EXHIBIT 10.6
ASSIGNMENT AND ASSUMPTION OF LEASE
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THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Agreement") is made as of this
12th day of May, 1998 by and between Infoseek Corporation, a California
corporation ("Infoseek") and 280, Inc., a California corporation ("280").
RECITALS
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A. 280, as tenant, is a party to the lease dated as of May 1, 1996 with
Xxxx'x Building Associates ("Landlord"), as landlord, for Xxxxx 000 located
at 0000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, consisting of
approximately 8,264 rentable square feet, and an Expansion Agreement for an
additional approximate 4,247 rentable square feet on the third floor (the
"Expansion Space", and collectively, the "Lease"), pursuant to which the
landlord thereunder has undertaken to lease to the tenant thereunder office
space located at 1550 Xxxxxx, City of San Francisco, County of San
Francisco, California, which property is more particularly described in the
Lease and Expansion Agreement attached hereto as Exhibit A (the
"Premises").
B. 280 and Infoseek are parties to that certain Asset Purchase Agreement
dated as of May 12, 1998 (the "Asset Purchase Agreement"), whereby Infoseek
has agreed to purchase from 280 certain of 280's assets.
C. In connection with the closing of the transactions contemplated by the
Asset Purchase Agreement, 280 desires to assign its interest in the Lease
to Infoseek, and Infoseek desires to assume 280's interest in the Lease.
D. Section 15 of the Lease provides that the tenant thereunder may assign
this Lease or sublet the Premises with the consent of Landlord, subject,
however, to the terms and conditions set forth in said Section 15.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
Lease, the Asset Purchase Agreement and the mutual covenants and agreements set
forth herein, Infoseek, 280 and Landlord agree as follows:
1. ASSIGNMENT. 280 hereby assigns, transfers and conveys to Infoseek, and
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Infoseek hereby accepts, as of the Effective Date (as hereinafter defined in
paragraph 2), all of 280's right, title and interest in, under and to the Lease
and the Premises. Also effective as of the Effective Date, Infoseek accepts this
assignment and assumes and agrees to keep, perform and fulfill, as a direct
obligation to Landlord and for the benefit of 280, all of the terms, covenants,
conditions and obligations required to be kept, performed and fulfilled by the
"Tenant" under the Lease from and after the Effective Date, including, without
limitation, the making of all payments due to or payable on behalf of, Landlord
under the Lease which may become due and payable on or after the Effective Date
and the performance of all repair, maintenance and restoration of such Tenant
with respect to the
Premises from and after the Effective Date. Infoseek will finish the flooring
and the walls in the Expansion Space comparable to Suite 300, to Infoseek's and
the Landlord's satisfaction.
2. EFFECTIVE DATE OF ASSIGNMENT. The assignment in this agreement shall take
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effect on May 12, 1998, ("Effective Date") and 280 shall give possession of the
Premises to Infoseek on that date.
3. SECURITY DEPOSIT. 280 and Infoseek acknowledge that Landlord currently
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holds a security deposit to be applied in accordance with the provisions of the
Lease. Without limiting the generality of Section 1 of this Agreement, 280
hereby assigns to Infoseek, as of the Effective Date, all of 280's rights to
such security deposit. From and after the Effective Date, such security deposit
shall be held by Landlord for the benefit of Infoseek, subject to the provisions
of the Lease.
4. RELEASE AND INDEMNIFICATION. Infoseek agrees to release 280 from any and
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all claims, demands or causes of action whatsoever or whensoever arising out of
or in connection with the Lease, arising after the date of this Agreement and
pertaining to acts, omissions or neglect of Infoseek occurring after the date of
this Agreement. Infoseek agrees to defend, indemnify and hold 280 harmless from
any and all claims, demands, liabilities, costs and expenses, including
reasonable attorneys' fees, arising from or based upon any alleged act, omission
or negligence of Infoseek or its contractors, concessionaires, licensees,
agents, servants, invitees, employees or anyone else for whom Infoseek may be
responsible after the date of this Agreement. In the event that 280 shall be
made a party to any litigation by reason of any such claim, Infoseek shall
indemnify 280 against and hold 280 harmless from such litigation and shall pay
all costs, expenses and reasonable attorneys' fees incurred or paid by Infoseek
in connection with such litigation.
280 shall defend, indemnify and hold Infoseek harmless from any and all
claims, demands, liabilities, costs and expenses, including reasonable
attorneys' fees, arising from or in connection with the Lease and from or based
upon any alleged act, omission or negligence of 280 or its contractors,
concessionaires, licensees, agents, servants, invitees, employees or anyone else
for whom 280 may be responsible occurring before the date of this Agreement.
5. MISCELLANEOUS. Infoseek and 280 shall execute and deliver such additional
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documents and take such additional actions as either may be reasonably request
to carry out the purposes of this Agreement. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns. If either party brings an action or legal
proceeding with respect to this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs. All captions
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement. This Agreement may be executed in one
or more counterparts, each of which shall be an original, but all of which,
taken together, shall constitute one and the same Agreement. If any one or more
of the provisions of this Agreement shall be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
6. GOVERNING LAW. This Agreement will be governed in all respects by the laws
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of the State of California as such laws are applied to agreements between
California residents entered into and to be
performed entirely within California. Any action or proceeding brought by any
party against another arising out of or related to this Agreement shall be
brought in a state or federal court of competent subject matter jurisdiction
located within Santa Xxxxx County, California, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
IN WITNESS WHEREOF, Infoseek, 280 and Landlord have executed this Agreement
as of the day and year first above written.
280: INFOSEEK:
280, INC., INFOSEEK CORPORATION,
a California corporation a California corporation
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxx Xxxxx
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Name: Xxxxxxx Xxxx Name: Xxxxx Xxxxx
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Title: CEO Title: CEO
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Landlord hereby consents to the above Assignment, provided its Effective
Date is in the month of May, 1998, and the May 1998 rental due is received
immediately. Landlord will complete the painting and electrical work in the
Expansion Space, per the Lease.
XXXX'X BUILDING ASSOCIATES
a California Limited Partnership
By:/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, General Partner
Date: May 12, 1998
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EXHIBIT A
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THE XXXX'X BUILDING
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OFFICE LEASE
0000 XXXXXX XXXXXX
XXX XXXXXXXXX, XXXXXXXXXX
*************
XXXX'X BUILDING ASSOCIATES
--LANDLORD--
280 INC.
--TENANT--
TABLE OF CONTENTS
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EXHIBIT A. BASIC LEASE INFORMATION................................... 1
RECITALS.............................................................. 3
SECTION 1. DEFINITIONS............................................... 3
SECTION 2. PREMISES.................................................. 6
SECTION 3. TERM; CONDITION OF PREMISES............................... 6
SECTION 4. RENTAL.................................................... 6
SECTION 5. ESCALATION RENT........................................... 7
SECTION 6. USE....................................................... 8
SECTION 7. SERVICES.................................................. 8
SECTION 8. ALTERATIONS............................................... 9
SECTION 9. REPAIRS; LANDLORD'S RESERVATION OF RIGHTS................. 9
SECTION 10. DAMAGE OR DESTRUCTION..................................... 10
SECTION 11. SUBROGATION............................................... 10
SECTION 12. INSURANCE................................................. 11
SECTION 13. INDEMNIFICATION........................................... 11
SECTION 14. COMPLIANCE WITH LEGAL REQUIREMENTS........................ 11
SECTION 15. ASSIGNMENT AND SUBLETTING................................. 11
SECTION 16. RULES..................................................... 12
SECTION 17. ENTRY BY LANDLORD......................................... 12
SECTION 18. EVENTS OF DEFAULT......................................... 13
SECTION 19. TERMINATION UPON DEFAULT.................................. 14
SECTION 20. ATTORNEY FEES............................................. 14
SECTION 21. EMINENT DOMAIN............................................ 14
SECTION 22. ESTOPPEL CERTIFICATE...................................... 15
SECTION 23. HOLDING OVER.............................................. 15
SECTION 24. SECURITY DEPOSIT.......................................... 15
SECTION 25. LANDLORD'S LIABILITY...................................... 16
SECTION 26. BROKERS................................................... 16
SECTION 27. SMOKING................................................... 16
SECTION 28. ENTIRE AGREEMENT.......................................... 16
SECTION 29. ILLEGALITY OR UNENFORCEABILITY OF PORTION OF LEASE........ 16
SECTION 30. GOVERNING LAW............................................. 16
SECTION 31. PARKING................................................... 17
SECTION 32. OPTION TO EXPAND.......................................... 17
SECTION 33. QUIET ENJOYMENT........................................... 17
SECTION 34. RIGHT OF FIRST REFUSAL.................................... 17
SECTION 35. TEMPORARY OCCUPANCY....................................... 17
SECTION 36. AUTOMATIC SUBORDINATION................................... 17
SECTION 37. EXHIBITS.................................................. 18
Exhibit B. Description of the Premises............................... 19
Exhibit C. Rules..................................................... 20
Exhibit D............................................................ 24
Exhibit E............................................................ 28
EXHIBIT A. BASIC LEASE INFORMATION
Date: May 1, 1996
Landlord: XXXX'X BUILDING ASSOCIATES
Tenant: 280 INC.
Premises: That portion of the 3rd floor designated
on the attached floor plan labeled Xxxxxxx
X, Xxxxx 000.
Rentable Area of Premises: Approximately 8,264 rentable square feet
(to be measured per BOMA Standards prior
to tenant's occupancy)
Commencement Date: Upon Landlord's substantial completion of
Tenant Improvements.
Termination Date: 5 years from Commencement Date.
Base Rent (annually): Months RSF Rental Rate
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1-12 8,264 14.04 PRSFPY
13-24 8,264 14.04 PRSFPY
25-36 8,264 14.60 PRSFPY
37-48 8,264 15.19 PRSFPY
49-60 8,264 15.79 PRSFPY
(PRSFPY - per rentable square foot per year)
Base Year: Calendar 1996
Security Deposit: Tenant shall pay a Security Deposit of
$10,900.00 and First Month's Rent of
$9,668.88 upon execution of this lease.
Tenants Percentage Share of 5.61%
Operating Expenses and Property
Tax Escalations
Tenant's Broker BT Commercial
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Tenant's Address for Notice: 280 INC.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxx
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Landlord's Address for Notice: Xxxx'x Building Associates
c/o Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Exhibits: Exhibit A. Basic Lease Information
Exhibit B. Description of Premises
Exhibit C. Rules
Exhibit D. Construction Rider
Exhibit E. Construction Documents
Landlord: Tenant:
XXXX'X BUILDING ASSOCIATES. 280 INC.,
a California Limited Partnership a California Corporation
By RHGA, Inc., General Partner
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxx
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Xxxxx Xxxxxxxx, President Xxxxxxx Xxxx
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This Lease ("Lease") dated as of May 1, 1996, is entered into between
XXXX'X BUILDING ASSOCIATES, a California Limited Partnership ("Landlord"), and
280 INC. ("Tenant").
RECITALS
A. Landlord is the owner of real property ("Real Property") located at
1550 Xxxxxx, San Francisco and the building ("Building") located on it. The Real
Property and the Building are collectively the "Property."
B. Landlord desires to lease to Tenant, and Tenant desires to lease from
Landlord the Premises (as defined below) for the term and subject to the terms,
covenants, agreements, and conditions in this Lease.
For good and valuable consideration the receipt and adequacy of which are
acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
As used in this Lease, the following terms shall have the meanings
specified in this Section 1.
ALTERATIONS is defined in Section 8.
BASE OPERATING EXPENSES means the Operating Expenses paid or incurred by
Landlord in the Base Year.
BASE PROPERTY TAXES means the amount of Property Taxes for the tax year
ending June 30 of the Base Year.
BASE RENT means the Base Rent as set forth in the Basic Lease Information.
BASIC LEASE INFORMATION is attached to and incorporated in this Lease as
Exhibit A.
BUILDING means the building constructed on the Real Property known as 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, commonly known as the Xxxx'x Building,
any property interest in the area of The Xxxx'x Building and all other
improvements on or appurtenances to the Real Property or the streets abutting
the Real Property. The Building includes, but is not limited to, an office
building with twelve (12) floors of office space and an open air parking lot
located as shown on the attached site plan.
COMMENCEMENT DATE means the Commencement Date as set forth in the Basic
Lease Information.
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COMMON AREA means the total area on a floor consisting of rest rooms,
janitor, telephone and electrical closets, mechanical areas, public corridors
providing access to tenant space, public stairs, elevator shafts and pipe
shafts, together with their enclosing walls.
DEPOSIT is defined in Section 24.
ESCALATION RENT is defined in Section 4(a).
EVENT OF DEFAULT is defined in Section 18.
LANDLORD is defined in the preamble.
LEGAL REQUIREMENTS is defined in Section 14.
LEASE is defined in the preamble.
TENANT is defined in the preamble.
TENANT'S PERCENTAGE SHARE means the percentage figure specified as Tenant's
Percentage Share in the Basic Lease Information. Tenant's Percentage Share has
been obtained by dividing the net rentable area of the Premises, as specified in
the Basic Lease Information, by the total net rentable area of the Building,
which is 160,029 square feet, and multiplying that quotient by one hundred
(100). In the event the rentable area of the Premises is increased or decreased
by the addition to or deletion from the Premises of any office space, Tenant's
percentage share shall be appropriately adjusted. For the purposes of Section 4,
Tenant's Percentage Share shall be based on the number of days during the
calendar year in which this change occurs.
OPERATING EXPENSES means (a) all reasonable costs of management,
operation and maintenance of the Building determined by generally accepted
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accounting principles, including without limitation, wages, salaries and payroll
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burden of employees excluding employees above the rank of Building Manager,
property management fees and other related compensation: janitorial,
maintenance, security and other services: Building office rent or rental value
for a building office as small as reasonably practical to operate the building:
power, water, waste disposal and other utilities; materials and supplies;
maintenance and repairs (including the repair and replacement of glass and the
roof covering or membrane); permit and license costs; insurance premiums and the
deductible portion of any insured loss under Landlord's insurance; accounting,
legal or other professional fees of independent service providers who are not
employees of Landlord incurred in connection with operating the Building and the
calculation of Operating Expenses and Property Taxes; and (b) the cost of any
capital improvements made to the Building by Landlord after the Base Year that
(i) are made in the reasonable expectation of reducing other Operating Expenses,
or (ii) are required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed, the cost to be
amortized over the useful life of the capital improvements, together with
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interest on the unamortized balance at the rate equal to that paid by Landlord
on funds borrowed for the purpose of constructing or installing those capital
improvements. Operating expenses shall not include: property taxes; depreciation
on the Building other than depreciation on exterior window draperies, if any,
provided by Landlord, costs
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of tenant improvements; real estate brokers' commissions; interest; and capital
items other than those referred to in clause (b). Actual Operating Expenses for
both the Base year and each subsequent calendar year will be adjusted to equal
Landlord's reasonable estimate of Operating Expenses had ninety-five (95)
percent of the building been occupied.
PREMISES means the portion of the Building located on the floor or floors
specified in the Basic Lease Information which is cross-hatched on the Floor
plan or plans attached to this Lease as Exhibit B.
PROPERTY is defined in Recital A of this Lease.
PROPERTY TAXES means all real property taxes and general, special or
district assessments or other governmental impositions, of whatever kind,
imposed on or by reason of the ownership or use of the Property; governmental
charges, fees or assessments for police, fire or other governmental services;
service payments in lieu of taxes and taxes and assessments of every kind levied
in addition to, in lieu of or in substitution for existing or additional real or
personal property taxes on the Property; and all real estate tax consultant
expenses and attorney fees of consultants and attorneys who are not employees of
Landlord incurred for the purpose of maintaining an equitable assessed valuation
of the Building or contesting the validity of any taxes, assessments or charges
described above.
REAL PROPERTY is defined in Recital A of this Lease.
RENTABLE AREA means the rentable area of the premises specified on the
Basic Lease Information. If any office space is added to or deleted from the
Premises, the rentable area of the space added or deleted shall mean: (a) as to
an entire floor added to or deleted from the Premises, all areas within outside
permanent Building walls, measured to the inside glass surface of outside
permanent Building walls, including rest rooms, janitor, telephone, and
electrical closets; allocated mechanical areas and columns and projections
necessary to the Building, but excluding public stairs, elevator shafts, and
pipe shafts, together with their enclosing walls; (b) as to a portion of a floor
added to or deleted from the Premises, the aggregate of the usable area of the
portion of the floor added to or deleted from the Premises, plus the result
obtained by multiplying the area of the Common Area on this floor by a fraction,
the numerator of which is the aggregate of the usable area of the portion of the
floor added to or deleted from the Premises and the denominator of which is the
usable area of all tenant space on the floor.
TERM is defined in Section 3 of this Lease.
TERMINATION DATE means the Termination Date in the Basic Lease
Information.
USABLE AREA means all floor area in a tenant space, measured to the inside
glass surface of outer Building walls, to the office side of corridors and other
permanent partitions, and to the center of partitions that separate the tenant
space from adjoining tenant spaces, without deduction for columns and
projections necessary to the Building.
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SECTION 2. PREMISES.
Landlord leases to Tenant, and Tenant leases from Landlord the
Premises (as set forth in the Basic Lease Information) for the term and subject
to the terms, covenants, agreements, and conditions set forth in this Lease.
SECTION 3. TERM; CONDITION OF PREMISES.
The term ("Term") of this Lease shall commence on the Commencement
Date (as set forth in the Basic Lease Information) and, unless sooner terminated
as later provided, shall end on the Termination Date (as set forth on the Basic
Lease Information). Unless otherwise agreed by Landlord and Tenant in this
Lease, Landlord shall deliver the Premises to Tenant on the Commencement Date in
their then existing condition with no alterations being made by Landlord. If
Landlord has undertaken in this Lease to make any alterations to the Premises
before the Commencement Date and the alterations are completed before that
date, and if Tenant desires to take occupancy in advance of that date, Landlord
shall deliver the Premises to Tenant at that time in advance of a date that will
be mutually approved by Landlord and Tenant and, notwithstanding anything to the
contrary contained in this Lease, the Term of the Lease shall commence on
delivery. If Landlord, for any reason, cannot deliver the Premises to Tenant on
the Commencement Date, this Lease shall not be void or voidable, except as
otherwise provided in Exhibit D nor shall Landlord be liable to Tenant for any
loss or damage resulting from nondelivery, but in that event rental shall be
waived for the period between the Commencement Date and the time when Landlord
delivers the Premises to Tenant. No delay in delivery of the Premises shall
extend the Term of this Lease.
SECTION 4. RENTAL.
(a) Tenant shall pay to Landlord throughout the Term as rental for
the Premises the Base Rent, subject to the following adjustments:
(i) The rental payable during each calendar year subsequent to
the Base Year shall be the Base Rent, increased by Tenant's Percentage Share of
the total dollar increase, if any, in Operating Expenses paid or incurred by
Landlord in that year over the Base Operating Expenses, and also increased by
Tenant's Percentage Share of the total dollar increase, if any, in Property
Taxes paid by Landlord in that year over the Base Property Taxes. The increased
rental due pursuant to this Section 4(a)(i) is the Escalation Rent.
(b) Monthly Rental shall be paid to Landlord, in advance, on or
before the first day of the Term of this lease and on or before the first day of
each successive calendar month during the Term of this Lease. In the event the
Term of this Lease commences on a day other than the first day of a calendar
month or ends on a day other than the last day of a calendar month, the monthly
rental for the first and last fractional months of the Term of this Lease shall
be appropriately prorated.
(c) All sums of money due to Landlord under this Lease, not
specifically characterized as rental, shall constitute additional rent and shall
be due within thirty (30) days after receipt by Tenant of a billing. If any sum
is not paid when due, it shall be collectible as additional rent with the next
installment of rental falling due.
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(d) Tenant acknowledges that late payment of rent and other sums due under
this Lease after the expiration of any applicable cure period under Section
18(a) will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of which will be difficult to ascertain. These costs include, but
are not limited to, processing and accounting charges and late charges which may
be imposed on Landlord by the terms of any trust deed covering the Premises.
Accordingly, if any installment of rent or any other sums due from Tenant are
not received when due, or if a cure period is applicable under Section 18(a),
prior to the expiration of the cure period, Tenant shall pay to Landlord a late
charge equal to ten percent (10%) of the overdue amount. The parties agree that
the late charge represents a fair and reasonable estimate of the costs Landlord
will incur because of late payment. Acceptance of the late charge by Landlord
shall not constitute a waiver of Tenant's default for the overdue amount, nor
prevent Landlord from exercising the other rights and remedies granted under
this Lease.
xxxx [Initials of landlord] xxxx [Initials of Tenant]
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(e) Any amount due to Landlord other than monthly rental, if not paid
within five (5) days following the due date will bear interest from the due date
until paid at the rate of ten percent (10%) per year or, if a higher rate is
legally permissible, at the highest rate legally permitted. However, interest
shall not be payable on late charges incurred by Tenant nor on any amounts on
which late charges are paid by Tenant to the extent this interest would cause
the total interest to be in excess of that legally permitted. Payment of
interest shall not excuse or cure any default by Tenant.
(f) All payments due shall be paid to Landlord, without deduction or
offset, in lawful money of the United States of America at Landlord's address
for notices under this Lease or to another person or at another place as
Landlord may designate by notice to Tenant. If Tenant pays by check and the
check is returned for non-sufficient funds more than once, upon request of the
Landlord, the Tenant shall make future payments by cashiers check.
SECTION 5. ESCALATION RENT.
Escalation Rent shall be paid monthly on an estimated basis, with
subsequent annual reconciliation, in accordance with the following procedures:
(a) No later than fifteen (15) days prior to the end of the Base Year and
no later than fifteen (15) days prior to the end of each subsequent calendar
year, or as soon after that time as practicable, Landlord shall give Tenant
notice of Landlord's estimate of any Escalation Rent due under Section 4(a) for
the ensuing calendar year. On or before the first day of each month during the
ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of the
estimated Escalation Rent. If Landlord fails to give notice as required in this
Section, Tenant shall continue to pay on the basis of the prior year's estimate
until the month after that notice is given. If at any time it appears to
Landlord that the Escalation Rent for the current calendar year will vary from
the estimate, Landlord may, by notice to Tenant, revise the estimate for that
year, and subsequent payments by Tenant for that year shall be based on the
revised estimate.
(b) Within ninety (90) days after the close of each calendar year, or as
soon after the ninety (90) day period as practicable, Landlord shall deliver to
Tenant a statement of the actual Escalation Rent for that calendar year showing
Operation Expenses and Property Taxes on the basis of which the actual
Escalation Rent was determined. At Tenant's request, Landlord shall provide
Tenant reasonable supporting detail underlying the calculations of Operating
Expenses and
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Property Taxes. If Landlord's statement discloses that Tenant owes an amount
that is less than the estimated payments for the calendar year previously made
by Tenant, landlord shall credit the excess first against any sums then owed by
Tenant, and then against the next payments of rental due. If Landlord's
statement discloses that Tenant owes an amount that is more than the estimated
payments for the calendar year previously made by Tenant, Tenant shall pay the
deficiency to Landlord within thirty (30) days after delivery of the statement.
(c) Landlord shall maintain at all times during the term of this Lease, at
the office of Landlord in the Building or such other office as Landlord may
designate full, complete and accurate books of account and records prepared in
accordance with generally accepted accounting principles with respect to
Escalation Rent, and shall retain such books and records, as well as contracts,
bills, vouchers, and checks, and such other documents as are reasonably
necessary to properly audit the Escalation Rent. Upon reasonable notice from
Tenant, Landlord shall make available for Tenant's inspection (or inspection
performed by Tenant's accountant and/or consultants) at Landlord's office in the
Building, during normal business hours, Landlord's books and records relating to
the Escalation Rent for the previous calender year. If Tenant's inspection
reveals that Tenant was overcharged for escalation rent, the amount of the
overcharge shall be promptly refunded to Tenant.
(d) The amount of Escalation Rent for any fractional year in the Term
shall be appropriately prorated. The proration of Operating Expenses for the
calendar year in which termination occurs shall be calculated on the basis of a
fraction of the Operating Expenses for that entire calendar year, the proration
of Property Taxes for the calender year in which termination occurs shall be
calculated on the basis of a fraction of the Property Taxes for that entire
calender year, but shall exclude any Property Taxes attributable to any increase
in the assessed valuation of the Building occurring after termination. The
termination of this Lease shall not affect the obligations of the parties
pursuant to Section 5(b) to be performed after the termination.
SECTION 6. USE.
The Premises shall be used for general office purposes and software
development. Tenant shall not do or permit to be done on the Premises, nor bring
or keep or permit to be brought or kept in the Premises, anything (a) which is
prohibited by or in conflict with any law, ordinance, or governmental rule or,
(b) which is prohibited by the standard form of fire insurance policy or, (c)
which will increase the existing rate of or affect fire or other insurance on
the Building or its contents or cause a cancellation of any insurance policy
covering the Building or any part of it or its contents. Tenant shall not use or
store in the Premises any hazardous or toxic substances, with the sole exception
of reasonably necessary substances that are kept in reasonably necessary
quantities for normal office operations, provided that their use and storage are
in accordance with applicable laws. Tenant shall not do or permit anything to be
done on the Premises that will obstruct or interfere with the rights of other
tenants of the Building, or injure or annoy them, or use or allow the Premises
to be used for any unlawful purposes, nor shall Tenant cause, maintain, or
permit any nuisance or waste on or about the Premises.
SECTION 7. SERVICES.
(a) Landlord shall maintain the public and Common Areas of the Building,
including lobbies, stairs, elevators, corridors, rest rooms, all exterior
landscaping, windows, the mechanical, plumbing, and electrical equipment serving
the Building, and the structure itself, in reasonably good order and condition
so as to meet the reasonable needs of Tenant, except for damage, excluding
normal wear and tear, caused by the Tenant. Damage caused by Tenant, other than
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normal wear and tear by Tenant, shall be repaired by Landlord at Tenant's
expense. The standard of maintenance shall be equal to that of other office
buildings of a similar class in San Francisco, California.
(b) Landlord shall furnish (i) electricity for lighting and the operation
of office machines, (ii) heat and air conditioning, to the extent reasonably
required for the comfortable occupancy by Tenant in Tenant's use of the Premises
during the period from 7:00 a.m. to 7:00 p.m. on weekdays, except holidays, or a
shorter period as may be prescribed by applicable policies or regulations
adopted by any utility or governmental agency, (iii) elevator service,
(iv) lighting replacement, for building standard lights, (v) rest room supplies,
(vi) window washing with reasonable frequency, (vii) water for the rest rooms
and kitchen areas, and (viii) security guard services and daily janitor services
during the times and in the manner that these services are customarily furnished
in comparable office buildings in the area. Landlord may establish reasonable
measures to conserve energy and water, including but not limited to automatic
light shut off after hours and efficient lighting forms, so long as these
measures do not unreasonably interfere with Tenant's use of the Premises. Tenant
shall pay for the cost of utility and janitorial services with its premises.
(c) Landlord shall not be in default under this Lease, nor be liable for
any damages resulting from, nor shall the required rental be abated because of
(i) any reasonably necessary installation, use, or interruption of use of any
equipment in connection with furnishing the previously listed services, (ii)
failure to furnish or delay in furnishing these services, when failure or delay
is caused by accident or improvements to the Premises or to the Building, or
(iii) the limitation, curtailment rationing, or restrictions on use of water,
electricity, gas, or any other form of energy serving the Premises or the
Building. Landlord shall use reasonable efforts to diligently remedy
interruptions in the furnishing of these services.
SECTION 8. ALTERATIONS.
Tenant shall not make or allow any alterations, additions, or improvements
to the Premises or any part of the Premises, except for pre-occupancy tenant
improvements ("Alterations") as evidenced by Exhibit E ("Construction
Documents"), without Landlord's prior consent, which shall not be unreasonably
withheld. The installation of furnishings, fixtures, equipment, or decorative
improvements, none of which shall affect Building systems or the structure of
the Building, and the repainting or recarpeting of the Premises, shall not
constitute Alterations. All Alterations shall immediately become Landlord's
property and, at the end of the Term, shall remain on the Premises without
compensation to Tenant, unless Landlord elects by notice to Tenant at the time
of installation to have Tenant remove any Alterations that are peculiar to
Tenant's use of the Premises and are not normally required or used by other
tenants. In this event, Tenant shall bear the cost of restoring the Premises to
their condition prior to the installment of the Alterations.
SECTION 9. REPAIRS: LANDLORD'S RESERVATION OF RIGHTS.
(a) Tenant accepts the Premises as being in the condition in which
Landlord is obligated to deliver the Premises, subject to the tenant
improvements, if any, that Landlord has agreed to make. At all times during the
term of this Lease and at Tenant's sole cost, Tenant shall keep the Premises in
good condition and repair, ordinary wear and tear and damage to the Premises by
fire, earthquake, or act of God or the elements are excepted. Tenant waives all
rights to make repairs at the expense of Landlord or instead to vacate the
Premises, and Tenant further waives the provisions of Civil Code (SS) 1932(1),
1941 and 1942 with respect to Landlord's obligations under
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this Lease. At the end of the term of this Lease, Tenant shall surrender to
Landlord the Premises and all Alterations that are to remain in the Premises in
the same condition as when received; ordinary wear and tear and damage by fire,
earthquake, or act of God or the elements are excepted. Landlord has no
obligation and has made no promise to alter, remodel, improve, repair, decorate
or paint the Premises or any part of them, except as specifically set forth in
Exhibit E. Landlord has made no representations respecting the condition of the
Premises or the Building, except as specifically set forth in this Lease.
(b) Landlord reserves the right, at any time and from time to time,
without the same constituting an actual or constructive eviction, but provided
that Landlord does not unreasonably interfere with Tenant's use and occupancy of
the building, to (i) make alterations, additions, repairs, improvements to or
in, or to decrease the size of area of all or any part of the Building, the
fixtures and equipment therein, the heating, ventilation, air-conditioning,
plumbing, electrical, fire protection, life safety, security and all mechanical
systems of the building ("Building Systems"), the common areas and all other
parts of the Building; (ii) to change the arrangement and/or location of
entrances or passageways, doors and doorways, corridors, elevators, stairs,
toilets and other public parts of the Building and to create additional rentable
areas through use or enclosure of common areas; (iii) to change the Building's
name or street address or to change the room number or numbers of the Premises;
(iv) to install, affix and maintain any and all signs on the exterior and
interior of the Building.
SECTION 10. DAMAGE OR DESTRUCTION.
(a) In the event the Premises or any portion of the Building necessary for
Tenant's occupancy are damaged by fire, earthquake, act of God, the elements, or
other casualty, within thirty (30) days after that event, Landlord shall notify
Tenant of the estimated time, in Landlord's reasonable judgment, required for
repair or restoration. If the estimated time is thirty (30) days or less after
the commencement of the physical work and ninety (90) days or less after the
casualty event, Landlord shall proceed promptly and diligently to adjust the
loss with applicable insurers, to secure all required governmental permits and
approvals, and to repair or restore the Premises or the portion of the Building
necessary for Tenant's occupancy. This Lease shall remain in full force, except
that for the time unusable, Tenant shall receive a rental abatement for that
part of the Premises rendered unusable in the conduct of Tenant's business.
(b) If the estimated time for repair or restoration is in excess of thirty
(30) days after the commencement of the physical work or ninety (90) days after
the casualty event, Tenant or Landlord may elect to terminate this Lease as of
the date of the casualty event by giving notice to the other party within
fifteen (15) days following receipt of Landlord's notice of the estimated time
for repair.
SECTION 11. SUBROGATION.
Landlord and Tenant shall each obtain from their respective insurers
under all policies of fire, theft, public liability, worker's compensation, and
other insurance maintained during the term of this Lease covering the Building,
or any portion of it, or operations in it, a waiver of all rights of subrogation
that the insurer of one party might have against the other party. Landlord and
Tenant shall each indemnify the other against any loss or expense, including
reasonable attorney fees, resulting from the failure to obtain this waiver.
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SECTION 12. INSURANCE.
Tenant, at its expense, shall maintain in full force during the Term of
this Lease, a policy or policies of public liability and property damage
insurance insuring against all liability subject to standard ISO CGL policy
exclusions of Tenant and its representatives, agents and visitors for personal
or bodily injury or property damage arising out of or incurred in connection
with Tenant's use or occupancy of the Premises or the Property. Such policy or
policies subject to standard ISO CGL policy exclusions shall further insure the
indemnification obligations of Tenant under this Lease. Each policy of insurance
required under this Lease shall be in a form, in an account, and with an insurer
reasonably acceptable to Landlord, but no event less than $1,000,000 combined
single limit and shall require at least ten (10) days' written notice to
Landlord prior to any termination of the policy. Each policy of liability
insurance shall name the Landlord and its property managers as additional
insured and provide that it is primary, and not contributing with, any policy
carried by landlord covering the same loss. Tenant shall provide to Landlord,
upon request, evidence that the insurance required to be carried by Tenant is in
full force and effect and the premiums have been paid.
SECTION 13. INDEMNIFICATION.
(a) Tenant and Landlord each waives all claims against the other party for
damage to any property or injury or death of any person on the Premises arising
at any time and from any cause other than the sole negligence or willful
misconduct of the other party's employees, agents, or contractors. Tenant and
Landlord each shall hold the other party harmless from and defend the other
party against all claims, liability, damage, or loss arising out of any injury
or death of any person or damage to or destruction of property attributable to
the action or inaction of the indemnifying party, except that caused by the sole
negligence or willful misconduct the other party or its agents, contractors, or
employees. Tenant and Landlord each shall also hold the other party harmless
from any liability, cost, or expense arising from the indemnifying party's use
or storage on the property of any hazardous or toxic substance. These indemnity
obligations shall include reasonable attorney fees, investigation costs, and all
other reasonable costs incurred by the indemnified party from the first notice
that any claim or demand is to be made or may be made. The provisions of this
Section shall survive the termination of this Lease for any event occurring
prior to the termination.
SECTION 14. COMPLIANCE WITH LEGAL REQUIREMENTS.
At Tenant's sole cost, Tenant shall promptly comply with all laws and government
rules now or later in force; with the requirements of any board of fire
underwriters or other similar body now or in the future constituted; with any
direction or occupancy certificate issued by public officers ("Legal
Requirements"), insofar as they relate to the use, or occupancy of the Premises.
Excluded are (a) structural changes or changes to the electrical, mechanical, or
plumbing systems of the Building, except to the extent necessitated by Tenant's
acts or by improvements made for Tenant (other than the tenant improvements to
be made pursuant to this Lease by Landlord, (b) alterations or improvements to
the Building as a whole or the Premises of tenants generally that are not by law
the tenants' responsibility with which to comply and (e) work necessitated by
defects in the construction of the Building. Landlord shall comply in a timely
manner with all Legal Requirements that are not Tenant's responsibility under
this Section to the extent noncompliance would adversely affect Tenant's use or
occupancy of the Premises.
SECTION 15. ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise expressly permitted by this Lease. Tenant shall
not without the prior written consent of Landlord, which shall not be
unreasonably withheld or delayed, assign or
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hypothecate this Lease or any interest in this Lease, sublet the Premises or
any part of them, or license the use of the Premises by any party other than
Tenant. Neither this Lease nor any interest in this Lease shall be assignable
without the consent of Landlord, which shall not be unreasonably withheld or
delayed. Any of the previous acts without consent shall be void and shall, at
the option of Landlord, constitute a default under this Lease. Landlord shall
respond to Tenant's request for sublease within fifteen (15) days of receiving a
written request from Tenant and receipt of documentation regarding description
and financial condition of proposed Tenant and other necessary information as
required by Landlord.
(b) No sublessee shall have a right to further sublet without Landlord's
prior consent, which may not be unreasonably withheld, and any assignment by a
sublessee of the sublease shall be subject to Landlord's prior consent in the
same manner as if Tenant were entering into a new sublease.
(c) In the case of an assignment or subletting, any sums or economic
consideration received by Tenant as a result of the assignment or subletting
shall be paid to Landlord after first deducting (i) in the case of a sublet,
the rental due under this Lease, prorated to reflect only rental allocable to
the sublet portion of the Premises, (ii) any tenant improvements paid for by
tenant, and (iii) the cost of any real estate commissions, reasonable attorney
fees, or other third party professional services paid by Tenant in connection
with the assignment or subletting.
(d) Regardless of Landlord's consent, no subletting or assignment shall
release or alter Tenant's obligation or primary liability to pay the rental and
perform all other obligations under this Lease. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by any assignee or successor of Tenant in
the performance of any of the terms of this Lease, after notice of default to
Tenant pursuant to Section 18 and the expiration of any applicable cure period,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against the assignee or successor.
(e) If Tenant assigns this Lease, sublets the Premises, or requests the
consent of Landlord to any assignment, subletting, hypothecation, or other
action requiring Landlord's consent under this Lease, Tenant shall pay
Landlord's reasonable attorney fees incurred in connection with the action, not
to exceed nine hundred ($900.00) dollars.
SECTION 16. RULES.
Tenant shall comply with the rules attached to and incorporated in this
Lease as Exhibit C, and after notice, with all reasonable modifications and
additions to these rules, from time to time promulgated in writing by Landlord.
Landlord shall not be responsible to Tenant for the nonperformance of any of
these rules by any other tenant or occupant of the Building, but Landlord shall
take reasonable steps to enforce any rules, the nonperformance of which by other
tenants materially and adversely affects Tenant in the use of the Premises.
However, if any rule conflicts with any term, covenant, or condition of this
Lease, this Lease shall prevail. In addition, no rule, or any subsequent
amendments to it adopted by Landlord shall alter, reduce, or adversely affect
any of Tenant's rights or enlarge Tenant's obligations under this Lease.
SECTION 17. ENTRY BY LANDLORD.
Landlord may enter the Premises at reasonable hours with notice to Tenant
to (a) inspect the Premises; (b) exhibit the Premises to prospective purchasers,
lenders, or tenants; (c) determine whether Tenant is complying with all
obligations under this Lease; (d) supply janitorial service and
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any other services to be provided by Landlord under this Lease; (c) post notices
of nonresponsibility; and (f) make repairs or perform maintenance required of
Landlord by this Lease, make repairs to any adjoining space or utility services,
or make repairs, alterations, or improvements to any other portion of the
Building. However, all this work shall be done as promptly as reasonably
possible and cause as little interference to Tenant as reasonably possible.
Subject to Landlord's undertakings in the previous sentence, Tenant waives any
damage claims for inconvenience to or interference with Tenant's business or
loss of occupancy or quiet enjoyment of the Premises caused by Landlord's entry.
At all times Landlord shall have a key with which to unlock the doors on the
Premises, excluding Tenant's vaults, safes and similar areas designated as
secure areas in writing by Tenant in advance. In an emergency, Landlord shall
have the right to use any means that Landlord deems proper to open Tenant's
doors and enter the Premises. Entry to the Premises by Landlord in an emergency
shall not be construed as a forcible or unlawful entry, a detainer, or an actual
or constructive eviction of Tenant.
SECTION 18. EVENTS OF DEFAULT.
The following events shall constitute events of default under this Lease
(each an Event of Default):
(a) failure by Tenant to pay when due any rent or other sum payable under
this Lease and the continuation of the failure for ten (10) or more days after
notice of the default from Landlord;
(b) failure to make payments of rent when due under this Lease three (3)
or more times during any twelve (12) month period during the term of this
Lease;
(c) a default by Tenant in the performance of any of the terms, covenants,
agreements, or conditions in this Lease, other than a default by Tenant in the
payment when due of any rent or other sum payable under this Lease, and the
continuation of the default beyond fifteen (15) days after notice by Landlord
or, if the default is curable and would require more than fifteen (15) days to
remedy, beyond the time reasonably necessary for cure, provided, however, that
if Tenant has defaulted in the performance of the same obligation two (2) or
more times in twelve (12) months and notice of the default has been given by
Landlord in each instance, no notice shall be required after this until the
expiration of twelve (12) months without any default by Tenant;
(d) the bankruptcy or insolvency of Tenant, a transfer by Tenant in fraud
of creditors, an assignment by Tenant for the benefit of creditors, or the
commencement of proceedings of any kind by or against Tenant under the Federal
Bankruptcy Act or under any other insolvency, bankruptcy, or reorganization act,
unless Tenant is discharged from voluntary proceedings within ninety (90) days;
(e) the appointment of a receiver for a substantial part of Tenant's
assets;
(f) the abandonment of the Premises; and
(g) the levy upon this Lease or any estate of Tenant under this Lease by
attachment or execution and failure to have the attachment or execution vacated
within sixty (60) days.
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SECTION 19. TERMINATION UPON DEFAULT.
On occurrence of any Event of Default by Tenant, Landlord may, in addition
to any other rights and remedies given here or by law, terminate this Lease and
exercise remedies relating to it without further notice or demand in accordance
with the following provisions:
(a) So long as the Event of Default remains uncured, Landlord shall have
the right to give notice of termination to Tenant, and on the date specified in
this notice, this Lease shall terminate.
(b) If this Lease is terminated, Landlord may, by judicial process, reenter
the Premises, remove all persons and property, and repossess and enjoy the
Premises, all without prejudice to other remedies that Landlord may have because
of Tenant's default or the termination.
(c) If this Lease is terminated by Landlord, Landlord shall have all of the
rights and remedies of a landlord provided by Civil Code (S) 1951.2, in addition
to any other rights and remedies Landlord may have. The damages which Landlord
may recover shall include, without limitation (i) the worth at the time of award
of the unpaid rent which had been carried at the time of termination; (ii) the
worth at the time of award of the amount by which the unpaid rent which would
have been earned after termination until the time of the award exceeds the
amount of the rental loss that Tenant proves could have been reasonably avoided;
(iii) the worth at the time of award computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%) of the amount by which the unpaid rent for the balance of
the term after the time of award exceeds the amount of rental loss that Tenant
proves could be reasonably avoided; (iv) all reasonable legal expenses and other
related costs incurred by Landlord following Tenant's default; (v) all
reasonable costs incurred by Landlord in restoring the Premises to good order
and condition to relet the Premises; and (vi) all reasonable costs, including
without limitation, any brokerage commissions incurred by Landlord in reletting
the Premises. The remedies provided in this Lease are in addition to any other
remedies available to Landlord at law, in equity, by statute, or otherwise.
(d) Event though Tenant has breached this Lease and abandoned the Premises,
this Lease shall continue in effect for so long as Landlord does not terminate
Tenant's right to possession and Landlord may enforce all rights and remedies
under this Lease, including the right to recover the rental as it becomes due
under this Lease. Acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver upon initiative of landlord to
protect Landlord's interest under this Lease shall not constitute a termination
of Tenant's right to possession.
SECTION 20. ATTORNEY FEES.
If, as a result of a breach or default under this Lease, Landlord uses an
attorney to secure compliance with Lease provisions to recover damages, to
terminate this Lease, or to evict Tenant, Tenant shall reimburse Landlord, on
demand, for all reasonable attorney fees and expenses incurred by Landlord;
provided that, if Tenant becomes the prevailing party in any legal action
brought by Landlord, Tenant shall be entitled to recover reasonable attorney
fees and expenses incurred by Tenant and need not reimburse Landlord for any
attorney fees and expenses incurred by Landlord.
SECTION 21. EMINENT DOMAIN.
If all or any part of the Premises are taken through eminent domain, this Lease
shall terminate for the part taken as of the date of taking. For a partial
taking, either Landlord or Tenant shall have the right to terminate this Lease
for the balance of the Premises by notice to the other within thirty
14
(30) days after the taking. However, Tenant's right to terminate arises only if
the portion of the Premises taken substantially handicaps, impedes, or impairs
Tenant's use of the balance of the Premises. In the event of any taking,
Landlord shall be entitled to all compensation, damages, income, rent, awards,
or any interest that may be paid in connection with the taking, except for any
portion specifically awarded to Tenant for moving expenses, trade fixtures,
equipment, and any leasehold improvements in the Premises to the extent of the
then unamortized value of these improvements for the remaining term of the
Lease as determined in the award. However, Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease or otherwise, other
than for prepaid rent. In the event of a partial taking of the Premises that
does not result in a termination of this Lease, the subsequent monthly rental
shall be equitably reduced.
SECTION 22. ESTOPPEL CERTIFICATE.
At any time with at least fifteen (15) days' prior notice by Landlord,
Tenant shall execute, acknowledge, and deliver to Landlord a certificate in a
form satisfactory to Landlord certifying: (a) that this Lease is unmodified and
in full force or, if there have been modifications, that this Lease is in full
force, as modified, together with the date and nature of each modification. (b)
the amount of the Base Rent, most recent Escalation Rent, if any, and the date
to which the rent has been paid, (c) that no notice has been received by Tenant
of any default that has not been xxxx, except defaults specified in the
certificate, (d) that no default of Landlord is claimed by Tenant, except
defaults specified in the certificate, and (e) other matters as may be
reasonably requested by Landlord. Any certificate may be relied on by
prospective purchasers, mortgagees, or beneficiaries under any deed of trust on
the Building or any part of it.
SECTION 23. HOLDING OVER.
(a) If, without objection by Landlord, Tenant holds possession of the
Premises after expiration of the term of this Lease, Tenant shall become a
tenant from month-to-month on the terms specified in this Lease, except those
pertaining to term, option to extend, but at a monthly rental negotiable between
the Parties, payable in advance on or before the first day of each month. Each
party shall give the other notice of intention to terminate the tenancy at least
one (1) month prior to the date of termination of a monthly tenancy
(b) If, over Landlord's objection, Tenant holds possession of the Premises
after expiration of the term of this Lease or expiration of the holdover
tenancy. Tenant shall be deemed to be a tenant-at-sufferance and, without
limiting the liability of Tenant for unauthorized occupancy of the Premises,
Tenant shall indemnify Landlord and any replacement tenant for the Premises for
any damages or loss suffered by either Landlord or the replacement tenant
resulting from Tenant's failure to vacate the Premises in a timely manner. The
monthly rental shall be at one hundred and fifty percent (150%) of the then
prevailing monthly rental paid by tenant.
SECTION 24. SECURITY DEPOSIT.
Tenant has deposited with Landlord the sum specified in the Basic Lease
Information (Deposit). The Deposit shall be held by Landlord as security for the
faithful performance by Tenant of all provisions of this Lease. If Tenant fails
to pay rent or other sums due under this Lease or defaults with respect to any
provision of this Lease, Landlord may use, apply, or retain all or any portion
of the Deposit for the payment of rent or other sums in default, for the payment
of any other sums to which Landlord may become obligated because of Tenant's
default, or to compensate Landlord for any loss or damage that Landlord may
suffer because of the Tenant's actions. If Landlord uses or applies the Deposit,
Tenant shall, within ten (10) days after demand,
15
deposit cash with Landlord in an amount sufficient to restore the Deposit to the
full amount, and Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep the Deposit separate from
Landlord's general accounts. If Tenant performs all of Tenant's obligations
under this Lease, the Deposit or the amount not applied by Landlord shall be
returned, without interest, to Tenant or at Landlord's option, to the last
assignee, if any, of Tenant's interest under this Lease at the expiration of the
Term and after Tenant has vacated the Premises. No trust relationship is created
between Landlord and Tenant with respect to the Deposit.
SECTION 25. LANDLORD'S LIABILITY.
Notwithstanding any other term or provision of this Lease, the liability of
the Landlord for its obligations under this lease is limited solely to
Landlord's interest in the Property as the same may from time to time be
encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord's
stockholders, directors, officers or partners on account of any of the
Landlord's actions or obligations under this Lease. In addition, in the event of
the conveyance of title to the Building or the Project, then from and after the
date of such conveyance, Landlord shall be relieved of all liability with
respect to Landlord's obligations to be performed under this Lease.
SECTION 26. BROKERS.
Tenant warrants and represents to Landlord that in the negotiating or
making of this Lease neither Tenant nor anyone acting on its behalf has dealt
with any real estate broker or finder who might be entitled to a fee or
commission for this Lease other than the Broker identified in Exhibit A: Basic
Lease information, whose commission is to be paid by Landlord. 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 any other broker
or finder for a commission based upon any dealings with or statements made by
Tenant or its representatives.
SECTION 27. SMOKING.
Smoking in the offices is prohibited.
SECTION 28. ENTIRE AGREEMENT.
There are no oral agreements between Landlord and Tenant affecting this
Lease, and this Lease supersedes and cancels all previous negotiations,
arrangements, brochures, agreements, and understandings between Landlord and
Tenant or displayed by Landlord to Tenant with respect to the subject matter of
this Lease. There are no representations between Landlord and Tenant other than
those contained in this Lease. All implied warranties, including implied
warranties of merchantability and fitness, are excluded.
SECTION 29. ILLEGALITY OR UNENFORCEABILITY OF PORTION OF LEASE.
If any provision of this Lease is determined to be illegal or
unenforceable, this determination shall not affect any other provision of this
Lease, and all other provisions shall remain in full force and effect.
SECTION 30. GOVERNING LAW.
This Lease shall be governed by and construed pursuant to law of the State
of California.
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SECTION 31. PARKING.
Tenant shall have the option to rent two (2) reserved parking spaces in Lot
A and two (2) in Lot B from Landlord for the duration of this Lease at the
prevailing building rate. Tenant shall be allowed its pro-rata share of parking
permits for Lot B so long as spaces are available.
SECTION 32. OPTION TO EXPAND.
Tenant shall have the option to expand into the adjacent premises, as shown in
Exhibit B anytime during the initial eighteen (18) months of the lease term. The
terms and conditions of the lease for the expansion space shall remain the same
as the original lease, and the tenant improvement contribution and rental rate
shall run parallel to the terms, subject to rental adjustments, as set forth in
the original lease.
SECTION 33. QUIET ENJOYMENT.
Landlord agrees to and shall in the commencement of this Lease place Tenant in
quiet possession of the premises and shall secure it in the quiet possession
thereof against all persons lawfully claiming the same during the lease term.
SECTION 34. RIGHT OF FIRST REFUSAL.
Tenant shall have a one (1) time right of first refusal to lease the adjacent
premises or any part thereof, as designated on Exhibit B, during the first
thirty-six (36) months of the lease term. Landlord shall provide Tenant with an
executed letter of intent which shall set forth a) the term of the lease, b)
the rent to be paid and c) the tenant improvement allowance from Landlord.
Tenant shall have ten (10) days from the date of receipt of this notice within
which to provide Landlord with written notice of either acceptance or rejection.
In the event notice is not received within ten (10) days, it shall be deemed
that Tenant rejects this right of first refusal.
SECTION 35. TEMPORARY OCCUPANCY.
Tenant shall be allowed the use of temporary space in the building of at least
three thousand (3,000) rentable square feet. The rental rate shall be Three
Thousand Dollars ($3,000.00) per month, fully serviced, until such time as
Landlord delivers the third floor premises to Tenant Substantially Complete.
SECTION 36. AUTOMATIC SUBORDINATION.
This lease is subject and subordinate to
(a) The lien of any mortgages, deeds of trust, or other encumbrances of
the Building and real Property;
(b) All present and future ground or underlying leases of the Building and
real Property now or hereafter in force against the Building and real Property;
(c) All renewals, extensions, modifications, consolidations, and
replacements of the items described in subparagraphs (a) - (b): and
(d) All advances made or hereafter to be made on the security of the
Encumbrances.
Despite any other provision of this Section 36, any Encumbrance holder or lessor
may elect that this lease shall be senior to and have priority over that
Encumbrance or Underlying Lease whether this lease is dated before or after the
date of the Encumbrance or Underlying Lease.
Tenant covenants and agrees to attorn to the transferee of Landlord's interest
in the Real Property by foreclosure, deed in lieu of foreclosure, exercise of
any remedy provided in any Encumbrance or Underlying Lease, or operation of law
(without any deductions or setoffs), if requested to do so by
17
the transferee, and to recognize the transferee as the lessor under this Lease,
provided Transferee agrees to Tenant's quiet possession. The transferee shall
not be liable for:
(a) Any acts, omissions, or defaults of Landlord that occurred before the
sale or conveyance or
(b) the return of any security deposit expect for deposits actually paid
to the transferee.
SECTION 37. EXHIBITS.
The exhibits specified in the Basic Lease Information are attached to this
Lease and by this reference made a part of it.
The parties have executed this Lease as of the date first set forth above.
Landlord: Tenant:
XXXX'X BUILDING ASSOCIATES, a 280 INC., a California Corporation
California Limited Partnership
by: RHGA, Inc., General Partner
By: /s/ Xxxxx Xxxxxxxx By /s/ Xxxxxxx Xxxx
------------------------------- --------------------------------
Xxxxx Xxxxxxxx, President Xxxxxxx Xxxx
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Exhibit B. Description of the Premises
[Floor Plan Omitted]
EXHIBIT C. RULES
1. The sidewalks, halls, passages, exits, entrances, shopping malls,
elevators, escalators, and stairways of the Building shall not be obstructed by
any of the tenants or used for any purpose other than for ingress to and egress
from their respective Premises. The halls, passages, exits, entrances, shopping
malls, elevators, escalators, and stairways are not for the general public, and
Landlord shall in all cases retain the right to control and prevent access to
them by all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation, and interests of the Building
and its tenants. However, nothing here shall be construed to prevent access to
persons with whom any tenant normally deals in the ordinary course of business,
unless these persons are engaged in illegal activities. No tenant and no
employee or invitee of any tenant shall go on the roof of the Building.
2. A sign, placard, picture, name advertisement, or notice visible from
the exterior of any tenant's Premises shall not be inscribed, painted, affixed,
or otherwise displayed by any tenant on any part of the Building without the
prior written consent of Landlord. Landlord will adopt and furnish to tenants
general guidelines relating to signs inside the Building on the office floors.
Each tenant shall conform to these guidelines, but may request approval of
Landlord for modifications, which will not be unreasonably withheld. All
approved signs or lettering on doors shall be printed, painted, affixed, or
inscribed at the expense of the tenant by a person approved by Landlord, which
will not be unreasonably withheld. Material visible from outside the Building
will not be permitted.
3. The Premises of each tenant shall not be used for the storage of
merchandise held for sale to the general public or for lodging. No cooking
shall be done or permitted by any tenant on the Premises, except that (a) each
tenant may establish and operate a lunchroom facility for use by tenant's
employees, and (b) each tenant may use and install food and beverage vending
machines and Underwriter's Laboratory approved microwave ovens and equipment for
brewing coffee, tea, hot chocolate, and similar beverages, provided that
adequate provisions are made for venting and control of odors and all facilities
and equipment are in accordance with all applicable federal, state, and city
laws, codes, ordinances, rules, and regulations.
4. No tenant shall employ and person other than Landlord's janitorial
service for cleaning the Premises, unless otherwise approved by Landlord. No
person other than those approved by Landlord shall be permitted to enter the
Building to clean it. No tenant shall cause any unnecessary labor because of
carelessness or indifference in the preservation of good order and cleanliness.
Janitor service will not be furnished on nights when rooms are occupied after
9.30 p.m. unless, by prior arrangement with Landlord, service is extended to a
later hour for specifically designated rooms.
5. Landlord will furnish each tenant, free of charge, two keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. No tenant shall have any keys made. No tenant shall alter
any lock or install a new or additional lock or any bolt on any door of the
premises without the prior consent of Landlord which will not be unreasonably
withheld. The tenant shall in each case furnish Landlord with a key for any
lock. Each tenant, upon the termination of the tenancy, shall deliver to
Landlord all keys to doors in the Building that have been furnished to the
tenant.
20
6. The freight elevator shall be available for use by all tenants in the
Building, subject to reasonable scheduling as Landlord deems appropriate. The
persons employed to move equipment in or out of the Building must be acceptable
to Landlord. Landlord shall have the right to prescribe the weight, size and
position of all equipment, materials, furniture, or other property brought into
the Building. Heavy objects shall, if considered necessary by Landlord, stand on
wood strips of a thickness necessary to properly distribute the weight. Landlord
will not be responsible for loss of or damage to any property from any cause,
and all damage done to the Building by moving or maintaining property shall be
repaired at the expense of the tenant.
7. No tenant shall use or keep in the Premises or the Building any
kerosene, gasoline, or inflammable or combustible fluid or material other than
limited quantities reasonably necessary for the operation or maintenance of
office equipment, and may not, without Landlord's prior approval, use any method
of heating or air conditioning other than that supplied by Landlord. No tenant
shall use or keep any foul, noxious, or hazardous gas or substance in the
Premises, or permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building
because of noise, odors, or vibrations, or interfere in any way with other
tenants or those having business in the Building. No pets shall be kept in the
Premises.
8. Landlord shall have the right, exercisable without notice and without
liability to any Tenant, to change the name and street address of the Building.
9. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 7:00 a.m. and at all hours on Saturdays, Sundays, and
legal holidays any person who does not present a proper access card or other
identification as a tenant or an employee of a tenant, or who does not otherwise
present proper authorization by a tenant for access to the premises. Each tenant
shall be responsible for all persons for whom it authorizes access and shall be
liable to Landlord for all acts of these persons. Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In the case of invasion, mob, riot, public
excitement, or other circumstances rendering an action advisable in Landlord's
opinion, Landlord reserves the right to prevent access to the Building during
the continuance of the circumstance by any action Landlord deems appropriate.
10. A directory of the Building will be provided to display the name and
location of tenants, their subtenants, and a reasonable number of the principal
officers and employees of tenants, and Landlord reserves the right to exclude
any other names. Any additional name that a tenant desires to have added to the
directory shall be subject to Landlord's approval and may be subject to a
charge.
11. No curtains, draperies, blinds, shutters, shades, screens, or other
coverings, hangings, or decorations shall be attached to, hung, or placed in, or
used in connection with any exterior window in the Building without the prior
consent of Landlord. If consented to by Landlord, these items shall be installed
on the office side of the standard window covering and shall in no way be
visible from the exterior of the Building.
12. Messenger services and suppliers of bottled water, food, beverages,
and other products or services shall be subject to reasonable regulations as may
be adopted by Landlord.
13. Each tenant shall see that the doors of the premises are closed and
locked and that all water faucets or apparatus, cooking facilities, and office
equipment, excluding office equipment
21
required to be operative at all times, are shut off before the tenant or
employees leave the Premises at night, so as to prevent waste or damage. For any
default or carelessness in this regard the tenant shall be responsible for any
damage sustained by other tenants or occupants of the Building or Landlord. On
multiple-tenancy floors, tenants shall keep the doors to the Building corridors
closed at all times except for ingress and egress.
14. The toilets, urinals, wash bowls, and other rest room facilities shall
not be used for any purpose other than that for which they were constructed. No
foreign substance of any kind shall be thrown in them, and the expense of any
breakage, stoppage, or damage resulting from the violation of this rule shall be
borne by the tenant who, or whose employees or invitees, have caused it.
15. Except with the prior consent of Landlord, no tenant shall sell, or
permit the sale at retail of newspapers, magazines, periodicals, theater
tickets, or any other goods or merchandise to the general public in the
Premises, nor shall any tenant carry on, permit, or allow any employee or other
person to carry on the business of stenography, typewriting, or any similar
business in or from the Premises for the service or accommodation of occupants
of any other portion of the Building, nor shall the Premises of any tenant be
used for manufacturing of any kind, or any business or activity other than that
specifically provided for in the tenant's lease.
16. No tenant shall install any antenna, loudspeaker, or other device on
the roof or exterior walls of the Building.
17. No motorcycles or motor scooters shall be parked or stored anywhere in
the Building other than the garage of the Building, and no bicycles may be
parked or stored anywhere in the Building other than in facilities provided in
the garage or the Common Area of the Building.
18. Hand trucks or other material handling equipment, except those
equipped with rubber tires and side guards, may not be used in any portion of
the Building unless approved by Landlord.
19. Each tenant shall store refuse within that tenant's premises. No
material of a nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of refuse in the city of San
Francisco without being in violation of any law or ordinance governing this
disposal shall be placed in the refuse boxes or receptacles. All refuse disposal
shall be made only through entryways and elevators provided for these purposes
and at the times Landlord shall designate.
20. Canvassing, peddling, soliciting, and distributing handbills or any
other written materials in the Building is prohibited, and each tenant shall
cooperate to prevent this type of occurrence.
21. Smoking of cigarettes, cigars, pipes, or any other form of tobacco is
prohibited in the Building. Tenant shall not permit its employees, guest or
invitees to smoke in any portion of the Building or Premises.
22. The requirements of the tenants will be attended to only on
application by telephone or in person at the office of the Building. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord.
22
23. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant, so long as Tenant's use of the Premises is
not adversely affected by the waiver, and no waiver by Landlord shall be
construed as a waiver of the Rules in favor of any other tenant, nor prevent
Landlord from later enforcing any of the Rules against any of the tenants of the
Building.
24. These Rules are in addition to, and shall not be construed to modify
or amend, in whole or in part, the terms, covenants, agreements, and conditions
of any lease of Premises in the Building.
25. Landlord reserves the right to make other reasonable rules as Landlord
judges may be needed for the safety, care, and cleanliness of the Building, and
for the preservation of good order, provided that Tenant's use and occupancy of
the Premises shall not be adversely affected by other rules.
23
EXHIBIT D
CONSTRUCTION RIDER
------------------
1. TENANT IMPROVEMENTS
-------------------
Landlord shall, with reasonable diligence through a contractor selected by
Landlord construct and install in the Premises the improvements and fixtures
provided for on the attached Exhibit E ("Construction Documents"). Improvements
consisting of the type and amount of work and materials described on Exhibit E
attached to this Construction Rider and referred to herein as "Building Standard
Tenant Improvements." All Tenant Improvements in addition to or in substitution
for or modification of the Building Standard Tenant Improvements are referred to
herein as "Above-Standard Tenant Improvements." In the event that Landlord is
required to make significant alterations to the Building (other than to the
Premises) as a condition of obtaining a building permit to construct the Tenant
Improvements, Landlord at its option may terminate this Lease and be relieved of
any further obligation hereunder other than the return of the security deposit
and any prepaid rent. Landlord shall have thirty (30) days from receipt of a
building permit to notify Tenant of said termination, if any.
2. PLANS
-----
Landlord will retain Xxxxx Xxxxx as the space planner/architect for the
Premises ("Space Planner") who will prepare Construction Documents for the
Premises.
Additional interior decorating services and advice on the furnishings and
decoration of the Premises, such as the selection of fixtures, furnishings,
design of millwork or other Above Standard Tenant Improvements required by
Tenant, shall be provided by Tenant at its expense, but shall be subject to the
reasonable approval of Landlord.
3. CONSTRUCTION
------------
Upon Landlord's receipt of the Construction Documents by the Space Planner,
Landlord shall use best efforts to cause the Tenant Improvements to be
Substantially Completed on or prior to the Scheduled Commencement Date. The term
"Substantially Complete" or "Substantial Completion" as used in the Lease or
this Agreement shall mean; (1) the shell and core of the Building are complete
and in compliance with all applicable laws, statutes, codes, rules and
regulations (collectively, "Laws" and all of the Building's heating,
ventilating, air-conditioning ("HVAC"), and plumbing, life safety, telephone
cable, mechanical and/or electrical Systems (collectively, "Building Systems")
are operational to the extent necessary to service the Premises; (2) Landlord
has sufficiently completed all work required to be performed by Landlord in
accordance with this Construction Rider (except for finishing details, minor
omissions, decorations and mechanical adjustments of the type normally found on
an architectural "punch list" and minor punch list items the completion of which
will not interfere with Tenant's ability to conduct Tenant's normal business
operations in the Premises) such that Tenant can conduct normal business
operations from the Premises; and (3) Landlord has obtained a certificate of
occupancy for the Building, or a temporary certificate of occupancy for that
portion of the building that includes all of the Premises, or its equivalent.
24
Following Substantial Completion of the Tenant Improvements and within
thirty (30) days after Tenant takes possession of the Premises, Landlord and
Tenant shall inspect the Premises and jointly prepare a "punch list" of agreed
items of construction remaining to be completed. Landlord shall complete the
items set forth in the punch list as soon as reasonably possible. Tenant shall
cooperate with and accommodate Landlord and its workers in completing the items
on the punch list.
The Tenant Improvements shall be limited to the Building Standard Tenant
improvements, and only additional alterations or improvements to the Premises
desired by Tenant shall be made after the commencement of the term of the Lease
and shall be subject to the provisions of Section 8 "Alterations" of the Lease.
4. COST OF TENANT IMPROVEMENTS
---------------------------
Landlord shall contribute Twenty Five Dollars ($25,00) per rentable square foot
towards the cost of the Tenant Improvements (The "TENANT IMPROVEMENT ALLOWANCE")
from existing "As Is" condition. The Tenant Improvement cost to be paid from the
Tenant Improvement Allowance, shall include but not be limited to:
(a) All costs of permit, architecture, engineering, plans and
specifications for the Tenant Improvements.
(b) All costs of obtaining building permits and other necessary
authorizations for the City of San Francisco.
(c) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises.
(d) Cost of Construction Management Services (not to exceed $10,000,00).
(e) The cost of installing a separate meter for utilities.
Tenant shall be responsible for all costs of design, construction and related
costs, in excess of Landlord's initial Tenant Improvement Allowance ("Tenant's
Construction Costs").
5. CHANGES
-------
If Tenant requests any change, addition in or to any Construction Documents
("Changes"), Landlord shall cause the architect and contractor to prepare
additional Plans and estimates implementing such Change. As soon as practicable
after the completion of such additional plans and estimates, the Landlord shall
provide Tenant with the estimated cost of the Changes. Within three (3) working
days after receipt of such cost estimate, Tenant shall notify Landlord in
writing whether Tenant approves the Change.
If Tenant approves the Change, Landlord shall proceed with the Change and Tenant
shall be liable for any Additional Cost resulting from the Change including
architectural costs, permit and related fees, and all costs of construction
related to said change. If Tenant fails to approve the Change within such three
(3) day period, construction of the Tenant Improvements shall proceed as
provided in accordance with the original Construction Documents.
6. DELAYS
------
Tenant shall be responsible for, and shall pay to Landlord, any and all
costs and expenses incurred by Landlord in connection with any delay in the
commencement or completion of any
25
Tenant improvements and any additional cost caused by (i) Tenant's failure to
approve any space plan or Construction Documents within the time periods
herein, (ii) any delays in obtaining any items or materials constituting part
of the Above Standard Tenant Improvements requested by Tenant, or (iii) any
other delay requested or caused by Tenant ("Tenant Delay"). The term "Landlord
Delay" as used in this Agreement, or the Addendum shall mean any delay in the
completion of the Tenant Improvements which is due to any act or omission of
Landlord (wrongful, negligent or otherwise), its agents or contractors
(including acts or omissions while acting as agent or contractor for Tenant).
The term Landlord Delay shall include, but shall not be limited to any; (1)
delay in the giving of authorizations or approvals by Landlord; (2) delay
attributable to the acts or failures to act, whether willful, negligent or
otherwise, of Landlord, its agents or contractors, where such acts or failures
to act delay the completion of the Tenant Improvements; and (3) delay
attributable to Landlord's failure to allow Tenant sufficient access to the
Building and/or Premises during the move-in period to move into the Premises
over one (1) weekend. In no event shall Tenants remedies or entitlements for the
occurrence of a Landlord Delay be abated, deferred, diminished or rendered
inoperative because of a prior, concurrent, or subsequent delay resulting from
any action or inaction of Tenant. No Landlord Delay shall be deemed to have
occurred unless and until Tenant has given written notice to Landlord specifying
the action or inaction which Tenant contends constitutes a Landlord Delay. If
such action or inaction is not cured within five (5) business days after
Landlord's receipt of such notice, then a Landlord Delay, as set forth in such
notice, shall be deemed to have occurred commencing as of the date Landlord
received such notice and continuing for the number of days the Substantial
Completion of the Premises was in fact delayed as a direct result of such action
or inaction.
Notwithstanding the Commencement Date provided in the Leasae, Tenant's
obligation for the payment of rent thereunder shall not commence until Landlord
has substantially completed all work to be performed by Landlord as set forth
herein; provided, however, that
(a) if Landlord is delayed in Substantially Completing the Tenant
Improvements solely as a result of Tenant Delay, then the abatement of rent
provided for herein shall continue only until the date on which Landlord would
have Substantially Completed the Tenant Improvements but for such delays
(b) in the event Landlord is unable to tender possession of the
Premises, Substantially Complete, to Tenant on the Scheduled Commencement Date
due to Force Majeure Delay or Landlord Delay, The Commencement Date, and the
commencement of the abatement of rent afforded Tenant, shall be postponed until
the date upon which Landlord shall tender possession of the Premises with the
Tenant improvements Substantially Complete to Tenant Additionally, to the extent
that Landlord is unable to so tender possession due to Landlord Delay, Tenant
shall receive one (1) additional day of rental abatement for each such day of
Landlord Delay.
7. COMMENCEMENT OF TERM
--------------------
Upon Substantial Completion of the Tenant Improvements, Landlord shall
deliver possession of the Premises to Tenant. If Landlord has not Substantially
Completed the Tenant Improvements and tendered possession of the Premises to
Tenant on or before the Scheduled Commencement Date specified in Section 3 xxxx
Condition of Premises" of the Lease, or if Landlord, using its best efforts, is
unable for any other reason to deliver possession of the Premises to Tenant on
or before such date, neither Landlord nor its representatives shall be liable to
Tenant for any damage resulting from the delay in completing such construction
obligations and/or
26
delivering possession to Tenant and the Lease shall remain in full force and
effect unless and until it is terminated under the express provisions of this
Paragraph. In such event the Commencement Date shall be the actual date of
delivery of possession of the Substantially Completed Premises to Tenant,
provided, however, that if and to the extent that any delays in the Commencement
Date are attributable to (1) delays by Tenant to submitting information to the
Space Planner or in approving Construction Documents, (ii) any delays in
obtaining any items or materials constructing part of the Above Standard Tenant
Improvements requested by Tenant, or (iii) any other early requested by or
caused by Tenant Delay, then the term of the lease shall commence and the
Commencement Date shall be deemed to have occurred on the date which Landlord
would have Substantially Completed the Premises and tendered the premises to
Tenant but for such Tenant Delay.
8. ACCESS TO PREMISES
------------------
Landlord, at its discretion, may allow Tenant or Tenant's Representatives
to enter the Premises prior to the Commencement Date to permit Tenant to make
the Premises ready for its 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 12-
"Insurance," 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, and Tenant or its
Representatives shall not interfere with Landlord or Landlord's contractor in
completing the Tenant Improvements.
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 of the Premises by Tenant
or its Representatives.
9. OWNERSHIP OF TENANT IMPROVEMENTS
--------------------------------
All Tenant Improvements, whether Building Standard or Above Standard and
whether installed by Landlord or Tenant, shall become a part of the Premises,
shall be the Property of Landlord and shall be surrendered by Tenant with the
Premises, without any compensation to Tenant, at the expiration or termination
of the Lease in accordance with Section -8- "Alterations" of the Lease.
[Initials of Landlord]__ __ [Initials of Tenant]__ __
27
EXHIBIT A
EXPANSION AGREEMENT
This Expansion Agreement will incorporate the terms and conditions of the Lease
executed by 280 Inc., a California Corporation and Xxxx'x Building Association,
a California Limited Partnership on May 1st, 1996 and where the terms and
conditions differ, the Expansion Addendum will prevail.
LANDLORD: Xxxx'x Building
TENANT: 280 Inc.
PREMISES: That portion of the third floor
designated on the attached floor plan.
RENTABLE AREA
OF PREMISES: Approximately 4,247.
COMMENCEMENT DATE: Upon Landlord's substantial completion
of Tenant improvements.
TERMINATION DATE: September 17, 2001.
RENT: a. $5833.11 per month which includes
$0.12 /square foot per month to reflect
utility usage and the sum of $354.48 per
month to reflect amortization of $14,152
of Tenant Improvement Cost.
b. As of September 17, 1998, the above
rent shall be increased by 4% per annum
until lease expiration.
SECURITY DEPOSIT: Tenant shall pay a security deposit of
$5,833.11 and first months rent of
$5,833.11 upon occupancy of the subject
space.
TENANT PERCENTAGE OF
OPERATING EXPENSES AND
PROPERTY TAX ESCALATIONS: 3.76
CONSTRUCTION RIDER: Tenant shall be allowed the sum of
$124,128 towards the cost of
improvements from existing "AS IS"
condition. In the event any changes are
made either by yourself or the City of
San Francisco or additional costs are
incurred, you shall be responsible for that
difference to be paid at time of occupancy,
CONSTRUCTION: Tenant and Landlord have executed and
approved plans and specifications which will
built in accordance with those documents. The
Construction Rider attached to the Lease of
May 1st, 1996 shall be amended by this
Expansion Amendment.
PARKING; Tenant shall be allowed one additional
parking space in Lot A at the prevailing
rate.
XXXX'X BUILDING ASSOCIATES, a 280 INC., a California
California Limited Partnership Corporation
By: RHGA, Inc., General Partner
BY: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxx
------------------ ----------------
Xxxxx Xxxxxxxx Xxxxxxx Xxxx
