee
(as defined in Section 20.2 below). In no event shall Landlord have any
obligation to repair or replace any improvements in the Premises beyond the
amount of any Award received by Landlord for such repair or to repair or replace
any of Tenant's personal property, Trade Fixtures, or Alterations.
13.4 Abatement and Reduction of Rent. If any portion of the Premises is
-------------------------------
taken in a Condemnation or is rendered permanently untenantable by repairs
necessitated by the Condemnation, and this Lease is not terminated, the Base
Rent and Additional Rent payable under this Lease shall be proportionally
reduced as of the Date of Condemnation based upon the percentage of rentable
square feet in the Premises so taken or rendered permanently untenantable. In
addition, if this Lease remains in effect following a Condemnation and Landlord
proceeds to repair and restore the Premises, the Base Rent and Additional Rent
payable under this Lease shall be abated during the period of such repair or
restoration to the extent such repairs prevent Tenant's use of the Premises.
13.5 Awards. Any Award made shall be paid to Landlord, and Tenant hereby
------
assigns to Landlord, and waives all interest in or claim to, any such Award,
including any claim for the value of the unexpired Term; provided, however, that
Tenant shall be entitled to receive, or to prosecute a separate claim for, an
Award for a temporary taking of the Premises or a portion thereof by a Condemnor
where this Lease is not terminated (to the extent such Award relates to the
unexpired Term), or an Award or portion thereof separately designated for
relocation expenses or the
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interruption of or damage to Tenant's business or as compensation for Tenant's
personal property, Trade Fixtures or Alterations.
13.6 Waiver. Landlord and Tenant each hereby waive the provisions of
------
California Code of Civil Procedure Section 1265.130 and any other applicable
existing or future Law allowing either party to petition for a termination of
this Lease upon a partial taking of the Premises and/or the Property.
14. ASSIGNMENT AND SUBLETTING.
14.1 Landlord's Consent Required. Tenant shall not assign this Lease or
---------------------------
any interest therein, or sublet or license or permit the use or occupancy of the
Premises or any part thereof by or for the benefit of anyone other than Tenant,
or in any other manner transfer all or any part of Tenant's interest under this
Lease (each and all a "Transfer"), without the prior written consent of
Landlord, which consent (subject to the other provisions of this Section 14)
shall not be unreasonably withheld. If Tenant is a business entity, any direct
or indirect transfer of fifty percent (50%) or more of the ownership interest
of the entity (whether in a single transaction or in the aggregate through more
than one transaction) shall be deemed a Transfer. Notwithstanding any provision
in this Lease to the contrary, Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber this Lease or all or any part of Tenant's interest under this
Lease.
14.2 Reasonable Consent.
------------------
(a) Prior to any proposed Transfer, Tenant shall submit in writing to
Landlord (i) the name and legal composition of the proposed assignee, subtenant,
user or other transferee (each a "Proposed Transferee"); (ii) the nature of the
business proposed to be carried on in the Premises; (iii) a current balance
sheet, income statements for the last two years and such other reasonable
financial and other information concerning the Proposed Transferee as Landlord
may request; and (iv) a copy of the proposed assignment, sublease or other
agreement governing the proposed Transfer. Within ten (10) Business Days after
Landlord receives all such information it shall notify Tenant whether it
approves or disapproves such Transfer or if it elects to proceed under Section
14.7 - Landlord's Right to Space.
(b) Tenant acknowledges and agrees that, among other circumstances for
which Landlord could reasonably withhold consent to a proposed Transfer, it
shall be reasonable for Landlord to withhold consent where (i) the Proposed
Transferee does not intend itself to occupy the entire portion of the Premises
assigned or sublet, (ii) Landlord reasonably disapproves of the Proposed
Transferee's business operating ability or history, reputation or
creditworthiness or the character of the business to be conducted by the
Proposed Transferee at the Premises, (iii) the Proposed Transferee is a
governmental agency or unit or an existing tenant in the Project, unless, in the
case of an existing tenant, Landlord does not have space available for lease
containing the same or more square feet as is contained in the Premises to
accommodate the existing tenant's expansion or renewal in the Project, as
identified in writing by such existing tenant, (iv) the proposed Transfer would
violate any "exclusive" rights of any tenants in the Project, (v) Landlord or
Landlord's agent has shown space in the Building to the Proposed Transferee or
submitted a written proposal in response to any inquiries from the Proposed
Transferee or the Proposed Transferee's agent
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concerning availability of space in the Building, at any time within the
preceding four months, or (vi) Landlord otherwise determines that the proposed
Transfer would have the effect of decreasing the value of the Building or
increasing the expenses associated with operating, maintaining and repairing the
Property. In no event may Tenant publicly offer or advertise all or any portion
of the Premises for assignment or sublease at a rental less than that then
sought by Landlord for a direct lease (non-sublease) of comparable space in the
Project.
14.3 Excess Consideration. If Landlord consents to the Transfer, Landlord
--------------------
shall be entitled to receive as Additional Rent hereunder, fifty percent (50%)
of all "Sublease Profits" (as defined below). "Sublease Profits" shall mean any
consideration paid by the Transferee for the assignment or sublease and, in the
case of a sublease, the excess of the rent and other consideration payable by
the subtenant over the amount of Base Rent and Additional Rent payable hereunder
applicable to the subleased space, less any and all direct, out-of-pocket
expenses and cash concessions, including costs for necessary Alterations and
brokerage commission, paid by Tenant to procure the assignee or subtenant.
Tenant shall pay to Landlord as additional rent, within ten (10) days after
receipt by Tenant, any such excess consideration paid by any transferee (the
"Transferee") for the Transfer provided any capital expenditures and brokerage
commissions in connection with any sublease shall be amortized over the term of
the sublease.
14.4 No Release Of Tenant. No consent by Landlord to any Transfer shall
--------------------
relieve Tenant of any obligation to be performed by Tenant under this Lease,
whether occurring before or after such consent, assignment, subletting or other
Transfer. Each Transferee shall be jointly and severally liable with Tenant (and
Tenant shall be jointly and severally liable with each Transferee) for the
payment of rent (or, in the case of a sublease, rent in the amount set forth in
the sublease) and for the performance of all other terms and provisions of this
Lease. The consent by Landlord to any Transfer shall not relieve Tenant or any
such Transferee from the obligation to obtain Landlord's express prior written
consent to any subsequent Transfer by Tenant or any Transferee. The acceptance
of rent by Landlord from any other person (whether or not such person is an
occupant of the Premises) shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any Transfer.
14.5 Expenses and Attorneys' Fees. Tenant shall pay to Landlord on demand
----------------------------
all reasonable costs and expenses (including reasonable attorneys' fees not to
exceed $1,500 per request for Landlord's consent to a proposed Transfer)
incurred by Landlord in connection with reviewing or consenting to any proposed
Transfer (including any request for consent to, or any waiver of Landlord's
rights in connection with, any security interest in any of Tenant's property at
the Premises).
14.6 Effectiveness of Transfer. Prior to the date on which any permitted
-------------------------
Transfer (whether or not requiring Landlord's consent) becomes effective, Tenant
shall deliver to Landlord a counterpart of the fully executed Transfer document
and Landlord's standard form of Consent to Assignment or Consent to Sublease
executed by Tenant and the Transferee in which each of Tenant and the Transferee
confirms its obligations pursuant to this Lease. Failure or refusal of a
Transferee to execute any such instrument shall not release or discharge the
Transferee from liability as provided herein. The voluntary, involuntary or
other surrender of this Lease by Tenant, or a mutual cancellation by Landlord
and Tenant, shall not work a merger, and any such surrender or
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cancellation shall, at the option of Landlord, either terminate all or any
existing subleases or operate as an assignment to Landlord of any or all of such
subleases.
14.7 Landlord's Right to Space. Notwithstanding any of the above
-------------------------
provisions of this Section to the contrary, if Tenant notifies Landlord that it
desires to enter into a Transfer, Landlord, in lieu of consenting to such
Transfer, may elect (x) in the case of an assignment or a sublease of the entire
Premises, to terminate this Lease, or (y) in the case of a sublease of less than
the entire Premises, to terminate this Lease as it relates to the space proposed
to be subleased by Tenant. In such event, this Lease will terminate (or the
space proposed to be subleased will be removed from the Premises subject to this
Lease and the Base Rent and Tenant's Share under this Lease shall be
proportionately reduced) on the earlier of sixty (60) days after the date of
Landlord's notice to Tenant making the election set forth in this Section 14.7
or the date the Transfer was proposed to be effective, and Landlord may lease
such space to any party, including the prospective Transferee identified by
Tenant.
14.8 Assignment of Sublease Rents. Tenant hereby absolutely and
----------------------------
irrevocably assigns to Landlord any and all rights to receive rent and other
consideration from any sublease and agrees that Landlord, as assignee or as
attorney-in-fact for Tenant for purposes hereof, or a receiver for Tenant
appointed on Landlord's application may (but shall not be obligated to) collect
such rents and other consideration and apply the same toward Tenant's
obligations to Landlord under this Lease; provided, however, that Landlord
grants to Tenant at all times prior to occurrence of any breach or default by
Tenant a revocable license to collect such rents (which license shall
automatically and without notice be and be deemed to have been revoked and
terminated immediately upon any Event of Default).
14.9 Permitted Transfers. Notwithstanding any provision contained in the
-------------------
Section 14 to the contrary, Tenant shall have the right, without the consent of
Landlord, upon ten (10) days prior written notice to Landlord, to engage in any
of the following transactions (each a "Permitted Transfer") and to Transfer the
Lease to any of the following entities (each, a "Permitted Transferee"): (i) a
successor corporation related to Tenant by merger, consolidation, or non-
bankruptcy-reorganization, (ii) a purchaser of at least ninety percent (90%) of
Tenant's assets as an ongoing concern, or (iii) an "Affiliate" of Tenant. The
provisions of Sections 14.2, 14.3 and 14.7 shall not apply with respect to a
Permitted Transfer, but any transfer pursuant to the provisions of this Section
14.9 shall be subject to all other terms and conditions of this Lease, including
the provisions of this Section 14.9. Tenant shall remain liable under this Lease
after any such transfer. For the purposes of this Article 14, the term
"Affiliate" of Tenant shall mean and refer to any entity controlling, controlled
by or under common control with Tenant or Tenant's parent, as the case may be.
"Control" as used herein shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
controlled entity; and the ownership, or possession of the right to vote, in the
ordinary direction of its affairs, of at least fifty percent (50%) of the voting
interest in any entity. Notwithstanding Tenant's right to make a Permitted
Transfer pursuant to the provisions of this Section 14.9, Tenant may not,
through use of its rights under this Article 14 in two or more transactions
(whether separate transactions or steps or phases of a single transaction), at
one time or over time, whether by first assigning this Lease to a subsidiary and
then merging the subsidiary into another entity or selling the stock of the
subsidiary or by other means, assign or sublease the Premises, or transfer
control of Tenant,
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within ninety (90) days of such notice; provided, however, that if Landlord in
Landlord's reasonable judgment determines that such failure cannot or will not
be cured by Tenant within such ninety (90) days, then such failure shall
constitute an Event of Default immediately upon such notice to Tenant.
15.2 Remedies. Upon the occurrence of an Event of Default, Landlord shall
--------
have the following remedies, which shall not be exclusive but shall be
cumulative and shall be in addition to any other remedies now or hereafter
allowed by law:
(a) Landlord may terminate Tenant's right to possession of the
Premises at any time by written notice to Tenant. Tenant expressly acknowledges
that in the absence of such written notice from Landlord, no other act of
Landlord, including re-entry into the Premises, efforts to relet the Premises,
reletting of the Premises for Tenant's account, storage of Tenant's personal
property and Trade Fixtures, acceptance of keys to the Premises from Tenant or
exercise of any other rights and remedies under this Section, shall constitute
an acceptance of Tenant's surrender of the Premises or constitute a termination
of this Lease or of Tenant's right to possession of the Premises. Upon such
termination in writing of Tenant's right to possession of the Premises, as
herein provided, this Lease shall terminate and Landlord shall be entitled to
recover damages from Tenant as provided in California Civil Code Section 1951.2
and any other applicable existing or future Law providing for recovery of
damages for such breach, including the worth at the time of award of the amount
by which the rent which would be payable by Tenant hereunder for the remainder
of the Term after the date of the award of damages, including Additional Rent as
reasonably estimated by Landlord, exceeds the amount of such rental loss as
Tenant proves could have been reasonably avoided, discounted at the discount
rate published by the Federal Reserve Bank of San Francisco for member banks at
the time of the award plus one percent (1%).
(b) Landlord shall have the remedy described in California Civil Code
Section 1951.4 (Landlord may continue this Lease in effect after Tenant's breach
and abandonment and recover rent as it becomes due, if Tenant has the right to
sublet or assign, subject only to reasonable limitations).
(c) Landlord may cure the Event of Default at Tenant's expense. If
Landlord pays any sum or incurs any expense in curing the Event of Default,
Tenant shall reimburse Landlord upon demand for the amount of such payment or
expense with interest at the Interest Rate from the date the sum is paid or the
expense is incurred until Landlord is reimbursed by Tenant.
(d) Landlord may remove all Tenant's property from the Premises, and
such property may be stored by Landlord in a public warehouse or elsewhere at
the sole cost and for the account of Tenant. If Landlord does not elect to store
any or all of Tenant's property left in the Premises, Landlord may consider such
property to be abandoned by Tenant, and Landlord may thereupon dispose of such
property in any manner deemed appropriate by Landlord. Any proceeds realized by
Landlord on the disposal of any such property shall be applied first to offset
all expenses of storage and sale, then credited against Tenant's outstanding
obligations to Landlord under this Lease, and any balance remaining after
satisfaction of all obligations of Tenant under this Lease shall be delivered to
Tenant.
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16. LATE CHARGE AND INTEREST.
16.1 Late Charge. If any payment of rent is not received by Landlord when
-----------
due, Tenant shall pay to Landlord on demand as a late charge ("Late Charge") an
additional amount equal to four percent (4%) of the overdue payment.
Notwithstanding the foregoing, Tenant shall not be obligated to pay a Late
Charge on the first payment of rent not received by Landlord when due in any
consecutive twelve (12) month period unless Tenant does not pay such rent within
five (5) days after written notice from Landlord (the "Past Due Notice") that
such payment of rent is past due. Tenant shall pay the Late Charge to Landlord
on demand commencing with the second (2nd) past due payment in any twelve (12)
month period, and continuing with each past due payment thereafter in such
twelve (12) month period. A Late Charge shall not be imposed more than once on
any particular installment not paid when due, but imposition of a Late Charge on
any payment not made when due does not eliminate or supersede late charges
imposed on other (prior) payments not made when due or preclude imposition of a
late charge on other installments or payments not made when due.
16.2 Interest. In addition to the late charges referred to above, which
--------
are intended to defray Landlord's costs resulting from late payments, any
payment from Tenant to Landlord not paid when due shall at Landlord's option
bear interest from the date due until paid to Landlord by Tenant at the rate of
twelve percent (12%) per annum or the maximum lawful rate that Landlord may
charge to Tenant under applicable laws, whichever is less (the "Interest Rate").
Acceptance of any late charge and/or interest shall not constitute a waiver of
Tenant's default with respect to the overdue sum or prevent Landlord from
exercising any of its other rights and remedies under this Lease.
17. WAIVER. No provisions of this Lease shall be deemed waived by Landlord
unless such waiver is in a writing signed by Landlord. The waiver by Landlord of
any breach of any provision of this Lease shall not be deemed a waiver of such
provision or of any subsequent breach of the same or any other provision of this
Lease. No delay or omission in the exercise of any right or remedy of Landlord
upon any default by Tenant shall impair such right or remedy or be construed as
a waiver. Landlord's acceptance of any payments of rent due under this Lease
shall not be deemed a waiver of any default by Tenant under this Lease
(including Tenant's recurrent failure to timely pay rent) other than Tenant's
nonpayment of the accepted sums, and no endorsement or statement on any check or
payment or in any letter or document accompanying any check or payment shall be
deemed an accord and satisfaction. Landlord's consent to or approval of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to waive
or render unnecessary Landlord's consent to or approval of any subsequent act by
Tenant.
18. ENTRY, INSPECTION AND CLOSURE. Upon reasonable oral or written notice to
Tenant (and without notice in emergencies), Landlord and its authorized
representatives may enter the Premises at all reasonable times to: (a) determine
whether the Premises are in good condition, (b) determine whether Tenant is
complying with its obligations under this Lease, (c) perform any maintenance or
repair of the Premises or the Building that Landlord has the right or obligation
to perform, (d) install or repair improvements for other tenants where access to
the Premises is required for such installation or repair, (e) serve, post or
keep posted any notices required or allowed under the provisions of this Lease,
(f) show the Premises to prospective brokers, agents,
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buyers, transferees, Mortgagees or tenants, or (g) do any other act or thing
necessary for the safety or preservation of the Premises or the Building. When
reasonably necessary Landlord may temporarily close entrances, doors, corridors,
elevators or other facilities in the Building without liability to Tenant by
reason of such closure. Landlord shall conduct its activities under this Section
in a manner that will minimize inconvenience to Tenant without incurring
additional expense to Landlord. In no event shall Tenant be entitled to an
abatement of rent on account of any entry by Landlord, and Landlord shall not be
liable in any manner for any inconvenience, loss of business or other damage to
Tenant or other persons arising out of Landlord's entry on the Premises in
accordance with this Section. No action by Landlord pursuant to this paragraph
shall constitute an eviction of Tenant, constructive or otherwise, entitle
Tenant to an abatement of rent or to terminate this Lease or otherwise release
Tenant from any of Tenant's obligations under this Lease.
19. SURRENDER AND HOLDING OVER.
19.1 Surrender. Upon the expiration or termination of this Lease, Tenant
---------
shall surrender the Premises and all Tenant Improvements and Alterations to
Landlord broom-clean and in their original condition, except for reasonable wear
and tear, damage from casualty or condemnation and any changes resulting from
approved Alterations; provided, however, that prior to the expiration or
termination of this Lease Tenant shall remove all telephone and other cabling
installed in the Building by Tenant and remove from the Premises all Tenant's
personal property and any Trade Fixtures and all Alterations that Landlord has
elected to require Tenant to remove as provided in Section 6.1 - Tenant
Improvements & Alterations, and repair any damage caused by such removal. If
such removal is not completed before the expiration or termination of the Term,
Landlord shall have the right (but no obligation) to remove the same, and Tenant
shall pay Landlord on demand for all reasonable costs of removal and storage
thereof and for the rental value of the Premises for the period from the end of
the Term through the end of the time reasonably required for such removal.
Landlord shall also have the right to retain or dispose of all or any portion of
such property if Tenant does not pay all such costs and retrieve the property
within thirty (30) days after notice from Landlord (in which event title to all
such property described in Landlord's notice shall be transferred to and vest in
Landlord). Tenant waives all Claims against Landlord for any damage or loss to
Tenant resulting from Landlord's removal, storage, retention, or disposition of
any such property. Upon expiration or termination of this Lease or of Tenant's
possession, whichever is earliest, Tenant shall surrender all keys to the
Premises or any other part of the Building and shall deliver to Landlord all
keys for or make known to Landlord the combination of locks on all safes,
cabinets and vaults that may be located in the Premises. Tenant's obligations
under this Section shall survive the expiration or termination of this Lease.
19.2 Holding Over. If Tenant (directly or through any Transferee or other
------------
successor-in-interest of Tenant) remains in possession of the Premises after the
expiration or termination of this Lease, Tenant's continued possession shall be
on the basis of a tenancy at the sufferance of Landlord. No act or omission by
Landlord, other than its specific written consent, shall constitute permission
for Tenant to continue in possession of the Premises, and if such consent is
given or declared to have been given by a court judgment, Landlord may terminate
Tenant's holdover tenancy at any time upon seven (7) days written notice. In
such event, Tenant shall continue to comply with or perform all the terms and
obligations of Tenant under this Lease, except that the monthly Base Rent during
Tenant's holding over shall be one hundred seventy-five percent (175%)
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of the Base Rent payable in the last full month prior to the termination hereof.
Acceptance by Landlord of rent after such termination shall not constitute a
renewal or extension of this Lease; and nothing contained in this provision
shall be deemed to waive Landlord's right of re-entry or any other right
hereunder or at law. Tenant shall indemnify, defend and hold Landlord harmless
from and against all Claims arising or resulting directly or indirectly from
Tenant's failure to timely surrender the Premises, including (i) any rent
payable by or any loss, cost, or damages claimed by any prospective tenant of
the Premises, and (ii) Landlord's damages as a result of such prospective tenant
rescinding or refusing to enter into the prospective lease of the Premises by
reason of such failure to timely surrender the Premises.
20. ENCUMBRANCES.
20.1 Subordination. This Lease is expressly made subject and subordinate
-------------
to any mortgage, deed of trust, ground lease, underlying lease or like
encumbrance affecting any part of the Property or any interest of Landlord
therein which is now existing or hereafter executed or recorded ("Encumbrance");
provided, however, that such subordination shall only be effective, as to future
Encumbrances, if the holder of the Encumbrance agrees that this Lease shall
survive the termination of the Encumbrance by lapse of time, foreclosure or
otherwise so long as Tenant is not in default under this Lease. Provided the
conditions of the preceding sentence are satisfied, Tenant shall execute and
deliver to Landlord, within ten (10) days after written request therefor by
Landlord and in a form reasonably requested by Landlord, any additional
documents evidencing the subordination of this Lease with respect to any such
Encumbrance and the nondisturbance agreement of the holder of any such
Encumbrance. If the interest of Landlord in the Property is transferred pursuant
to or in lieu of proceedings for enforcement of any Encumbrance (including,
without limitation, any judicial foreclosure or foreclosure by a power of sale
in a deed of trust), Tenant shall, at the request of the new owner,
immediately attorn to, and become the tenant of, the new owner, and this Lease
shall continue in full force and effect as a direct lease between the
transferee and Tenant on the terms and conditions set forth in this Lease and,
at such new owner's request, shall execute a new lease confirming the lease
terms of this Lease. In furtherance of the foregoing, any such successor to
the Landlord shall not be liable for any offsets, defenses, claims,
counterclaims, liabilities or obligations of the "landlord" under the Lease
accruing prior to the date that such new owner exercises its rights pursuant
to the preceding sentence. Landlord agrees to use reasonable good faith
efforts to obtain within 60 days after execution of this Lease, a
Subordination, Attornment and Non-Disturbance Agreement (the "SNDA") from the
holder of any Encumbrance existing at the date of this Lease pursuant to the
provisions contained above; provided, Landlord's failure to obtain an SNDA
shall not affect the validity of this Lease. Tenant shall be responsible for
all costs and fees charged by any holder of an Encumbrance to prepare or
negotiate an SNDA.
20.2 Mortgagee Protection. Tenant agrees to give any holder of any
--------------------
Encumbrance covering any part of the Property ("Mortgagee"), by registered mail,
a copy of any notice of default served upon Landlord, provided that prior to
such notice Tenant has been notified in writing (by way of notice of assignment
of rents and leases, or otherwise) of the address of such Mortgagee. If Landlord
shall have failed to cure such default within thirty (30) days from the
effective date of such notice of default, then the Mortgagee shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
to cure such default (including the time necessary to foreclose or otherwise
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terminate its Encumbrance, if necessary to effect such cure), and this Lease
shall not be terminated so long as such remedies are being diligently pursued.
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
21.1 Estoppel Certificates. Within ten (10) Business Days after written
---------------------
request therefor, Tenant shall execute and deliver to Landlord, in a form
provided by or satisfactory to Landlord, a certificate stating that this Lease
is in full force and effect, describing any amendments or modifications hereto,
acknowledging that this Lease is subordinate or prior, as the case may be, to
any Encumbrance and stating any other information Landlord may reasonably
request, including the Term, the monthly Base Rent, the date to which Rent has
been paid, the amount of any security deposit or prepaid rent, whether either
party hereto is in default under the terms of the Lease, and whether Landlord
has completed its construction obligations hereunder (if any). If Tenant fails
timely to execute and deliver such certificate as provided above, then Landlord
and the addressee of such certificate shall be entitled to rely upon the
information contained in the certificate submitted to Tenant as true, correct
and complete, and Tenant shall be estopped from later denying, contradicting or
taking any position inconsistent with the information contained in such
certificate. Any person or entity purchasing, acquiring an interest in or
extending financing with respect to the Property shall be entitled to rely upon
any such certificate. If Tenant fails to deliver such certificate within ten
(10) days after Landlord's second written request therefor, Tenant shall be
liable to Landlord for any damages incurred by Landlord including any profits or
other benefits from any financing of the Property or any interest therein which
are lost or made unavailable as a result, directly or indirectly, of Tenant's
failure or refusal to timely execute or deliver such estoppel certificate.
21.2 Financial Statements. Within twenty (20) days after written request
--------------------
therefor, but not more than once a year, Tenant shall deliver to Landlord a copy
of the financial statements (including at least a year end balance sheet and a
statement of profit and loss) of Tenant (and of each guarantor of Tenant's
obligations under this Lease) for each of the three most recently completed
years, prepared in accordance with generally accepted accounting principles
(and, if such is Tenant's normal practice, audited by an independent certified
public accountant), all then available subsequent interim statements, and such
other financial information as may reasonably be requested by Landlord or
required by any Mortgagee.
22. NOTICES. Any notice, demand, request, consent or approval that either party
desires or is required to give to the other party under this Lease shall be in
writing and shall be served personally, delivered by messenger or courier
service, or sent by U.S. certified mail, return receipt requested, postage
prepaid, addressed to the other party at the party's address for notices set
forth in the Basic Lease Information. Any notice required pursuant to any Laws
may be incorporated into, given concurrently with or given separately from any
notice required under this Lease. Notices shall be deemed to have been given and
be effective on the earlier of (a) receipt (or refusal of delivery or receipt);
or (b) one (1) day after acceptance by the independent service for delivery, if
sent by independent messenger or courier service, or three (3) days after
mailing if sent by mail in accordance with this Section. Either party may change
its address for notices hereunder, effective fifteen (15) days after notice to
the other party complying with this Section. If Tenant sublets the
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Premises, notices from Landlord shall be effective on the subtenant when given
to Tenant pursuant to this Section.
23. ATTORNEYS' FEES. In the event of any dispute between Landlord and Tenant in
any way related to this Lease, and whether involving contract and/or tort
claims, the non-prevailing party shall pay to the prevailing party all
reasonable attorneys' fees and costs and expenses of any type, without
restriction by statute, court rule or otherwise, incurred by the prevailing
party in connection with any action or proceeding (including any appeal and the
enforcement of any judgment or award), whether or not the dispute is litigated
or prosecuted to final judgment (collectively, "Fees"). The "prevailing party"
shall be determined based upon an assessment of which party's major arguments or
positions taken in the action or proceeding could fairly be said to have
prevailed (whether by compromise, settlement, abandonment by the other party of
its claim or defense, final decision, after any appeals, or otherwise) over the
other party's major arguments or positions on major disputed issues. Any Fees
incurred in enforcing a judgment shall be recoverable separately from any other
amount included in the judgment and shall survive and not be merged in the
judgment. The Fees shall be deemed an "actual pecuniary loss" within the meaning
of Bankruptcy Code Section 365(b)(l)(B), and notwithstanding the foregoing, all
Fees incurred by either party in any bankruptcy case filed by or against the
other party, from and after the order for relief until this Lease is rejected or
assumed in such bankruptcy case, will be "obligations of the debtor" as that
phrase is used in Bankruptcy Code Section 365(d)(3).
24. QUIET POSSESSION. Subject to Tenant's full and timely performance of all of
Tenant's obligations under this Lease and subject to the terms of this Lease,
including Section 20 - Encumbrances, Tenant shall have the quiet possession of
the Premises throughout the Term as against any persons or entities lawfully
claiming by, through or under Landlord.
25. SECURITY MEASURES. Landlord may, but shall be under no obligation to,
implement security measures for the Property, such as the registration or search
of all persons entering or leaving the Building, requiring identification for
access to the Building, evacuation of the Building for cause, suspected cause,
or for drill purposes, the issuance of magnetic pass cards or keys for Building
or elevator access and other actions that Landlord deems necessary or
appropriate to prevent any threat of property loss or damage, bodily injury or
business interruption; provided, however, that such measures shall be
implemented in a way as not to inconvenience tenants of the Building
unreasonably. If Landlord uses an access card system, Landlord may require
Tenant to pay Landlord a deposit for each after-hours Building access card
issued to Tenant, in the amount specified in the Basic Lease Information. Tenant
shall be responsible for any loss, theft or breakage of any such cards, which
must be returned by Tenant to Landlord upon expiration or earlier termination of
the Lease. Landlord may retain the deposit for any card not so returned.
Landlord shall at all times have the right to change, alter or reduce any such
security services or measures. Tenant shall cooperate and comply with, and cause
Tenant's Representatives and Visitors to cooperate and comply with, such
security measures. Landlord, its agents and employees shall have no liability to
Tenant or its Representatives or Visitors for the implementation or exercise of,
or the failure to implement or exercise, any such security measures or for any
resulting disturbance of Tenant's use or enjoyment of the Premises.
-31-
26. FORCE MAJEURE. If Landlord is delayed, interrupted or prevented from
performing any of its obligations under this Lease, including its obligations
under the Construction Rider (if any), and such delay, interruption or
prevention is due to fire, act of God, governmental act or failure to act, labor
dispute, unavailability of materials or any cause outside the reasonable control
of Landlord, then the time for performance of the affected obligations of
Landlord shall be extended for a period equivalent to the period of such delay,
interruption or prevention.
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the
rules and regulations attached to and made a part of this Lease as Exhibit C to
---------
the extent those rules and regulations are not in conflict with the terms of
this Lease, as well as any reasonable rules and regulations hereafter adopted by
Landlord for all tenants of the Building, upon notice to Tenant thereof
(collectively, the "Building Rules"). Landlord shall not be responsible to
Tenant or to any other person for any violation of, or failure to observe, the
Building Rules by any other tenant or other person.
28. LANDLORD'S LIABILITY. The term "Landlord," as used in this Lease, shall mean
only the owner or owners of the Building at the time in question. In the event
of any conveyance of title to the Building, then from and after the date of such
conveyance, the transferor Landlord shall be relieved of all liability with
respect to Landlord's obligations to be performed under this Lease after the
date of such conveyance. Notwithstanding any other term or provision of this
Lease, the liability of Landlord for its obligations under this Lease is limited
solely to Landlord's interest in the Building as the same may from time to time
be encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord's partners
or members or its or their respective partners, shareholders, members,
directors, officers or managers on account of any of Landlord's obligations or
actions under this Lease.
29. CONSENTS AND APPROVALS.
29.1 Determination in Good Faith. Wherever the consent, approval, judgment
---------------------------
or determination of Landlord is required or permitted under this Lease, Landlord
may exercise its good faith business judgment in granting or withholding such
consent or approval or in making such judgment or determination without
reference to any extrinsic standard of reasonableness, unless the specific
provision contained in this Lease providing for such consent, approval, judgment
or determination specifies that Landlord's consent or approval is not to be
unreasonably withheld, or that such judgment or determination is to be
reasonable, or otherwise specifies the standards under which Landlord may
withhold its consent. If it is determined that Landlord failed to give its
consent where it was required to do so under this Lease (except in the case
where Tenant requests Landlord's consent to a proposed Transfer), Tenant shall
be entitled to injunctive relief but shall not to be entitled to monetary
damages or to terminate this Lease for such failure. If Tenant requests
Landlord's consent to a Transfer, Landlord withholds consent, and Tenant
believes that Landlord unreasonably withheld consent to a Transfer is in
violation of the provisions of Section 14 of this Lease, Tenant shall be
entitled to invoke the arbitration provisions of the subsection 29.2 below to
determine whether Landlord unreasonably withheld consent to a Transfer, but
Tenant shall not be entitled to monetary damages; provided, however, if (a) if
the arbitration results in a determination that Landlord unreasonably withheld
consent to a Transfer in violation of the provisions of Section 14 of this
Lease, and (b) the Proposed Transferee refuses to enter into the proposed
Transfer, then
-32-
within thirty (30) days after the ruling by the arbitrators, Tenant shall have
the right to terminate this Lease upon ten (10) days prior written notice to
Landlord.
29.2. Dispute Subject to Arbitration. If Tenant claims that Landlord
------------------------------
unreasonably withheld consent to a Transfer in violation of the provisions of
Section 14 of this Lease, and Tenant's claim is not resolved by the parties
within ten (10) days after Tenant gives written notice ("Arbitration Notice") to
Landlord of its desire to arbitrate such dispute, the dispute shall be resolved
solely by arbitration in accordance with the provisions of this Section 29.2.
Any such arbitration shall be limited exclusively to whether Landlord
unreasonably withheld consent to a Transfer. Nothing in this Section 29.2,
however, shall be construed to require Landlord to submit any other dispute to
arbitration or otherwise limit Landlord's substantive or procedural remedies
against Tenant. In no event shall any provision of this Section 29.2 in any way
limit or delay exercise of Landlord's rights to pursue an action in unlawful
detainer upon the occurrence of an Event of Default (as defined in Section 15.1
- "Events of Default").
(a) Arbitration. Any dispute between the parties that is to be
-----------
resolved by arbitration as provided in Subsection 29.2 shall be settled and
decided by arbitration conducted by the American Arbitration Association in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as then in effect, except as provided below. Any such arbitration
shall be held and conducted in San Francisco, California before a single
arbitrator (or three (3) arbitrators) who shall be appointed by the American
Arbitration Association; or if the American Arbitration Association does not
appoint an arbitrator within fifteen (15) days after its receipt of notice of
arbitration, then selected by Landlord and Tenant, as provided in this Section
29.2. Landlord and Tenant shall endeavor in good faith to agree upon a single
arbitrator. If Landlord and Tenant have not agreed upon a single arbitrator
within ten (10) days after the expiration of time for the American Arbitration
Association to select an arbitrator, then each party shall select one arbitrator
and give the other party written notice of such selection within twenty (20)
days after the Arbitration Notice is given. Within ten (10) days of their
selection, the two (2) arbitrators so selected shall mutually agree on the
selection of a third (3rd) arbitrator. If either party fails timely to give
written notice of its selection, the arbitrator timely selected and designated
in writing by the other party shall be the sole arbitrator.
The provisions of the Commercial Arbitration Rules of the American
Arbitration Association shall apply and govern such arbitration, subject,
however, to the following:
(a) Any demand for arbitration shall be made by giving an
Arbitration Notice and shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen. In no event shall the
demand for arbitration be made after the date that institution of legal or
equitable proceedings based on such claim, dispute or other matter would be
barred by the applicable statute of limitations.
(b) Each arbitrator appointed shall be a former or retired judge or
attorney with at least seven (7) years' experience in real property and
commercial matters, or a nonattorney with like experience in the area of
dispute.
-33-
31. BROKERS. Landlord shall pay the fee or commission of the broker or brokers
identified in the Basic Lease Information (the "Broker") in accordance with
Landlord's separate written agreement with the Broker, if any. Tenant warrants
and represents to Landlord that in the negotiating or making of this Lease
neither Tenant nor anyone acting on Tenant's behalf has dealt with any broker or
finder who might be entitled to a fee or commission for this Lease other than
the Broker. Tenant shall indemnify and hold Landlord harmless from any claim or
claims, including costs, expenses and attorney's fees incurred by Landlord
asserted by any other broker or finder for a fee or commission based upon any
dealings with or statements made by Tenant or Tenant's Representatives.
32. RELOCATION OF PREMISES. [Intentionally Deleted].
33. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda
attached hereto, and the documents referred to herein, if any, constitute the
entire agreement between Landlord and Tenant with respect to the leasing of
space by Tenant in the Building, and supersede all prior or contemporaneous
agreements, understandings, proposals and other representations by or between
Landlord and Tenant, whether written or oral, all of which are merged herein.
Neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises, the Building, the Project or this Lease
except as expressly set forth herein, and no rights, easements or licenses shall
be acquired by Tenant by implication or otherwise unless expressly set forth
herein. The submission of this Lease for examination does not constitute an
option for the Premises and this Lease shall become effective as a binding
agreement only upon execution and delivery thereof by Landlord to Tenant.
34. MISCELLANEOUS. This Lease may not be amended or modified except by a writing
signed by Landlord and Tenant. Subject to Section 14 - Assignment and Subletting
and Section 28 - Landlord's Liability, this Lease shall be binding on and shall
inure to the benefit of the parties and their respective successors, assigns and
legal representatives. The determination that any provisions hereof may be void,
invalid, illegal or unenforceable shall not impair any other provisions hereof
and all such other provisions of this Lease shall remain in full force and
effect. The unenforceability, invalidity or illegality of any provision of this
Lease under particular circumstances shall not render unenforceable, invalid or
illegal other provisions of this Lease, or the same provisions under other
circumstances. This Lease shall be construed and interpreted in accordance with
the laws (excluding conflict of laws principles) of the State in which the
Building is located. The provisions of this Lease shall be construed in
accordance with the fair meaning of the language used and shall not be strictly
construed against either party, even if such party drafted the provision in
question. When required by the context of this Lease, the singular includes the
plural. Wherever the term "including" is used in this Lease, it shall be
interpreted as meaning "including, but not limited to" the matter or matters
thereafter enumerated. The captions contained in this Lease are for purposes of
convenience only and are not to be used to interpret or construe this Lease. If
more than one person or entity is identified as Tenant hereunder, the
obligations of each and all of them under this Lease shall be joint and several.
Time is of the essence with respect to this Lease, except as to the conditions
relating to the delivery of possession of the Premises to Tenant. Neither
Landlord nor Tenant shall record this Lease.
-35-
35. AUTHORITY. If Tenant is a corporation, partnership, limited liability
company or other form of business entity, each of the persons executing this
Lease on behalf of Tenant warrants and represents that Tenant is a duly
organized and validly existing entity, that Tenant has full right and authority
to enter into this Lease and that the persons signing on behalf of Tenant are
authorized to do so and have the power to bind Tenant to this Lease. Tenant
shall provide Landlord upon request with evidence reasonably satisfactory to
Landlord confirming the foregoing representations.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of
the date first above written.
TENANT: LANDLORD:
MEDIAPLEX, 188 EMBARCADERO ASSOCIATES, L.P.
a Delaware corporation a California limited partnership
By: /s/ Xxx Xxxxxxx By: CORNERSTONE HOLDINGS, LLC,
------------------------- a Delaware limited liability company,
Name: Xxx Xxxxxxx Manager
-----------------------
Title: President
---------------------- By: /s/ Xxxxx Xxxxxx
-------------------------
By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxx
---------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxx Title: Authorized Signatory
---------------------- ----------------------
Title: Chairman and CEO
----------------------
(For corporate entities, signature by TWO corporate officers is required: one by
(x) the chairman of the board, the president, or any vice president; and the
other by (y) the secretary, any assistant secretary, the chief financial
officer, or any assistant treasurer.)
-36-
EXHIBIT A
---------
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF SEPTEMBER 8, 1999
BETWEEN
188 EMBARCADERO ASSOCIATES, L.P., AS LANDLORD,
AND
MEDIAPLEX, AS TENANT ("LEASE")
THE PREMISES
------------
[MAP APPEARS HERE]
INITIALS:
/SE/
Landlord -------
Tenant /JE/
-------
Exhibit A, Page 1
EXHIBIT B
---------
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF SEPTEMBER 8, 1999
BETWEEN
188 EMBARCADERO ASSOCIATES, L.P., AS LANDLORD,
AND
MEDIAPLEX, AS TENANT ("LEASE")
CONSTRUCTION RIDER
------------------
1. No Work to be Performed by Landlord. Tenant has inspected and examined
-----------------------------------
the Premises and has elected to lease the Premises as provided in the Lease on a
strictly "AS IS" basis. Landlord shall have no obligation to perform any work to
prepare the Premises for use or occupancy by Tenant. Tenant shall be solely
responsible for making any alterations or improvements to the Premises required
or desired by Tenant, subject to and in accordance with the provisions of
Article 6 - Alterations - of the Lease.
2. Access to Premises. If and when Landlord obtains possession of the
------------------
Premises from the Existing Tenant pursuant to the provisions of Section 2 of the
Lease, Landlord may allow Tenant and Tenant's Representatives to enter the
Premises prior to the Commencement Date to permit Tenant to make the Premises
ready for Tenant's use and occupancy; provided, however, that prior to such
entry of the Premises, Tenant shall provide evidence reasonably satisfactory to
Landlord that Tenant's insurance, as described in Section 11.1 -- Tenant's
Insurance of the Lease, shall be in effect as of the time of such entry. Such
permission may be revoked at any time upon twenty-four (24) hours' notice.
Tenant agrees that Landlord shall not be liable in any way for any injury, loss
or damage which may occur to any of Tenant's property placed upon or installed
in the Premises prior to the Commencement Date, the same being at Tenant's sole
risk, and Tenant shall be liable for all injury, loss or damage to persons or
property arising as a result of such entry into the Premises by Tenant or
Tenant's Representatives.
3. Ownership of Tenant Improvements. All Tenant Improvements, whether
--------------------------------
installed by Landlord or Tenant, shall become a part of the Premises, shall be
the property of Landlord and, subject to the provisions of the Lease, shall be
surrendered by Tenant with the Premises, without any compensation to Tenant, at
the expiration or termination of the Lease in accordance with the provisions of
the Lease.
INITIALS:
Landlord /SE/
______
Tenant /JE/
______
Exhibit B, Page 1
EXHIBIT C
---------
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF SEPTEMBER 8, 1999
BETWEEN
188 EMBARCADERO ASSOCIATES, L.P., AS LANDLORD,
AND
MEDIAPLEX, AS TENANT ("LEASE")
BUILDING RULES
--------------
The following Building Rules are additional provisions of the foregoing
Lease to which they are attached. The capitalized terms used herein have the
same meanings as these terms are given in the Lease.
1. Use of Common Areas. Tenant will not obstruct the sidewalks, halls,
-------------------
passages, exits, entrances, elevators or stairways of the Building ("Common
Areas"), and Tenant will not use the Common Areas for any purpose other than
ingress and egress to and from the Premises. The Common Areas, except for the
sidewalks, are not open to the general public and Landlord reserves the right to
control and prevent access to the Common Areas of any person whose presence, in
Landlord's opinion, would be prejudicial to the safety, reputation and interests
of the Building and its tenants.
2. No Access to Roof. Tenant has no right of access to the roof of the
-----------------
Building and will not install, repair or replace any antenna, aerial, aerial
wires, fan, air-conditioner or other device on the roof of the Building, without
the prior written consent of Landlord. Any such device installed without such
written consent is subject to removal at Tenant's expense without notice at any
time. In any event Tenant will be liable for any damages or repairs incurred or
required as a result of its installation, use, repair, maintenance or removal of
such devices on the roof and agrees to indemnify and hold harmless Landlord from
any liability, loss, damage, cost or expense, including reasonable attorneys'
fees, arising from any activities of Tenant or of Tenant's Representatives on
the roof of the Building.
3. Signage. No sign, placard, picture, name, advertisement or notice
-------
visible from the exterior of the Premises will be inscribed, painted, affixed or
otherwise displayed by Tenant on or in any part of the Building without the
prior written consent of Landlord. Landlord reserves the right to adopt and
furnish Tenant with general guidelines relating to signs in or on the Building.
All approved signage will be inscribed, painted or affixed at Tenant's expense
by a person approved by Landlord, which approval will not be unreasonably
withheld.
4. Prohibited Uses. The Premises will not be used for manufacturing, for
---------------
the storage of merchandise held for sale to the general public, for lodging or
for the sale of goods to the general public. Tenant will not permit any food
preparation on the Premises except that Tenant
Exhibit C, Page 1
may use Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages so long as such use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations. Notwithstanding the foregoing, Tenant may use a UL approved
microwave oven in the Premises to warm foods and beverages for consumption by
Tenant's employees and clients, provided that any such use is strictly
non-commercial, is in accordance with all applicable Laws, and does not generate
any annoying noise, odors or sanitation problems.
5. Janitorial Services. Tenant will not employ any person for the purpose
-------------------
of cleaning the Premises or permit any person to enter the Building for such
purpose other than Landlord's janitorial service, except with Landlord's prior
written consent. Tenant will not necessitate, and will be liable for the cost
of, any undue amount of janitorial labor by reason of Tenant's carelessness in
or indifference to the preservation of good order and cleanliness in the
Premises. Janitorial service will not be furnished to areas in the Premises on
nights when such areas are occupied after 9:30 p.m., unless such service is
extended by written agreement to a later hour in specifically designated areas
of the Premises.
6. Keys and Locks. Landlord will furnish Tenant, free of charge, two keys
--------------
to each door or lock in the Premises. Landlord may make a reasonable charge for
any additional or replacement keys. Tenant will not duplicate any keys, alter
any locks or install any new or additional lock or bolt on any door of its
Premises or on any other part of the Building without the prior written consent
of Landlord and, in any event, Tenant will provide Landlord with a key for any
such lock. On the termination of the Lease, Tenant will deliver to Landlord all
keys to any locks or doors in the Building which have been obtained by Tenant.
7. Freight. Upon not less than twenty-four hours prior notice to Landlord,
-------
which notice may be oral, an elevator will be made available for Tenant's use
for transportation of freight, subject to such scheduling as Landlord in its
discretion deems appropriate. Tenant shall not transport freight in loads
exceeding the weight limitations of such elevator. Landlord reserves the right
to prescribe the weight, size and position of all equipment, materials,
furniture or other property brought into the Building, and no property will be
received in the Building or carried up or down the freight elevator or stairs
except during such hours and along such routes and by such persons as may be
designated by Landlord. Landlord reserves the right to require that heavy
objects will stand on wood strips of such length and thickness as is necessary
to properly distribute the weight. Landlord will not be responsible for loss of
or damage to any such property from any cause, and Tenant will be liable for all
damage or injuries caused by moving or maintaining such property.
8. Nuisances and Dangerous Substances. Tenant will not conduct itself or
----------------------------------
permit Tenant's Representatives or Visitors to conduct themselves, in the
Premises or anywhere on or in the Property in a manner which is offensive or
unduly annoying to any other Tenant or Landlord's property managers. Tenant will
not install or operate any phonograph, radio receiver, musical instrument, or
television or other similar device in any part of the Common Areas and shall not
operate any such device installed in the Premises in such manner as to disturb
or annoy other tenants of the Building. Tenant will not use or keep in the
Premises or the Property any kerosene, gasoline or other combustible fluid or
material other than limited quantities thereof
Exhibit C, Page 2
reasonably necessary for the maintenance of office equipment, or, without
Landlord's prior written approval, use any method of heating or air conditioning
other than that supplied by Landlord. Tenant will not use or keep 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. Tenant will not
bring or keep any animals in or about the Premises or the Property.
9. Building Name and Address. Without Landlord's prior written consent,
-------------------------
Tenant will not use the name of the Building in connection with or in promoting
or advertising Tenant's business except as Tenant's address.
10. Building Directory. A directory for the Building will be provided for
------------------
the display of the name and location of tenants. Landlord reserves the right to
approve any additional names Tenant desires to place in the directory and, if so
approved, Landlord may assess a reasonable charge for adding such additional
names.
11. Window Coverings. No curtains, draperies, blinds, shutters, shades,
----------------
awnings, screens or other coverings, window ventilators, hangings, decorations
or similar equipment shall be attached to, hung or placed in, or used in or with
any window of the Building without the prior written consent of Landlord, and
Landlord shall have the right to control all lighting within the Premises that
may be visible from the exterior of the Building.
12. Floor Coverings. Tenant will not lay or otherwise affix linoleum,
---------------
tile, carpet or any other floor covering to the floor of the Premises in any
manner except as approved in writing by Landlord. Tenant will be liable for the
cost of repair of any damage resulting from the violation of this rule or the
removal of any floor covering by Tenant or its contractors, employees or
invitees.
13. Wiring and Cabling Installations. Landlord will direct Tenant's
--------------------------------
electricians and other vendors as to where and how data, telephone, and
electrical wires and cables are to be installed. No boring or cutting for wires
or cables will be allowed without the prior written consent of Landlord. The
location of burglar alarms, smoke detectors, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the written
approval of Landlord.
14. Office Closing Procedures. Tenant will see that the doors of the
-------------------------
Premises are closed and locked and that all water faucets, water apparatus and
utilities are shut off before Tenant or its employees leave the Premises, so as
to prevent waste or damage. Tenant will be liable for all damage or injuries
sustained by other tenants or occupants of the Building or Landlord resulting
from Tenant's carelessness in this regard or violation of this rule. Tenant will
keep the doors to the Building corridors closed at all times except for ingress
and egress.
15. Plumbing Facilities. 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 and no foreign substance of any kind whatsoever shall be
disposed of therein. Tenant will be liable
Exhibit C, Page 3
for any breakage, stoppage or damage resulting from the violation of this rule
by Tenant, its employees or invitees.
16. Use of Hand Trucks. Tenant will not use or permit to be used in the
------------------
Premises or in the Common Areas any hand trucks, carts or dollies except those
equipped with rubber tires and side guards or such other equipment as Landlord
may approve.
17. Refuse. Tenant shall store all Tenant's trash and garbage within the
------
Premises or in other facilities designated By Landlord for such purpose. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of removing and disposing of
trash and garbage in the city in which the Building is located without being in
violation of any law or ordinance governing such disposal. All trash and garbage
removal shall be made in accordance with directions issued from time to time by
Landlord, only through such Common Areas provided for such purposes and at such
times as Landlord may designate. Tenant shall comply with the requirements of
any recycling program adopted by Landlord for the Building.
18. Soliciting. Canvassing, peddling, soliciting and distribution of
----------
handbills or any other written materials in the Building are prohibited, and
Tenant will cooperate to prevent the same.
19. Parking. Tenant will use, and cause Tenant's Representatives and
-------
Visitors to use, any parking spaces to which Tenant is entitled under the Lease
in a manner consistent with Landlord's directional signs and markings in the
Parking Facility. Specifically, but without limitation, Tenant will not park, or
permit Tenant's Representatives or Visitors to park, in a manner that impedes
access to and from the Building or the Parking Facility or that violates space
reservations for handicapped drivers registered as such with the California
Department of Motor Vehicles. Landlord may use such reasonable means as may be
necessary to enforce the directional signs and markings in the Parking Facility,
including but not limited to towing services, and Landlord will not be liable
for any damage to vehicles towed as a result of noncompliance with such parking
regulations.
20. Fire, Security and Safety Regulations. Tenant will comply with all
-------------------------------------
safety, security, fire protection and evacuation measures and procedures
established by Landlord or any governmental agency.
21. Responsibility for Theft. Tenant assumes any and all responsibility
------------------------
for protecting the Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises closed.
22. Sales and Auctions. Tenant will not conduct or permit to be conducted
------------------
any sale by auction in, upon or from the Premises or elsewhere in the Property,
whether said auction be voluntary, involuntary, pursuant to any assignment for
the payment of creditors or pursuant to any bankruptcy or other insolvency
proceeding.
Exhibit C, Page 4
23. Waiver of Rules. Landlord may waive any one or more of these Building
---------------
Rules for the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such Building Rules in favor of any
other tenant or tenants nor prevent Landlord from thereafter enforcing these
Building Rules against any or all of the tenants of the Building.
24. Effect on Lease. These Building Rules 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 the Lease. Violation of these Building
Rules constitutes a failure to fully perform the provisions of the Lease, as
referred to in Section 15.1 - "Events of Default".
25. Non-Discriminatory Enforcement. Subject to the provisions of the Lease
------------------------------
(and the provisions of other leases with respect to other tenants), Landlord
shall use reasonable efforts to enforce these Building Rules in a non-
discriminatory manner, but in no event shall Landlord have any liability for any
failure or refusal to do so (and Tenant's sole and exclusive remedy for any such
failure or refusal shall be injunctive relief preventing Landlord from enforcing
any of the Building Rules against Tenant in a manner that discriminates against
Tenant).
26. Additional and Amended Rules. Landlord reserves the right to rescind
----------------------------
or amend these Building Rules and/or adopt any 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.
INITIALS:
Landlord /SE/
____
Tenant /JE/
----
Exhibit C, Page 5
EXHIBIT D
---------
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF SEPTEMBER 8, 1999
BETWEEN
188 EMBARCADERO ASSOCIATES, L.P., AS LANDLORD,
AND
MEDIAPLEX, AS TENANT ("LEASE")
ADDITIONAL PROVISIONS RIDER
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36. LETTER OF CREDIT.
(a) Upon execution of this Lease, Tenant shall deliver to Landlord an
unconditional, irrevocable, transferable and negotiable standby letter of credit
(the "L/C") in an amount equal to $100,000.00 ("Face Amount"), issued by a bank
or trust company ("Issuer") and in form and content acceptable to Landlord, in
its sole and absolute discretion, as additional security for the performance of
Tenant's obligations under this Lease. An L/C in the form attached hereto as
Exhibit E is hereby approved by Landlord. The L/C shall name Landlord as
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beneficiary thereunder and provide that draws, including partial draws, at
Landlord's election, will be honored upon the delivery to the Issuer of a
certificate signed by Landlord, or its authorized agent, that Tenant has failed
to perform its obligations under the Lease. The L/C shall also provide that it
will be automatically extended upon each renewal date unless the Issuer thereof
delivers to Landlord, no later than forty-five (45) days prior to the stated
expiration date of the L/C, written notice of Issuer's intent not to extend or
renew the L/C. During any period that Tenant is required to maintain the L/C,
Tenant shall, at least thirty (30) days prior to any expiration or termination
of the L/C, provide Landlord either with written confirmation that the existing
L/C will be automatically extended and renewed or with a new L/C that satisfies
all of the requirements for the L/C in this Section 36. In addition, upon a
proposed sale or other transfer of any interest in the Building, the Land, this
Lease or Landlord (including consolidations, mergers, or other entity changes),
Tenant, at its sole cost and expense and upon ten (10) Business Days' notice,
shall, concurrent with Landlord's delivery to Tenant of the then outstanding
L/C, deliver to any such transferees, successors, or assigns a replacement L/C
on identical terms (except for the stated beneficiary) from the same Issuer or
another bank or trust company acceptable to Landlord, in Landlord's sole
discretion, naming the new landlord as the beneficiary thereof Tenant's failure
to perform or observe any of the covenants set forth in this Section 36 for any
reason shall entitle Landlord to draw on the full amount of the L/C and shall
constitute an Event of Default under this Lease without the requirement of any
notice from Landlord. Any amount(s) drawn under the L/C shall be held or used by
Landlord in accordance with the terms of Section 4 of the Lease.
(b) If there has been no Event of Default under the Lease during the
eighteen (18) months preceding such request, and if Tenant has an initial public
offering of the Tenant's stock which results in a market valuation of all issued
and outstanding publicly traded common stock of
Exhibit D, Page l
Tenant that exceeds One Hundred Million Dollars ($100,000,000.00) (as averaged
over any five [5] consecutive days of public trading of Tenant's common stock
following the initial public offering), then the Face Amount of the L/C shall be
reduced to $50,000.00.
(c) If, following any initial public offering of Tenant's stock on any
public stock exchange there has been no Event of Default under the Lease during
the eighteen (18) months preceding such request by Tenant, the market valuation
of all issued and outstanding publicly traded common stock of Tenant exceeds One
Hundred Million Dollars ($100,000,000.00) for each trading day during any
consecutive twelve (12) consecutive month period, then the Face Amount of the
L/C shall be reduced to $25,000.00.
37. PARKING.
(a) Tenant's Parking Rights. Landlord shall provide Tenant, at a designated
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location, for use by Tenant, at the users' sole risk, two (2) parking spaces in
the Parking Facility. The parking spaces to be made available to Tenant
hereunder may contain a reasonable mix of spaces for compact cars and up to ten
percent (10%) of the unassigned spaces may also be designated by Landlord as
Building visitors' parking.
(b) Availability of Parking Spaces. Landlord shall take reasonable actions
--------------- --------------
to ensure the availability of the parking spaces leased by Tenant, but Landlord
does not guarantee the availability of those spaces at all times against the
actions of other tenants of the Building and users of the Parking Facility.
Access to the Parking Facility may, at Landlord's option, be regulated by card,
pass, bumper sticker, decal or other appropriate identification issued by
Landlord. Landlord retains the right to revoke the parking privileges of any
user of the Parking Facility who violates the rules and regulations governing
use of the Parking Facility (and Tenant shall be responsible for causing any
employee of Tenant or other person using parking spaces allocated to Tenant to
comply with all parking rules and regulations).
(c) Monthly Parking Rental. Tenant shall pay to Landlord, as monthly rent
----------------------
for the parking spaces leased by Tenant hereunder, a "Monthly Parking Rental"
per space, which shall be the "Prevailing Parking Rental" for such parking
spaces in effect from time to time. As of the date of this Lease the Prevailing
Parking Rental is $370.00 per parking space. The Prevailing Parking Rental shall
be determined by Landlord, based on the monthly rental charged by Landlord from
time to time for spaces in the Parking Facility, the unassigned or reserved
nature of such parking spaces, and the fair market rental charged for comparable
parking facilities in comparable buildings in the vicinity of the Property.
Tenant's Monthly Parking Rental shall be paid on the first day of each month
during the Term of this Lease; provided, however, that in the event Tenant fails
to pay Tenant's Monthly Parking Rental when due, Landlord may assess a late
charge of $40.00 on the delinquent amount, which late charge shall be in
addition to the late charge and interest that may be charged pursuant to Section
16.1 - Late Charge and Interest in the Lease, and provided further that in the
event Tenant fails to pay Tenant's Monthly Parking Rental within thirty (30)
days of Landlord's notice of such delinquency, Landlord shall have the right by
notice to Tenant permanently to terminate Tenant's rights to use parking spaces
hereunder, whether or not Landlord declares a default under the Lease.
Exhibit D, Page 2
(d) Assignment and Subletting. Notwithstanding any other provision of the
-------------------------
Lease to the contrary, Tenant shall not assign its rights to the parking spaces
or any interest therein, or sublease or otherwise allow the use of all or any
part of the parking spaces to or by any other person, except with Landlord's
prior written consent, which may be granted or withheld by Landlord in its sole
discretion. In the event of any separate assignment or sublease of parking space
rights that is approved by Landlord, Landlord shall be entitled to receive, as
additional Rent hereunder, one hundred percent (100%) of any profit received by
Tenant in connection with such assignment or sublease.
(e) Condemnation, Damage or Destruction. In the event the Parking Facility
-----------------------------------
is the subject of a Condemnation, or is damaged or destroyed, and this Lease is
not terminated, and if in such event the available number of parking spaces in
the Parking Facility is permanently reduced, then Tenant's rights to use parking
spaces hereunder may, at the election of Landlord, thereafter be reduced in
proportion to the reduction of the total number of parking spaces in the Parking
Facility, and the Monthly Parking Rental payable hereunder shall be reduced
proportionately. In such event, Landlord reserves the right to reduce the number
of parking spaces to which Tenant is entitled or to relocate some or all of the
parking spaces to which Tenant is entitled to other areas in the Parking
Facility.
38. EXTENSION OPTION.
Provided that MediaPlex has not assigned this Lease or sublet any or all
of the Premises (it being intended that all rights pursuant to this provision
are and shall be personal to the original Tenant under this Lease and shall not
be transferable or exercisable for the benefit of any Transferee), and provided
Tenant is not in default under this Lease at the time of exercise or at any time
thereafter until the beginning of any such extension of the Term, Tenant shall
have the option (the "Extension Option") to extend the Term for one (1)
additional consecutive period of five (5) years ("Extension Period"), by giving
written notice to Landlord of the exercise of such Extension Option at least
nine (9) months, but not more than twelve (12) months, prior to the expiration
of the initial Term. The exercise of the Extension Option by Tenant shall be
irrevocable and shall cover the entire Premises leased by Tenant pursuant to
this Lease. Upon such exercise, the term of the Lease shall automatically be
extended for the Extension Period without the execution of any further
instrument by the parties; provided that Landlord and Tenant shall, if requested
by either party, execute and acknowledge an instrument confirming the exercise
of the Extension Option. The Extension Option shall terminate if not exercised
precisely in the manner provided herein. Any extension of the Term shall be upon
all the terms and conditions set forth in this Lease and all Exhibits thereto,
except that: (i) Tenant shall have no further option to extend the Term of the
Lease; (ii) Landlord shall not be obligated to contribute funds toward the cost
of any remodeling, renovation, alteration or improvement work in the Premises;
and (iii) Base Rent for any such Extension Period shall be the then Fair Market
Base Rental (as defined below) for the Premises for the space and term involved,
which shall be determined as set forth below.
(a) "Fair Market Base Rental" shall mean the "fair market" Base Rent
at the time or times in question for the applicable space, based on the
prevailing rentals then being charged to tenants in the Building and tenants in
other office buildings in the general vicinity of
Exhibit D, Page 3
the Building of comparable size, location, quality and age as the Building for
leases with terms equal to the Extension Period, taking into account the
creditworthiness and financial strength of the tenant, the financial guaranties
provided by the tenant (if any), and the desirability, location in the building,
size and quality of the space, tenant finish allowance and/or tenant
improvements, included services, operating expenses and tax and expense stops or
other escalation clauses, for the space in the Building for which Fair Market
Base Rental is being determined and for comparable space in the buildings which
are being used for comparison. Fair Market Base Rental shall also reflect the
then prevailing rental structure for comparable office buildings in the general
vicinity of the Property, so that if, for example, at the time Fair Market Base
Rental is being determined the prevailing rental structure for comparable space
and for comparable lease terms includes periodic rental adjustments or
escalations, Fair Market Base Rental shall reflect such rental structure.
(b) Landlord and Tenant shall endeavor to agree upon the Fair Market
Base Rental. If they are unable to so agree within thirty (30) days after
receipt by Landlord of Tenant's notice of exercise of the Extension Option,
Landlord and Tenant shall mutually select a licensed real estate broker who is
active in the leasing of office space in the general vicinity of the Property.
Landlord shall submit Landlord's determination of Fair Market Base Rental and
Tenant shall submit Tenant's determination of Fair Market Base Rental to such
broker, at such time or times and in such manner as Landlord and Tenant shall
agree (or as directed by the broker if Landlord and Tenant do not promptly
agree). The broker shall select either Landlord's or Tenant's determination as
the Fair Market Base Rental, and such determination shall be binding on Landlord
and Tenant. If Tenant's determination is selected as the Fair Market Base
Rental, then Landlord shall bear all of the broker's cost and fees. If
Landlord's determination is selected as the Fair Market Base Rental, then Tenant
shall bear all of the broker's cost and fees.
(c) In the event the Fair Market Base Rental for any Extension Period
has not been determined at such time as Tenant is obligated to pay Base Rent for
such Extension Period, Tenant shall pay as Base Rent pending such determination,
the Base Rent in effect for such space immediately prior to the Extension
Period; provided, that upon the determination of the applicable Fair Market Base
Rental, any shortage of Base Rent paid, together with interest at the rate
specified in the Lease, shall be paid to Landlord by Tenant.
(d) In no event shall the Base Rent during any Extension Period be
less than the Base Rent in effect immediately prior to such Extension Period.
(e) The term of this Lease, whether consisting of the Initial Term
alone or the Initial Term as extended by any Extension Period (if any Extension
Option is exercised), is referred to in this Lease as the "Term."
39. TENANT'S SIGNAGE
Tenant may install, at Tenant's sole cost and expense, unlighted signage in
the sixth (6th) floor lobby, subject to Landlord's prior written approval of the
size, location, material, color, method of attachment to the Building, and all
other aspects of Tenant's
Exhibit D, Page 4
sign, which approval shall not be unreasonably withheld so long as such signage
is consistent with the nature and quality of the other existing signage in the
Building. Throughout the Term of the Lease Tenant shall, at Tenant's sole cost
and expense, maintain such signage in a first class condition. Throughout the
Term of this Lease Tenant shall not make any change to such signage without
Landlord's prior written consent.
INITIALS
Landlord /SE/
----
Tenant /JE/
----
Exhibit D, Page 5
EXHIBIT E
---------
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF SEPTEMBER 8, 1999
BETWEEN
188 EMBARCADERO ASSOCIATES, L.P., AS LANDLORD,
AND
MEDIAPLEX, AS TENANT ("LEASE")
APPROVED LETTER OF CREDIT FORM
[Letterhead of Issuing Bank]
[must be a Bank whose location, credit and practices Landlord has approved]
RE: IRREVOCABLE COMMERCIAL LETTER OF CREDIT NO.
TO: [Name of project owner] ("Landlord"), ______________________________________
___________________ [Landlord's address]
Gentlemen:
We hereby issue our Irrevocable Commercial Letter of Credit in your favor, for
the account of _____________________________ [name of tenant and type of entity
(e.g. "ABC Corporation, a California corporation")] ("Tenant"), in the amount of
________________________________ Dollars ( $). This amount is available to you
on presentation of your sight draft drawn upon us referring to the above letter
of credit number, date and amount being drawn hereunder, accompanied by the
signed statement of you or your authorized agent, Cornerstone Properties Limited
Partnership dba Xxxxxx Cornerstone Properties Limited Partnership, that the
amount drawn hereunder is being drawn pursuant to the terms of the
_________________ [title of lease document (e.g. Office Lease, Lease Agreement,
etc.)] dated as of________, between Tenant, as tenant, and Landlord, as
landlord, for certain premises located at ________________
____________________________________ (the "Lease").
Any draft presented for payment must be presented on or before _________________
[term should be at least one year], the date this Letter of Credit expires.
Partial drawings are permitted.
Exhibit E, Page 1
If you sell or otherwise transfer any interest in the "Building" (as defined in
the Lease) [be sure to use the defined terms used in the Lease (e.g. if the
building is called the "Property" in the Lease, then use that term here)], in
the land upon which the same is located, in the Lease, or in Landlord (including
consolidations, mergers or other entity changes), you shall have the right to
transfer this Letter of Credit to your transferee(s), successors or assigns.
We hereby certify that this is an unconditional and irrevocable Letter of Credit
and agree that a draft drawn under and in compliance with the terms hereof will
be honored upon presentation at our office at _________________________________
[it must be a location easily accessible to us (e.g. no country banks located in
some tiny town in the Southeastern corner of Texas].
This Letter of Credit shall automatically be extended and renewed for successive
one year periods at the end of the stated expiration date and each anniversary
thereof unless we notify you in writing, no later than forty-five (45) days
prior to the then applicable expiration date, that we will not extend and renew
the Letter of Credit for another one year term.
Except to the extent inconsistent with the express provisions hereof, this
Letter of Credit is subject to and governed by Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce
publication number 500.
[Name of Bank]
------------------------------------
Authorized Signature
INITIALS:
Landlord ^^??
_____
Tenant ^^??
_____
Exhibit E, Page 2
